FILED
April 19, 2017
2017 IL App (4th) 150170 Carla Bender
4th District Appellate
NO. 4-15-0170 Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Brown County
MICHAEL E. CRENSHAW, ) Nos. 09CF5
Defendant-Appellant. )
) Honorable
) Diane M. Lagoski,
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court, with opinion.
Justices Harris and Steigmann concurred in the judgment and opinion.
OPINION
¶1 This case comes to us on the motion of the office of the State Appellate Defender
(OSAD) to withdraw as counsel on appeal on the ground no meritorious issues can be raised in
this case. For the reasons that follow, we grant OSAD’s motion and affirm the trial court’s
judgment.
¶2 I. BACKGROUND
¶3 On October 20, 2009, the trial court found defendant, Michael E. Crenshaw,
guilty of criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2008)) and sentenced him to
eight years in prison on November 30, 2009. Defendant appealed his conviction, arguing the trial
court erred by (1) denying his motion to suppress his confession, (2) admitting a cellular phone
recording, and (3) imposing an excessive sentence. People v. Crenshaw, 2011 IL App (4th)
090908, ¶ 1, 959 N.E.2d 703. This court affirmed defendant’s conviction and rejected his
arguments. Id.
¶4 While his direct appeal was pending, defendant also filed a pro se postconviction
petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-8 (West 2008)).
Defendant’s appointed counsel amended the petition. The trial court dismissed several claims
alleged in the petition, but it allowed an ineffective-assistance claim to move forward. The claim
alleged defendant’s trial counsel was ineffective for failing to admonish him regarding his
ineligibility for probation. The court ultimately denied defendant’s postconviction petition,
which was affirmed by this court in People v. Crenshaw, 2012 IL App (4th) 110202, ¶ 1, 974
N.E.2d 1002.
¶5 In December 2012, defendant pro se filed (1) a motion for substitution of judge,
(2) a motion for leave to file a successive postconviction petition, and (3) a successive
postconviction petition. The successive postconviction petition alleged initial postconviction
counsel was ineffective for failing to comply with Illinois Supreme Court Rule 651(c) (eff. April
26, 2012) and amend his postconviction petition to allege (1) judicial error, (2) ineffective
assistance of trial counsel, (3) newly discovered evidence, and (4) ineffective assistance of
appellate counsel.
¶6 In January 2013, Judge Robert K. Adrian denied defendant’s motion for a
substitution of judge, finding defendant failed to show Judge Diane M. Lagoski was biased. In
June 2013, the State filed a motion to dismiss the successive postconviction petition for failure to
seek leave to file it. Judge Lagoski granted the State’s motion, and defendant filed a motion to
reconsider and a motion for a hearing. The State then filed a motion to have defendant’s petition
deemed frivolous and to order defendant to pay costs. Defendant filed a second motion for a
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hearing. In September 2013, Judge Lagoski granted the motion to reconsider and set the matter
for a hearing.
¶7 Also in September 2013, defendant filed a second petition for leave to file a
successive postconviction petition and an amended successive postconviction petition. The
amended successive postconviction petition alleged, inter alia, postconviction counsel (1) was
ineffective for failing to comply with Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012) by
failing to review the record, (2) failed to amend the initial postconviction petition to include
issues of ineffective assistance of appellate counsel, (3) failed to amend the initial postconviction
petition to include the claim that trial counsel misled defendant on whether there could be a
substitution of judge, (4) failed to amend the initial postconviction petition to include a claim of
ineffective assistance of appellate counsel on the issue of judicial bias or impartiality, and (5)
failed to amend the petition to include a claim that appellate counsel was ineffective for not
raising the issue of the insufficiency of the evidence. In November 2013, the trial court denied
defendant’s request for leave to file the successive postconviction petition, which this court
affirmed in People v. Crenshaw, 2015 IL App (4th) 131035, ¶¶ 21-45, 38 N.E.3d 1256.
¶8 In February 2014, defendant filed a motion for a hearing and a motion for
substitution of judge, seeking a substitution of Judge Lagoski. The motion for substitution of
judge was denied by Judge Adrian in April 2014.
