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Docket No. 95802-Agenda 3-January 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GARY
LAWTON, Appellant.

Opinion filed October 7, 2004.
 

JUSTICE RARICK delivered the opinion of the court:

Gary Lawton was declared a sexually dangerous person andcommitted to the custody of the Department of Corrections pursuantto the Sexually Dangerous Persons Act (725 ILCS 205/0.01 et seq.(West 2002)). He subsequently petitioned the circuit court of PikeCounty to obtain relief from that judgment pursuant to section 2-1401of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2002)). Asgrounds for his petition, Lawson argued, among other things, that hehad been denied the effective assistance of counsel. Following ahearing, the circuit court granted Lawton's petition. The appellatecourt reversed. 335 Ill. App. 3d 1085. We granted Lawton's petitionfor leave to appeal. 177 Ill. 2d R. 315(a). For the reasons that follow,we now affirm the appellate court's judgment.

The events giving rise to this appeal began in February of 1998,when Lawton was charged in separate cases with predatory criminalsexual assault of a child (see 720 ILCS 5/12-14.1(a)(1) (West 2002))for allegedly molesting two four-year-old girls at his church.Following preliminary hearings conducted the following month, thetrial court found probable cause to believe that Lawton had committedthose offenses.

Lawton, through counsel, subsequently filed a series of pretrialmotions, including motions for discovery, a bill of particulars,suppression of evidence, and determination of the competency ofwitnesses to testify. While those motions were pending, the Stateinitiated civil proceedings against Lawton under the SexuallyDangerous Persons Act. That statute permits the State to seek aninvoluntary, indeterminate commitment in lieu of a criminalprosecution when a defendant is charged with a criminal offense andis believed to be sexually dangerous. People v. Burns, 209 Ill. 2d 551,553 (2004). "Sexually dangerous persons" are defined by the law as "[a]ll persons suffering from a mental disorder, whichmental disorder has existed for a period of not less than oneyear, immediately prior to the filing of the petition hereinafterprovided for, coupled with criminal propensities to thecommission of sex offenses, and who have demonstratedpropensities toward acts of sexual assault or acts of sexualmolestation of children ***." 725 ILCS 205/1.01 (West2002).

Where, as here, the State petitions to have a person declaredsexually dangerous, the trial court must appoint two psychiatrists toexamine that person. 725 ILCS 205/4 (West 2002). In the case beforeus, the court appointed Dr. Phillip Bornstein and Dr. Joseph Bolden.Lawton, in turn, retained his own psychiatrist, Dr. Henry Lahmeyer.Lawton waived his right to have the matter heard by a jury, and abench trial on the State's commitment petition followed.

During the trial, Dr. Bornstein testified for the State. Dr.Bornstein stated that Lawton did not suffer from any majorpsychological illness, but diagnosed him with "a personality disordernot otherwise specified" which first appeared when Lawton was 17years old. Dr. Bornstein explained that, while Lawton did not exhibitall the traits of any one disorder, he did display significant antisocial,narcissistic, and histrionic traits which characterize "Cluster B"personality disorders as described in the Diagnostic and StatisticalManual of Mental Disorders. According to Dr. Bornstein, Cluster Bdisorders are consistent with sexual aggression and assault.

Much of Dr. Bornstein's diagnosis was based upon responsesgiven by Lawton when Bornstein questioned him regarding hisconviction in 1987 for sexually abusing his stepdaughter. The abuseunderlying that conviction extended over several years, escalatingfrom mere fondling when the girl was 9 to intercourse by the time shewas 15. Dr. Bornstein found that Lawton minimized the extent of theabuse, describing it simply as consensual sex when the girl was a teen.Dr. Bornstein stated that Lawton's conduct and his subsequentrationalizations showed a lack of empathy and a degree of selfishness,as well as high levels of untruthfulness, deception, and denial. Dr.Bornstein acknowledged that the trial court ultimately would decidewhether the defendant was a sexually dangerous person, but opinedthat Lawton fit the statutory definition of a sexually dangerous person.Dr. Bornstein then clarified his position. "What I really say,"Bornstein testified, "is he meets the criteria for having a psychiatricdisorder which is associated with the propensity to commit sexualoffenses."

