People v. Adams

1

2024 IL App (1st) 221474

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KORTNEY ADAMS, Defendant-Appellant.

No. 1-22-1474

Court of Appeals of Illinois, First District, Second Division

September 17, 2024

Appeal from the Circuit Court of Cook County. No. 10 CR 4033 Honorable Steven Jay Rosenblum, Judge Presiding.

Attorneys for Appellant: James E. Chadd, Douglas R. Hoff, and Deepa Punjabi, of State Appellate Defender's Office, of Chicago, for appellant.

Attorneys for Appellee: Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Douglas P. Harvath and Erin K. Slattery, Assistant State's Attorneys, of counsel), for the People.

JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.

OPINION

HOWSE, JUSTICE

¶ 1 The circuit court of Cook County, pursuant to a negotiated guilty plea, convicted defendant, Kortney Adams, of one count of armed habitual criminal (AHC) (720 ILCS 5/24-1.7 (West 2010)) and nol-prossed five remaining counts in the information. A defendant commits AHC when they are in possession of a firearm, after being convicted of two or more qualifying offenses. Id. At the time of defendant's plea, one of his qualifying offenses was aggravated unlawful use of a weapon (AUUW) (id. § 24-1.6). AUUW was declared unconstitutional and void ab initio. Defendant filed a petition for relief from the judgment of conviction for AHC, pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2022)). The trial court initially denied the petition but, upon rehearing, granted the petition in part. The petition sought complete vacatur of the conviction, but the trial court vacated the conviction for AHC and entered a conviction for the lesser-included offense of unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1 (West 2010)). The court resentenced defendant to a term of imprisonment with credit for time already served sufficient to satisfy the new sentence.

¶ 2 Defendant appealed on the primary grounds that (1) the declaration that AUUW is void ab initio voided the conviction for AHC such that no further proceedings on the AHC conviction were permitted, including reduction of the offense to a lesser-included offense, and (2) because the statute of limitations had expired, the trial court could not grant leave to amend the count in the information charging AHC to charge UUWF.

¶ 3 For the following reasons, we affirm.

¶ 4 I. BACKGROUND

¶ 5 On March 4, 2010, following defendant's arrest after a routine traffic stop (tinted windows), the State charged defendant by information with AHC (count I), four counts of AUUW (counts II-V), and unlawful use of a weapon by a felon (UUWF) (count VI). Count I alleged that defendant committed AHC in that he knowingly or intentionally possessed a firearm after having been convicted of aggravated vehicular hijacking under case No. 06CR18353 and AUUW. Count VI alleged defendant knowingly possessed on or about his person any firearm after having been previously convicted of aggravated vehicular hijacking under case No. 06CR18353.

¶ 6 On July 16, 2010, pursuant to a negotiated guilty plea, the trial court entered a judgment of conviction on count I for armed habitual criminal and sentenced defendant to six years' imprisonment. At the plea hearing, the trial court explained that count I alleged that defendant possessed a firearm after previous convictions for aggravated vehicular hijacking and AUUW. The court admonished defendant as to the ramifications of his plea and defendant's rights. At the conclusion of the court's admonishments, the court found that defendant knew and understood his rights, that he was entering the plea knowingly and voluntarily, and that

"based upon the factual matters that were presented to me in the course of the 402 conference as to what the State's evidence at trial would be as well as my review of the arrest report and the transcript, there would be a sufficient factual basis for me to accept the plea of guilty [to AHC]."

The court accepted the plea and entered judgment on the finding.

¶ 7 On May 11, 2017, defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2016)), seeking an order "vacating the judgment conviction entered against defendant in February 2010 for the offense of armed habitual." The petition alleged the statute under which defendant was convicted was found facially unconstitutional in People v. Aguilar, 2013 IL 112116, and People v. Burns, 2015 IL 117387, "rendering the judgment and conviction against me invalid" and void. Defendant's pro se petition asked for his conviction and sentence for AHC to be vacated "and held as naught."

¶ 8 On July 21, 2017, the trial court denied defendant's petition. The trial court's written order states "non-meritorious PC [(2-1401)] claim-denied."

