Appellate Court considers whether a clemency decision is reviewable and subject to constitutional challenge

The appellant in People v. Ramsey, 2019 IL App (3d) 160759, appealed the trial court’s order dismissing his post-conviction petition at the second stage of post-conviction proceedings, on grounds that the court erred by ruling, among other things, that an executive commutation could not be judicially reviewed. Ultimately, Third District affirmed.

Daniel Ramsey was convicted on two counts of first-degree murder, three counts of attempted murder, one count of aggravated criminal sexual assault, one count of home invasion, and one count of residential burglary. At the time Ramsey committed the crimes, he was 18 years old. Ramsey initially received the death penalty. Id. at ¶ 4. However, Ramsey’s convictions were reversed by the supreme court, but Ramsey once again received another death penalty sentence. Ramsey’s sentences were affirmed by the supreme court on appeal. Id. at ¶ 6.

In February 2011, Ramsey filed a pro se post-conviction petition. While that petition was pending, in March 2011, Illinois abolished the death penalty, leading Governor Pat Quinn to commute Ramsey’s death sentence to natural life in prison without the possibility of parole. Id. at ¶ 7. Following the commutation of his sentence, Ramsey amended his post-conviction petition and argued, among other things, that the commutation of his sentence violated his constitutional rights under the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution in that the new sentence failed to consider his age and mitigating factors. Id. at ¶ 8.

The petition was advanced to the second stage of post-conviction proceedings, during which the State filed a motion to dismiss. The circuit court granted the State’s motion, ruling that Governor Quinn’s commutation order was not subject to judicial review. Id. at ¶ 9. This appeal followed.

On appeal, Ramsey argued that the circuit court erred in dismissing his post-conviction petition because his commuted sentence did not take into consideration his youth and other mitigating factors. Id. at ¶ 12. The appellate court’s review was conducted de novo.

In its review, the appellate court acknowledged the breadth of the clemency powers granted to the governor, citing holdings by the supreme court in Madigan v. Snyder, 208 Ill. 2d 457, 474 (2004) that “the Governor’s clemency powers granted by the constitution cannot be controlled either by the courts or the legislature” and in People v. Mata, 217 Ill. 2d 535, 541 (2005), where the court held “[t]he clemency power granted by the Illinois Constitution is not subject to control by the courts or the legislature, but can be controlled only by the Governor’s conscience and sense of public duty.” Id. at ¶ 15.

However, the court also determined that, in accordance with holdings in Mata related to due process issues, “executive clemency is not immune from judicial review if it violates the Constitution.” Id. at ¶ 20. As such, the court disagreed with the State’s argument that the appellate court’s review was precluded by the clemency powers granted to the Governor and proceeded to address whether appellant Ramsey’s due process rights were violated with the imposition of a life sentence without the possibility of parole. Id. at ¶ 21.

On the eighth amendment claim, the court determined that the eighth amendment claim brought by Ramsey failed under Miller, as Ramsey was 18 years old at the time he committed the crimes for which he was sentenced, and Miller only applies to juveniles under the age of 18. Id. at ¶ 22.

On the proportionate penalties clause claim, the court found “nothing in the record to indicate that Governor Quinn’s executively imposed sentence shocks the moral sense of the community, despite Ramsey’s protestations to the contrary.” Id. at ¶ 23. Specifically, on the crimes themselves, the court stated that the circumstances of the acts for which Ramsey was charged could not warrant leniency, which could justify a proportionality claim.

Ultimately, the Appellate Court of Illinois Third District ruled that while the exercise of clemency by the Governor is not wholly unfettered, the commuted death penalty sentence, resulting in a sentence of life without parole for appellant Ramsey, did not violate either the state of United States Constitution. As such, the Appellate Court of Illinois Third District affirmed the decision of the Circuit Court of Hancock County.

Appellate court reverses trial court’s denial of successive petition where defendant shows that trial counsel did not communicate plea offer to him

The appellant in People v. Ryburn, 2019 ILL App (4th) 170779, appealed the trial court’s decision dismissing his successive post-conviction petition at the second stage of proceedings. The Fourth District ultimately reversed the dismissal of the petition and remanded the case for further proceedings.

