People v. Melvin

2022 IL App (2d) 180359-U
No. 2-18-0359
Order filed April 19, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 09-CF-653
)
JAMES MELVIN, ) Honorable
) James Hallock,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court.
Justices Jorgensen and Brennan concurred in the judgment.

ORDER

¶1 Held: (1) This court has jurisdiction to consider defendant’s appeal from his conviction
and sentence after trial; therefore we have jurisdiction to consider defendant’s claim
that our judgment in defendant’s prior appeal was void; (2) this court had
jurisdiction to consider defendant’s prior appeal; (3) appellate court can address the
merits of a trial court’s denial of leave to file a successive postconviction petition;
(4) record contained sufficient evidence of defendant’s mailing of his notice of
appeal in a timely fashion to the circuit court clerk; (5) this court’s judgment in
defendant’s prior appeal was not void. Trial court affirmed.

¶2 Defendant, James Melvin, was charged with 1 count of predatory criminal sexual assault

of a child (720 ILCS 5/12-14.1(a)(1) (West 2008)) and 10 counts of aggravated criminal sexual

abuse (720 ILCS 5/12-16(b), (c)(1)(i) (West 2008)). He then entered into a negotiated plea
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agreement whereby he pled guilty to one count of attempt predatory sexual assault of a child (720

ILCS 5/8-4, 12-14,1(a)(1) (West 2008)) and was sentenced to 60 years’ imprisonment. All

remaining counts were dismissed.

¶3 Defendant filed a postconviction petition, which was dismissed. Defendant filed a notice

of appeal, but this court dismissed the appeal for defendant’s failure to file a docketing statement.

Defendant then moved for leave to file a second petition, which the trial court denied on August

22, 2013. On appeal from that denial, this court agreed with defendant that his sentence was based

on an improper double enhancement and was, therefore, void. See People v. Melvin, 2015 IL App

(2d) 131005. “Per defendant’s alternative suggestion,” this court vacated the trial court’s judgment

and remanded the cause “so that defendant may plead anew to whatever charges the State decides

to reinstate.” Id. ¶ 7.

¶4 On remand, the State was granted leave to reinstate the original charges, and the matter

proceeded to a bench trial in October 2017. The trial court found defendant guilty of the single

count of predatory criminal sexual assault of a child and six counts of aggravated criminal sexual

abuse. Defendant’s motion for a new trial was denied. Because defendant had previously been

convicted of predatory criminal sexual assault, he was sentenced to natural life in prison on the

predatory criminal sexual assault of a child count on May 9, 2018. See 720 ILCS 5/11-1.40(b)(1.2)

(West 2008). Defendant filed a notice of appeal from that trial court judgment of conviction on

that same day.

¶5 Defendant now contends on appeal that this court must vacate our 2015 judgment as void

because we lacked jurisdiction to consider his appeal. Further, because our judgment was void,

we must also vacate the judgment entered after the bench trial and reinstate his original negotiated

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plea and 60-year sentence. Whether this court has jurisdiction to consider an appeal presents a

question of law, which we review de novo. People v. Shinaul, 2017 IL 120162, ¶ 8.

¶6 While defendant questions this court’s jurisdiction over the earlier appeal, the State

questions our jurisdiction over this current appeal. According to the State, a notice of appeal

confers judgment on an appellate court to consider only the judgments or parts of judgments that

are specified in the notice of appeal. See People v. Bingham, 2018 IL 122008, ¶ 16. Here,

defendant’s notice of appeal lists the date of judgment or order as “5-9-18,” the offense for which

defendant was convicted as “Pred. Crim. Sex. Asslt + Agg. Crim Sex Abuse,” and the sentence as

“Nat. Life plus 3 yrs.” According to the State, this notice of appeal “fails to even arguably address

this court’s 2015 judgment;” the date of judgment, offense, and sentence involved with the 2015

appeal are all different from those listed on the notice of appeal. Thus, this court should dismiss

the current appeal “for failure to list this Court’s July 16, 2015, judgment in his notice of appeal.”

We disagree.

¶7 “The filing of a notice of appeal is the jurisdictional step which initiates appellate review.”

