People v. Massamillo , 2020 IL App (3d) 190765 ( 2021 )

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Appellate Court Date: 2021.04.15
13:00:47 -05'00'
People v. Massamillo, 2020 IL App (3d) 190765
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOSEPH A. MASSAMILLO, Defendant-Appellant.
District & No. Third District
No. 3-19-0765
Filed November 9, 2020
Decision Under Appeal from the Circuit Court of La Salle County, No. 12-CF-578; the
Review Hon. Cynthia M. Raccuglia, Judge, presiding.
Judgment Affirmed.
Counsel on Jack E. Boehm Jr., of Lake Bluff, for appellant.
Appeal
Karen Donnelly, State’s Attorney, of Ottawa (Patrick Delfino, Thomas
D. Arado, and Gary F. Gnidovec, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE SCHMIDT delivered the judgment of the court, with
opinion.
Justice McDade concurred in the judgment and opinion.
Justice Wright concurred in part and dissented in part, with opinion.
OPINION
¶1 Defendant, Joseph A. Massamillo, filed a petition for relief from judgment, alleging that
his 2013 conviction for unlawful possession of cannabis with intent to deliver was void. The
circuit court found that the conviction was not void and dismissed defendant’s petition as
untimely. We affirm.
¶2 I. BACKGROUND
¶3 The State filed an indictment on December 18, 2012, in which it charged defendant with
two counts of unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(f) (West
2012) (Class 1 felony); id. § 5(g) (Class X felony)).
¶4 On June 5, 2013, defendant pled guilty to a newly filed Class 2 felony charge of unlawful
possession of cannabis with intent to deliver. Id. § 5(e). The court sentenced defendant to a
term of three years’ imprisonment, to be followed by a two-year term of mandatory supervised
release. Defendant has not included the report of proceedings from his plea hearing in the
appellate record.
¶5 On December 15, 2017, defendant filed a petition for relief from judgment pursuant to
section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2016)). In
his petition, defendant alleged that his conviction had been based upon a traffic stop effectuated
on Interstate 80 by the State’s Attorney’s Felony Enforcement (SAFE) unit. Citing our supreme
court’s decision in People v. Ringland, 2017 IL 119484, defendant asserted that the SAFE unit
was not a valid law enforcement entity and that the stop of his vehicle and his subsequent arrest
were both unauthorized and illegal. Defendant concluded: “Applying the holding of Ringlnd
[sic] to The Circuit Court of La Salle County, La Salle County no longer has jurisdiction over
any of the Defendants that were stopped, arrested and prosecuted by the State’s Attorney of
La Salle County.” Defendant requested that the court vacate his conviction as void.
¶6 The State filed a response, alleging that defendant’s petition was filed outside of the two-
year limitations period contemplated by section 2-1401. The State argued that the holding in
Ringland did not disturb circuit court jurisdiction and that defendant’s conviction was therefore
not void.
¶7 The circuit court entered an order on January 24, 2018, denying defendant’s petition but
granting leave to refile. The precise grounds for this order are unknown, as defendant has not
included in the appellate record any report of proceedings relating to his original petition.
¶8 On June 14, 2018, defendant filed a petition for relief from judgment, raising the same
claim: that his conviction was void because the unauthorized actions of the SAFE unit deprived
the circuit court of jurisdiction. The State, now via a special prosecutor, filed a motion to
dismiss, again asserting untimeliness.
¶9 The court ultimately dismissed defendant’s petition for relief from judgment, finding that
defendant’s conviction was not void and that his petition was therefore untimely. This appeal
follows.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant raises the same arguments as those raised in the circuit court. Namely,
he argues that because his stop and arrest were unauthorized, the circuit court lacked
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jurisdiction over him. He contends that the lack of jurisdiction renders his conviction void and
that such a claim of voidness is not subject to the two-year limitations period applicable to
petitions for relief from judgment under section 2-1401.
¶ 12 Section 2-1401 of the Code provides a statutory procedure for seeking vacatur of a final
judgment that is more than 30 days old. 735 ILCS 5/2-1401 (West 2018); People v. Vincent,
226 Ill. 2d 1, 7 (2007). A petition for relief from judgment under this section must be filed
within two years of the judgment being challenged. 735 ILCS 5/2-1401(c) (West 2018). The
two-year limitations period, however, is inapplicable where the judgment being challenged is
void. 1 People v. Thompson, 2015 IL 118151, ¶ 29. We review the circuit court’s dismissal of
a petition for relief from judgment de novo. Vincent, 226 Ill. 2d at 14.