Ryburn was originally charged with four counts of aggravated criminal sexual assault, four counts of criminal sexual assault, and four counts of aggravate criminal sexual abuse for his actions on September 8, 1998. Ryburn pled guilty to three counts of aggravated criminal sexual assault, pursuant to a plea agreement, in exchange for the State’s dismissal of the remaining nine counts and other unrelated charges, recommendation of an aggregate sentence totaling no more than 60 years, and imposition of no fines. Id. at ¶ 4. Ryburn was sentenced to 20 years imprisonment for each of the three counts of aggravated criminal sexual assault, to be served consecutively. Id. at ¶ 5.

Shortly following sentencing, in December of 1999, Ryburn filed a motion to withdraw his guilty plea, alleging he did not enter it knowingly and voluntarily. The post-plea motion was denied by the trial court. Id. at ¶ 5. On direct appeal, Ryburn’s convictions and aggregate 60-year sentence were affirmed, despite arguments by appellant that his sentence was unconstitutional. Id. at ¶ 6. In June 2002, Ryburn filed a pro se petition for relief under the Post-Conviction Hearing Act, alleging he received ineffective assistance of counsel for the public defender’s failure to (a) raise a speedy trial claim, (b) call certain alibi witnesses, (c) present evidence to corroborate the alibi, (d) obtain police records to show the victim had a motive to fabricate her complaint, and (e) to decide to hold appellant fit to plead guilty.

Ryburn also alleged ineffective assistance of his appellate counsel for failing to raise the aforementioned issues on appeal. Id. at ¶ 7. The circuit court summarily dismissed the petition as frivolous and patently without merit, which was affirmed upon appeal. In July 2004, Ryburn once again unsuccessfully petitioned the court to set aside the guilty pleas for various claims of ineffective assistance of counsel and violation of supreme court rules. Id. at ¶ 8.

Between 2011 and 2015, Ryburn filed four motions for leave to file a successive post-conviction petitions; the first three were initially denied by the circuit court, then appealed, and dismissed upon appellant’s own motions. Id. at ¶ 10-12. The motions contained claims of actual innocence via involuntary intoxication, a breach of the plea agreement related to the mandatory three-year supervisory release term and claims that forensic evidence did not support the second and third counts of his indictment.

Ryburn’s fourth motion for leave, which was allowed by the court, alleged that the State had tendered a plea offer of 24 years’ imprisonment to the public defender’s office that was never conveyed to him, resulting in 36 more years in prison. Id. at ¶ 13. The petition proceeded through the first stage of postconviction proceedings to the second. At the second stage of proceedings, appointed counsel filed an amended post-conviction petition detailing the claims of ineffective assistance of counsel related to the failure to inform Ryburn of the plea offer and the failure of previous appellate counsel to raise the claim on appeal. Id. at ¶ 14. The court dismissed the amended post-conviction petition, claiming that Ryburn failed to show any objective factor that impeded his ability to raise his claim during the initial or subsequent post-conviction proceedings. Id. at ¶ 15. This appeal followed.

The appellate court determined the circuit court’s focus at the second stage of postconviction proceedings should be determining whether the petition’s allegations sufficiently show a constitutional infirmity that would necessitate relief under the Act. Id. at ¶ 22. The dismissal of a petition at the second stage of proceedings is only warranted when the allegations in the petition fail to make a substantial showing of a constitutional violation. Id at ¶ 22.

The appellate court disagreed with and rejected the State’s argument that the word “trial” in the definition of prejudice precludes a defendant who pleaded guilty from filing a successive post-conviction petition, on the grounds that both legislative intent and state supreme court rulings had indicated as much. Id. at ¶ 28. On appeal, Ryburn contended that his amended successive post-conviction petition made a substantial showing of both cause and prejudice, which was not challenged by the State. As such, the appellate court’s review of the substantiality of the petition’s cause and prejudice showings were conducted individually.

