{ "id": 4275087, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE SIMS, Defendant-Appellant", "name_abbreviation": "People v. Sims", "decision_date": "2007-12-21", "docket_number": "No. 1\u201406\u20141011", "first_page": "643", "last_page": "654", "citations": [ { "type": "official", "cite": "378 Ill. App. 3d 643" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "97 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3109411 ], "weight": 7, "year": 1981, "pin_cites": [ { "page": "977" }, { "page": "977" }, { "page": "979" }, { "page": "979" }, { "page": "978-79" }, { "page": "979" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0976-01" ] }, { "cite": "279 Ill. App. 3d 90", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75352 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "100" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0090-01" ] }, { "cite": "273 Ill. App. 3d 252", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258792 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "255-56" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0252-01" ] }, { "cite": "357 Ill. App. 3d 819", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136385 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "822" }, { "page": "824" }, { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0819-01" ] }, { "cite": "209 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461527 ], "year": 2004, "pin_cites": [ { "page": "23-24", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0019-01" ] }, { "cite": "203 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799374 ], "year": 2003, "pin_cites": [ { "page": "119-21", "parenthetical": "finding that, where consecutive sentences were statutorily mandated, order imposing concurrent sentences was void" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0111-01" ] }, { "cite": "179 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801357 ], "year": 1997, "pin_cites": [ { "page": "336", "parenthetical": "joint imposition of two consecutive sentences for a single offense exceeded statutory restrictions and was therefore void" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0331-01" ] }, { "cite": "168 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307263 ], "year": 1995, "pin_cites": [ { "page": "112-13", "parenthetical": "declaring order imposing concurrent sentences void where consecutive sentences were mandated by statute" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0107-01" ] }, { "cite": "181 Ill. App. 3d 660", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499056 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "663" }, { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0660-01" ] }, { "cite": "116 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543208 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "6" }, { "page": "6" }, { "page": "6", "parenthetical": "declaring void an order of probation where defendant was ineligible for probation due to his prior convictions" }, { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0001-01" ] }, { "cite": "156 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777558 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "155" }, { "page": "156" }, { "page": "156" }, { "page": "156" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0149-01" ] }, { "cite": "205 Ill. 2d 198", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1302610 ], "year": 2001, "pin_cites": [ { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/205/0198-01" ] }, { "cite": "207 Ill. 2d 555", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 975008 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "562" }, { "page": "562" }, { "page": "568-69", "parenthetical": "extended-term portion of sentence not authorized by statute and therefore void" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0555-01" ] }, { "cite": "339 Ill. App. 3d 887", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2469757 ], "year": 2003, "pin_cites": [ { "page": "888-90", "parenthetical": "discussed with approval in Thompson, 209 Ill. 2d at 26" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/339/0887-01" ] }, { "cite": "375 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4272155 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "760" }, { "page": "760", "parenthetical": "holding trial court order void" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/375/0758-01" ] }, { "cite": "82 Ill. 2d 556", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474979 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "565", "parenthetical": "presentence report is \"for the enlightenment of the court\" and is \"not a personal right of the defendant\" and thus \"cannot be waived\"" }, { "page": "561" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/82/0556-01" ] }, { "cite": "97 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3109411 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "978-79" }, { "page": "978-79" }, { "page": "979" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/97/0976-01" ] }, { "cite": "273 Ill. App. 3d 252", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258792 ], "weight": 13, "year": 1994, "pin_cites": [ { "page": "255", "parenthetical": "presentence report is \"for the enlightenment of the court\"" }, { "page": "256" }, { "page": "254-55" }, { "page": "256" }, { "page": "256" }, { "page": "256" }, { "page": "256" }, { "page": "256" }, { "page": "256" }, { "page": "256" }, { "page": "256" }, { "page": "256-57" }, { "page": "256-57" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/273/0252-01" ] }, { "cite": "357 Ill. App. 3d 819", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136385 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "821", "parenthetical": "defendant may not waive presentence report because it \"serves to enlighten the court\"" }, { "page": "822", "parenthetical": "holding that Supreme Court Rule 402 does not require a trial court to consider a defendant's criminal history" }, { "page": "824" }, { "page": "824" }, { "page": "824" }, { "page": "824" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/357/0819-01" ] }, { "cite": "209 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461527 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "22-25" }, { "page": "25" }, { "page": "26" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/209/0019-01" ] }, { "cite": "203 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799374 ], "year": 2003, "pin_cites": [ { "page": "119-20" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/203/0111-01" ] }, { "cite": "156 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777558 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "157" }, { "page": "157" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/156/0149-01" ] } ], "analysis": { "cardinality": 962, "char_count": 29315, "ocr_confidence": 0.776, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14342399885089827 }, "sha256": "0349314a0f73a07a12576ea6b69d6369911c81b2a49e367428e13701b74c5914", "simhash": "1:3a3a55362706fcf5", "word_count": 4893 }, "last_updated": "2023-07-14T15:01:56.542688+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE SIMS, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE McBRIDE\ndelivered the opinion of the court:\nDefendant Maurice Sims appeals from an order of the circuit court of Cook County granting the State\u2019s motion to dismiss his petition for relief pursuant to section 2 \u2014 1401 of the Code of Civil Procedure. 735 ILCS 5/2 \u2014 1401 (West 2004). On appeal, defendant contends that his term of 12 years\u2019 imprisonment for aggravated kidnapping during the commission of an attempted armed robbery is void because the trial court failed to comply with section 5 \u2014 3\u20141 of the Unified Code of Corrections (Code) (730 ILCS 5/5 \u2014 3\u20141 (West 2004)).\nThe record shows that defendant was charged by information with multiple counts of aggravated kidnapping, vehicular invasion, attempted armed robbery, aggravated unlawful restraint, and unlawful use of a weapon. On March 13, 2002, defense counsel requested a conference pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402). The trial court then explained to defendant that during the conference she would meet with the parties\u2019 attorneys and review defendant\u2019s background as well as the facts of the case. Defendant confirmed that he understood and that he wished to have the conference.\nFollowing the Rule 402 conference, defense counsel informed the court that defendant wished to withdraw his previously entered plea of not guilty to the crime of aggravated kidnapping during the commission of an attempted armed robbery and enter a plea of guilty to that charge. Defense counsel also stated that the parties had agreed that in exchange for a plea of guilty, defendant would be sentenced to 12 years\u2019 imprisonment.