¶ 13 The State does not dispute that the traffic stop and subsequent arrest in this case were
conducted by the SAFE unit. Nor does the State dispute that the SAFE unit was not authorized
to take those actions. This court previously held in People v. Ringland, 2015 IL App (3d)
130523, ¶¶ 24, 42, 48, that the creation of a drug interdiction unit by the state’s attorney
exceeded the scope of section 3-9005(b) of the Counties Code (55 ILCS 5/3-9005(b) (West
2012)). Our supreme court affirmed that holding, finding that neither section 3-9005 nor the
common law provided authority for the state’s attorney or his unit to “patrol the highways,
engage in law enforcement, and conduct drug interdiction.” Ringland, 2017 IL 119484, ¶¶ 21,
24-25, 33.
¶ 14 This appeal calls on us to consider whether defendant’s unauthorized arrest at the hands of
the SAFE unit renders his subsequent criminal conviction void. Illinois law recognizes two
types of void judgments. Thompson, 2015 IL 118151, ¶¶ 31-32. First, a judgment is void where
“the court that entered the final judgment lacked personal or subject matter jurisdiction.” Id.
¶ 31. Second, a judgment is void where it is based upon a facially unconstitutional statute,
which is void ab initio. 2 Id. ¶ 32.
¶ 15 This case presents no issue relating to the circuit court’s subject matter jurisdiction. Article
VI, section 9, of the Illinois Constitution provides that “Circuit Courts shall have original
jurisdiction of all justiciable matters.” Ill. Const. 1970, art. VI, § 9. “With the exception of the
circuit court’s power to review administrative action, which is conferred by statute, a circuit
court’s subject matter jurisdiction is conferred entirely by our state constitution.” Belleville
Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334 (2002). There can be no
doubt that defendant’s prosecution for unlawful possession of cannabis with intent to deliver
was a justiciable matter. See id. at 335; see generally People v. Glowacki, 404 Ill. App. 3d 169,
1
Periods in which a petitioner suffers from legal disability or duress, or during which the grounds
for relief are fraudulently concealed from a petitioner, are also excluded in the calculation of the two-
year period under section 2-1401. 735 ILCS 5/2-1401(c) (West 2018). Defendant does not argue that
either of those exceptions apply to his case.
2
The void ab initio doctrine is inapplicable to the present case. Under that doctrine, a statute that
has been found facially unconstitutional is deemed void ab initio, or void from the beginning. People
v. Holmes, 2017 IL 120407, ¶ 12. The unconstitutional law “ ‘confers no right, imposes no duty and
affords no protection. It is *** as though no such law had ever been passed.’ ” People v. Gersch, 135
Ill. 2d 384, 399 (1990) (quoting People v. Schraeberg, 347 Ill. 392, 394 (1932)). No statute relevant to
this case has been found or is argued to be facially unconstitutional.
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172 (2010) (“Under this rule, most void judgments occur when the trial court lacks personal
jurisdiction; failures of subject matter jurisdiction are unusual.”).
¶ 16 Accordingly, defendant argues only that the circuit court lacked personal jurisdiction over
him. More specifically, he claims: “Defendant’s stop by a SAFE unit investigator was
unlawful; therefore, personal jurisdiction was never acquired over Defendant. Defendant’s
court appearances and conduct thereafter, including his guilty plea, were done without proper
personal jurisdiction over Defendant ***.” Similarly, in his reply brief, defendant repeatedly
asserts that personal jurisdiction was lacking because he “was never properly brought before
the court” and never voluntarily submitted to the court’s jurisdiction.
¶ 17 Defendant, like the dissent, fails to provide citation to any authority that supports his
assertions. This failure likely stems from the fact that his assertions are incorrect. Our supreme
court declared in 1970:
“The general rule is that if a defendant is physically present before the court on an
accusatory pleading, either because held in custody after arrest or because he has
appeared in person after giving bail, the invalidity of the original arrest is immaterial,
even though seasonably raised, as far as the jurisdiction of the court to proceed with
the case is concerned. [Citations.] Due process of law is satisfied when one present in
court is convicted of crime after having been fairly apprised of the charges against him
and after a fair trial in accordance with constitutional procedural safeguards.
Accordingly it is held that the power of a court to try a person for crime is not impaired
by the fact that he has been brought within the court’s jurisdiction by reason of a
forcible abduction.” People v. Bliss, 44 Ill. 2d 363, 369 (1970).
Even 50 years ago, that particular statement of the law was not new or novel. See People v.
