People v. Brown , 2024 IL App (5th) 230647-U ( 2024 )


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  •                                       
    2024 IL App (5th) 230647-U
    NOTICE
    NOTICE
    Decision filed 05/21/24. The
    This order was filed under
    text of this decision may be               NO. 5-23-0647
    Supreme Court Rule 23 and is
    changed or corrected prior to
    the filing of a Petition for                                               not precedent except in the
    Rehearing or the disposition of
    IN THE                       limited circumstances allowed
    the same.                                                                  under Rule 23(e)(1).
    APPELLATE COURT OF ILLINOIS
    FIFTH DISTRICT
    ______________________________________________________________________________
    THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
    )     Circuit Court of
    Plaintiff-Appellee,                       )     Champaign County.
    )
    v.                                              )     No. 11-CF-1698
    )
    ANTONIO L. BROWN,                               )     Honorable
    )     Randall B. Rosenbaum,
    Defendant-Appellant.                      )     Judge, presiding.
    ______________________________________________________________________________
    JUSTICE BOIE delivered the judgment of the court.
    Justices Welch and Sholar concurred in the judgment.
    ORDER
    ¶1       Held: The circuit court properly dismissed the defendant’s petition for relief from
    judgment where it was untimely, and the underlying judgment was not void. The
    court properly denied the defendant’s request for appointed counsel. As any
    argument to the contrary would lack merit, we grant the defendant’s appointed
    counsel on appeal leave to withdraw and affirm the circuit court’s judgment.
    ¶2                                      I. BACKGROUND
    ¶3       The defendant, Antonio L. Brown, appeals the circuit court’s order dismissing his petition
    for relief from judgment. His appointed appellate counsel, the Office of the State Appellate
    Defender (OSAD), has concluded that there is no reasonably meritorious argument that reversible
    error occurred. Accordingly, it has filed a motion to withdraw as counsel along with a supporting
    memorandum. See Pennsylvania v. Finley, 
    481 U.S. 551
     (1987). OSAD has notified the defendant
    of its motion. This court has provided him with ample opportunity to respond, and he has done so.
    1
    However, after considering the record on appeal, OSAD’s motion and supporting brief, and the
    defendant’s response, we agree that this appeal presents no reasonably meritorious issues. Thus,
    we grant OSAD leave to withdraw and affirm the circuit court’s judgment.
    ¶4      In October 2011, an information charged the defendant with two counts of aggravated
    unlawful use of weapons (AUUW). Count I alleged that he “knowingly carried a handgun ***
    when he was not on his own land, or in his own abode, or in his own fixed place of business” in
    violation of sections 24-1.6(a)(1) and 24-1.6(a)(3)(I) of the Criminal Code of 1961 (Code) (720
    ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2010)). Count II alleged that he “knowingly carried in any
    vehicle a firearm” when he had not been issued a currently valid Firearm Owners Identification
    (FOID) card, in violation of sections 24-1.6(a)(1) and 24-1.6(a)(3)(C) of the Code (id. § 24-
    1.6(a)(1), (a)(3)(C)).
    ¶5      The defendant pleaded guilty to count II. In exchange for the plea, the State recommended
    a sentence of 12 months’ probation and dismissed count I. The factual basis showed that, after the
    police stopped his vehicle, the defendant admitted to driving without a valid driver’s license. He
    consented to a search of the vehicle, during which officers found a .22-caliber Beretta handgun
    inside a purse. The defendant did not have a valid FOID card. The court found the plea voluntary
    and imposed the agreed-upon sentence.
    ¶6      On May 31, 2022, the defendant filed a petition for relief from judgment. He alleged that
    his conviction was void because the AUUW statute under which he was convicted was
    unconstitutional on its face under People v. Aguilar, 
    2013 IL 112116
    . He alleged that the
    conviction violated his second amendment right to keep and bear arms. He filed an accompanying
    motion requesting the appointment of counsel.
    2
    ¶7     The circuit court held that the defendant was not entitled to appointed counsel, explaining
    that he could hire counsel or represent himself. The State moved to dismiss the petition, asserting
    that it was untimely. The State further argued that the AUUW sections under which the defendant
    was convicted were not affected by Aguilar.
    ¶8     The court agreed and dismissed the petition, noting that Aguilar did not invalidate the
    provision of the AUUW statute under which the defendant was convicted. Accordingly, his
    conviction was not void and no basis existed to excuse the untimely filing of the petition. The
    defendant timely appealed.
    ¶9                                      II. ANALYSIS
    ¶ 10   OSAD asserts that the only two issues it could raise are (1) whether the circuit court erred
    in dismissing the petition and (2) whether the court erred in denying the defendant’s request for
    appointed counsel. It concludes that neither issue has even arguable merit. We agree.
    ¶ 11   OSAD first notes that the court did not err in dismissing the petition because Aguilar did
    not invalidate the section of the AUUW statute under which the defendant was convicted. A
    petition filed pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
    2022)) allows a criminal the defendant to challenge “errors of fact occurring in the prosecution of
    a cause, unknown to the petitioner and court at the time judgment was entered, which, if then
    known, would have prevented its rendition.” People v. Haynes, 
    192 Ill. 2d 437
    , 461 (2000). A
    section 2-1401 petition may also be used to challenge a void judgment. People v. Thompson, 
    2015 IL 118151
    , ¶ 29. Such a petition must be filed no later than two years after the entry of judgment
    complained of unless it alleges that the judgment is void. Id. ¶¶ 29, 32. A judgment is void “(1)
    when it is entered by a court that lacked personal or subject-matter jurisdiction or (2) when it is
    based on a statute that is facially unconstitutional and void ab initio.” People v. Stoecker, 2020 IL
    3
    124807, ¶ 28. We review de novo an order dismissing a section 2-1401 petition. People v. Carter,
    
