dissenting:
I strongly agree with the majority that Lawton’s ineffective-assistance-of-counsel claim lacks merit. I strongly disagree with the majority that section 2 — 1401 provides a new procedural avenue for a defendant committed under the Sexually Dangerous Persons Act (SDPA) to assert an abandoned ineffective-assistance claim.
To obtain relief under section 2 — 1401, the defendant must show both a meritorious defense to the charges against him and due diligence in presenting it. See People v. Pinkonsly, 207 Ill. 2d 555, 565 (2003). Generally, a meritorious defense under section 2 — 1401 involves errors of fact, not errors of law. See People v. Haynes, 192 Ill. 2d 437, 461 (2000); see also Burns v. People, 9 Ill. 2d 477, 480 (1956) (noting that a motion to correct errors of fact “is not available for the purpose of correcting errors at law,” such as ineffective assistance of counsel).
“For this reason, a section 2 — 1401 petition differs from a postconviction petition. A postconviction petition requires the court to decide whether the defendant’s constitutional rights were violated at trial [citation]; a section 2 — -1401 petition, on the other hand, requires the court to determine whether facts exist that were unknown to the court at the time of trial and would have prevented entry of the judgment. [Citation.] ***
We have long held that section 2 — 1401 proceedings are not an appropriate forum for ineffective-assistance claims because such claims do not challenge the factual basis for the judgment.” Pinkonsly, 207 Ill. 2d at 566-67.
Accord People v. Anderson, 31 Ill. 2d 262, 264 (1964); Putnam v. People, 408 Ill. 582, 585-86 (1951); People v. Sheppard, 405 Ill. 79, 85 (1950); Hall v. People, 402 Ill. 478, 481 (1949); see also In re William M., 206 Ill. 2d 595, 604-05 (2003) (holding that a juvenile’s ineffective-assistance claim does not fall within the parameters of section 2 — 1401).
Though the majority asserts that the relief in section 2 — 1401 is phrased “in the broadest possible terms,” those terms are certainly no broader than the various common law writs abolished and replaced by the statute. As the majority notes, section 2 — 1401 provides that “[a] 11 relief heretofore obtainable and the grounds for such relief heretofore available, whether by any of the foregoing remedies or otherwise, shall be available in every case, by proceedings hereunder.” (Emphases added.) 735 ILCS 5/2 — 1401(a) (West 2002). Section 2 — 1401, thus, is backwards looking. In order to determine whether the statute affords any given relief, such as relief from purportedly ineffective assistance of counsel, we must look to whether that relief was “heretofore” available at common law. See Ill. Ann. Stat., ch. 110, par. 2 — 1401, Historical & Practice Notes, at 608 (Smith-Hurd 1983) (“Occasionally an analysis of the nature and limits of the various writs replaced by this section aids the court in evaluating the propriety of a petition under this section”), citing Frandsen v. Anderson, 108 Ill. App. 2d 194, 200-01 (1969).
Section 2 — 1401 abolished the common law writs of coram nobis and coram vobis, which served to correct errors of fact. Section 2 — 1401 also abolished bills of review, which were not limited to factual matters.
“Prior to the 1955 revision of the Civil Practice Act, there was no statutory mode in Illinois for obtaining relief from a decree of a court of equity, if the term at which the judgment was entered had passed. Hence, Illinois lawyers utilized the equitable remedies of a bill of review and a bill in the nature of a bill of review. The courts held that these bills could be used to bring matters to the attention of the court in three situations: for error of law upon the face of the decree [citation]; to establish newly discovered evidence [citation]; and to show fraud in the procurement of the decree [citation].” Ill. Ann. Stat., ch. 110, par. 2 — 1401, Historical & Practice Notes, at 605-06 (Smith-Hurd 1983). Assuming, then, that the relief available under sec-
tion 2 — 1401 extends as far as the relief available through bills of review and bills in the nature of bills of review to correct law errors, the defendant is not in one of the three situations where such relief is appropriate. The defendant here does not contend that an error of law appears on the face of the trial court’s initial order. Further, the defendant does not contend that newly discovered evidence would change the outcome of his case. Finally, the defendant does not contend that the trial court’s initial order was obtained by fraud. The defendant simply contends that he received ineffective assistance of counsel. At common law, Illinois courts would not grant a bill of review “where the party was prevented from proving important facts by the wrong advice of his counsel” or “the attorney employed by the complainant neglected the case.” 1 S. Puterbaugh, Illinois Chancery Pleading and Practice § 328, at 490 (7th ed. 1930); see also E Van Zile, Equity Pleading and Practice § 344, at 475 (1904) (“But mere carelessness or unfaithfulness, or proceeding upon wrong advice, or where documentary evidence was lost or mislaid by carelessness of counsel, will not support a bill of review”). Thus, the defendant could not raise an ineffective-assistance-of-counsel claim in his section 2 — 1401 petition.
