{ "id": 3507622, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant and Cross-Appellee, v. LESTER ZEISLER, Petitioner-Appellee and Cross-Appellant", "name_abbreviation": "People v. Zeisler", "decision_date": "1987-11-13", "docket_number": "Nos. 3-87-0397, 3-87-0439 cons.", "first_page": "578", "last_page": "580", "citations": [ { "type": "official", "cite": "162 Ill. App. 3d 578" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "481 N.E.2d 676", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3134711 ], "opinion_index": 0, "case_paths": [ "/ill-2d/107/0062-01" ] }, { "cite": "396 N.E.2d 53", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 22", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3290062 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0022-01" ] }, { "cite": "335 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. 2d 200", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2966599 ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0200-01" ] }, { "cite": "313 N.E.2d 606", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "20 Ill. App. 3d 1090", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5345242, 5343527 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/1090-02", "/ill-app-3d/20/1090-01" ] }, { "cite": "118 U.S. 425", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3519232 ], "weight": 3, "pin_cites": [ { "page": "442" }, { "page": "186" }, { "page": "1125" } ], "opinion_index": 0, "case_paths": [ "/us/118/0425-01" ] }, { "cite": "446 N.E.2d 240", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. 2d 242", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106319 ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0242-01" ] }, { "cite": "95 L. Ed. 2d 439", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6217454 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/481/0497-01" ] }, { "cite": "499 N.E.2d 470", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. 2d 69", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542558 ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0069-01" ] } ], "analysis": { "cardinality": 374, "char_count": 5776, "ocr_confidence": 0.766, "pagerank": { "raw": 6.497341544922815e-08, "percentile": 0.39971616105803853 }, "sha256": "5cc3dde0a9434d5d27037c3e99ea35375aafd69bcd397bb50ed2cd5978abafb6", "simhash": "1:a06efe1e325a97b6", "word_count": 910 }, "last_updated": "2023-07-14T21:56:31.562358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant and Cross-Appellee, v. LESTER ZEISLER, Petitioner-Appellee and Cross-Appellant." ], "opinions": [ { "text": "JUSTICE HEIPLE\ndelivered the opinion of the court:\nThe petitioner, Lester Zeisler, sought post-conviction relief on two grounds. The trial court granted relief on one of the grounds. The State appealed from the trial court\u2019s grant of relief. The petitioner appealed from the court\u2019s partial denial. Following consolidation of the two appeals, the petitioner\u2019s appeal has been designated a cross-appeal. We affirm.\nThe petitioner was convicted of aggravated arson. (Ill. Rev. Stat. 1981, ch. 38, par. 20 \u2014 1.1(a)(1).) Thereafter, the statute under which he had been convicted was declared unconstitutional. (People v. Johnson (1986), 114 Ill. 2d 69, 499 N.E.2d 470.) The petitioner filed a post-conviction petition asserting as bases for relief that a witness had recanted her testimony and that he was entitled to a reversal of his conviction based on Johnson. The court denied a hearing on the petitioner\u2019s claim of recanted testimony, but pursuant to Johnson declared the defendant\u2019s conviction null and void. Both parties appealed. Given our decision on the State\u2019s appeal, we need not consider the petitioner\u2019s arguments on cross-appeal.\nThe State\u2019s first argument on appeal is that the court abused its discretion in declaring the petitioner\u2019s aggravated arson conviction to be null and void, as a harmless error analysis could have preserved the conviction. To support its argument, the State relies upon Pope v. Illinois (1987), 481 U.S___ 95 L. Ed. 2d 439, 107 S. Ct. 1918.\nIn Pope, the United States Supreme Court held that the trial court had tendered an unconstitutional jury instruction on the \u201cvalue\u201d of allegedly obscene materials sold by the petitioner Pope. The Pope court went on to hold that retrial was unnecessary if it could be said beyond a reasonable doubt that the jury\u2019s verdict was not affected by the unconstitutional instruction.