\nBefore entering his plea, the trial court advised defendant of the minimum and maximum sentences for each offense charged, and defendant indicated that he was not promised anything in exchange for pleading guilty other than the 12-year prison sentence, of which he would serve 85% with credit for the time already spent in presentence custody. A factual basis for the plea revealed that about 11 a.m. on September 17, 1999, Prahalad and Narhari Thakkar left a bank after having withdrawn money, and defendant, who had been standing next to them inside the bank, left at the same time. Following a brief conversation in the parking lot, all three entered Prahalad and Nar-hari\u2019s vehicle. Defendant put a gun to Prahalad\u2019s neck and demanded that he start driving and that he give defendant the money he withdrew from the bank. Prahalad gave defendant $596. Defendant then pulled Prahalad\u2019s sleeve, which caused him to strike another car with his vehicle. Defendant exited the car and left the scene, but was arrested several blocks away and subsequently identified by Prahalad and Narhari. The police recovered a handgun from defendant, which Prahalad and Narhari also identified. Defendant later gave a handwritten statement admitting to his involvement in the crime. Several days later, Prahalad discovered that the money he had given defendant had been left inside of his car.\nThe court then proceeded to sentencing, noting that defendant had waived his right to a presentence investigation report (PSI). At the conclusion of the plea proceeding, the trial court sentenced defendant to the agreed term of 12 years\u2019 imprisonment. The court then admonished defendant of his right to appeal and informed him of the necessity of filing a motion to withdraw his guilty plea before doing so. Defendant did not file a motion to withdraw his guilty plea and vacate the judgment or otherwise attempt to perfect an appeal from it.\nOn January 12, 2004, defendant filed a pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2004)). In his petition, defendant alleged, among other things, that he was denied due process and effective assistance of counsel when his trial counsel misrepresented the amount of time he would receive in exchange for his guilty plea. At a hearing on the petition, the court appointed counsel for defendant and advanced his petition for second-stage proceedings.\nOn June 7, 2005, defendant\u2019s appointed counsel asked for a continuance on defendant\u2019s postconviction petition and filed a petition pursuant to section 2 \u2014 1401 of the Code of Civil Procedure. Defendant alleged in his petition that the trial court did not have jurisdiction to sentence him without a prior investigation and report and that his waiver of a PSI was not valid where the court failed to make a specific finding on the record as to his criminal history pursuant to section 5 \u2014 3\u20141 of the Code. 730 ILCS 5/5 \u2014 3\u20141 (West 2004). In response to defendant\u2019s arguments, the trial court requested defendant to provide case law in support of his position. The court then found that the cases relied on by defendant did not support his position because the cases did not concern a negotiated plea agreement. At that point, the court requested that defendant file a memorandum in support of his position.\nOn July 7, 2005, defendant filed such a memorandum in which he argued that the trial court improperly moved sua sponte to dismiss his petition in violation of the express requirement that the opponent move to dismiss or file an answer. See 735 ILCS 5/2 \u2014 1401 (West 2004). Defendant further argued that he set forth a legally sufficient claim for relief under section 5 \u2014 3\u20141 (730 ILCS 5/5 \u2014 3\u20141 (West 2004)) in his petition.\nOn August 24, 2005, the State moved to dismiss defendant\u2019s petition on the grounds that it was barred by the two-year statute of limitations, that it was unsupported by affidavits, and that it failed to raise any meritorious issues. On October 6, 2005, defendant filed a memorandum of law in opposition to the State\u2019s motion to dismiss.\nFollowing a hearing on November 22, 2005, the court found that defendant\u2019s sentence was not void because there was a negotiated plea between the parties and the court imposed the agreed-upon sentence. The court then granted the State\u2019s motion to dismiss defendant\u2019s section 2 \u2014 1401 petition as untimely.\nIn this appeal from that order, defendant contends that the circuit court erred in dismissing his section 2 \u2014 1401 petition. He maintains that his sentence is void because the trial court accepted his waiver of a PSI without making a specific finding on the record of his criminal history as required by section 5 \u2014 3\u20141 of the Code. He claims that a sentence which does not conform to a statutory requirement is void and, accordingly, that this court should vacate his sentence and remand his cause for a new sentencing hearing.