Find Legal Information

JUSTICE SLATER delivered the opinion of the court:

____________________________________________________________________________________

The defendant, Freddie Lee Lott, was convicted of firstdegree murder (Ill. Rev. Stat. 1983, ch. 38, par. 9--1(a)(3)) andsentenced to 60 years' imprisonment. His petition for relieffrom judgment under section 2--1401 of the Code of CivilProcedure (Code) (735 ILCS 5/2--1401 (West 2000)) was dismissedas untimely. On appeal, the defendant claims that his sentenceis void in light of Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.

Following a jury trial, the defendant was convicted of firstdegree murder. At the conclusion of the sentencing hearing, thetrial court imposed a 60-year term on the defendant.⁽¹⁾ The courtstated that the sentence was based on the defendant's criminalhistory and its finding that the offense was accompanied byexceptionally brutal or heinous behavior. The court alsoconsidered serious bodily injury as a factor in aggravation.

On appeal, the defendant's conviction was affirmed, but thecause was remanded for a new sentencing hearing. People v.Freddie Lott, No. 3--85--0303 (1986) (unpublished order underSupreme Court Rule 23). The trial court again found that theoffense was accompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty and sentenced the defendantto an extended term of 60 years. This sentence was affirmed onappeal. People v. Freddie Lott, No. 3--87--0160 (1987)(unpublished order under Supreme Court Rule 23).

The defendant filed two postconviction petitions which wereeventually dismissed without an evidentiary hearing. OnNovember 2, 2000, the defendant filed a pro se petition forrelief from judgment pursuant to section 2--1401 of the Code. The petition alleged that the imposition of an extended termsentence for murder based on a finding of brutal or heinousbehavior indicative of wanton cruelty violates the tenets ofApprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348. Without addressing the merits, the trial court dismissed thepetition as untimely.

On appeal, the defendant contends that Apprendi should applyretroactively to his case. He maintains that his 1987 sentenceis void and should be vacated because the triggering factor forhis extended term was neither pled in the indictment nor foundproven beyond a reasonable doubt by the trier of fact. Inresponse, the State claims that the trial court properlydismissed the petition as untimely regardless of the merits ofthe underlying issue.

As a general rule, a petition for relief from judgment undersection 2--1401 of the Code must be filed within two years afterentry of the judgment being challenged. 735 ILCS 5/2--1401(c)(West 2000). A petition filed more than two years after ajudgment will not be considered unless a clear showing has beenmade that the person seeking to the vacate the judgment was underlegal disability or duress or the grounds for relief werefraudulently concealed. 735 ILCS 5/2--1401(c); People v.Caballero, 179 Ill. 2d 205, 688 N.E.2d 658 (1997). Relief mayalso be sought beyond the two-year limitations period where thejudgment being challenged is void. People v. Harvey, No. 89522(June 21, 2001), citing R.W. Sawant & Co. v. Allied ProgramsCorp., 111 Ill. 2d 304, 489 N.E.2d 1360 (1986). A void judgmentis one that was entered by a court which lacks jurisdiction overthe parties or the subject matter, or which lacks the inherentpower to make or enter the particular order involved. R.W.Sawant & Co., 111 Ill. 2d 304, 489 N.E.2d 1360. When examining atrial court's ruling on a section 2--1401 petition in a criminalcase, the appropriate standard of review is whether the trialcourt abused its discretion. People v. Haynes, 192 Ill. 2d 437,737 N.E.2d 169 (2000).

The defendant's petition in the instant case was filed over13 years after entry of the judgment from which he seeks relief. In his petition, the defendant does not claim that he was underduress or that the alleged error was fraudulently concealed.Accordingly, the defendant's section 2--1401 petition fallsbeyond the time parameters established under the statute and mustbe deemed untimely. See People v. Gosier, No. 89363 (October 18,2001).

The defendant maintains, however, that the limitationsperiod should be tolled because his sentence is a void judgmentthat can be attacked at any time. In support of this claim, hecites People v. Arna, 168 Ill. 2d 107, 658 N.E.2d 445 (1995) andHarvey, No. 89522, slip op. at 2.

In Arna, the defendant was convicted of two counts ofattempted first degree murder for the shootings of two people. The trial court sentenced him to concurrent terms. The appellatecourt found sua sponte that consecutive sentences were mandatoryunder section 5--8--4(a) of the Unified Code of Corrections (730ILCS 5/5--8--4(a) (West 1992)) and ordered the trial court toimpose consecutive sentences on remand.

The supreme court stated that a sentence which does notconform to a statutory requirement is void and can be attacked atany time. It found that the trial court's order imposingconcurrent terms was void because it did not conform to therequirement of section 5--8--4(a). Thus, the appellate court wasnot barred from increasing the defendant's sentence on review. Arna, 168 Ill. 2d 107, 658 N.E.2d 445.

In Harvey, the supreme court extended the "void judgment"analysis to petitions for relief from judgment pursuant tosection 2--1401 of the Code. There, the defendant was convictedof armed robbery and sentenced to an extended term based on aprior felony conviction for attempted murder. Ill. Rev. Stat.1984 Supp., ch. 38, par. 1005--5--3.2(b)(1). At the time thedefendant committed the offense, section 5--5--3.2(b)(1) allowedan extended term to be imposed where the defendant had been"convicted of a felony, after having been previously convicted inIllinois of the same or greater class felony within 10 years." Ill. Rev. Stat. 1984 Supp., ch. 38, par. 1005--5--3.2(b)(1). Thedefendant brought a section 2--1401 petition well beyond the two-year limitations period, claiming that his prior conviction wasnot "the same or greater class felony." He maintained that hisjudgment was void because the trial court failed to follow theextended term statutory requirement.

The supreme court noted that a defendant may seek reliefbeyond the two-year limitations period of section 2--1401 wherethe judgment at issue is void. It addressed the merits of thedefendant's challenge and did not invoke the two-year deadline asa barrier. Harvey, No. 89522, slip op. at 2.

By contrast, the defendant here is not asserting acognizable "void judgment" challenge. The defendant claims thathis sentence is void because his extended term sentence wasimposed in violation of Apprendi. However, the constitutionalrule set forth in Apprendi did not exist when the defendant wassentenced. The sentencing guidelines at that time allowed thetrial court to sentence a person to an extended term if it foundthat the defendant's acts constituted brutal or heinous behaviorindicative of wanton cruelty. See Ill. Rev. Stat. 1983, ch. 38,par. 1005--5--3.2(b)(2). The trial court found that thedefendant's acts were accompanied by brutal and heinous behaviorand sentenced him in accordance with the extended termprovisions. Thus, the court acted within its authority insentencing the defendant to 60 years in prison.

Based on the above comparison, we find that the defendant'sclaim does not fall within the purview of a "void judgment"challenge. In so doing, we do not address the merits of thedefendant's underlying claim. We merely conclude that reliefcannot be granted in a section 2--1401 proceeding. Thedefendant's petition is time barred and his argument that hisextended term sentence violates Apprendi does not challenge thejudgment as void. Accordingly, the trial court did not abuse itsdiscretion in dismissing the defendant's 2--1401 petition.

The judgment of the circuit court of Rock Island County isaffirmed.

Affirmed.

HOLDRIDGE and McDADE, J.J., concur.

1. At the time the defendant was sentenced, the sentencingrange for murder was 20 to 40 years. Ill. Rev. Stat. 1983, ch.38, par. 1005--8--1(a)(1)(a). A finding by the trial court thatthe crime was accompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty subjected a defendant to anextended term range of 40 to 60 years in prison. Ill. Rev. Stat.1983, ch. 38, par. 1005--5--3.2(b)(2).