(Internal quotation marks omitted.) People v. Smith, 228 Ill. 2d 94, 104 (2008). A notice of appeal

“ ‘shall specify the judgment or part thereof or other orders appealed from and the relief sought

from the reviewing court.’ ” Id. quoting Supreme Court Rule 303(b)(2) (eff. July 1, 2017). While

a notice of appeal confers jurisdiction on a reviewing court to consider only the judgments or parts

thereof specified in the notice of appeal, an unspecified judgment is reviewable if it is a step in the

procedural progression leading to the judgment specified in the notice of appeal. See Burtell v.

First Charter Service Corp., 76 Ill. 2d 427, 434-35 (1979); In re Jamari R., 2017 IL App (1st)

160850, ¶ 39. While a notice of appeal is jurisdictional, it is generally accepted that such a notice

is to be construed liberally. Smith, 228 Ill. 2d at 104. A notice of appeal should be considered as

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a whole, and a notice will be deemed sufficient to confer jurisdiction on an appellate court when

it fairly and adequately sets out the judgment complained of and the relief sought, thereby advising

the successful litigant of the nature of the appeal. Id. at 105.

¶8 Here, this court’s vacation of defendant’s original plea and sentencing was clearly a “step

in the procedural progression leading to” the trial court’s May 9, 2018 judgment. The 2018

judgment would not have come about had this court not vacated the original trial court judgment

and remanded the cause for a new plea or trial.

¶9 Further, an exception to the “procedural progression” rule exists where a party collaterally

attacks an allegedly void order on appeal. See Jamari R., 2017 IL App (1st) 160850, ¶ 41. A void

order may be attacked at any time or in any court, either directly or collaterally. People v. Flowers,

208 Ill. 2d 291, 295 (2003). However, although a void order may be attacked at any time, the issue

of voidness must be raised in the context of a proceeding that is properly pending in the courts.

Id. If a court lacks jurisdiction, it cannot grant any relief, even from prior void judgment. Id. The

reason is obvious—without jurisdiction, an order directed at a void judgment would itself be void

and of no effect. Id. Thus, an appellate court “is not vested with authority to consider the merits

of a case merely because the dispute involves an order or judgment that is, or is alleged to be,

void.” Id. Its power attaches only upon compliance with the rules governing appeals. Id.

¶ 10 Here, we do not find that defendant failed in any way to comply with the rules governing

appeals as they apply to his appeal from the trial court’s order of May 9, 2018. Therefore, as we

have jurisdiction over this current appeal, we have jurisdiction to consider defendant’s claim that

both our 2015 judgment and the trial court’s 2018 judgment are void.

¶ 11 Defendant first argues that this court lacked jurisdiction to vacate his 2009 conviction and

sentence because his notice of appeal from that judgment was deficient. According to defendant,

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his notice of appeal specified that his appeal was from the trial court’s August 22, 2013 order

denying him leave to file a second postconviction petition; nowhere did he mention the trial court’s

August 28, 2009 order imposing sentence on his negotiated plea. Thus, this court had no

jurisdiction to grant relief related to the 2009 order.

¶ 12 For the same reasons that we disagreed with the State’s jurisdictional argument above

(infra ¶¶ 6-10), we find that this argument has no merit. The notice of appeal was timely filed

after the trial court’s August 22, 2013 order, and the appeal was properly before this court. The

original 2009 judgment was clearly a step in the procedural progression of this case. Even though

the notice of appeal did not specify the 2009 judgment, this court has the authority to sua sponte

correct a void order when it sees such an order in a case properly before it. See People v.

Thompson, 209 Ill. 2d 19, 25 (2004) (abrogated on other grounds, People v. Castleberry, 2015 IL

116916); People v. Arna, 168 Ill. 2d 107, 113 (1995) (abrogated on other grounds, People v.

Castleberry, 2015 IL 116916). This court did not need to sua sponte invoke our authority to vacate

a void order; we were well-informed of the claimed void order by defendant’s brief, which had

only one issue presented for review: whether he was entitled to have his sentence partially reduced

or to withdraw his guilty plea “where the sentence he received exceeds the maximum authorized

by law.” This court clearly did not lack jurisdiction on this basis.