The State next called Dr. Bohlen. Dr. Bohlen testified that hediagnosed Lawton with pedophilia, which appeared years earlier whenhis stepdaughter was nine years old. This opinion was based partiallyupon Lawton's prolonged sexual abuse of his stepdaughter andpartially upon the fact that Lawton currently availed himself ofopportunities to be around young children at home while baby-sittingand at church. According to Dr. Bohlen, Lawton was evasive abouthis contact with young children at church, and he minimized andrationalized the contact he had with these children. Dr. Bohlenobserved that Lawton initially denied being involved in any previousincidents of sexual abuse of children and admitted the 1987 convictionpertaining to his stepdaughter only after Dr. Bohlen advised him thathe knew about the case. Even then, Lawton described the sexualabuse of his stepdaughter as a one-time occurrence.

Dr. Bohlen stated that he had examined the reports of thepending charges and found them highly credible. The specificinformation imparted by the children "would be impossible for themto dream up." Dr. Bohlen concluded that Lawton fit the statutorydefinition of a sexually dangerous person.

After Bohlen testified, the State asked the circuit court to takejudicial notice of Lawton's 1987 conviction for sexually abusing hisstepdaughter and of the two more recent charges of predatory criminalsexual assault of children which precipitated the proceedings thenbefore the court. In response to the State's request, Lawton's attorneyconceded that "the law provides that [the court] can consider forpurposes of this hearing previous acts, previous convictions, so withrespect to the Court taking judicial notice of that I don't have anyobjection." He then specified that he had no objection to the courtreading the charges, the guilty plea, the judgment on conviction, andthe sentence, but did not think it appropriate for the court to examinethe facts of that case. Lawton's attorney further stated that he "can'tquibble" with the court taking notice of the charges pending againsthis client for predatory criminal sexual assault.

The circuit court granted the State's motion to take judicialnotice. Lawton then began presentation of his defense by calling asa witness Dr. Lahmeyer. Dr. Lahmeyer forcefully disputed Dr.Bornstein's diagnosis of a personality disorder not otherwisespecified. According to Dr. Lahmeyer, "if you get into a diagnosis likeNOS [not otherwise specified], approximately 50 percent of thepeople in this room would qualify for that; so that has the lowestvalidity and almost no clinical usefulness." Dr. Lahmeyer stated thatneither the clinical interview he conducted nor the tests he performedon Lawton supported a diagnosis of a personality disorder. Accordingto Lahmeyer, "[t]here is not one shred of evidence that he is sufferingfrom [a] personality disorder of any type." Dr. Lahmeyer opined thatLawton was simply suffering from an adjustment disorder with mixedemotional features, "quite a lot of depression, quite a lot of anger andsome suspiciousness," resulting from his arrest on the underlyingcharges and subsequent home confinement. Lahmeyer believedLawton's adjustment disorder would dissipate when this case wasresolved.

In Dr. Lahmeyer's view, Lawton had not previously sufferedfrom any other mental disorder and did not meet the criteria forpedophilia. His assaults on his stepdaughter were mere incest. He hadno sex offense convictions in the years following his abuse of hisstepdaughter, he has a stable marriage, and he has lived in a housewith several female minors without incident. Dr. Lahmeyer felt thatthis displayed "an amazing level of social functioning" inconsistentwith pedophilia. Dr. Lahmeyer also questioned the veracity of thecurrent allegations against Lawton and concluded that he did not fitthe statutory definition of a sexually dangerous person.

Following Dr. Lahmeyer's testimony, Lawton also presentedtestimony from three parents for whom Lawton and his wife baby-sat.Those parents indicated that they had frequently left their childrenwith Lawton and his wife, that they had spoken with their childrenregarding whether Lawton had ever done anything of a sexual naturewith them, and that they would still trust Lawton to baby-sit theirchildren without additional adult supervision.

Based on the evidence presented, the trial court determined thatDr. Bohlen's diagnosis of pedophilia was not supported. The courtfound, however that Lawton suffered from a mental disorder, asdescribed by Dr. Bornstein; that the disorder had existed since at least1987; and that the disorder was coupled with criminal propensities tocommit sex offenses. Based on those findings, the court declaredLawton to be a sexually dangerous person and committed him to thecustody of the Department of Corrections.

Lawton appealed. The appeal was brought by the same attorneywho had represented him in the trial court. The sole claim advancedby the attorney was that the State had failed to adduce sufficientevidence to prove that Lawton suffered from a mental disorder.

