Appellate court reverses dismissal of 2-1401 petition where defendant’s armed habitual criminal conviction was based on a void predicate offense

The appellant in People v. Barefield, 2019 IL App (3d) 160516 appealed the dismissal of his petition for relief from judgement (filed under section 2-1401 of the Code of Civil Procedure), on the grounds that his conviction for armed habitual criminal should be vacated because the predicate offense, his conviction for aggravated unlawful use of a weapon (AUUW), was void ab initio and should also be vacated. The Appellate Court of Illinois Third District ultimately reversed the dismissal of the petition by the trial court.

Barefield was charged with armed habitual criminal after having twice been convicted of AUUW, Aggravated Robbery, and unlawful use of a weapon by a felon (based on his AUUW convictions). Id. at ¶ 3. Barefield entered a negotiated plea agreement in which he pled guilty to armed habitual criminal in exchange for a sentence of eight years and six months imprisonment and the dismissal of the weapons charge. Id. at ¶ 4. Following the entry of his plea, Barfield filed a pro se petition for relief from judgement under section 2-1401 of the Code, arguing that his conviction (for which he entered a guilty plea) was predicated on AUUW convictions related to a AUUW statute that had been held to be facially unconstitutional. Id. at ¶ 5. As a result, Barefield requested the court vacate his conviction based on the fact that the predicate offenses were void ab initio.

The State filed a motion to dismiss under sections 2-615 and 2-619 of the Code, which argued that Barefield had failed to state a cause of action under section 2-1401, the petition was untimely, and could be rejected based on the Illinois Supreme Court’s decision in People v. McFadden, 2016 IL 117424. Id. at ¶ 6. Barefield filed a motion for leave to amend his petition to include a request that the underlying AUUW convictions be vacated as well, as they were also void ab initio. The trial court granted the State’s motion to dismiss and denied Barefield’s motion for leave to amend the petition. Id. at ¶ 8. Barefield appealed.

In its analysis of the vacatur of the armed habitual criminal conviction, the appellate court held that a conviction for armed habitual criminal must be vacated if the predicate AUUW conviction was entered under an unconstitutional section of the AUUW statute. Id. at ¶ 11. The Criminal Code confirms that a defendant must have been convicted of at least 2 firearm offenses to have committed an armed habitual criminal offense, and, according to People v. Davis,“a defendant’s qualifying prior convictions are an element of the offense of being an armed habitual criminal.” Id. at ¶ 12.

The appellate court confirmed Barefield’s assertion that the Illinois Supreme Court had determined parts of the AUUW statute facially unconstitutional because they violate the second amendment of the United States constitution. Id. at ¶ 13. The court also indicated that the Illinois Supreme Court had overruled the decision in McFadden, cited by the State in response to appellant’s motion, and ruled that “when a statute is found to be facially unconstitutional in Illinois, it is said to be void ab initio; that is, it is as if the law had never been passed.” Id. at ¶ 15. As a result, the court concluded that if Barefield’s AUUW conviction was pursuant to section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code, then his conviction for armed habitual criminal must be vacated. Id. at ¶ 17.

The Court acknowledged that while Roberson was definitively charged under section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code, the record was unclear as to whether he was convicted under the same section. As such, the appellate court ruled that the section of the statute under which Barefield was convicted needed to be established definitively. The court remanded the matter to the circuit court for such a determination. Id. at ¶ 18.

On the vacatur of the AUUW Convictions, the court noted that the State conceded that Roberson’s prior AUUW convictions were void ab initio and disagreed with their assertion that Roberson needed to file post-conviction petitions separately in those cases. Id. at¶ 22. The Court cited In re N.G.,2018 IL 121939, “stating under Illinois law, there is no fixed procedural mechanism or forum, nor is there any temporal limitation governing when a void ab initio challenge may be asserted.” Id. at ¶ 23.

The court ruled that Roberson should be permitted to amend his section 2-1401 petition to seek vacatur of his AUUW convictions in addition to his armed habitual criminal conviction. Id. at ¶ 24. The court remanded the matter to the circuit court for a determination as to whether Roberson was convicted under one of the facially unconstitutional sections of the AUUW statue. Id. at ¶ 25.

The Barefield court ultimately reversed and remanded the decision of the trial court dismissing the section 2-1401 petition and denying Barefield leave to amend the petition, with directions for the circuit court to vacate all convictions, should they be determined to have been entered under one of the facially unconstitutional sections of the AUUW statute. Id. at ¶ 29.