\nThe State responds that the trial court\u2019s failure to make a specific finding on the record as to defendant\u2019s criminal history does not render his sentence void but, rather, voidable. The State maintains that because judgment on defendant\u2019s negotiated guilty plea was entered by a court with jurisdiction and defendant failed to allege grounds for excusing the delay in filing his petition, the circuit court properly dismissed his petition as untimely.\nSection 2 \u2014 1401 provides a comprehensive statutory procedure for defendants to challenge final orders and judgments more than 30 days after they were entered. People v. Pinkonsly, 207 Ill. 2d 555, 562 (2003). Generally, \u201c[a] section 2 \u2014 1401 petition filed more than two years after the challenged judgment cannot be considered absent a clear showing that the person seeking relief was under a legal disability or duress or the grounds for relief were fraudulently concealed.\u201d Pinkonsly, 207 Ill. 2d at 562. Where the judgment being challenged is void, however, defendant may seek relief beyond the two-year limitation of section 2 \u2014 1401. People v. Gosier, 205 Ill. 2d 198, 206 (2001). For the following reasons, we find that the exception for permitting a defendant to seek section 2 \u2014 1401 relief beyond the statutorily prescribed limitations period is not present in this case and that defendant\u2019s sentence is not void.\nIn People v. Davis, 156 Ill. 2d 149, 155 (1993), the supreme court distinguished between a void and voidable order. The court determined that a resulting judgment is rendered void and may be attacked indirectly or directly at any time where the court lacks jurisdiction, whereas a voidable judgment is one entered erroneously by a court having jurisdiction and is not subject to collateral attack. Davis, 156 Ill. 2d at 156. The court further determined that the jurisdiction of a trial court is conferred by the Illinois Constitution, not by the personal rights of a defendant, and once a court has acquired jurisdiction, no subsequent error or irregularity will oust the jurisdiction thus acquired. Davis, 156 Ill. 2d at 156. Thus, a judgment may be void where a court exceeded its jurisdiction, but a court will not lose jurisdiction because it makes a mistake in determining either the facts, the law, or both. Davis, 156 Ill. 2d at 156.\nWe acknowledge that a court\u2019s jurisdiction can be limited in imposing a particular sentence. The supreme court has long recognized that the legislature has the authority to establish the nature and extent of criminal penalties and that a trial court is obligated to impose the criminal penalties mandated by the legislature. See People v. Wade, 116 Ill. 2d 1, 6 (1987). Thus, a court exceeds its authority and acts without jurisdiction if it orders a sentence that is lesser or greater than authorized by statute. Wade, 116 Ill. 2d at 6; People v. Perruquet, 181 Ill. App. 3d 660, 663 (1989). In these circumstances, the supreme court has declared that the sentence, or portion thereof, that is not authorized by statute is void. See, e.g., Wade, 116 Ill. 2d at 6 (declaring void an order of probation where defendant was ineligible for probation due to his prior convictions); People v. Arna, 168 Ill. 2d 107, 112-13 (1995) (declaring order imposing concurrent sentences void where consecutive sentences were mandated by statute); People v. Williams, 179 Ill. 2d 331, 336 (1997) (joint imposition of two consecutive sentences for a single offense exceeded statutory restrictions and was therefore void); People v. Harris, 203 Ill. 2d 111, 119-21 (2003) (finding that, where consecutive sentences were statutorily mandated, order imposing concurrent sentences was void); Pinkonsly, 207 Ill. 2d at 568-69 (extended-term portion of sentence not authorized by statute and therefore void); People v. Thompson, 209 Ill. 2d 19, 23-24 (2004) (same).\nWith these principles in mind, we address defendant\u2019s claim of trial court error in sentencing.\nSection 5 \u2014 3\u20141 provides, in relevant part:\n\u201cA defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.\nHowever, other than for felony sex offenders being considered for probation, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant\u2019s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.\u201d 730 ILCS 5/5 \u2014 3\u20141 (West 2004).\nThe record in this case shows that the parties agreed to a specific sentence of 12 years\u2019 imprisonment in exchange for the plea of guilty. However, the record does not contain an \u201con the record\u201d finding by the trial court of defendant\u2019s history of delinquency or criminality. The failure to enter that finding on the record was error, but under the circumstances of this case, merely rendered defendant\u2019s sentence voidable.