The appellate court rejected that claim. It concluded that thetestimony of Dr. Bornstein and Dr. Bohlen supported the trial court'sfinding that Lawton had a mental disorder. Noting that Lawton hadnot disputed and "basically concede[d] the presence of the otherstatutory elements required to support the trial court's ruling," theappellate court affirmed. People v. Lawton, 305 Ill. App. 3d 1123(1999) (unpublished order under Supreme Court Rule 23). Lawtonsubsequently petitioned this court for leave to appeal. His petition wasdenied. People v. Lawton, 185 Ill. 2d 649 (1999).

The following year, Lawton filed a petition in the circuit court ofPike County under section 2-1401 of the Code of Civil Procedure toobtain relief from the judgment entered against him in the foregoingcase. Lawton proceeded pro se initially, but later retained an attorneywho filed an amended section 2-1401 petition on his behalf.

Lawton's new lawyer, who was different than the one who hadrepresented him at trial and on direct appeal, argued, inter alia, thatLawton's previous attorney had failed to provide him with effectiveassistance. Specifically, the new lawyer contended that Lawton's priorcounsel had been ineffective for failing to properly challengeassertions allegedly made by the State's Attorney and accepted by thetrial court "that proof beyond a reasonable doubt, or any proof at trial,was not required with respect to the 'demonstrated propensities'element of the State's cause of action."

The State moved to dismiss Lawton's petition, arguing that theissues raised by Lawton, including his claim of ineffective assistanceof counsel, could not be raised in proceedings brought under section2-1401. The trial court denied that motion, stating:

"I think there is a sufficient gist of a meritorious defense setforth in the petition ***. The best argument [for the State] isprobably that under 1401 nowhere in the past has that sectionallowed the Court to address ineffective counsel. Nowherehas this Court found a case that says, however, if it is a 1401petition that addresses a sexually dangerous person case is aperson denied the right to ask for [ ]effective counsel. *** Iagree with [defense counsel]'s arguments as it relates [sic] tothis issue, that a post conviction petition under the PostConviction Relief Act is not appropriate. *** That would bethe appropriate place to *** address ineffective counsel.Since that's not available in this kind of a case because thiscase does involve the loss of liberty by the defendant in hishousing for treatment under these 'civil proceedings,' then Iam perhaps making new law but I am determining that thedefendant in this case, Mr. Lawton, does have the right toraise the issue of ineffective counsel in this section 2-1401petition ***."

Nearly a year after the State's motion to dismiss was denied, ahearing was convened at which the court addressed the merits ofLawton's section 2-1401 petition. The court initially reviewed theelements of the statutory definition of a sexually dangerous person. Itthen turned to the record in this case. The court opined that the Statecould not prove demonstrated propensities through the 1987conviction. More was needed, and more should have been demandedby Lawton's attorney. In the court's view, however, the attorney "didnot aggressively argue nor present evidence on the issue ofdemonstrated propensities." Based on these considerations, the courtconcluded that

"Mr. Lawton's previous attorney *** did not provide himwith effective counsel, that he did not contest the issue at trialof demonstrated propensities, that there was insufficientevidence of demonstrated propensities that was presented bycompetent evidence before this trial Court ***. I find that*** ineffective assistance of counsel existed in the area of hisfailure to object or to contest or to provide counsel involvingthe issue of demonstrated propensities."

The court also held that Lawton would not have been found to be asexually dangerous person if his trial attorney had "taken issue withthe element of demonstrated propensities." The court thereforegranted Lawton's petition, terminated his commitment to theDepartment of Corrections, and ordered that he be held in the PikeCounty jail pending further proceedings.

The appellate court reversed, holding that Lawton's petitionshould not have been granted. 335 Ill. App. 3d 1085. The court firststated that proceedings under section 2-1401 are not an appropriateforum for a defendant to raise claims regarding competency ofcounsel. The court then went on to reject defendant's ineffective-assistance claim on the merits. As noted earlier in this opinion, wesubsequently granted Lawton's petition for leave to appeal from theappellate court's judgment. The matter is now before us for review.

In undertaking our review, we consider first whether it waspermissible for Lawton to utilize section 2-1401 of the Code of CivilProcedure to challenge the competence of the attorney whorepresented him in the proceedings under the Sexual DangerousPersons Act. Contrary to the appellate court, we believe that it was.

