People v. Ellis

2020 IL App (1st) 190774

178 N.E.3d 214

448 Ill.Dec. 890

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

v.Michael ELLIS, Defendant-Appellant.

No. 1-19-0774

Appellate Court of Illinois, First District, SIXTH DIVISION.

September 30, 2020

James E. Chadd, Thomas A. Lilien, and Christopher McCoy, of State Appellate Defender's Office, of Elgin, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins, and John E. Nowak, Assistant State's Attorneys, of counsel), for the People.

OPINION

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Michael Ellis was found guilty of being an armed habitual criminal. When they arrested Mr. Ellis and confiscated the gun admitted into evidence at his trial, the arresting officers had probable cause to believe that he was in violation of a provision of the Illinois aggravated unlawful use of a weapon (AUUW) statute ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)) that would only later be deemed facially unconstitutional. This court initially reversed Mr. Ellis's conviction for a lack of probable cause ( People v. Ellis , 2016 IL App (1st) 140613-U, ¶ 37, 2016 WL 1221730 ). We later affirmed the conviction ( People v. Ellis , 2018 IL App (1st) 140613-U, ¶¶ 32, 42, 2018 WL 1005864 ) on remand from a supervisory order instructing us to reconsider in light of People v. Holmes , 2017 IL 120407, 418 Ill.Dec. 254, 90 N.E.3d 412, which held that, in such cases, probable cause is not retroactively invalidated. Mr. Ellis now urges us to conclude, from statements made in a recent opinion, that our supreme court has implicitly overruled Holmes . Finding insufficient support for this argument, we affirm the circuit court's denial of Mr. Ellis's petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1401 (West 2016) ).

¶ 2 I. BACKGROUND

¶ 3 On April 27, 2011, four Chicago police officers witnessed Mr. Ellis approach a parked car, look around, remove an object from his waistband, toss the object into the car, and walk away. Two officers approached the car and observed a gun lying on the front passenger seat. Mr. Ellis was arrested, and the gun was confiscated. At the time, section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)) made it a crime to carry an operable firearm outside the home. Only later did officers discover that Mr. Ellis was in violation of another section of the AUUW statute requiring anyone in possession of a firearm to carry a valid firearm owner's identification (FOID) card (§ 24-1.6(a)(1), (a)(3)(C)). Concluding that the officers had probable cause to believe a crime had been committed when they arrested Mr. Ellis and confiscated the gun, the trial court denied Mr. Ellis's motion to quash his arrest and suppress the gun. Mr. Ellis, who had been convicted of two prior qualifying felonies, was found guilty of being an armed habitual criminal ( 730 ILCS 5/5-4.5-95 (West 2012) ) and, because this was his third Class X conviction, was sentenced to natural life in prison.

¶ 4 Several months after Mr. Ellis's trial, our supreme court held in People v. Aguilar , 2013 IL 112116, ¶¶ 21-22, 377 Ill.Dec. 405, 2 N.E.3d 321, that section 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)) was facially unconstitutional in violation of the second amendment. See also People v. Burns , 2015 IL 117387, ¶ 25, 413 Ill.Dec. 810, 79 N.E.3d 159 (clarifying that the entire provision, and not just the Class 4 form of the offense, was unconstitutional). The court made clear that "a defendant cannot be prosecuted under a criminal statute that is unconstitutional in its entirety, as such a statute is void ab initio ." Aguilar , 2013 IL 112116, ¶ 12, 377 Ill.Dec. 405, 2 N.E.3d 321.

¶ 5 On direct appeal, Mr. Ellis argued that because the only basis for the arresting officers to believe a crime had been committed was under the portion of the AUUW statute declared unconstitutional in Aguilar , any evidence obtained as a result of their search should have been suppressed. This court agreed. Noting that when a statute is declared facially unconstitutional in Illinois, it is " ‘as though no such law had ever been passed,’ " we reasoned that probable cause, though it existed at the time of the arrest and seizure, was vitiated by the court's holding in Aguilar . Ellis , 2016 IL App (1st) 140613-U, ¶ 29, 2016 WL 1221730 (quoting People v. Carrera , 203 Ill. 2d 1, 14, 270 Ill.Dec. 440, 783 N.E.2d 15 (2002) ). Accordingly, we reversed the trial court's denial of Mr. Ellis's motion to suppress and vacated his conviction. Id. ¶ 38.

¶ 6 While the State's petition for leave to appeal that decision was pending, however, our supreme court decided People v. Holmes , 2017 IL 120407, 418 Ill.Dec. 254, 90 N.E.3d 412. In Holmes , the court held—contrary to our initial decision in Mr. Ellis's direct appeal—that probable cause is not retroactively invalidated by a subsequent finding that the statute giving rise to it was void ab initio . Id. ¶ 37. The court instructed us in a supervisory order to reconsider Mr. Ellis's appeal in light of Holmes ( People v. Ellis , No. 120888, 417 Ill.Dec. 839, 89 N.E.3d 758 (Ill. Sept. 27, 2017) (supervisory order)), and we did, this time affirming Mr. Ellis's conviction and sentence. People v. Ellis , 2018 IL App (1st) 140613-U, ¶¶ 32, 42, 2018 WL 1005864.