¶9 In August 2014, defendant filed a “motion to vacate, void judgment” under
section 2-1401(f) of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1401(f) (West
2014)), arguing the judgment against him was void because (1) the trial court committed a
miscarriage of justice and plain error by dismissing the rape kit and “negative findings” by the
Illinois State Police; (2) trial counsel was ineffective for failing to preserve the rape kit and
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failing to call a medical expert to testify; (3) Judge Lagoski was biased, thereby violating due
process; (4) the trial court did not find defendant guilty beyond a reasonable doubt; (5) defendant
never confessed to the crime, and if there was a confession, it was coerced; and (6) defendant
was prejudiced by the trial court playing a cellular phone recording multiple times prior to a trial
hearing. Defendant also supplemented a renewed motion for substitution of judge as a matter of
right under section 2-1001(a)(2)(ii) of the Civil Code (735 ILCS 5/2-1001(a)(2)(ii) (West 2014)),
which named Judge Lagoski and Judge Adrian and was originally filed in December 2014. Judge
Lagoski denied defendant’s motion for substitution of judge in January 2015. Judge Lagoski held
a hearing on defendant’s section 2-1401 petition in February 2015, and she denied defendant’s
petition, finding the court had jurisdiction over the case and the remaining arguments were not
properly raised in a section 2-1401 petition.
¶ 10 Defendant timely filed a notice of appeal, listing “motion for substitution of
judge, motion of void judgment” as the order appealed. Defendant listed OSAD as his attorney
on appeal.
¶ 11 OSAD filed a motion for leave to withdraw as defendant’s counsel on appeal,
citing Pennsylvania v. Finley, 481 U.S. 551 (1987), and asserted it had thoroughly reviewed the
record and concluded any request for review would be without merit. OSAD argues defendant’s
claims relating to a “miscarriage of justice,” plain error, and ineffective assistance of counsel
cannot be brought in a section 2-1401 petition and are meritless. OSAD further argues
defendant’s claim relating to the substitution of Judge Lagoski and Judge Adrian is likewise
meritless, despite the fact the motion for substitution of judge was ruled upon by a judge named
in the motion.
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¶ 12 On its own motion, this court granted defendant leave to file additional points and
authorities by October 31, 2016, but defendant filed none. We grant OSAD’s motion and affirm
the trial court’s order denying defendant’s section 2-1401 petition.
¶ 13 II. ANALYSIS
¶ 14 In Finley, the Supreme Court held prisoners do not have a constitutional right to
counsel when collaterally attacking their convictions; however, the Court noted, if a state
chooses to offer appointed counsel for this type of relief, it has “substantial discretion to develop
and implement programs to aid prisoners seeking to secure postconviction review.” Finley, 481
U.S. at 559. The Illinois Supreme Court held, when a defendant is appointed postconviction
counsel who seeks to withdraw citing Finley, appointed counsel must provide an explanation
why the defendant’s claim is without merit. People v. Kuehner, 2015 IL 117695, ¶ 21, 32 N.E.3d
655.
¶ 15 A. Defendant’s Section 2-1401 Petition
¶ 16 Defendant filed a petition for relief from judgment under section 2-1401(f) of the
Civil Code, alleging the judgment against him was void because (1) the trial court committed a
miscarriage of justice and plain error by dismissing the rape kit and “negative findings” by the
Illinois State Police; (2) trial counsel was ineffective for failing to preserve the rape kit and
failing to call a medical expert to testify; (3) Judge Lagoski was biased, thereby violating due
process; (4) the trial court did not find defendant guilty beyond a reasonable doubt; (5) defendant
never confessed to the crime, and if there was a confession, it was coerced; and (6) defendant
was prejudiced by the trial court playing a cellular phone recording multiple times prior to a trial
hearing. OSAD argues the judgment was not void because defendant does not argue the court
lacked jurisdiction over the underlying criminal proceeding.
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¶ 17 We review de novo the denial of a petition for relief from judgment under section
2-1401 of the Civil Code. People v. Vincent, 226 Ill. 2d 1, 14, 871 N.E.2d 17, 26 (2007). Section
2-1401 provides a procedure through which final orders, judgments, and decrees may be
challenged more than 30 days, but not more than 2 years, after their entry. People v. Coleman,
358 Ill. App. 3d 1063, 1066, 835 N.E.2d 387, 390 (2005). Our supreme court has instructed:
“Under Illinois law, a party may challenge a judgment as being
void at any time, either directly or collaterally, and the challenge is
not subject to forfeiture or other procedural restraints. [Citation.]
Void judgments thus occupy a unique place in our legal system: to
say that a judgment is void or, in other words, that it was entered
without jurisdiction, is to say that the judgment may be challenged
in perpetuity. For this reason, as Belleville Toyota observed,
‘[l]abeling the requirements contained in statutory causes of action
“jurisdictional” would permit an unwarranted and dangerous
expansion of the situations where a final judgment may be set
aside on a collateral attack.’ [Citation.] Accordingly, only the most
fundamental defects, i.e., a lack of personal jurisdiction or lack of
subject matter jurisdiction as defined in Belleville Toyota warrant
declaring a judgment void. [Citation.]” LVNV Funding, LLC v.