¶ 13 Defendant next argues that his specification in his 2013 notice of appeal of “Post-

conviction petition” as the judgment from which he sought to appeal was insufficient to confer

jurisdiction on this court. Defendant cites to People v. Edwards, 2012 IL 111711, ¶ 24 for the

proposition that a successive postconviction petition is not considered filed, and no further

proceedings can follow, until leave of court to file the petition is granted. According to defendant,

as the trial court denied leave to file his successive petition, his petition “was functionally never

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filed,” and the trial court never addressed or ruled on the merits of the petition. Thus, there was

no judgment on the successive petition from which to bring an appeal.

¶ 14 This argument is without merit. The prohibition on further proceedings when leave to file

is not granted, as referenced in Edwards, applies to the trial court, not this court. We note that

Illinois caselaw is replete with appeals addressing the merits of a trial court’s denial of leave to

file a successive postconviction petition. See, for example, People v. Bailey, 2017 IL 121450,

¶¶12-13 (“The single issue before us is whether, under the Post-Conviction Hearing Act (725 ILCS

5/122-1 et seq. (West 2014)), the denial of defendant’s motion for leave to file a successive

postconviction petition must be reversed ***.” “The denial of a defendant’s motion for leave to

file a successive postconviction petition is reviewed de novo.”). Edwards itself dealt, in part, with

review of the denial of leave to file a successive postconviction petition. See Edwards, 2012 IL

111711, ¶¶ 15, 30 (“The appellate court majority affirmed the circuit court’s denial of leave to file

the petitions, holding that petitioner failed to state a valid claim of actual innocence.” “However,

as we have just noted, a trial court should deny leave only in cases where, as a matter of law, no

colorable claim of actual innocence has been asserted. This suggests a de novo review.”) On

appeal, it is the trial court’s denial of leave to file that is the judgment being contested; the merits

of the proposed petition are not at issue. Defendant’s convoluted argument here is erroneous on

several levels and cannot be deemed to have been made in good faith.

¶ 15 Defendant next argues that his 2013 notice of appeal was insufficient to confer jurisdiction

on this court because it was mailed to the wrong court and was not timely filed. Illinois Supreme

Court Rule 651 (eff. July 1, 2017), which governs appeals in postconviction proceedings, states

that the procedure for postconviction appeals shall be in accordance with the rules governing

criminal appeals. According to Illinois Supreme Court Rule 606 (eff. Mar. 12, 2021), appeals in

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criminal cases must be filed with the clerk of the trial court within 30 days after the entry of the

final judgment.

¶ 16 The order denying defendant leave to file a successive postconviction petition was entered

on August 22, 2013. 30 days later was September 21, which fell on a Saturday; thus, the notice of

appeal was due on Monday, September 23. See 5 ILCS 70/1.11 (West 2020). Defendant’s notice

of appeal was file-stamped by the Clerk of the Circuit Court of Kane County on September 26,

2013.

¶ 17 This court has long applied the mailbox rule to the filing of postconviction petitions. See

People v. Maiden, 2013 IL App (2d) 120016; People v. Hansen, 2011 IL App (2d) 081226; People

v. Lugo, 391 Ill.App.3d 995 (2009). This rule provides that, when a notice of appeal is received

after the due date, the time of mailing shall be deemed the time of filing. See People v. Maclin,

2014 IL App (1st) 110342, ¶ 21. 1 This court has held that a legible postmark is sufficient proof of

mailing in the absence of an affidavit certifying when a notice of appeal was mailed. See Hansen,

2011 IL App (2d) 081226, ¶ 14. We have also held that a properly addressed, notarized certificate

that stated that the defendant put his notice of appeal in the prison mail (but without stating that it

1
We note that defendant in his brief improperly cites to and quotes from People v. Maclin,

2013 IL App (1st) 110342, which was superseded by Maclin, 2014 IL App (1st) 110342. The

appellate court in Maclin, 2014 IL App (1st) 110342 granted the defendant’s motion to supplement

the record and petition for rehearing, thereby changing both the facts and the law as it affected the

imposition of the mailbox rule, thereby rendering this defendant’s discussion and analysis of the

superseded case inapt as well as erroneous. See id.

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included proper prepaid postage) was sufficient evidence of mailing such that the mailbox rule

applied. See 2013 IL App (2d) 120016.