The majority cites Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95 (2002), and People v. Harvey, 196 Ill. 2d 444 (2001), as examples of cases where we have “held that petitions filed under [section 2 — 1401] may also be used to challenge judgments claimed to be defective for legal reasons.” 212 Ill. 2d at 297. In Sarkissian, the Chicago Board of Education never filed a section 2 — 1401 petition; we sua sponte labeled its motion to vacate a default judgment, purportedly void because service of process violated statutory requirements, as a petition under the statute. Historically, section 2 — 1401 and its predecessor, section 72 of the Civil Practice Law, have been used to vacate default judgments entered without notice to the defendant. See, e.g., Lusk v. Bluhm, 321 Ill. App. 349 (1944); Swiercz v. Nalepka, 259 Ill. App. 262 (1930). In Harvey, the defendant filed a section 2 — 1401 motion alleging that the trial court’s sentencing order was void because it ran afoul of statutory requirements. Section 2 — 1401(f) actually codifies a common law rule allowing litigants to attack a void judgment at any time. See 735 ILCS 5/2 — 1401(f) (West 2002) (“Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief’). A litigant may (see Harvey, 196 111. 2d at 454 (McMorrow, J., specially concurring, joined by Freeman, J.)), but need not (see Harvey, 196 Ill. 2d at 457 (Fitzgerald, J., specially concurring, joined by Thomas and Garman, JJ.)), file a section 2 — 1401 motion to do so. Neither Sarkissian nor Harvey dictate that section 2 — 1401 should be available to prosecute ineffective-assistance claims.
The defendant finds it ironic that he would have had an avenue of collateral attack if he had been convicted on the underlying predatory criminal sexual assault charges. He asks this court to apply “its fundamental fairness concept” (see, e.g., People v. Flores, 153 Ill. 2d 264, 274 (1992); People v. Gaines, 105 Ill. 2d 79, 91 (1984)) and devise a similar remedy for sexually dangerous persons. To the extent that the defendant’s fundamental-fairness argument implicates due process, I note that there is simply no due process right to a collateral attack on a final judgment of conviction in a criminal case. See United States v. MacCollom, 426 U.S. 317, 323, 48 L. Ed. 2d 666, 674, 96 S. Ct. 2086, 2090 (1976) (“The Due Process Clause of the Fifth Amendment does not establish any right to an appeal [citation] and certainly does not establish any right to collaterally attack a final judgment of conviction”), citing Griffin v. Illinois, 351 U.S. 12, 18, 100 L. Ed. 891, 898, 76 S. Ct. 585, 590 (1956) (plurality op.); see generally 4 Am. Jur. 2d Appellate Review § 222 (1995). Postconviction and other collateral proceedings remain a matter of legislative grace. As the United States Supreme Court indicated in Pennsylvania v. Finley, 481 U.S. 551, 556-57, 95 L. Ed 2d 539, 547, 107 S. Ct. 1990, 1994 (1987):
“Postconviction relief is even further removed from the criminal trial than is discretionary direct review: It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. It is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief ***.”
If the state need not provide an avenue of postconviction relief to a defendant convicted under the Criminal Code, it follows that the state need not provide an avenue of collateral attack to a defendant committed under the SDPA.1
The General Assembly has not acted, and we should decline to graft a layer of collateral proceedings onto the SDPA in the name of fundamental fairness. Judicial legislation is never appropriate (Gordon v. Department of Transportation, 99 Ill. 2d 44, 47 (1983) (“It is the legislature’s task to codify public policy; we refrain from undertaking such impermissible judicial legislation”)), and it is particularly inappropriate in this case because the defendant did not receive ineffective assistance of counsel. In short, the majority opens a door to the defendant’s claim, only to slam it closed. “[S]uch analysis or opinion is not necessary for the disposition” here. Best v. Taylor Machine Works, 179 Ill. 2d 367, 470 (1997). We should save any determination that section 2 — 1401 is a vehicle for constitutional claims for a case in which the need to remedy a constitutional violation is greater or, in fact, exists at all.
I recognize the plight of the defendant and others prosecuted as sexually dangerous or sexually violent persons, who seek to raise claims of ineffective assistance of counsel in collateral proceedings after being represented by the same attorney at trial and on appeal. But we should not disavow our section 2 — 1401 precedent and define that statute a catchall vehicle to assert constitutional claims when necessary to achieve some vaguely sketched notion of justice. We should not punch a hole in the statute, out of which will leak any sense of finality in our criminal and civil law.
A far more appropriate disposition, and one I enthusiastically endorse, would be to follow the law as we find it, reject the defendant’s section 2 — 1401 petition, and focus the General Assembly’s attention on crafting an appropriate collateral proceeding in which defendants under the Sexually Dangerous Persons Act and the Sexually Violent Persons Act can assert constitutional claims of this nature. Until the legislature acts, such defendants should find recourse for their ineffective-assistance claims only in their direct appeals.
I dissent.
JUSTICE THOMAS joins in this dissent.The defendant raises no equal protection argument in this regard.