Trice, 2015 IL 116129, ¶ 38, 32 N.E.3d 553 (quoting Belleville
Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325,
341, 770 N.E.2d 177, 188 (2002)).
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Defendant does not argue the trial court lacked personal jurisdiction or subject matter jurisdiction
in the underlying criminal proceeding. Because defendant does not challenge jurisdiction, we
need not consider whether the judgment is void.
¶ 18 Though defendant’s motion only attacks the judgment as void, we nonetheless
conclude defendant’s arguments do not entitle him to relief under section 2-1401.
“A section 2-1401 petition for relief from a final judgment is the
forum in a criminal case in which to correct all errors of fact
occurring in the prosecution of a cause, unknown to the petitioner
and court at the time judgment was entered, which, if then known,
would have prevented its rendition. [Citations.] A section 2-1401
petition, however, is not designed to provide a general review of
all trial errors nor to substitute for direct appeal. [Citation.]”
(Internal quotation marks omitted.) People v. Pinkonsly, 207 Ill. 2d
555, 566, 802 N.E.2d 236, 243 (2003).
Additionally, “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.” Id. at 567, 802
N.E.2d at 244.
¶ 19 Notwithstanding the fact defendant filed his section 2-1401 petition well outside
the two-year limitations period, defendant has not presented any facts unknown to the trial court
at the time of the original judgment. Rather, defendant seeks a general review of his case,
alleging ineffective assistance of trial and appellate counsel, judicial bias, and various
evidentiary issues—all matters that should have been, and some of which were, presented on
direct appeal or in a postconviction petition. Section 2-1401 is not the proper forum for such a
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review. We thus conclude OSAD has provided an adequate explanation why defendant’s section
2-1401 petition is meritless.
¶ 20 B. Defendant’s Motion for Substitution of Judge
¶ 21 Defendant sought a substitution of judge as a matter of right under section 2
1001(a)(2)(ii) of the Civil Code. We review a ruling on a motion to substitute judge as a matter
of right de novo. Curtis v. Lofy, 394 Ill. App. 3d 170, 176, 914 N.E.2d 248, 253 (2009). Section
2-1001(a)(2)(ii) allows a substitution of judge as a matter of right, provided the motion is filed
before the judge at issue has ruled on any substantial issue in the case. 735 ILCS 5/2
1001(a)(2)(ii) (West 2014). In his motion, defendant argues the section 2-1401 proceedings are a
collateral action to his criminal proceedings. Defendant asserts, because the section 2-1401
proceedings are collateral, the filing of the section 2-1401 petition begins a new proceeding,
which would allow him the ability to substitute Judge Lagoski as a matter of right because she
had not yet made a substantive ruling in the section 2-1401 proceeding.
¶ 22 OSAD disagrees, citing Niemerg v. Bonelli, 344 Ill. App. 3d 459, 464-66, 800
N.E.2d 86, 89-91 (2003). In Niemerg, the Fifth District concluded, “[a]lthough a section 2-1401
proceeding may be a ‘new action’ for some purposes, such as pleading sufficiency and service of
process, it is not a new case for purposes of section 2-1001(a)(2).” Id. at 465, 800 N.E.2d at 90.
The appellants in Niemerg made an identical argument to defendant’s. The Fifth District, while
recognizing the logic of the argument, nonetheless concluded:
“[I]t is clear to us that to allow a substitution of judge in a section
2-1401 proceeding would defeat the policy behind the rule
requiring a motion for substitution to be presented before the judge
has ruled on any substantial issue in the case: to preclude litigants
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from ‘judge-shopping’ after having formed an opinion that the
judge may be unfavorably disposed toward the litigant’s cause.”
Id.
We agree and adopt this holding and conclude defendant was not entitled to substitute Judge
Lagoski as a matter of right under section 2-1001(a)(2)(ii) of the Civil Code. Defendant does not
request or provide justification for a substitution of judge for cause under section 2-1001(a)(3) of
the Civil Code (735 ILCS 5/2-1001(a)(3) (West 2014)), and we therefore decline to consider the
issue and conclude OSAD has provided an adequate explanation why this issue is meritless.
¶ 23 III. CONCLUSION
¶ 24 We grant OSAD’s motion for leave to withdraw as counsel and affirm the trial
court’s judgment.
¶ 25 Affirmed.
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