Proceedings under the Sexual Dangerous Persons Act are civil innature. They may, however, result in deprivation of liberty andincarceration in the penitentiary for psychiatric treatment. For thatreason, defendants subject to the Act must be accorded the sameessential protections available to defendants in a criminal prosecution.People v. Trainor, 196 Ill. 2d 318, 328 (2001). They have the right toa speedy trial, the right to confront and cross-examine witnessestestifying against them, and the right against self-incrimination.Trainor, 196 Ill. 2d at 329. They are also entitled to be represented bycounsel. 725 ILCS 205/5 (West 2002).

A defendant's right to counsel in proceedings under the Act notonly is conferred by the statute itself, it is required by the UnitedStates Constitution. See People v. Bailey, 265 Ill. App. 3d 758, 762(1994). Implicit in this right to counsel is the right to the assistance ofcounsel who is effective. Whether a defendant has received effectiveassistance of counsel is judged according to the same standards usedin criminal cases. See Bailey, 265 Ill. App. 3d at 763; People v.Dinwiddie, 306 Ill. App. 3d 294, 300 (1999).

The right to effective assistance of counsel has no meaning unlessa defendant has some means to assert it. Where a defendant in aproceeding under the Sexually Dangerous Persons Act contends thathe was denied effective assistance of counsel at trial, he may raise thatissue on direct appeal from the circuit court's judgment. See, e.g.,People v. Johnson, 322 Ill. App. 3d 117 (2001). When the defendant'strial counsel goes on to represent him on appeal, however, that avenueis likely to be foreclosed. An attorney cannot be expected to argue hisown ineffectiveness. That is why, for example, trial counsel's failureto assert his own ineffective representation in a posttrial motion doesnot waive the issue on appeal. See People v. Parker, 288 Ill. App. 3d417, 421 (1997).

That is the problem facing Lawton in the case before us here. Aswe have indicated, the lawyer whose actions in the trial court are thebasis for Lawton's claim of ineffective assistance of counsel is thesame lawyer who handled Lawton's appeal on direct review. Toadvance Lawton's argument that he had mishandled the trialproceedings would have required the lawyer to argue his ownincompetence on appeal. To avoid the criticism that he wasincompetent would have required that he compromise his obligationas an attorney to represent Lawton zealously. The lawyer thus facedan inherent conflict of interest.

Defendants seeking to challenge the effectiveness of therepresentation they received during their criminal trials have amechanism for avoiding this problem. If their trial counsel continuesto represent them on direct review and does not raise the issue of theeffectiveness of the representation he provided, notions of waiver willyield to considerations of fundamental fairness and defendants will stillbe permitted to challenge trial counsel's effectiveness throughproceedings under the Post-Conviction Hearing Act (725 ILCS5/122-1 et seq. (West 2002)). See People v. Mahaffey, 165 Ill. 2d445, 458-59 (1995).

Because the liberty interests of those subject to involuntarycommitment under the Sexually Dangerous Persons Act are no lesssignificant than those of persons facing incarceration for criminalconduct, the same principles of fundamental fairness dictate that weprovide them with comparable recourse where their claims ofineffective assistance of counsel went unheard because the samelawyers who represented them at trial handled their direct appeals.The problem is that such defendants cannot invoke the Post-Conviction Hearing Act. The Post-Conviction Hearing Act appliesonly to persons imprisoned pursuant to a criminal conviction.Proceedings under the Sexually Dangerous Persons Act are civil innature. People v. Lindsey, 45 Ill. 2d 115, 117 (1970). Some otherremedy must therefore be found.

The solution lies in section 2-1401 of the Code of CivilProcedure. In defining the relief available under that statute, theGeneral Assembly used the broadest possible terms. The statute statesthat it abolishes various enumerated writs, legal and equitable, andthat

"[a]ll relief heretofore obtainable and the grounds for suchrelief heretofore available, whether by any of the foregoingremedies or otherwise, shall be available in every case, byproceedings hereunder ***." 735 ILCS 5/2-1401(a) (West2002).

One of the guiding principles in the administration of section2-1401 relief is that the petition invokes the equitable powers of thecircuit court to prevent enforcement of a judgment when doing sowould be unfair, unjust, or unconscionable. See Smith v. Airoom, Inc.,114 Ill. 2d 209, 225 (1986). Although the statute is ordinarily used tocorrect errors of fact, nothing in the language of section 2-1401 limitsits applicability to such matters. Accordingly, case law has recognizedthat its functions extend beyond that. See Strader v. Chrysler Corp.,9 Ill. App. 3d 793, 796 (1973). Our own court has held that petitionsfiled under the statute may also be used to challenge judgmentsclaimed to be defective for legal reasons. See Sarkissian v. ChicagoBoard of Education, 201 Ill. 2d 95 (2002) (Chicago Board ofEducation allowed to use section 2-1401 petition to challenge priorjudgment against it on the grounds that the manner in which it hadbeen served did not comply with statutory requirements); People v.Harvey, 196 Ill. 2d 444 (2001) (criminal defendant permitted toproceed under section 2-1401 in raising unsuccessful challenge toextended-term sentence based on claim that it did not meetrequirements of the sentencing statute).