On cause, the court held that cause is shown by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings. Id. at ¶ 32. The court held that Ryburn’s ineffective assistance of counsel claims related to the plea offer made by the State in 1998, of which he was never informed by counsel or the State, was an objective, external factor that prevented appellant from raising the issue in the initial post-conviction petition. Id. at ¶ 34-36. The appellate court concluded that appellant did make a substantial showing of cause in this case.

On prejudice, the court held that prejudice is shown by “demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.” Id. at ¶ 38. To this end, Ryburn alleged that his trial counsel was ineffective for failing to inform him of the 1998 plea offer from the State.

Ineffective assistance of counsel claims are analyzed under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Id. at ¶ 39. To obtain a reversal under Strickland, an appellant must prove (1) his counsel’s performance failed to meet an objective standard of competence and (2) counsel’s deficient performance resulted in prejudice to the defendant.

The appellate court concluded that because the United States Supreme Court has previously held that defense counsel has a duty to communicate formal offers from the prosecution to defendants (as required by the sixth amendment) and Ryburn provided sufficient evidence of defense counsel’s failure to inform him of the State’s plea offer, he made a substantial showing of the deficiency prong of the Strickland test. Id. at ¶ 41. The appellate court further determined that Ryburn’s petition made a substantial showing of all four elements of the prejudice prong of the Strickland test by demonstrating a reasonable probability that (1) he would have accepted the plea offer but for counsel’s deficient advice, (2) the plea would have been entered without the State canceling it, (3) the circuit court would have accepted the plea bargain, and (4) “the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Id. at ¶ 42.

Ultimately, the appellate court concluded that Ryburn made a substantial showing of both cause and prejudice and agreed with him that the circuit court erred by granting the State’s motion to dismiss. Id. at ¶ 43. As a result, the Fourth District held that Ryburn’s successive post-conviction petition should advance to the third stage of proceedings for an evidentiary hearing and reversed the decision of the trial court dismissing his petition.

Appellate court holds that State improperly participated in post-conviction hearing but decided not to remand

The appellant in People v. Ames, 2019 IL App (4th) 170569 appealed the trial court’s order denying’s his second motion for leave to file a successive post-conviction petitio on the grounds that the circuit court erred by allowing the State to respond to the motion. Ultimately, the Appellate Court of Illinois Fourth District affirmed the decision of the Circuit Court of Sangamon County.

Ames was convicted of one count of home invasion and two counts of aggravated criminal sexual assault and sentenced to consecutive terms of 28 years of imprisonment for home invasion and 6 years each for aggravated criminal sexual assault. Id. at ¶ 3. On direct appeal, Ames alleged that: (1) evidence of another crime deprived him of a fair trial and (2) trial counsel rendered ineffective assistance by failing to object to prior inconsistent statements made by the victim. The Fourth District affirmed on direct appeal. Immediately following that decision, Ames unsuccessfully petitioned the supreme court for leave to appeal. Id. at ¶ 4.

In September 2005, Ames filed a pro se petition for post-conviction relief, raising numerous ineffective assistance of counsel claims related to both trial and appellate counsel’s performance, including trial counsel’s alleged failure to move for expert analysis of DNA and trial counsel’s refusal to allow Ames to testify at trial. Id. at ¶ 5. After advancing to the second stage of post-conviction proceedings, the circuit court granted the State’s motion to dismiss. On appeal, the appellate court affirmed the dismissal. Again, Ames unsuccessfully petitioned the supreme court for leave to appeal. Id. at ¶ 5.

In September 2012, Ames filed his first motion for leave to file a successive postconviction petition, which was subsequently denied by the circuit court. The circuit court permitted Ames to file an amended motion, which he did in January 2013, asserting, inter alia, that his aggravated criminal sexual assault sentences violated the proportionate penalty clause. Id. at ¶ 6. In May of 2013, following a hearing, the circuit court denied the motion; this denial was affirmed by the appellate court on appeal. Id. at ¶ 6.

In April 2016, Ames filed a second motion for leave to file a successive post-conviction petition. In the months following, the State filed a response asserting that the motion should be denied, which prompted Ames to file a supplement to the original motion. One week following the filing of the supplement to Ames’ motion, a hearing was held where the State was permitted to make arguments.