¶ 18 Here, the record shows that the circuit clerk received defendant’s notice of appeal and

notice of filing/affidavit of service on September 26, 2013. The notice of filing states that the

notice of appeal was placed into the institutional mail system at Menard correctional Center on

September 10, well within 30 days of judgment. However, the notice of filing lists only one party

to be served: “Second District Appellate Court Building[,] 55 Symphony Way , Elgin IL, 60120.”

The circuit court clerk is not listed for service. Thus, according to defendant, the mailbox rule

cannot apply, as defendant did not mail his notice of appeal to the circuit court clerk. See, e.g.,

First Bank v. Phillips, 379 Ill. App. 3d 186 (2008) (defendants filed notice of appeal in the

appellate court, and the circuit court clerk did not receive the notice within 30 days of judgment).

¶ 19 A short examination of the common law record is necessary here. Immediately after

defendant’s notice of appeal is a two-page application to sue or defend as a poor person. This

application is signed by defendant and notes that defendant is in Menard Correctional Center;

however, it is undated and bears no stamps regarding receipt or filing. Next in the record is an

envelope, addressed to the circuit clerk, with a return address of defendant in Menard Illinois and

a stamp indicating that it contained “Correspondence From IDOC Inmate.” Another stamp noted

that it contained “LEGAL MAIL” and was mailed on September 18. The postmark of “SEP 18

2013” is clear and legible. A stamp on the envelope notes that it was received on September 25,

2013. This is the day before defendant’s notice of appeal was file-stamped by the circuit court

clerk’s office. Next in the record is a series of four receipts for documents (notice of appeal and

copies of docket/record sheets), prepared by the clerk of the circuit court on September 26, 2013,

and sent to the State Appellate Prosecutor, the State Appellate Defender, the chief judge of the

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Kane County Circuit Court, and this court. All were marked as received by the recipients on

September 30 and were stamped as filed by the circuit court clerk on October 1.

¶ 20 Looking at the common law record as a whole, we determine that the documentation

contained in the record is sufficient evidence of defendant’s mailing of his notice of appeal in a

timely fashion to the circuit court clerk. The notice of filing, filled out by defendant, did not

indicate that the circuit court clerk was an intended recipient of the September 10 mailing or that

the two-page application was sent in the mail along with the notice of appeal. However, this

document is not determinative on the issue of mailing the notice of appeal. The envelope, next in

the record after the application, was marked as containing “Correspondence From IDOC Inmate”

and “LEGAL MAIL.” It was addressed to the circuit court clerk with a return address for

defendant at Menard Correctional Center. The only logical and reasonable interpretation of this

record is that notice of filing, notice of appeal, and application were all mailed by defendant to the

circuit court clerk in the envelope that was postmarked on September 18, 2013. The documents

that come after the envelope in the record were sent from the circuit court clerk’s office and have

no connection to the envelope; thus, the envelope is logically related to the documents preceding

it. The file stamp of September 26, 2013, contained on the notice of appeal and notice of filing, is

the day after the envelope addressed to the circuit court clerk was marked as received.

¶ 21 Viewing all of this in a logical and reasonable manner, we conclude that the record supports

a finding that the notice of appeal was mailed to the circuit court clerk in the envelope contained

in the record. This envelope was clearly and legibly postmarked on September 18, 2013, five days

before the expiration of the 30-day period for filing defendant’s notice of appeal. Thus, after

applying the mailbox rule, we conclude that defendant’s 2013 notice of appeal was timely and

properly filed and that this court obtained jurisdiction over that appeal.

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¶ 22 Defendant next contends that this court erred in determining that the trial court’s 2009

judgment was void. In our 2015 opinion, this court determined that defendant’s agreed-upon

sentence “was not statutorily authorized and was, in turn, void.” Melvin, 2015 IL App (2d) 131005,

¶ 3. We therefore vacated the trial court’s judgment and remanded the cause. Three months after

our opinion was filed, our supreme court abolished the void sentencing rule in People v.

Castleberry, 2015 IL 116916, ¶ 19. Pursuant to Castleberry, “a statutorily nonconforming

sentence is not void; it is merely voidable and subject to the usual rules of forfeiture or other

procedural restraints.” People v. Price, 2016 IL 118613, ¶ 17.