In barring use of section 2-1401 by individuals such as thedefendant in this case, the appellate court cited People v. Anderson,31 Ill. 2d 262 (1964), Putnam v. People, 408 Ill. 582 (1951), Peoplev. Sheppard, 405 Ill. 79 (1950), and Hall v. People, 402 Ill. 478(1949). See 335 Ill. App. 3d at 1086-87. Those cases, however,involved criminal defendants who had brought collateral challenges tothe judgments in the criminal proceedings against them. Suchdefendants are entitled to seek relief under the Post-ConvictionHearing Act. As we have just noted, persons facing involuntarycommitment as sexually dangerous persons have no access to thatremedy.

Our recent opinions in People v. Pinkonsly, 207 Ill. 2d 555(2003), and People v. Haynes, 192 Ill. 2d 437 (2000), are likewisedistinguishable. As with Anderson, Putnam, Sheppard, and Hall, thedecisions in Pinkonsly and Haynes both involved criminal defendantswho were attempting to bring collateral challenges to their criminalconvictions. Those defendants had recourse under the Post-Conviction Hearing Act. The defendant in this case does not. Haynesis further distinguishable from the present case because the defendantin Haynes did not attempt to raise an ineffective assistance of counselclaim in a section 2-1401 petition. The section 2-1401 petition atissue in Haynes sought to vacate the defendant's convictions anddeath sentence based on newly discovered evidence.

Relief should be granted under section 2-1401 when necessaryto achieve justice. To accomplish that goal, the statute is to beconstrued liberally. See In re Marriage of Hoppe, 220 Ill. App. 3d271, 282-83 (1991). The appellate court took the opposite approach.In holding that section 2-1401 does not permit actions such asdefendant's, it imposed restrictions that the language of the statutedoes not include and that the purposes of the statute cannotaccommodate.

Doing justice under the law is this court's highest obligation.Through section 2-1401, the General Assembly has provided us witha versatile and effective means of pursing justice in cases such as this.For reasons that will be discussed later in this opinion, Lawton'sclaims are not meritorious. That Lawton's own claims lack meritshould not, however, deter us from recognizing the propriety ofallowing other defendants subject to the Sexually Dangerous PersonsAct to utilize section 2-1401 to assert claims of ineffective assistanceof counsel. Involuntary commitments under the Sexual DangerousPersons Act are occurring with increased frequency. As the numberof such cases grows, the mechanisms available for raising claims ofineffective assistance of counsel will take on heightened importance.While this defendant's constitutional claims may lack merit, otherdefendants will have valid claims. It is incumbent on us, as this state'shighest court, to insure that such claims do not fall victim touncertainties in the law. Defendants need to know how to pursue theirclaims. Trial courts need guidance in how to handle them. Thedefendant in this case has litigated the matter zealously. The issueshave been framed sufficiently to enable us to make a reasoneddecision. Under these circumstances, there is no justification fordeferring resolution of the issue.

As a general rule, we must be concerned about the need forfinality of judgments. We must also be guarded about when and underwhat circumstances a party should be permitted to challenge anotherwise valid judgment based on his attorney's negligence. If thiswere a conventional civil case in which a litigant sought to collaterallyattack a judgment on the grounds that his lawyer was negligent, therewould be no question that relief would not lie under section 2-1401.But this is not such a case. It is a proceeding under the SexuallyDangerous Persons Act in which the defendant has a constitutionalright to effective assistance of counsel.