In December of 2016, Ames’ motion was denied by the court on the grounds Ames failed to establish cause for failing to raise the issues contained in the second motion in his initial post-conviction petition and failing to file an affidavit in support of his claims. Id. at ¶ 7. In July of 2017, a hearing to reconsider the motion was held, resulting in the motion being denied once again. This appeal followed.

The Post-Conviction Hearing Act provides that in order to obtain leave to file a successive post-conviction petition, a petitioner must demonstrate cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice stemming from that failure. Id. at ¶ 12-13. As such, the court considered whether or not appellant Ames made a prima facie showing of cause and prejudice in determining whether or not Ames should be granted leave to file the successive postconviction petition. Id. at ¶ 13.

The appellate court disagreed with assertions made by the State that their involvement in the “preliminary screening” process of cause and prejudice in the successive petition hearing was minimal and proper, holding, consistent with previous rulings by the Illinois Supreme Court in People v. Bailey, 2017 IL 121450, that the State should not have been allowed to participate in any fashion. Id. at ¶ 14. The court’s focus thus became what relief should be afforded to Ames. Namely, whether or not the appellate court had the authority to affirm or deny on any basis found in the record or was required to remand for new proceedings.

After an extensive review of Bailey and subsequent appellate court cases, the appellate court agreed with a ruling in People v. Conway, 2019 IL App (2d) 170196, which held that the appellate court may choose for the sake of judicial economy to review a circuit court’s denial of a motion for leave to file a successive post-conviction petition when the State has been involved. Id. at ¶ 23.

The appellate court held that its review was “more appropriate than remanding the cause to the circuit court.” Id. at ¶ 23. To that end, the appellate court determined that Ames had failed to make a prima facie showing of the cause element for raising conflicts in testimony and evidence that were in the record at the time of his initial post-conviction petition, citing inapplicable Supreme Court cases as reason for delay in bringing his claim, and raising issues regarding DNA testing that had previously been raised. Id. at ¶ 24.

As a result, the Appellate Court of Illinois Fourth District affirmed the decision of the Circuit Court of Sangamon County. Id. at ¶ 26.

 

Appellate Court holds that imprisonment doesn’t excuse a petitioner’s failure to attach supporting material to his post-conviction petition

The appellant in People v. Harris, 2019 IL App (4th) 170261 appealed the decision of the trial court summarily dismissing his pro se petition for post-conviction relief on the grounds that his petition presented an arguable claim of ineffective assistance of counsel for failure to request a continuance to secure witness testimony for his claim of self-defense. The appellate court affirmed the dismissal.

Harris was found guilty on five counts of first-degree murder, one count of attempted first-degree murder, one count of aggravated battery of a child, one count of home invasion, and one count of armed robbery at his May 2013 trial. Id. at ¶ 4. Harris was sentenced to five terms of natural life imprisonment for the first-degree murder charges, 30 years’ imprisonment for the attempted murder charge, 30 years’ imprisonment for the home invasion charge, and 20 years’ imprisonment for the armed robbery charge, all of which were imposed consecutively. Id. at ¶ 4. Both Harris’ convictions and sentences were affirmed on direct appeal.

In December 2016, Harris filed a pro se post-conviction petition alleging ineffective assistance of his trial counsel for failing to request a continuance on the last day of his trial to secure testimony from two witnesses who would have supported his trial defense of self-defense. Id. at ¶ 5. Harris alleged that the witness testimony from the two surviving members of the incident for which Harris was charged would confirm that another member of the family had threatened to kill the entire family and had only been unable to appear at trial because of a missed flight from Florida to Illinois. Id. at ¶ 5.

In support of this argument, Harris attached to his petition (1) a signed and notarized personal evidentiary affidavit, (2) an unsigned “affidavit” drafted by Harris for a witness named “Nicole,” and (3) an unsigned “affidavit” drafted by Harris for a witness named “A.H.” Harris averred that he had questioned his counsel regarding his decision to rest on the last day of trial without their testimony, to which counsel informed him that he had made the decision because both witnesses had missed their flights.

