People v. Ayoubi ( 2021 )

2021 IL App (2d) 210010-UNo. 2-21-0010
Order filed November 18, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Kendall County.
)
Petitioner-Appellee, )
)
v. ) No. 05-CF-306
)
FIRAS M. AYOUBI, ) Honorable
) John F. McAdams,
Respondent-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Justices Zenoff and Hudson concurred in the judgment.
ORDER
¶1 Held: Trial court properly denied petition for relief from judgment because it was
untimely and none of the potential exceptions from the limitations period applied.
¶2 In 2007, the defendant, Firas M. Ayoubi, pled guilty to the offense of indecent solicitation
of a child. In December 2007 he was sentenced to four years’ imprisonment. In 2020, Ayoubi
filed a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
2018)), alleging that he had recently discovered that the Illinois Department of Corrections
(Department) was reporting that the offense of which he was convicted in 2007 was “INDECENT
SOL/PREDITORY [sic]/AGG SEX,” which was different than the offense he had pled guilty to.
2021 IL App (2d) 210010-UHe argued that he had been misled regarding the offense of conviction, and thus his guilty plea
was invalid and should be vacated. The trial court denied the petition, and Ayoubi appeals. We
affirm.
¶3 I. BACKGROUND
¶4 In September 2005, Ayoubi was charged by information with the class 1 felony of indecent
solicitation over the internet of a 12-year-old child (720 ILCS 5/11-6(a) (West 2004)).
Specifically, the information alleged that Ayoubi, “a person of 17 year [sic] of age and upwards,
with the intent that the offense of predatory criminal sexual assault be committed, knowingly
solicited R.S., a child under the age of 17 years to perform an act of sexual penetration in violation
of 5/11-6(a).” Ayoubi admitted that he knew the child was under 18 years old but asserted that he
did not know that she was younger than 13.
¶5 The State later added a charge of another class 1 felony, attempted predatory criminal
sexual assault (720 ILCS 5/8-4(a) (West 2006)). On March 7, 2007, Ayoubi waived his right to a
jury trial and pled guilty to indecent solicitation. The State nol-prossed the charge of attempted
predatory criminal sexual assault.
¶6 All of the documents filed on March 7, 2007, including the guilty plea form, the judgment,
and the sex offender registration act notification form, stated that Ayoubi pled guilty to and was
convicted of “indecent solicitation of a child” in violation of section 11-6 of the Criminal Code of
1963 (Code) (720 ILCS 5/11-6 (West 2004)). None of the documents explicitly indicated that the
offense was “predatory” or “aggravated” in nature. However, the judgment noted that the offense
was a class 1 felony. Under the statute, an offense was a class 1 felony only “when the act, if done,
would be predatory criminal sexual assault of a child or aggravated criminal sexual assault.”
Id. § 11-6(c)(1).
-2-
2021 IL App (2d) 210010-U¶7 Although Ayoubi was initially sentenced to three years of probation, the State successfully
petitioned to revoke his probation only a few months later on the grounds that he had again
solicited a minor. On December 10, 2007, Ayoubi was resentenced to four years’ imprisonment,
followed by two years of mandatory supervised release. That judgment and sentence form also
stated that Ayoubi’s offense of conviction was the class 1 felony of “indecent solicitation of a
child” in violation of section 11-6 of the Code.
¶8 In 2012, Ayoubi was taken into custody on a new offense. He was convicted of aggravated
criminal sexual assault and sentenced to 28 years in prison, where he remains today.
¶9 Recently, Ayoubi received a “verification of incarceration” printout from the Department
that listed his 2007 offense of conviction as “INDECENT SOL/PREDITORY [sic]/AGG SEX.”
That printout was the basis for his section 2-1401 petition, in which he argued that the offense
reported on the printout was different than the “basic” offense to which he pled guilty (which he
asserts did not include “predatory” or “aggravated” elements), thereby casting doubt on the validity
of his plea.
¶ 10 The trial court denied the petition, finding that it was filed beyond the two-year limitations
period and that Ayoubi’s conviction was not void, as the trial court that accepted his plea and
entered the judgment of conviction had jurisdiction to do so. The trial court further found that,
even if the petition had been timely, it lacked merit because the Department’s printout did not and
could not change the offense to which Ayoubi pled guilty. Rather, the Department’s printout
simply noted the fact that the offense of conviction was a class 1 felony, which was defined in the
statute as conduct that, “if done, would be predatory criminal sexual assault of a child or aggravated
criminal sexual assault.” 720 ILCS 5/6-11(c)(1) (West 2004). Ayoubi then filed this appeal.
¶ 11 II. ANALYSIS
-3-
2021 IL App (2d) 210010-U¶ 12 Although Ayoubi raises several arguments in this appeal, we do not consider most of them
because we agree with the trial court’s determination that his petition was untimely, having been
filed 13 years after his conviction and resentencing.