Rose, 22 Ill. 2d 185, 186 (1961) (“We find it unnecessary to consider the defendant’s
contention that she was illegally arrested for it is settled that illegal arrest, in itself, in no way
affects a judgment of conviction [citation].”).
¶ 18 It is well settled that “a defendant’s appearance before the trial court on a criminal charge
ordinarily confers personal jurisdiction over the defendant.” People v. Johnson, 2015 IL App
(2d) 140388, ¶ 7; see also, e.g., People v. Speed, 318 Ill. App. 3d 910, 915 (2001); United
States v. McLaughlin, 949 F.3d 780, 781 (2d Cir. 2019) (per curiam) (“When a District Court
has subject matter jurisdiction over the criminal offenses charged, it has personal jurisdiction
over the individuals charged in the indictment and present before the court to answer those
charges.”). In the instant case, there is no dispute that defendant was properly charged and
appeared before the circuit court. While defendant claims that he was not “properly brought
before the court,” Bliss makes clear that the concept of personal jurisdiction is subject to no
such caveats.
¶ 19 Defendant also argues that his case is distinguishable from the more common situation in
which arrests are deemed illegal for lack of probable cause “because [defendant’s] arrest was
invalid from its inception due to the lack of authority of the officer to make the arrest.” In
essence, he argues that the instant arrest was even more illegal than a mere violation of the
fourth amendment.
¶ 20 Again, defendant has cited no authority in support of the notion of tiers of illegality, or that
one illegal arrest may be merely illegal while another is “invalid from its inception.” In fact,
the rule that an illegal arrest is not a jurisdictional issue has been applied in circumstances far
more egregious than those seen here. In Frisbie v. Collins, 342 U.S. 519, 520 (1952), for
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instance, the defendant was forcibly seized from his home in Chicago by Michigan officers,
who subsequently transported him to Michigan. The United States Supreme Court, while
allowing that the Michigan officers might be subject to criminal penalties under the Federal
Kidnaping Act, nevertheless concluded that jurisdiction over the defendant by the Michigan
courts was sound:
“This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S.
436, 444 [(1886)], that the power of a court to try a person for crime is not impaired by
the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible
abduction.’ No persuasive reasons are now presented to justify overruling this line of
cases. They rest on the sound basis that due process of law is satisfied when one present
in court is convicted of crime after having been fairly apprized of the charges against
him and after a fair trial in accordance with constitutional procedural safeguards. There
is nothing in the Constitution that requires a court to permit a guilty person rightfully
convicted to escape justice because he was brought to trial against his will.” Id. at 522.
¶ 21 Defendant here was illegally arrested by a unit that had no statutory or common law
authority to take such an action. Ringland, 2017 IL 119484, ¶¶ 21, 33. That illegal arrest,
however, had no impact on the circuit court’s jurisdiction. See Bliss, 44 Ill. 2d at 369. The
court had subject matter jurisdiction derived from the Illinois Constitution and personal
jurisdiction because defendant appeared in court to answer charges. Moreover, defendant’s
conviction was not based upon a facially unconstitutional statute. In short, defendant’s
conviction is not void.
¶ 22 Accordingly, any attack on that conviction raised in a petition for relief from judgment is
subject to the two-year limitations period of section 2-1401. 735 ILCS 5/2-1401(c) (West
2018). Because defendant filed his petition more than five years after his conviction, and the
State raised the issue of timeliness in a motion to dismiss, the circuit court properly dismissed
defendant’s petition as untimely.
¶ 23 III. CONCLUSION
¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court of La Salle County.
¶ 25 Affirmed.
¶ 26 JUSTICE WRIGHT, concurring in part and dissenting in part:
¶ 27 I respectfully concur in part and dissent in part. First, based on the argument advanced by
defendant, I agree with the majority’s view that defendant’s section 2-1401 petition was
untimely. However, I note that this court has not been asked to consider whether due diligence
resulted in a timely filed petition following the holding in People v. Ringland, 2017 IL 119484.
¶ 28 Similarly, I agree with the majority’s observation that this court is bound by existing
precedent. The existing precedent makes it clear that the SAFE unit was unlawfully operating
as a drug interdiction unit. Ironically, the SAFE unit has been unanimously denounced as an
unlawful law enforcement operation by two levels of judicial review. See id. ¶¶ 2, 33.