The trial court summarily dismissed the petition in March of 2017, ruling that appellant had failed to attach the necessary supporting material or sufficiently explain why failure to request a continuance amounted to ineffective assistance of counsel. The trial court also found that even if it had considered the summary of the alleged testimony from both witnesses, counsel’s failure to seek a continuance was not arguably deficient, as the testimony would have been inadmissible as hearsay and irrelevant. Id. at ¶ 6. This appeal followed.

On appeal, the Appellate Court reviewed the first-stage dismissal of appellant’s postconviction petition de novo. The court held that despite the “low threshold” for petitions to survive the first stage of postconviction proceedings, Harris was not excused from “providing factual support for his claims… [and] must supply sufficient factual basis to show the allegations in the petition are capable of objective or independent corroboration.” Id. at ¶ 11.

The court indicated that the attached affidavits, records or other evidence included with a postconviction petition exist to establish such support and must (1) show the petitions are capable of corroboration and (2) identify the sources, character, and availability of evidence alleged to support the petition’s allegations. Id. at ¶ 12. The court looked to the Illinois Supreme Court’s ruling that failure to attach the necessary supporting material or explain its absence is “fatal” to a post-conviction petition and alone “justifies the petition’s summary dismissal.” Id. at ¶ 13.

The court disagreed with Harris’ assertion that the personal evidentiary affidavit attached to his postconviction petition adequately supported the assertions made about witness testimony. The court ruled that the affidavit did not demonstrate that the allegation was capable of objective or independent corroboration, nor did it identify the availability of evidence alleged to support the allegation. Id. at ¶ 14.

Harris, in response, relied upon a ruling in People v. Washington, 38 Ill. 2d 446, 449 (1967) to argue that his imprisonment excused his failure to attach such evidence. However, the court found that the court’s decision in Washington was not made on the grounds of the defendant’s failure to present such evidence (as the court found the State had forfeited their argument by failing to raise it before the trial court), and, problematically for Harris, had arrived at a conclusion that did not support the proposition that imprisonment, by itself, could excuse a defendant’s failure to attach supporting material to a post-conviction petition. Id. at ¶ 17.

As such, the court held that imprisonment cannot excuse an appellant’s failure to attach supporting material to a post-conviction petition, as holding otherwise would make the requirement to include such materials “meaningless.” Id. at ¶ 19. Further, the appellate court determined that Harris did not describe any efforts made to obtain signatures for the affidavits he submitted (unsigned), nor did he describe any circumstances, other than imprisonment, that may have prevented him from obtaining those signatures. Id. at ¶ 20.

Because appellant Harris failed to attach the necessary supporting material or provide a reasonable explanation for its absence, the Appellate Court of Illinois Fourth District found the summary dismissal of appellant’s postconviction petition by the Circuit Court of Logan County to be proper and affirmed the court’s judgement. Id. at ¶ 20-23.

Denial of leave to file successive petition reversed where day-for-day eligible 80-year sentence constituted de facto life sentence

The appellant in People v. Peacock, 2019 IL App (1st) 170308 appealed the trial court’s decision denying leave to file his successive post-conviction petition, on the grounds that his sentence constituted a de facto life sentence and violated the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution. The Appellate Court of Illinois First Judicial District ultimately reversed and remanded the decision of the Circuit Court of Cook County for further proceedings.

Appellant Taki Peacock is currently service concurrent respective sentences of 80 years, 30 years, 30 years, and 30 years of imprisonment for convictions related to the 1995 first-degree murder, aggravated kidnapping, aggravated vehicular hijacking, and armed robbery of his victim, Rufus Taylor. At the time of offense, Peacock was 17 years old. Id. at ¶ 1.

On September 12, 2016, appellant filed a successive postconviction petition, in which he challenged the constitutionality of his 80-year sentence, arguing that it was an unconstitutional de facto life sentence pursuant to Miller v. Alabama, 567 U.S. 460 (2012). Appellant was denied leave by the circuit court to file his petition on October 12, 2016, ruling that the petition was untimely, and appellant had failed to file a motion for leave to file the petition. Id. at ¶ 2. This appeal followed.