\nThe trial court clearly had personal and subject matter jurisdiction over defendant and, thus, authority to enter a conviction and sentence on the charged offense. The Illinois Constitution, not section 5 \u2014 3\u20141 of the Code, gives the court jurisdiction to accept a guilty plea and impose sentence. See Davis, 156 Ill. 2d at 156. The case law reviewed above establishes that the nature and duration of the criminal penalties enacted by the legislature serve as jurisdictional limitations on the power of the court and that a court exceeds its authority when it imposes a sentence that is lesser or greater than authorized by statute. See Wade, 116 Ill. 2d at 6; Perruquet, 181 Ill. App. 3d at 663. Here, however, the record reveals that the court did not exceed its authority when it imposed the agreed-upon 12-year term of imprisonment, and we are unpersuaded that the failure to follow section 5 \u2014 3\u20141 deprived the court of jurisdiction and rendered the negotiated guilty plea and sentence void. Accordingly, in this case, the lack of an on-the-record finding of defendant\u2019s history of delinquency or criminality did not deprive the court of jurisdiction over defendant or render his sentence void. It therefore follows that the circuit court properly dismissed defendant\u2019s section 2 \u2014 1401 petition as untimely since he offered no cognizable reason to toll the limitations period.\nIn reaching this conclusion, we have considered the cases cited by defendant that he claims are analogous to the present case. See People v. Walton, 357 Ill. App. 3d 819 (2005); People v. Evans, 273 Ill. App. 3d 252 (1994); People v. Olivarez, 279 Ill. App. 3d 90 (1996). In each case, the appellate court held that the trial court erred by accepting a negotiated guilty plea and imposing sentence without considering a presentence report and without having made a finding for the record as to the defendant\u2019s criminal history. See Walton, 357 Ill. App. 3d at 822; Evans, 273 Ill. App. 3d at 255-56; Olivarez, 279 Ill. App. 3d at 100. Accordingly, the court vacated the defendant\u2019s sentence and remanded the cause for a new sentencing hearing. Walton, 357 Ill. App. 3d at 824; Evans, 273 Ill. App. 3d at 257; Olivarez, 279 Ill. App. 3d at 100. In Walton, 357 Ill. App. 3d at 822, the court clarified that only the trial court\u2019s approval of the sentence constituted error, but that the error did not equate to a problem with the negotiation process or invalidate the defendant\u2019s guilty plea.\nThese cases are readily distinguishable from the present case. Most importantly, all of these cases involved claims that were brought in a timely direct appeal, and therefore, they do not involve the procedural posture of this case nor do they address the specific issue before this court. At most, these cases stand for the proposition that the trial court is required to strictly comply with the requirements of section 5 \u2014 3\u20141 and that the failure to do so constitutes error. The dispute in the present case is not whether the trial court erred by accepting defendant\u2019s waiver of the PSI and imposing a sentence without making a finding for the record as to defendant\u2019s criminal history. Rather, the question is whether that error deprived the trial court of jurisdiction and therefore rendered the judgment and sentence against defendant void. This question is not addressed or answered by any of these cases.\nWe have also considered People v. Johnson, 97 Ill. App. 3d 976 (1981), which defendant relies upon as his sole authority for the proposition that a sentence imposed in violation of section 5 \u2014 3\u20141 is void. In Johnson, 97 Ill. App. 3d at 977, defendant entered an unnegotiated guilty plea, signed a waiver of his right to a PSI, and was sentenced to serve two 10-year concurrent terms. No direct appeal was taken. Defendant subsequently filed a postconviction petition seeking reduction of his sentence under section 122 \u2014 1 et seq. of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 122 \u2014 1 et seq.) and section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), and the trial court reduced defendant\u2019s sentences to two six-year terms. Johnson, 97 Ill. App. 3d at 977. On appeal, the court held that the trial court\u2019s vacature of defendant\u2019s original sentence was proper because a PSI cannot be waived in the absence of an agreement regarding sentence. Johnson, 97 Ill. App. 3d at 979. The court further held, however, that the trial court\u2019s reduction of defendant\u2019s sentence without reference to a PSI was improper and therefore remanded the cause for resentencing. Johnson, 97 Ill. App. 3d at 979. In reaching this conclusion, the court held that a trial court is without jurisdiction to sentence a defendant in the absence of a PSI. Johnson, 97 Ill. App. 3d at 978-79.