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¶ 29 For purposes of this separate offering, I turn to precedent from our supreme court
concerning void convictions. 3 Recently, in In re N.G., 2018 IL 121939, our supreme court
relied on the authority represented by the decisions in Montgomery v. Louisiana, 577 U.S. ___,
136 S. Ct. 718 (2016), and Class v. United States, 583 U.S. ___, 138 S. Ct. 798 (2018). In so
doing, our supreme court stated as follows:
“The United States Supreme Court has identified two basic paths for analyzing the
consequences of a constitutionally deficient criminal conviction. Which path a court
must follow depends, in the first instance, on the reason the conviction is
unconstitutional. Where the conviction is found to have resulted from constitutionally
deficient procedures, that determination does not negate the possibility that the
defendant is actually culpable for the underlying offense and could have been convicted
of that offense had the constitutionally mandated standards been followed.” (Emphasis
in original.) In re N.G., 2018 IL 121939, ¶ 34.
¶ 30 This appeal falls onto the first path. In other words, our court must determine the severity
of the consequences stemming from the state’s attorney’s unlawful operation of the SAFE unit,
beyond the boundaries of his authority rooted in our state constitution. The trial court
determined that no negative consequences should be imposed due to the prosecutor’s unlawful
operations. Respectfully, I conclude that the egregious prosecutorial abuse of power warrants
a serious consequence, specifically, defendant’s conviction should be treated as void in spite
of his guilty plea. Even if the outcome of this appeal is severely limited to the unique facts of
record, I would hold that this conviction cannot be salvaged.
¶ 31 First, this felony arrest, culminating in a conviction, cannot be justified, in hindsight, as
based on a constitutional traffic stop qualifying as a citizen’s arrest. This is not a citizen’s arrest
due to the use of a trained canine, which is a tool that is not available to private citizens. See
People v. Lahr, 147 Ill. 2d 379, 382-83 (1992). Moreover, to my knowledge, the case law does
not create a good faith exception for a private citizen acting as an agent for an unlawful drug
interdiction unit, no matter how successful those operations may have been.
¶ 32 Further, defendant’s traffic stop was not an isolated mistake but a part of a pattern of
prosecutorial misuse of authority. For example, in People ex rel. Donnelly v. City of Spring
Valley, 2020 IL App (3d) 180202-U, ¶¶ 6-7, the SAFE unit seized nearly $1 million from
travelers on Interstate 80 between 2011 and 2015. These monies, tracing back to illegal
operations by the state’s attorney’s office, were then lawfully distributed, according to statute,
between the SAFE unit, other agencies, and local municipalities. See Guava LLC v. Comcast
Cable Communications, LLC, 2014 IL App (5th) 130091, ¶ 14 n.1 (a reviewing court may take
judicial notice of unpublished orders, not as proof of the findings of fact contained therein, but
to provide context to the allegations levied in the instant appeal); Aurora Loan Services, LLC
v. Kmiecik, 2013 IL App (1st) 121700, ¶ 37 (providing that a reviewing court may take judicial
notice of a written decision that is part of the record of another court because those decisions
contain readily verifiable facts). Moreover, the City of Spring Valley, alone, deposited more
than $500,000 into its drug asset forfeiture fund, and this amount was traced back to the SAFE
unit. Later, approximately $100,000 was transferred from that fund to the City of La Salle.
3
The case law regarding void convictions is distinguishable from case law abolishing the void
sentence rule.
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Similarly, an equal amount was transferred from that fund to the City of Ottawa. Donnelly,
2020 IL App (3d) 180202-U, ¶ 7.
¶ 33 In this particular case, the court ordered defendant to pay $30,000 instanter, as fines and
fees, after approving a negotiated plea agreement crafted by the state’s attorney. This sum was
eventually lawfully distributed, according to statute, to several local government entities. In
my view, this process created unjust financial enrichment of various government entities,
resulting from the prosecutor’s wrongdoing. Public policy supports a significant consequence
that will deter other prosecutors from forming their own SAFE unit. Without a negative
consequence, such as a void conviction, other agencies may decide that an unlawful drug
interdiction is worth the risk because, if defendant’s conviction is affirmed, then the $30,000
distributed from defendant’s payment of court-ordered fines and fees will remain in the hands
of government agencies.
¶ 34 Respectfully, the end does not justify the means, no matter how successful this drug
interdiction unit may have been. Therefore, I would remand the matter with directions for the
trial court to enter an order vacating defendant’s conviction as void and requiring the current
state’s attorney to locate and refund all monies, with the exception of the bond fee the circuit
clerk is entitled to keep. See 725 ILCS 5/110-7(f) (West 2018).
¶ 35 For these reasons, I respectfully concur in part and dissent in part.
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