¶ 13 Ayoubi’s petition for relief from judgment was filed under section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2018)). Except for specific types of judgments not
relevant here, such petitions “must be filed not later than 2 years after the entry of the order or
judgment” from which the petitioner seeks relief. Id. § 2-1401(c). However, any time when “the
ground for relief is fraudulently concealed” is excluded from the two-year period. Id. Ayoubi
argues that fraudulent-concealment tolling applies here, because both the trial court and his own
counsel failed to tell him that he had pled guilty to “a particular aggrevated [sic] subsection of the
statute” on indecent solicitation, and he did not learn otherwise until he “recently” received the
Department printout.
¶ 14 We begin by noting that Ayoubi did not include in the record on appeal any transcripts of
his arraignment, plea proceedings, or sentencing. As the appellant, it was Ayoubi’s responsibility
to supply a complete record sufficient to allow us to review the issues he wished to raise on appeal.
People v. Carter, 2015 IL 117709, ¶ 19. If the record is not complete or sufficient, we must
presume that the order entered by the trial court was legally correct and had a sufficient factual
basis. Koppel v. Michael, 374 Ill. App. 3d 998, 1008 (2007) (citing Foutch v. O’Bryant, 99 Ill. 2d
389, 391-92 (1984)). Any doubts that arise from the incompleteness of the record must be resolved
against the appellant. Carter, 2015 IL 117709, ¶ 19.
¶ 15 Here, the burden is on Ayoubi to show that the nature of the charge he pled guilty to was
fraudulently concealed from him, but he has not supported his argument with any evidence, such
as transcripts, that the charge was incorrectly described to him or that the trial court’s inquiry into
-4-
2021 IL App (2d) 210010-Uhis understanding of that charge and the effects of his guilty plea was flawed in any way. Thus,
we must presume that the trial court correctly performed its duty to ensure that these requirements
were met. Id.; see also Ill. S. Ct. R. 402 (eff. July 1, 2012) (before accepting guilty plea, trial court
must ensure that the accused understands the nature of the charges against him and determine
whether there is a factual basis for the plea in that the elements of the offense could be proved).
¶ 16 Further, although Ayoubi supplied us with some of the record from the trial court, that
record affirmatively contradicts his argument that he did not know that he was pleading guilty to
an offense involving “predatory” or “aggravated” conduct. The charging instrument stated that
Ayoubi’s offense involved an intent to commit predatory criminal sexual assault, and the judgment
identified his offense of conviction as a class 1 felony, which requires the intent to commit
predatory or aggravated criminal sexual abuse. Ayoubi could have discovered the predatory or
aggravated nature of the solicitation charge against him at any time before or after he pled guilty.
There is no basis in the record for his argument that the nature of the charged offense was
fraudulently concealed from him until recently.
¶ 17 Ayoubi also argues that his section 2-1401 petition was timely because his conviction is
void. We must reject this argument as well.
¶ 18 The two-year limitation in section 2-1401 does not apply to void judgments, which may be
challenged at any time. People v. Castleberry, 2015 IL 116916, ¶ 15. Because the breadth of this
principle threatens the finality of judgments, “only the most fundamental defects, i.e., a lack of
personal jurisdiction or lack of subject matter jurisdiction *** warrant declaring a judgment
void.’ ” Id. “Personal jurisdiction refers to the court’s power ‘to bring a person into its
adjudicative process.’ ” In re M.W., 232 Ill. 2d 408, 415 (2009) (quoting Black's Law Dictionary
870 (8th ed. 2004)). “Subject matter jurisdiction refers to the court’s power ‘to hear and determine
-5-
2021 IL App (2d) 210010-Ucases of the general class to which the proceeding in question belongs.’ ” Id. (quoting Belleville
Toyota, Inc. v. Toyota Motor Sales U.S.A., Inc., 199 Ill. 2d 325, 334 (2002)).
¶ 19 Ayoubi does not argue that the trial court lacked either personal jurisdiction over him or
the power to hear and determine criminal cases such as his. Rather, he argues that he
misunderstood the nature of the offense to which he pled guilty, invalidating his plea. This
argument is refuted by the record, which shows that Ayoubi was informed of the nature of the
class 1 felony charge against him before he pled guilty, including the charged element that he
knowingly solicited a child “with the intent that the offense of predatory criminal sexual assault
be committed.” That is the charge to which he pled guilty, and the Department’s printout cannot
and does not show that he pled guilty to anything else.
¶ 20 Even if Ayoubi’s plea had been based on a misunderstanding of the charge and thus the
trial court erred in accepting it, however, that still would not make his conviction void. “Error or
irregularity in the proceeding, while it may require reversal of the court’s judgment on appeal,
does not oust subject matter jurisdiction once it is acquired.” Id. at 423 (citing People v. Davis,
156 Ill. 2d 149, 157 (1993) (a court does not lose jurisdiction because it makes a mistake of law or
fact or both)). As the trial court had personal and subject matter jurisdiction when it entered
Ayoubi’s conviction, that conviction is not void. Thus, Ayoubi was required to file his petition
within two years after that conviction was entered. As he did not, the petition was properly denied
as untimely.
¶ 21 III. CONCLUSION
¶ 22 For the reasons stated, the judgment of the circuit court of Kendall County is affirmed.
¶ 23 Affirmed.
-6-