\nWe find defendant\u2019s reliance upon Johnson to be misplaced. Initially, the defendant in Johnson entered an unnegotiated guilty plea, whereas defendant in this case entered a negotiated guilty plea. Therefore, Johnson did not involve the portion of section 5 \u2014 3\u20141 at issue in this case, which provides that \u201cthe court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant\u2019s history of delinquency or criminality.\u201d 730 ILCS 5/5 \u2014 3\u20141 (West 2004). More importantly, Johnson cited to no authority for its holding that a sentence imposed in the absence of a PSI is void. See Johnson, 97 Ill. App. 3d at 979. We disagree with this statement and, as previously discussed, believe that the failure to state defendant\u2019s criminal background on the record did not oust the court of jurisdiction and render defendant\u2019s sentence void, but instead made that sentence merely \u201cvoidable.\u201d\nAccordingly, we affirm the order of the circuit court of Cook County granting the State\u2019s motion to dismiss defendant\u2019s section 2 \u2014 1401 petition.\nAffirmed.\nGARCIA, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE McBRIDE" }, { "text": "JUSTICE ROBERT E. GORDON,\ndissenting:\nI respectfully dissent because the sentence that was handed down by the trial court is void, not voidable as the majority holds.\nAs the majority noted, our supreme court explained the difference between void and voidable in People v. Davis, 156 Ill. 2d 149 (1993). The supreme court in Davis held that the order before it was voidable, not void. The trial court in Davis had entered an order in violation of the double jeopardy clause. Davis, 156 Ill. 2d at 157. The supreme court held that the order was merely voidable because double jeopardy is \u201ca personal privilege which may be waived.\u201d Davis, 156 Ill. 2d at 157. It was the fact that the error concerned a personal, waivable right of the defendant that led our supreme court to find that the order was merely voidable.\nIn the case at bar, the error concerned a criminal history finding. In contrast to the error in Davis, our supreme court and this court have repeatedly held that the criminal history finding is not a personal right of the defendant. The supreme court and this court have repeatedly held that the requirements of section 5 \u2014 3\u20141 are for the enlightenment of the court and thus are not personal rights of the defendant that can be waived. People v. Youngbey, 82 Ill. 2d 556, 565 (1980) (presentence report is \u201cfor the enlightenment of the court\u201d and is \u201cnot a personal right of the defendant\u201d and thus \u201ccannot be waived\u201d); People v. Walton, 357 Ill. App. 3d 819, 821 (2005) (defendant may not waive presentence report because it \u201cserves to enlighten the court\u201d); People v. Evans, 273 Ill. App. 3d 252, 255 (1994) (presentence report is \u201cfor the enlightenment of the court\u201d). Thus, the reasoning of Davis compels a finding that the order in our case is void.\nPeople v. Johnson, 97 Ill. App. 3d 976 (1981), is directly on point. Like the defendant in the case at bar, the Johnson defendant waived his right to a presentence report. Like the trial court in the case at bar, the trial court in Johnson sentenced the defendant without either a presentence report or a criminal history finding. Like the defendant in the case at bar, the Johnson defendant filed a postconviction petition, rather than a direct appeal. Like we did once before in Johnson, this court should hold again that a sentence is void where the trial court sentenced the defendant in violation of section 5 \u2014 3\u20141, without a presentence report or a criminal history finding. Johnson, 97 Ill. App. 3d at 978-79.\nThe majority attempts to distinguish Johnson because in Johnson, the defendant entered an unnegotiated plea and thus section 5 \u2014 3\u20141 required a presentence report instead of a criminal history finding. This is a distinction without a difference. Whether it was a presentence report or a criminal history finding that was missing, section 5 \u2014 3\u20141 was still violated in both cases. The point in Johnson is that a violation of section 5 \u2014 3\u20141 renders a sentence void.