“After Castleberry, a reviewing court may no longer, sua sponte, correct a

statutorily nonconforming sentence [citation], the State may no longer seek to correct such

a sentence on direct review but must seek a writ of mandamus to do so [citation], and a

defendant may no longer rely on the void sentence rule to overcome forfeiture of a claimed

sentencing error or to challenge a statutorily nonconforming sentence in perpetuity

[citation].” Id.

Price applied Castleberry to all cases pending at the time of Castleberry’s announcement. See id.

¶ 35.

¶ 23 Defendant now argues that, as his case was still pending on remand when Castleberry was

announced, our 2015 decision must be vacated, as it was premised on the void judgment rule.

Further, defendant states that this court should reinstate the judgment on the 2009 plea agreement,

which was wrongly vacated.

¶ 24 Our supreme court has explained that the primary purpose behind Castleberry was to

“ ‘preserv[e] the finality of judgments.’ ” People v. Stephens, 2017 IL App (1st) 151631, ¶ 71

quoting Price, 2016 IL 118613, ¶ 28. In Stephens, the defendant’s initial concurrent sentences

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after a bench trial were vacated by the appellate court because consecutive sentences were

required. Stephens, 2017 IL App (1st) 151631, ¶ 10. After remand, the appellate court again

vacated the defendant’s sentences and remanded for sentencing because the trial court failed to

hold a sentencing hearing. Id. ¶ 12. Following a sentencing hearing, defendant again appealed his

sentences, arguing, inter alia, that, as Castleberry had been announced during the pendency of his

case, his first sentences should not have been vacated; further, if the court had not remanded for

his second sentencing, it would not have remanded for his third sentencing and, therefore, the

appellate court should vacate his third sentence and reinstate his first sentence. Id. ¶ 65.

¶ 25 The appellate court disagreed. While acknowledging the Castleberry holding, the court

distinguished Castleberry factually: Castleberry involved an appeal from the defendant’s initial

sentence, the defendant in Stephens was appealing from his third sentence and asking the court “in

essence, to vacate the 2009 and 2012 decisions of this court, as well as the third sentencing order

of the trial court, and turn the clock back over 12 years to the first sentencing order in 2005.” Id.

¶ 70. Noting that the original appellate court order “was perfectly valid when issued and

conformed to then-existing supreme court precedent” (id. ¶ 72), the court did not believe that “it

was our supreme court’s intent to undo the finality of an eight-year old appellate decision, upon

which both the parties and subsequent appellate and trial courts have relied, particularly when the

result would be to reinstate a decades-dormant, statutorily invalid sentence.” Id. ¶ 71. The

supreme court “did not intend Castleberry to become a vehicle by which a defendant could

challenge as void an eight-year-old appellate decision which ordered a statutorily conforming

sentence.” Id. ¶ 72.

¶ 26 We find the Stephens analysis applicable and persuasive. Our decision in Melvin was

similarly valid and in conformance with then-existing supreme court precedent when it was issued.

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The relief that we granted was sought by defendant. Defendant here similarly seeks to vacate a

years-old appellate decision and, in the process, attempts to cast into oblivion a bench trial and

sentencing that were held in reliance on this court’s holding,2 in order to reinstate sentences that

defendant acknowledges were not and are not statutorily proper. We cannot agree that such an

outcome is contemplated, let alone required, by Castleberry, and we will not impose such an

unwarranted outcome in this case. Defendant’s conviction and sentence are affirmed.

¶ 27 For these reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 28 Affirmed.

2
This court sua sponte ordered the parties to file supplemental briefs regarding “the merits

or lack thereof of any claims relating to the direct appeal concerning the proceedings which

resulted in appellant’s conviction and life sentence.” Defense counsel detailed his consideration

of issues related to reasonable doubt, pretrial and posttrial motions, evidentiary rulings, the

statutorily-mandated imposition of a life sentence and its constitutionality, and the trial court’s

compliance with procedures mandated by People v. Krankel, 102 Ill. 2d 181 (1984). Counsel

argued that he had the discretion to exercise his professional judgment to select appellate issues

that he believed promoted the best interests of his client, and he raised “one meritorious issue” in

his initial briefs.

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