To the extent that the right to counsel is guaranteed by theConstitution of the United States, its enforcement need not awaitmore explicit authorization by the General Assembly. The reason isobvious. If implementation of federal constitutional guarantees weredependent on action by state legislatures, states would have the powerto prevent citizens from asserting their federal constitutional rights instate courts simply by sitting back and doing nothing. Under oursystem of government, such a result is impermissible. Illinois maychoose the procedure it deems appropriate for the vindication offederal rights. Young v. Ragen, 337 U.S. 235, 238, 93 L. Ed. 1333,1336, 69 S. Ct. 1073, 1074 (1949). It may not, however, shut itsdoors entirely to federal constitutional claims. The supremacy clauseof the United States Constitution (U.S. Const., art. VI, cl. 2) requiresstate courts to enforce federal law and state court judges to be boundby it. As the United States Supreme Court held more than a centuryago,

"Upon the State Courts, equally with the Courts of theUnion, rests the obligation to guard, enforce and protectevery right granted or secured by the Constitution of theUnited States and the laws made in pursuance thereof,whenever those rights are involved in any suit or proceedingbefore them; for, the Judges of the State Courts are requiredto take an oath to support that Constitution, and they arebound by it and the laws of the United States made inpursuance thereof and all treaties made under their authority,as the supreme law of the land, 'anything in the Constitutionor laws of any State to the contrary notwithstanding.' " Robbv. Connolly, 111 U.S. 624, 637, 28 L. Ed. 542, 551, 4 S. Ct.544, 551 (1884).

Because of the courts' obligation to honor and protect federalconstitutional rights, we may grant relief from a constitutionalviolation even where the legislature has not delineated a specificmechanism for doing so. This is not a matter of improper "judiciallegislating." It is an intrinsic and essential function of the courts in ourfederal constitutional system. The Constitution

"does not 'partake of the prolixity of a legal code.'McCulloch v. Maryland, 4 Wheat. 316, 407 (1819). It speaksinstead with a majestic simplicity. One of 'its importantobjects,' ibid., is the designation of rights. And in 'its greatoutlines,' ibid., the judiciary is clearly discernible as theprimary means through which these rights may be enforced.***

At least in the absence of 'a textually demonstrableconstitutional commitment of [an] issue to a coordinatepolitical department,' Baker v. Carr, 369 U.S. 186, 217(1962), we presume that justiciable constitutional rights areto be enforced through the courts. And, unless such rights areto become merely precatory, the class of those litigants whoallege that their own constitutional rights have been violated,and who at the same time have no effective means other thanthe judiciary to enforce these rights, must be able to invokethe existing jurisdiction of the courts for the protection oftheir justiciable constitutional rights. 'The very essence ofcivil liberty,' wrote Mr. Chief Justice Marshall in Marbury v.Madison, 1 Cranch 137, 163 (1803), 'certainly consists in theright of every individual to claim the protection of the laws,whenever he receives an injury. One of the first duties ofgovernment is to afford that protection.' " Davis v. Passman,442 U.S. 228, 241-42, 60 L. Ed. 2d 846, 860-61, 99 S. Ct.2264, 2275 (1979).

The action taken by the trial judge in this case was fullyconsistent with these principles. In no sense did he overstep thebounds of his authority. To the contrary, he acted precisely as thefounding fathers hoped state judges would act in undertaking theirduties. He did not formulate public policy. He did not create new law.He merely gave effect to a basic constitutional right, the right toeffective assistance of counsel. That was his job. It is our job too.

Although we agree with the trial court that Lawton was entitledto challenge the effectiveness of his attorney by means of a petitionunder section 2-1401, the appellate court was correct in rejectingLawton's claim on the merits. As we have indicated, a defendantsubject to proceedings under the Sexually Dangerous Persons Act hasa right to effective assistance of counsel. Claims that this right hasbeen denied are judged according to the two-prong, performance-prejudice test established in Strickland v. Washington, 466 U.S. 668,80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Albanese, 104Ill. 2d 504, 526-27 (1984). Under Strickland, a defendant must provethat defense counsel's performance fell below an objective standardof reasonableness and that this substandard performance causedprejudice by creating a reasonable probability that, but for counsel'serrors, the trial result would have been different. People v. Alvine, 173Ill. 2d 273, 293 (1996). The performance of Lawton's trial counsel inthis case did meet the foregoing standards for ineffectiveness.

Lawton's argument regarding the inadequacy of his trialattorney's representation centers on Lawton's prior conviction in1987, the purposes for which that conviction was admissible, and theState's burden of proof under the Sexual Dangerous Persons Act. Hisclaim is twofold. First, he asserts that the attorney was ineffective foracquiescing in the erroneous view, allegedly urged by the State andadopted by the trial court, that the State was not required to prove thethat the defendant had "demonstrated propensities toward acts ofsexual assault or acts of sexual molestation of children," as requiredby the Act. See 725 ILCS 205/1.01 (West 2002). This argument iseasily disposed of. We have reviewed the record from the trial court,and it is clear that from the time the State filed its initial petition underthe Act to the time judgment was rendered by the court, the case waslitigated on the theory that "demonstrated propensities" must beproved and that it was the State's burden to prove them. Accordingly,Lawton's trial counsel cannot be faulted for having acquiescing in anerroneous legal standard.