    2015 IL 117709
    , ¶ 13.
    ¶ 12   The defendant’s petition alleged that his conviction was void because the supreme court
    had held the AUUW statute unconstitutional in Aguilar. There, the court held that section 24-
    1.6(a)(1), (a)(3)(A) of the Code, which prohibited carrying an uncased, loaded, and immediately
    accessible firearm on one’s person, was a “wholesale statutory ban” on the public carrying of
    firearms that was impermissible under the second amendment (U.S. Const., amend. II). Aguilar,
    
    2013 IL 112116
    , ¶¶ 21-22.
    ¶ 13   Here, however, the defendant pleaded guilty to count II of the information, which alleged
    that he possessed a firearm without a valid FOID card. 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West
    2010). This section was not at issue in Aguilar, where the court noted that the second amendment
    right to carry firearms was not unlimited and thus the amendment does not prohibit all “ ‘laws
    imposing conditions and qualifications on the commercial sale of arms.’ ” Aguilar, 
    2013 IL 112116
    , ¶ 26 (quoting District of Columbia v. Heller, 
    554 U.S. 570
    , 626-27 (2008)). Subsequently,
    in People v. Mosley, 
    2015 IL 115872
    , the court expressly upheld the validity of the FOID card
    requirement in section (a)(3)(C) as a reasonable regulation on the possession of firearms. Id. ¶ 36.
    Because the section of the AUUW statute under which the defendant pleaded guilty is not
    unconstitutional, his conviction is not void and the circuit court properly dismissed his petition.
    ¶ 14   OSAD further concludes that there is no reasonably meritorious argument that the court
    erred in denying the defendant’s request for appointed counsel. A petitioner has no express
    statutory right to the assistance of counsel when filing a section 2-1401 petition. Stoecker, 
    2020 IL 124807
    , ¶ 36. Thus, a circuit court is not obligated to appoint counsel in connection with the filing
    4
    of a section 2-1401 petition but may do so in its discretion. 
    Id.
     We agree with OSAD that the court
    did not err in refusing to appoint counsel to assist the defendant with a plainly meritless petition.
    ¶ 15   In his response, the defendant does not address the arguments raised in his petition or
    respond directly to OSAD’s motion. Instead, he attempts to raise two new arguments: (1) that
    defense counsel provided ineffective assistance by waiving a preliminary hearing at arraignment
    and (2) that the trial court did not acquire personal jurisdiction over the defendant because he was
    not served with summons.
    ¶ 16   The former argument is forfeited, as it was not raised in the defendant’s petition. Issues not
    raised in a dismissed postconviction petition cannot be raised for the first time on appeal. People
    v. Jones, 
    213 Ill. 2d 498
    , 507 (2004).
    ¶ 17   We will briefly address the defendant’s second argument as it challenges the circuit court’s
    personal jurisdiction over the defendant. Stoecker, 
    2020 IL 124807
    , ¶ 28 (judgment is void when
    entered in the absence of personal jurisdiction); People v. Flowers, 
    208 Ill. 2d 291
    , 308 (2003)
    (void judgment can be attacked at any time).
    ¶ 18   The defendant cites civil cases holding that service of summons and process is necessary
    to acquire personal jurisdiction over a defendant. However, formal service is not required in
    criminal cases. In a criminal case, a trial court obtains personal jurisdiction over a defendant when
    he appears before it. People v. Raczkowski, 
    359 Ill. App. 3d 494
    , 497 (2005). “A criminal defendant
    confers personal jurisdiction upon the trial court when he appears and joins the issues with a plea.”
    People v. Woodall, 
    333 Ill. App. 3d 1146
    , 1156 (2002).
    ¶ 19   Here, the record shows that the defendant was present at his arraignment and entered a not-
    guilty plea. Of course, he later pleaded guilty. Thus, he submitted to the court’s jurisdiction and
    his conviction is not void for lack of personal jurisdiction.
    5
    ¶ 20                                   III. CONCLUSION
    ¶ 21   As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and
    affirm the circuit court’s judgment.
    ¶ 22   Motion granted; judgment affirmed.
    6
    

Document Info

Docket Number: 5-23-0647

Citation Numbers: 2024 IL App (5th) 230647-U

Filed Date: 5/21/2024

Precedential Status: Non-Precedential

Modified Date: 5/21/2024