\nThe majority also claimed that \u201cJohnson cited to no authority for its holding that a sentence imposed in the absence of a PSI is void.\u201d 378 Ill. App. 3d at 650. This statement is factually incorrect. This court in Johnson cited the authority of our own supreme court, which held that a presentence report was \u201cmandatory\u201d and not a personal, waivable right of the defendant. Johnson, 97 Ill. App. 3d at 978-79, citing Youngbey, 82 Ill. 2d at 561. Johnson is directly on point, and I respectfully cannot find a reason to disregard our own precedent.\nThe majority finds the order voidable because the \u201cIllinois Constitution, not section 5 \u2014 3\u20141 of the Code, gives the court jurisdiction to accept a guilty plea and impose sentence.\u201d 378 Ill. App. 3d at 648. Section 9 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, \u00a79) provides that: \u201cCircuit Courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction.\u201d Recent cases have \u201cgiven article VI a broad construction in the general civil context, reading it to bar the legislature from setting conditions for the court\u2019s jurisdiction.\u201d In re Alex T., 375 Ill. App. 3d 758, 760 (2007).\nHowever, our supreme court has \u201ccontinued to recognize the principle of statutory limitation of jurisdiction in criminal cases.\u201d In re Alex T., 375 Ill. App. 3d at 760 (holding trial court order void). For example, in People v. Thompson, 209 Ill. 2d 19, 22-25 (2004), our supreme court rejected the State\u2019s \u201cmerely voidable\u201d argument and held that the trial court lacked jurisdiction to impose a sentence in a criminal case, because the trial court failed to follow a statute. Similarly, in People v. Harris, 203 Ill. 2d 111, 119-20 (2003), the supreme court upheld an appellate court when it sua sponte vacated a trial court\u2019s sentencing order for failing to follow a statute. In the case at bar, finding the sentence void would uphold the distinction between civil and criminal cases drawn by our own supreme court.\nAs this court has held before, the fact that the defendant entered a negotiated plea does not render the trial court\u2019s error harmless. Evans, 273 Ill. App. 3d at 256. In Evans, like in the case at bar, the defendant negotiated a plea and there was an agreed-upon sentence. Evans, 273 Ill. App. 3d at 254-55. The State\u2019s Attorney in Evans did state the criminal history background on the record, but told \u201conly half the story.\u201d Evans, 273 Ill. App. 3d at 256. Thus, the trial court in Evans was left with an erroneous impression about the extent of the defendant\u2019s criminal history when it chose to abide by the agreed-upon sentence. The State argued that any error was harmless, reasoning that since the defendant was sentenced according to the agreement, he could not have been harmed. Evans, 273 Ill. App. 3d at 256.\nIn Evans, we explained that the State\u2019s argument \u201cmisapprehends the purpose of the statue.\u201d Evans, 273 Ill. App. 3d at 256. We stated that the primary purpose of the statute is to make sure that \u201cthe sentencing judge [is] aware of the dangerousness of a particular defendant.\u201d Evans, 273 Ill. App. 3d at 256. The trial court must be made aware because it is the trial court that has \u201cthe duty and responsibility in imposing a sentence, not the attorneys.\u201d Evans, 273 Ill. App. 3d at 256.\nIn assessing harm, the issue is not whether the defendant\u2019s expectations were frustrated but whether the trial court had the information it needed in order to satisfy \u201cits responsibility\u201d to sentence. Evans, 273 Ill. App. 3d at 256. In Evans, we stated:\n\u201c[S]ection 5 \u2014 3\u20141 is primarily concerned with making the sentencing judge aware of the dangerousness of a particular defendant, and so the argument that the defendant could not realistically expect to receive less than the negotiated sentences misapprehends the purpose of the statute. The question is not whether the defendant could have received less time; rather the question is, should the defendant have received a greater sentence? The judge has the duty and responsibility in imposing a sentence, not the attorneys. The mere fact that the parties negotiate a plea does not remove the responsibility and burden of sentencing from the judge.\u201d Evans, 273 Ill. App. 3d at 256.\nIn the case at bar, as in Evans, the harm is to the justice system, not the defendant. \u201cThe question is not whether [this] defendant could have received less time; rather, the question is, should the defendant have received a greater sentence?