¶ 7 At issue in this appeal is the pro se petition for relief from judgment pursuant to section 2-1401 of the Code ( 735 ILCS 5/2-1401 (West 2016) ) filed by Mr. Ellis on October 10, 2018, and supplemented by him on January 10, 2019. In his petition, Mr. Ellis argued (1) that In re N.G. , 2018 IL 121939, 425 Ill.Dec. 547, 115 N.E.3d 102, decided by our supreme court after Holmes and after our 2018 decision affirming Mr. Ellis's conviction, contained language that "contradicted and went against Holmes "; (2) that Holmes had thus been overruled "sub-silentio "; and (3) that the trial court's denial of Mr. Ellis's motion to suppress was erroneous under this new precedent. The State filed no response. At argument on the petition, however, the State took the position that Mr. Ellis's armed habitual criminal conviction did not run afoul of N.G. because none of the three felonies underlying it was for the mere possession of a firearm under the stricken portion of the AUUW statute.

¶ 8 The circuit court denied Mr. Ellis's petition, stating in its order:

"Petitioner, once again, is trying to distinguish his case from the rule in Holmes . Petitioner has attempted to do this, unsuccessfully, in both the Illinois Supreme Court and the appellate court. His claims have been adjudicated by superior courts. These claims are res judicata and this court has neither the ability nor the inclination to modify their rulings. Accordingly, the petition for Relief from Judgment is denied."

¶ 9 Mr. Ellis now appeals.

¶ 10 II. JURISDICTION

¶ 11 The circuit court denied Mr. Ellis's section 2-1401 petition on April 3, 2019. The April 26, 2019, "late" notice of appeal Mr. Ellis was allowed to file in this court was in fact timely. We have jurisdiction over this appeal under Rule 304(b)(3), governing the review of orders granting or denying relief sought pursuant to section 2-1401 of the Code. See Ill. S. Ct. R. 304(b)(3) (eff. Mar. 8, 2016).

¶ 12 III. ANALYSIS

¶ 13 In this appeal, Mr. Ellis asks us to reverse the circuit court's denial of his section 2-1401 petition and, ultimately, to reverse his conviction for being an armed habitual criminal. Mr. Ellis argues that, in N.G. , 2018 IL 121939, 425 Ill.Dec. 547, 115 N.E.3d 102, our supreme court implicitly overruled its holding—announced just one year prior in Holmes , 2017 IL 120407, 418 Ill.Dec. 254, 90 N.E.3d 412 —that probable cause is not retroactively invalidated by a finding that the criminal statute it was based on is facially unconstitutional. The State insists that if our supreme court wished to overrule its prior decision, it would have done so expressly. It argues that Holmes plainly applies here and must be followed until our supreme court directs otherwise. For the reasons that follow, we agree with the State.

¶ 14 Section 2-1401 of the Code establishes a statutory procedure for a party seeking to vacate a final judgment, including a criminal conviction, that was entered more than 30 days prior. 735 ILCS 5/2-1401(a) (West 2016). Proceedings under this section, though filed in the same case in which the judgment was entered, are viewed as a collateral attack and not as a continuation of the underlying litigation. Id. § 2-1401(b) ; Warren County Soil & Water Conservation District v. Walters , 2015 IL 117783, ¶ 31, 392 Ill.Dec. 523, 32 N.E.3d 1099. "[A] section 2-1401 petition can present either a factual or legal challenge" and "the nature of the challenge presented *** dictates the proper standard of review on appeal." Id. Where, as here, a judgment is attacked as a matter of law, our review is de novo . Id. ¶ 47.

¶ 15 Mr. Ellis initially contends that the State has forfeited any argument that his section 2-1401 petition lacked merit because it did not file an answer to the petition in the circuit court. We agree with the State, however, that under People v. Vincent , 226 Ill. 2d 1, 9-10, 312 Ill.Dec. 617, 871 N.E.2d 17 (2007), the failure to answer a section 2-1401 petition constitutes only an admission of well-pleaded facts, not an admission that the petition has legal merit. We find no forfeiture here, where the relevant facts are not contested and the question Mr. Ellis has raised is a purely legal one: did the court in N.G. implicitly overrule Holmes ? We begin by revisiting Holmes .

¶ 16 In Holmes , our supreme court considered the very question presented in Mr. Ellis's direct appeal: whether probable cause is retroactively extinguished when the criminal statute...