People v. Calvillo

2022 IL App (1st) 200886

217 N.E.3d 289

466 Ill.Dec. 462

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Raul CALVILLO, Defendant-Appellant.

No. 1-20-0886

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filed September 15, 2022

James E. Chadd, Douglas R. Hoff, and John R. Breffeilh, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Douglas P. Harvath, Matthew Connors, and Zachary M. Slavens, Assistant State's Attorneys, of counsel), for the People.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 The circuit court found petitioner, Raul Calvillo, guilty in 2002 of two counts of aggravated unlawful use of a weapon (AUUW) (counts I and III), merged count III into count I, and sentenced him to probation on count I. No sentence was imposed on count III. The court subsequently revoked petitioner's probation and sentenced him to one year imprisonment on count I. In 2006, the court used the conviction of AUUW in count I as the predicate offense to convict petitioner for unlawful use of a weapon by a felon (UUWF). In 2019, the petitioner filed two petitions pursuant to section 2-1401 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1401 (West 2018) ), asking the court to vacate his 2002 conviction for AUUW and his 2006 conviction for UUWF pursuant to People v. Aguilar , 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321. The court vacated petitioner's 2002 conviction for AUUW in count I and "transferred" the sentence from count I to the previously unsentenced count III, nunc pro tunc to the date of the original sentencing hearing. The court denied the petition to vacate the 2006 conviction for UUWF, finding that it was properly predicated on the newly sentenced 2002 conviction on count III for AUUW. The primary question on appeal is whether the circuit court exceeded the scope of a nunc pro tunc order when, in 2019, it transferred the sentence petitioner received in 2002 for AUUW from count I to count III and then used the newly sentenced count III as the predicate offense to sustain the 2006 UUWF conviction. We answer that question in the affirmative.

¶ 2 In 2001, the State charged petitioner with six counts of AUUW in case number 01-CR-11037. The case proceeded to a bench trial, after which the circuit court found petitioner guilty of two counts of AUUW: count I was for possessing an uncased firearm in public ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2000)) and count III was for possession of a firearm before reaching the age of 21 ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2000)). On October 9, 2002, the circuit court merged count III into count I under the one-act, one-crime doctrine because it found that count III was the lesser offense and sentenced petitioner to 1½ years of probation on count I. As count III merged into count I, the circuit court imposed no sentence on count III. On September 19, 2003, the circuit court revoked petitioner's probation and sentenced him to one year in prison on count I.

¶ 3 In 2006, in case number 06-CR-15198, petitioner pleaded guilty to UUWF ( 720 ILCS 5/24-1.1(a) (West 2006)) and was sentenced to three years’ imprisonment. Petitioner's 2002 conviction for AUUW in count I was the predicate felony for the 2006 UUWF conviction. The sentences for the 2002 and 2006 convictions have been completed.

¶ 4 In 2013, our supreme court issued its opinion in Aguilar , 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321. In Aguilar , the defendant was convicted of the "Class 4 form" of section 24-1.6(a)(1), (a)(3)(A), (d), of the AUUW statute ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) and unlawful possession of a firearm (UPF) ( 720 ILCS 5/24-3.1(a)(1) (West 2008)). Aguilar , 2013 IL 112116, ¶ 7, 377 Ill.Dec. 405, 2 N.E.3d 321. The trial court sentenced the defendant to 24 months’ probation for the AUUW conviction and did not impose sentence on the UPF conviction. Id. On appeal, the supreme court concluded that the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute, which prohibited carrying on one's person or in any vehicle, outside the home, a firearm that was uncased, loaded, and immediately accessible, was facially unconstitutional under the second amendment. After reversing the defendant's AUUW conviction, the supreme court "remand[ed] to the trial court for imposition of sentence on the UPF conviction" and instructed that "[t]he sentence imposed on the UPF conviction shall not exceed the sentence imposed on the AUUW conviction." Aguilar , 2013 IL 112116, ¶ 30, 377 Ill.Dec. 405, 2 N.E.3d 321.

¶ 5 In 2015, the supreme court issued its opinion in People v. Burns , 2015 IL 117387, ¶ 22, 413 Ill.Dec. 810, 79 N.E.3d 159, acknowledging that Aguilar ’s reference to a "Class 4" form of AUUW was inappropriate, as no such offense exists. Burns clarified that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional, without limitation. Id. ¶ 25.