Lawton's second argument is that his attorney was ineffectivebecause he failed to assert that the State could not rely solely on his1987 conviction to prove the demonstrated-propensities elementbeyond a reasonable doubt. This argument is also without merit. Tosatisfy the demonstrated-propensities element under the Act, the Statemust prove the defendant has committed or attempted at least one actof sexual assault or molestation. See People v. Allen, 107 Ill. 2d 91,105 (1985) ("the requirement that the defendant must have'demonstrated' his propensities means only that the commitment ordercannot be based solely on psychological speculation" (emphasisomitted)). The State may do this by introducing a record of a priorconviction. People v. Hancock, 329 Ill. App. 3d 367, 380-81 (2002);see People v. Masterson, 207 Ill. 2d 305, 331 (2003) (commenting inobiter dicta that the evidence presented at the defendant's originalcommitment hearing, including a 14-year-old conviction relied uponexclusively to show demonstrated propensities, was sufficient tojustify commitment under then-existing standards); People v. Cole,299 Ill. App. 3d 229, 234 (1998) (holding that "[c]ourt records"demonstrated the defendant committed prior sexual assaults againstminors); see also People v. Studdard, 82 Ill. App. 3d 736, 741 (1980)("Evidence of a prior sex crime is clearly relevant as the State isrequired to prove that the defendant has a propensity to commit sexcrimes and that his mental disorder had existed for more than oneyear. *** [W]e suggest the use of a certified copy of [the]conviction").

In accordance with the foregoing authorities, the trial courtcorrectly took judicial notice of the Lawton's 1987 conviction, andthat conviction was sufficient to meet the State's burden of provingthe demonstrated-propensities element. Had Lawton's attorneyobjected to the use and sufficiency of the conviction to prove thatelement, the objection would properly have been denied. The attorneytherefore acted reasonably in refraining from asserting such anobjection. See People v. Wilson, 164 Ill. 2d 436, 454 (1994) (holdingthat an attorney's failure to make a futile objection does not constitutesubstandard performance); In re Ottinger, 333 Ill. App. 3d 114, 118(2002). We note, moreover, that admission of the conviction had astrategic benefit for Lawton. It saved him from disclosure of theembarrassing details behind the conviction. See People v. Thorpe, 52Ill. App. 3d 576, 582 (1977). Lawton does not suggest that hisattorney was ineffective in any other respect. We therefore agree withthe appellate court that Lawton's claim of ineffective assistance ofcounsel fails on its merits. Accordingly, the appellate court wascorrect when it reversed the judgment of the circuit court grantingLawton's petition for relief under section 2-1401.

One remaining matter requires our attention. On the date of oralargument, Lawton filed a motion to cite and argue as additionalauthority our recent opinion in Masterson. The State did not object,and the motion was allowed. The argument advanced by Lawton in hismotion is that the State did not present sufficient evidence at trial tosatisfy the sexually dangerous person standard we announced inMasterson. In response, the State contends that Masterson, decidedlast year, does not apply to Lawton, whose case was tried nearly sixyears ago and whose direct appeal has long since concluded.

We agree with the State. Masterson involved a direct appeal ofa finding that the defendant was sexually dangerous. The case beforeus involves an appeal from a ruling on a section 2-1401 petition.Though we remanded in Masterson, we also limited the ruleannounced in that case to prospective application. See Masterson, 207Ill. 2d at 330 ("a finding of sexual dangerousness premised upon theelements of section 1.01 of the SDPA [citation] must hereafter beaccompanied by an explicit finding that it is 'substantially probable'the person subject to the commitment proceeding will engage in thecommission of sex offenses in the future if not confined" (emphasisadded)); see also Miller v. Gupta, 174 Ill. 2d 120, 128 (1996) (statingthat this court's decisions apply retroactively only to pending casesand cases on direct review). Masterson is therefore inapplicable to thecase before us today.

For the foregoing reasons, the judgment of the appellate court isaffirmed.

Affirmed.