On appeal, Peacock argued that he should have been permitted to file his petition because the 80-year sentence imposed on his conviction as a juvenile constitutes a de facto life sentence and thus violates the eighth amendment of the US Constitution and the proportionate penalties clause of the Illinois Constitution.  On appeal, Peacock acknowledged that he may qualify for day-to-day credit, and, accordingly, will be required to serve at least 40 years (50%) of his sentence. Peacock argued that his de facto life sentence still triggers the protections of Miller and requires a sentencing court to consider his youth and attendant characteristics in sentencing. Id. at ¶ 3. Peacock argued that the circuit court erred by not doing so and, as a result, thecase should be remanded for a new sentencing hearing.

In response, the State argued that leave was properly denied, and appellant’s sentence does not constitute a de facto life sentence because he was only “likely [to] serve 40 years.” The State points to appellant’s IDOC projected discharge date of August 31, 2035, exactly 40 years from the date he went into custody, as evidence of this fact. Id. at ¶ 4.

This appeal had previously been stayed pending an Illinois Supreme Court decision in People v. Buffer, 2019 IL 122327. Id. at ¶ 5. The Supreme Court has since decided Buffer, allowing for the stay on this case to be lifted.

In Buffer, the Supreme Court held that “a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment.” However, any sentence in excess of 40 years does. Id. at ¶ 11. This determination was made in accordance with previous holdings from Miller, which stated that in order to prevail in similar claims, “a defendant sentenced for an offense committed while a juvenile must show that (1) the defendant was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its attendant characteristics in imposing the sentence.” Id. at ¶ 7. Following the decision in Buffer, both parties in this appeal were permitted to file supplemental briefs to address the impact of the ruling.

In his brief, Peacock argued that the ruling in Buffer supports his previously stated arguments regarding his sentence. Peacock acknowledged that while there is some confusion regarding explicit 40 year sentences (namely whether or not a sentence of exactly 40 years can be considered a de facto life sentence or not), his sentence should be considered in excess of 40 years because it is not guaranteed that he will serve only 40 years of his sentence, as his sentence is “entirely dependent upon the condition that he will not forfeit even one day one day of good conduct credit.” Id. at ¶ 14.

In its brief, the State contended that appellant’s sentence, having recently had his projected release date shortened by 15 days to August 16, 2035, is now only “39 years, 11 months and 16 days in prison,” which under Buffer cannot be constitute a de facto life sentence. Id. at ¶ 15.

As a result of the Supreme Court’s decision in Buffer, however, the Appellate Court held that Peacock’s 80-year sentence in this case did constitute a de facto life sentence. Id. at ¶ 17. The Court expanded that they need not make a determination regarding de facto life sentences on the dividing line of 40 years (the State’s argument) because the sentence imposed was an 80-year sentence with the “mere possibility of release after 40 years,” not a 40-year sentence. Id. at ¶ 19. The Court also agreed with Peacock’s argument that he’s not guaranteed receipt of day-for-day credit.

The Appellate Court also concluded that the trial court erred in failing to consider Peacock’s youth and his attendant characteristics in imposing his sentence, despite the State’s assertions to the contrary. Id. at ¶ 21. The court stated, in accordance with the Supreme Court, that the attendant characteristics that must be considered at sentencing in order to justify a de facto life sentence are “the juvenile defendant’s chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s family and home environment; (3) the juvenile defendant’s degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” Id. at ¶ 22. The Appellate Court held that the trial court’s mere awareness of Peacock’s age and consideration of the PSI was not “the equivalent to a full consideration of those special characteristics” and cannot be considered evidence of such. Id. at ¶ 23-24.

Ultimately, the appellate court held that Peacock’s sentence violated the eighth amendment, vacated the sentence as unconstitutional, reversed the decision of the Circuit Court of Cook County, and remanded for a new sentencing hearing. Id. at ¶ 24-26.