¶ 6 In 2018, the supreme court issued its opinion in In re N.G. , 2018 IL 121939, 425 Ill.Dec. 547, 115 N.E.3d 102, which considered whether a parent's conviction under the portion of the AUUW statute found unconstitutional in Aguilar could be used as a predicate for terminating parental rights. Id. ¶ 23. The supreme court stated that "[w]hen a statute is found to be facially unconstitutional in Illinois, it is said to be void ab initio ; that is, it is as if the law had never been passed." Id. ¶ 50. Therefore, "the conviction must be treated by the courts as if it did not exist, and it cannot be used for any purpose under any circumstances." Id. ¶ 36.

¶ 7 Based on N.G. , we subsequently held that a conviction under the portion of the AUUW statute found unconstitutional in Aguilar cannot be used as a predicate offense for UUWF. See People v. Alexander , 2019 IL App (3d) 170168, ¶ 29, 434 Ill.Dec. 646, 137 N.E.3d 227.

¶ 8 In 2019, petitioner here filed two petitions pursuant to section 2-1401 of the Code ( 735 ILCS 5/2-1401 (West 2018) ) seeking to vacate his 2002 AUUW conviction and his 2006 UUWF conviction based on Aguilar , N.G. , and their progeny. In his first petition, petitioner argued that his conviction for AUUW on count I was void ab initio under Aguilar and should be vacated.

¶ 9 In his second section 2-1401 petition, petitioner argued that his 2006 conviction for UUWF was predicated on the unconstitutional 2002 AUUW conviction in count I. As the 2002 AUUW conviction in count I is void ab initio , it cannot serve as the predicate offense for the UUWF conviction. Therefore, petitioner requested that the UUWF conviction be vacated.

¶ 10 The State filed a "motion to dismiss" petitioner's section 2-1401 petitions, but actually it agreed with petitioner that his 2002 conviction for AUUW in count I for possessing an uncased firearm in public should be vacated pursuant to Aguilar . The State argued, though, that after vacating count I, the circuit court should "transfer" the sentence from count I to the constitutionally valid, unsentenced finding of guilt for AUUW in count III for possession of a firearm before reaching the age of 21. By imposing a sentence on count III, the circuit court would transform its finding of guilt on that count to a conviction see People v. Cruz , 196 Ill. App. 3d 1047, 1052, 143 Ill.Dec. 663, 554 N.E.2d 598 (1990) (holding that it is the trial court's entry of judgment and imposition of a sentence that constitutes a conviction). The newly sentenced conviction on count III for AUUW then would be the predicate felony conviction for the 2006 UUWF conviction.

¶ 11 On August 6, 2019, the circuit court denied the State's motion to dismiss and granted petitioner's section 2-1401 petitions. However, on September 4, 2019, the court announced that it was sua sponte revisiting its ruling, vacating the August 6 order, and granting the State's motion to dismiss the section 2-1401 petitions. Petitioner's counsel was present when the circuit court announced its decision; however, petitioner was not personally present. The court issued a written order discussing Aguilar and N.G. , and explained:

"Before sentencing in 01 CR 11037, the petitioner stood convicted beyond a reasonable doubt in counts 1 and 3. Clearly, this Court must vacate the conviction in count 1 since it is void [under Aguilar and N.G. ]. Because petitioner's unsentenced conviction in count 3 resulted from a fair and full exercise of due process, a transfer of judgment is proper in this matter ***. Transferring judgment will not run afoul of the one act, one crime doctrine because the original conviction in count 1 was void ab initio , in other words, it is like the conviction never happened. Therefore, nothing existed to be merged into; thus, no vacatur [of count 3] occurred."

¶ 12 The circuit court ordered:

"1. The August 6, 2019, order which denied the State's motion to dismiss [petitioner's] section 2-1401 petitions and granted the relief requested in [petitioner's] petitions is VACATED;

2. The State's joint motion to dismiss [petitioner's] section 2-1401 petitions is GRANTED;

3. Petitioner's conviction and sentence in count 1 of 01 CR 11037 is VACATED;

4. Nunc pro tunc to October 9, 2002, as to count 3 of 01 CR 11037, the previously entered judgment and sentence of probation is TRANSFERRED; and

5. Nunc pro tunc to September 19, 2003, the sentence of probation is TERMINATED unsatisfactorily, and the one year sentence of incarceration is ENTERED and considered SATISFIED."

¶ 13 The circuit court also determined that its nunc pro tunc order was sufficient to allow the newly sentenced conviction on count III to serve as the predicate felony for the 2006 conviction for UUWF.

¶ 14 On April 12, 2021, we granted petitioner leave to file a late notice of appeal from the September 4, 2019, order dismissing his section 2-1401 petitions.

¶ 15 Section 2-1401 of the Code establishes a statutory procedure for a party seeking to...