\u201d Evans, 273 Ill. App. 3d at 256. The irony is that even though it is the defendant who is pressing for a vacated sentence, he may very well receive a greater sentence on remand.\nLike the agreed-upon sentence, the Rule 402 conference also does not somehow make up for the failure to state the criminal history on the record. On the date scheduled for trial in the case at bar, the defense attorney asked for a conference pursuant to Supreme Court Rule 402, which governs plea discussions. Prior to the Rule 402 conference, the trial court informed the defendant that it would \u201cgo over your background as well as the facts of the case.\u201d The trial court\u2019s admonishment referred generally to the defendant\u2019s \u201cbackground\u201d but not specifically to criminal history. The language of Rule 402 does not require a trial court to consider a defendant\u2019s criminal history background. People v. Walton, 357 Ill. App. 3d 819, 822 (2005) (holding that Supreme Court Rule 402 does not require a trial court to consider a defendant\u2019s criminal history).\nEven assuming that the State presented Sims\u2019 criminal history background at the Rule 402 conference and the trial court fully considered it, there is no way for us to know whether the State presented a complete or accurate criminal history, since there is no transcript of the Rule 402 conference. Assistant State\u2019s Attorneys have been known to make mistakes. For example, in Evans, the State\u2019s Attorney stated an incomplete criminal history prior to the trial court\u2019s Rule 402 admonishments, which led this court to vacate and remand. Evans, 273 Ill. App. 3d at 256-57. The point of the requirement of stating the criminal history on the record is to empower judges and provide a check on attorneys. Evans, 273 Ill. App. 3d at 256-57. For the foregoing reasons, I would affirm defendant\u2019s conviction, vacate his sentence, and remand for proper sentencing pursuant to section 5 \u2014 3\u20141 of the Unified Code of Corrections.\nVacating and remanding the sentence would have no bearing on defendant\u2019s conviction. Although the trial court improperly imposed the agreed-upon sentence without first making a finding for the record as to defendant\u2019s criminal history, its error does not invalidate defendant\u2019s guilty plea. Walton, 357 Ill. App. 3d at 824. Both the State and defendant are bound by the original terms of the agreement. Wal ton, 357 Ill. App. 3d at 824. Thus, it is only the trial court\u2019s decision to approve the sentence that was flawed. Walton, 357 Ill. App. 3d at 824.\nOn remand, the trial court should consider defendant\u2019s criminal history before deciding whether the negotiated sentence is appropriate. Only if the trial court does not agree with the 12-year sentence should the defendant be allowed to withdraw his guilty plea. Walton, 357 Ill. App. 3d at 824.\nI realize that three years had elapsed before the defendant filed his section 2 \u2014 1401 petition to declare his sentencing order void. However, the trial court can correct the error by merely making a criminal history finding and considering it at resentencing. Johnson, 97 Ill. App. 3d at 979 (trial court must consider presentence report at resentencing, after case remanded due to void sentencing order).\nIn addition, \u201c[fit is a well-settled principle of law that a void order may be attacked at any time or in any court, either directly or collaterally.\u201d People v. Thompson, 209 Ill. 2d 19, 25 (2004). Thus, the appellate court has not hesitated to declare a sentencing order void, even when more than 13 years had elapsed since the defendant\u2019s last appeal. People v. Muntaner, 339 Ill. App. 3d 887, 888-90 (2003) (discussed with approval in Thompson, 209 Ill. 2d at 26). The mere lapse of time does not add legitimacy to a void order.", "type": "dissent", "author": "JUSTICE ROBERT E. GORDON," } ], "attorneys": [ "Michael J. Pelletier and Shawn O\u2019Toole, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James Fitzgerald, Mary L. Boland, and Jessica L. MacLean, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE SIMS, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201406\u20141011\nOpinion filed December 21, 2007.\nRehearing denied February 19, 2008.\nGORDON, ROBERT E., J., dissenting.\nMichael J. Pelletier and Shawn O\u2019Toole, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James Fitzgerald, Mary L. Boland, and Jessica L. MacLean, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0643-01", "first_page_order": 659, "last_page_order": 670 }