Appellate court reverses dismissal of 2-1401 petition where defendant’s armed habitual criminal conviction was based on a void predicate offense

The appellant in People v. Barefield, 2019 IL App (3d) 160516 appealed the dismissal of his petition for relief from judgement (filed under section 2-1401 of the Code of Civil Procedure), on the grounds that his conviction for armed habitual criminal should be vacated because the predicate offense, his conviction for aggravated unlawful use of a weapon (AUUW), was void ab initio and should also be vacated. The Appellate Court of Illinois Third District ultimately reversed the dismissal of the petition by the trial court.

Barefield was charged with armed habitual criminal after having twice been convicted of AUUW, Aggravated Robbery, and unlawful use of a weapon by a felon (based on his AUUW convictions). Id. at ¶ 3. Barefield entered a negotiated plea agreement in which he pled guilty to armed habitual criminal in exchange for a sentence of eight years and six months imprisonment and the dismissal of the weapons charge. Id. at ¶ 4. Following the entry of his plea, Barfield filed a pro se petition for relief from judgement under section 2-1401 of the Code, arguing that his conviction (for which he entered a guilty plea) was predicated on AUUW convictions related to a AUUW statute that had been held to be facially unconstitutional. Id. at ¶ 5. As a result, Barefield requested the court vacate his conviction based on the fact that the predicate offenses were void ab initio.

The State filed a motion to dismiss under sections 2-615 and 2-619 of the Code, which argued that Barefield had failed to state a cause of action under section 2-1401, the petition was untimely, and could be rejected based on the Illinois Supreme Court’s decision in People v. McFadden, 2016 IL 117424. Id. at ¶ 6. Barefield filed a motion for leave to amend his petition to include a request that the underlying AUUW convictions be vacated as well, as they were also void ab initio. The trial court granted the State’s motion to dismiss and denied Barefield’s motion for leave to amend the petition. Id. at ¶ 8. Barefield appealed.

In its analysis of the vacatur of the armed habitual criminal conviction, the appellate court held that a conviction for armed habitual criminal must be vacated if the predicate AUUW conviction was entered under an unconstitutional section of the AUUW statute. Id. at ¶ 11. The Criminal Code confirms that a defendant must have been convicted of at least 2 firearm offenses to have committed an armed habitual criminal offense, and, according to People v. Davis,“a defendant’s qualifying prior convictions are an element of the offense of being an armed habitual criminal.” Id. at ¶ 12.

The appellate court confirmed Barefield’s assertion that the Illinois Supreme Court had determined parts of the AUUW statute facially unconstitutional because they violate the second amendment of the United States constitution. Id. at ¶ 13. The court also indicated that the Illinois Supreme Court had overruled the decision in McFadden, cited by the State in response to appellant’s motion, and ruled that “when 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. at ¶ 15. As a result, the court concluded that if Barefield’s AUUW conviction was pursuant to section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code, then his conviction for armed habitual criminal must be vacated. Id. at ¶ 17.

The Court acknowledged that while Roberson was definitively charged under section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code, the record was unclear as to whether he was convicted under the same section. As such, the appellate court ruled that the section of the statute under which Barefield was convicted needed to be established definitively. The court remanded the matter to the circuit court for such a determination. Id. at ¶ 18.

On the vacatur of the AUUW Convictions, the court noted that the State conceded that Roberson’s prior AUUW convictions were void ab initio and disagreed with their assertion that Roberson needed to file post-conviction petitions separately in those cases. Id. at¶ 22. The Court cited In re N.G.,2018 IL 121939, stating under Illinois law, there is no fixed procedural mechanism or forum, nor is there any temporal limitation governing when a void ab initio challenge may be asserted.” Id. at ¶ 23.

The court ruled that Roberson should be permitted to amend his section 2-1401 petition to seek vacatur of his AUUW convictions in addition to his armed habitual criminal conviction. Id. at ¶ 24. The court remanded the matter to the circuit court for a determination as to whether Roberson was convicted under one of the facially unconstitutional sections of the AUUW statue. Id. at ¶ 25.

The Barefield court ultimately reversed and remanded the decision of the trial court dismissing the section 2-1401 petition and denying Barefield leave to amend the petition, with directions for the circuit court to vacate all convictions, should they be determined to have been entered under one of the facially unconstitutional sections of the AUUW statute. Id. at ¶ 29.