¶ 9 On April 23, 2018, in an unrelated proceeding, the trial court entered on order vacating defendant's prior conviction for AUUW. Defendant's 2-1401 petition in this case was placed back on the court's call. On May 20, 2022, the trial court heard arguments on defendant's 2-1401 petition. At the time of the hearing, defendant was imprisoned on a violation of parole from an unrelated gun charge and had another unrelated gun charge pending. The court noted the parties' respective positions. The State agreed that defendant's conviction for AHC should be vacated but argued that defendant should be resentenced "on the lesser-included offense." Defendant's position was that "he should just be discharged on this case." Defendant, represented by counsel, argued that the AHC conviction could not stand because defendant's void AUUW conviction cannot serve as a qualifying felony. Defendant argued the former AUUW conviction could give "no rise to any criminal statute or create any legal impediment and no authority [sic]." Therefore, defendant argued, "there is no lesser included." Defendant relied on the Fourth District order in People v. Shoulder, 2021 IL App (4th) 200286-U, in support of his argument, and acknowledged that the order was not precedent but could be "advisory" to the court.

¶ 10 The State argued the fact that one of the qualifying offenses for defendant's AHC conviction was declared void "does not mean that this entire case goes away." The State argued that "by operation of law" defendant would still be subject to the lesser-included offense of UUWF "because the aggravated vehicular hijacking conviction is still good." The State asked that defendant be resentenced to UUWF. The trial court concluded that the AHC conviction should be vacated but "that does not erase the entire conviction in this case. It merely adjusts the conviction to the lesser-included offense of unlawful use of a weapon by a felon." The court vacated the AHC conviction and ordered "the lesser-included UUW by felon *** that conviction is to stand." The court informed the parties that because they could not reach an agreement on sentencing, the matter had to be continued for a presentencing investigation (PSI) and a sentencing hearing.

¶ 11 On September 9, 2022, the trial court held a sentencing hearing on defendant's conviction for UUWF. As it pertains to this appeal, at the sentencing hearing, the trial court asked whether count I of the information was amended or if the matter proceeded on a different count. The State informed the court that count VI of the information charged UUWF and stated that "it might be just easier to amend count 1." The court responded:

"I don't know that it's necessary to amend it. That ruling was the lesser included was included. But if both parties wish to do it by purposes of amendment so that it's clear to the Illinois Department of Corrections [(IDOC)] so that they don't get it wrong, I don't have a problem with that doing that amendment on the record."

¶ 12 Defendant's attorney did not object to amending count I. The trial court stated the amendment was made so that IDOC did not make a wrong decision by believing defendant's conviction was on a higher class crime that would interfere with his rights. The court granted leave to amend count I to UUWF without objection.

¶ 13 The trial court stated it would not consider anything in defendant's background that did not occur prior to this case in sentencing defendant. The court sentenced defendant to five years' imprisonment and waived mandatory supervised release "because he's already served out that entire sentence." The court stated, without a request from either party, "this order is nunc pro tunc to the date of the original plea."

¶ 14 On September 9, 2022, the trial court entered a judgment of conviction and sentence convicting defendant of UUWF and sentencing him to five years' imprisonment with credit for five years of time served. The written order also states as follows: "CT. 1-DEFENDANT RESENTENCED TO 5 YEARS IDOC-5 YEARS TS-NUNC PRO TUNC 7/16/10."

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 This is an appeal from a judgment granting in part and denying in part a petition pursuant to section 2-1401 of the Code. "[S]ection 2-1401 of the Code represents a comprehensive statutory procedure authorizing a trial court to vacate or modify a final order or judgment in civil and criminal proceedings." (Internal quotation marks omitted.) People v. Daniels, 2017 IL App (1st) 142130-B, ¶ 10. A petition for relief from judgment must be filed more than 30 days after the judgment but within two years of the judgment attacked. 735 ILCS 5/2-1401(a), (c) (West 2016). In this case, defendant filed his petition more than two years after the trial court entered the judgment of conviction. ...