JUSTICE FITZGERALD, dissenting:

I strongly agree with the majority that Lawton's ineffective-assistance-of-counsel claim lacks merit. I strongly disagree with themajority that section 2-1401 provides a new procedural avenue for adefendant committed under the Sexually Dangerous Persons Act(SDPA) to assert an abandoned ineffective-assistance claim.

To obtain relief under section 2-1401, the defendant must showboth a meritorious defense to the charges against him and duediligence in presenting it. See People v. Pinkonsly, 207 Ill. 2d 555,565 (2003). Generally, a meritorious defense under section 2-1401involves errors of fact, not errors of law. See People v. Haynes, 192Ill. 2d 437, 461 (2000); see also Burns v. People, 9 Ill. 2d 477, 480(1956) (noting that a motion to correct errors of fact "is not availablefor the purpose of correcting errors at law," such as ineffectiveassistance of counsel).

"For this reason, a section 2-1401 petition differs from apostconviction petition. A postconviction petition requiresthe court to decide whether the defendant's constitutionalrights were violated at trial [citation]; a section 2-1401petition, on the other hand, requires the court to determinewhether facts exist that were unknown to the court at thetime of trial and would have prevented entry of the judgment.[Citation.] ***

We have long held that section 2-1401 proceedings arenot an appropriate forum for ineffective-assistance claimsbecause such claims do not challenge the factual basis for thejudgment." Pinkonsly, 207 Ill. 2d at 566-67.

Accord People v. Anderson, 31 Ill. 2d 262, 264 (1964); Putnam v.People, 408 Ill. 582, 585-86 (1951); People v. Sheppard, 405 Ill. 79,85 (1950); Hall v. People, 402 Ill. 478, 481 (1949); see also In reWilliam M., 206 Ill. 2d 595, 604-05 (2003) (holding that a juvenile'sineffective-assistance claim does not fall within the parameters ofsection 2-1401).

Though the majority asserts that the relief in section 2-1401 isphrased "in the broadest possible terms," those terms are certainly nobroader than the various common law writs abolished and replaced bythe statute. As the majority notes, section 2-1401 provides that "[a]llrelief heretofore obtainable and the grounds for such relief heretoforeavailable, whether by any of the foregoing remedies or otherwise, shallbe available in every case, by proceedings hereunder." (Emphasesadded.) 735 ILCS 5/2-1401(a) (West 2002). Section 2-1401, thus,is backwards looking. In order to determine whether the statuteaffords any given relief, such as relief from purportedly ineffectiveassistance of counsel, we must look to whether that relief was"heretofore" available at common law. See Ill. Ann. Stat., ch. 110,par. 2-1401, Historical & Practice Notes, at 608 (Smith-Hurd 1983)("Occasionally an analysis of the nature and limits of the various writsreplaced by this section aids the court in evaluating the propriety of apetition under this section"), citing Frandsen v. Anderson, 108 Ill.App. 2d 194, 200-01 (1969).

Section 2-1401 abolished the common law writs of coram nobisand coram vobis, which served to correct errors of fact. Section2-1401 also abolished bills of review, which were not limited tofactual matters.

"Prior to the 1955 revision of the Civil Practice Act, therewas no statutory mode in Illinois for obtaining relief from adecree of a court of equity, if the term at which the judgmentwas entered had passed. Hence, Illinois lawyers utilized theequitable remedies of a bill of review and a bill in the natureof a bill of review. The courts held that these bills could beused to bring matters to the attention of the court in threesituations: for error of law upon the face of the decree[citation]; to establish newly discovered evidence [citation];and to show fraud in the procurement of the decree[citation]." Ill. Ann. Stat., ch. 110, par. 2-1401, Historical &Practice Notes, at 605-06 (Smith-Hurd 1983).

Assuming, then, that the relief available under section 2-1401extends as far as the relief available through bills of review and bills inthe nature of bills of review to correct law errors, the defendant is notin one of the three situations where such relief is appropriate. Thedefendant here does not contend that an error of law appears on theface of the trial court's initial order. Further, the defendant does notcontend that newly discovered evidence would change the outcomeof his case. Finally, the defendant does not contend that the trialcourt's initial order was obtained by fraud. The defendant simplycontends that he received ineffective assistance of counsel. Atcommon law, Illinois courts would not grant a bill of review "wherethe party was prevented from proving important facts by the wrongadvice of his counsel" or "the attorney employed by the complainantneglected the case." 1 S. Puterbaugh, Illinois Chancery Pleading andPractice