\nThe State notes that as in Pope, here the jury received an unconstitutional instruction. According to the State, under Pope the defendant\u2019s conviction under the unconstitutional aggravated arson statute should be subjected to a harmless error analysis. The State observes the extensive evidence of wrongful conduct and asserts that it is a distinction without a difference that Pope involved an unconstitutional instruction while the instant case involves an unconstitutional statute. The petitioner responds, and we agree, that Pope and its examination of a conviction following an unconstitutional jury instruction is not persuasive here, where we consider a conviction under an unconstitutional statute.\nIn Illinois, an unconstitutional statute is void ab initio. (People v. Manuel (1983), 94 Ill. 2d 242, 446 N.E.2d 240.) That rule is consistent with, although not necessarily derived from, the view presented in a century-old decision of the United States Supreme Court: \u201cAn unconstitutional Act is not a law; it confers no rights; it imposes no duties; ***; it is, in legal contemplation, as inoperative as though it had never been passed.\u201d (Norton v. Shelby County (1886), 118 U.S. 425, 442, 30 L. Ed. 178, 186, 6 S. Ct. 1121, 1125.) Further, contrary to the State\u2019s bald assertion otherwise, the rule of voidness ab initio has not been overruled by Pope. Noting that the statute underlying petitioner Pope\u2019s conviction had been repealed, the Pope court did not pass on whether the statute should be facially invalidated as unconstitutional. Consequently, Pope\u2019s harmless error analysis addressed only an unconstitutional jury instruction and not an unconstitutional law. It does not control the rule of voidness of an unconstitutional law.\nHolding unconstitutional a law which defines an offense is quite different from holding unconstitutional some treatment of a defendant. While in the latter case the crime may remain, in the former case there was no crime. (See People v. Weintraub (1974), 20 Ill. App. 3d 1090, 313 N.E.2d 606, aff\u2019d sub nom. People v. Meyerowitz (1975), 61 Ill. 2d 200, 335 N.E.2d 1.) Given the unconstitutional statute here, there was no crime of aggravated arson. Therefore, a harmless error analysis has no place.\nIn its alternative argument, the State argues that we should enter a conviction for arson as there was sufficient evidence to allow the jury to find all the elements of arson beyond a reasonable doubt. This argument is without merit.\nA defendant charged with an offense cannot be convicted of an uncharged offense which is not a lesser included offense of the charged offense. (See People v. Hobson (1979), 77 Ill. App. 3d 22, 396 N.E.2d 53.) Here, the defendant was charged with aggravated arson, not with arson. Arson is not a lesser included offense of the charged aggravated arson. (People v. Wick (1985), 107 Ill. 2d 62, 481 N.E.2d 676.) We may not enter a conviction for arson.\nEven in the face of both extensive evidence and a related legislative statement that certain conduct is wrongful, the criminal justice system cannot operate without both constitutional definitions of offenses'and sufficient charges based upon wrongful conduct. The instant case illustrates the potential consequences of a breakdown in the legal machinery.\nBased on the foregoing, the judgment of the circuit court of Mc-Donough County is affirmed.\nAffirmed.\nSCOTT and STOUDER, JJ., concur.", "type": "majority", "author": "JUSTICE HEIPLE" } ], "attorneys": [ "John R. Clerkin, State\u2019s Attorney, of Macomb (John X. Breslin and Walter P. Hehner, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Robert Agostinelli and Verlin R. Meinz, both of State Appellate Defender\u2019s Office, of Ottawa, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant and Cross-Appellee, v. LESTER ZEISLER, Petitioner-Appellee and Cross-Appellant.\nThird District\nNos. 3\u201487\u20140397, 3\u201487\u20140439 cons.\nOpinion filed November 13, 1987.\nJohn R. Clerkin, State\u2019s Attorney, of Macomb (John X. Breslin and Walter P. Hehner, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nRobert Agostinelli and Verlin R. Meinz, both of State Appellate Defender\u2019s Office, of Ottawa, for appellee." }, "file_name": "0578-01", "first_page_order": 600, "last_page_order": 602 }