People v. Massamillo

2020 IL App (3d) 190765

Opinion filed November 9, 2020
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2020

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-19-0765
v. ) Circuit No. 12-CF-578
)
JOSEPH A. MASSAMILLO, )
) Honorable Cynthia M. Raccuglia,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

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). See 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.

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¶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

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

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
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 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

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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 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, 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

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 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

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 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

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.

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¶ 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.

3
The case law regarding void convictions is distinguishable from case law abolishing the void
sentence rule.
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¶ 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. Similarly,

an equal amount was transferred from that fund to the City of Ottawa. Donnelly, 2020 IL App

(3d) 180202-U, ¶ 7.

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¶ 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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 No. 3-19-0765

Cite as: People v. Massamillo, 2020 IL App (3d) 190765

Decision Under Review: Appeal from the Circuit Court of La Salle County, No. 12-CF-
578; the Hon. Cynthia M. Raccuglia, Judge, presiding.

Attorneys Jack E. Boehm Jr., of Lake Bluff, for appellant.
for
Appellant:

Attorneys Karen Donnelly, State’s Attorney, of Ottawa (Patrick
for Delfino, Thomas D. Arado, and Gary F. Gnidovec, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.

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