People v. Brown

NOTICE 2024 IL App (4th) 230348-U

This Order was filed under

FILED

Supreme Court Rule 23 and is NO. 4-23-0348 January 4, 2024

not precedent except in the Carla Bender

limited circumstances allowed 4th District Appellate

IN THE APPELLATE COURT Court, IL

under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

Plaintiff-Appellee, ) Circuit Court of

v. ) Knox County

MARLON BROWN, ) No. 08CF437

Defendant-Appellant. )

) Honorable

) Andrew J. Doyle,

) Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court.

Presiding Justice Turner and Justice Cavanagh concurred in the judgment.

ORDER

¶1 Held: The appellate court granted appellate counsel’s motion to withdraw and affirmed

the trial court’s judgment as no issue of arguable merit could be raised on appeal.

¶2 Defendant, Marlon Brown, appeals from the trial court’s denial of his motion for

leave to file a successive petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-

1 et seq. (West 2022)). On appeal, the Office of the State Appellate Defender (OSAD) was

appointed to represent him. OSAD now moves to withdraw on the ground no issue of arguable

merit can be raised on appeal. Despite being given the opportunity, defendant did not file a

response to the motion to withdraw. After reviewing the record, we grant counsel’s motion and

affirm the court’s judgment.

¶3 I. BACKGROUND

¶4 A. Pretrial Proceedings

¶5 According to a “detention order,” defendant was arrested for murder at

approximately 3 a.m. on August 23, 2008, and, that same day, the trial court found probable cause

existed to detain him. The detention order also set bail at $1 million. The order has a judge’s

signature below a line that states it was entered on August 23, 2008, at 8:57 a.m. The order bears

an August 25, 2008, file stamp.

¶6 On August 25, 2008, the State filed an information charging defendant with first

degree murder under three theories (720 ILCS 5/9-1(a)(1)-(2) (West 2008)) and two lesser counts.

The charges arose from the August 23, 2008, shooting death of Deriek W. Lawless. Also on August

25, 2008, defendant appeared before the trial court. The court informed defendant of the charges

and appointed the public defender to represent him.

¶7 Defendant appeared with counsel on August 29, 2008. At the State’s request, the

trial court set a preliminary hearing date of September 22, 2008. The State calculated that this

would be the thirtieth day after defendant’s August 23, 2008, arrest. On September 5, 2008, the

State moved to advance the date to September 15. Defendant objected because he was trying to

retain counsel. Counsel for defendant represented (1) he had informed defendant a September 22

hearing would be a day later than the law required and (2) defendant did not object to that delay.

Defendant signed a written waiver to his right to have a preliminary hearing within 30 days of his

arrest.

¶8 On March 16, 2009, the State filed a superseding information. Defendant was

charged with three counts of first degree murder, each based on a different theory of culpability.

It also charged him with one count of aggravated discharge of a firearm (id. § 24-1.2(a)(2)) based

on his discharge of a handgun toward Lawless and two counts of unlawful possession of a firearm

-2-

by a felon (id. § 24-1.1(a)), based on a prior felony conviction and his possession of the handgun

and ammunition in a magazine.

¶9 B. The Trial

¶ 10 At defendant’s jury trial, the State presented testimony tending to show that

defendant shot Lawless during an altercation between Lawless and Major Lemon in the parking

lot of a bar, Andrew’s Lounge, in Galesburg, Illinois. According to the testimony of Solomon

Thompson, as Lawless was striking Lemon, defendant told Lawless to get off Lemon. Thompson

then saw defendant shoot Lawless in the face with a handgun. Lawless got up, stumbled away, and

fell. Defendant stood over Lawless and fired several more shots into his torso. Kinlaw Hendrix’s

testimony corroborated Thompson’s testimony.

¶ 11 Violette Hnilica, the forensic pathologist who autopsied Lawless’s body, testified

the entry wound from the shot to the head was at the back of the skull. An officer arriving at the

scene heard someone say, “Marlo shot my homie.” Defendant was known as “Marlo.” Other

evidence placed defendant’s car at Andrew’s Lounge at the relevant time. Officers searching

defendant’s house found a handgun matching witnesses’ descriptions of the gun used to kill

Lawless under a doghouse on the property. Defendant’s fingerprint was on the magazine, and

forensic evidence linked the gun to cartridge cases found at the scene of the killing and bullet

fragments taken from Lawless’s skull. The jury found defendant guilty of all counts. The trial court

sentenced defendant to a term of 26 years’ imprisonment for murder, to be served consecutively

to two concurrent terms of 2 years’ imprisonment for unlawful possession of a weapon by a felon.

¶ 12 C. The Direct Appeal

¶ 13 On direct appeal to the Third District, defendant argued: (1) the evidence was

insufficient to support any of the convictions and (2) the trial court committed plain error by not

-3-

asking the jurors if they understood and accepted the four principles, including the presumption of

innocence, set out in Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). People v. Brown,

2011 IL App (3d) 090572-UB, ¶ 1. The appellate court held the evidence was sufficient because

the evidence favoring the State was strong and the contradiction between the eyewitness testimony

that defendant shot Lawless in the face and the medical evidence showing Lawless was shot in

“the back of the head” did not weaken the totality of the evidence to the point of insufficiency.

Brown, 2011 IL App (3d) 090572-UB, ¶¶ 21-23. Further, because the evidence was not closely

balanced, the trial court’s failure to question the jurors concerning Rule 431(b) principles was not

first-prong plain error. Brown, 2011 IL App (3d) 090572-UB, ¶¶ 29-31. Finally, under the holding

in People v. Thompson, 238 Ill. 2d 598, 613-14 939 N.E. 2d 403 (2010), the trial court’s failure

was not second-prong plain error (i.e., error akin to structural error). Brown, 2011 IL App (3d)

090572-UB, ¶¶ 33-34.

¶ 14 D. Defendant’s Prior Postconviction Filings

¶ 15 1. Defendant’s Original Postconviction Petition

¶ 16 In December 2012, defendant filed a pro se petition under the Act. Among the

issues the petition raised were the ineffectiveness of appellate counsel for failing to argue defense

counsel was ineffective for failing to challenge what defendant claimed was the State’s knowing

use of perjured testimony. The trial court summarily dismissed this petition in February 2013.

Defendant appealed. In August 2014, the appellate court granted appointed counsel’s motion to

withdraw pursuant to the rule in Pennsylvania v. Finley, 481 U.S. 551 (1987), and affirmed the

petition’s dismissal. People v. Brown, No. 3-13-0139 (2014) (unpublished order under Illinois

Supreme Court Rule 23).

¶ 17 2. Defendant’s First Section 2-1401 Petition

-4-

¶ 18 In October 2013, defendant filed a pro se petition under section 2-1401 of the Code

of Civil Procedure (Procedure Code) (735 ILCS 5/2-1401 (West 2012)). The trial court

recharacterized the petition as one under the Act. A series of appeals and a remand ensued that

addressed the rules for such recharacterizations as set out in People v. Shellstrom, 216 Ill. 2d 45,

833 N.E.2d 863 (2005). People v. Brown, 3-13-0916 (2015) (unpublished summary order under

Illinois Supreme Court Rule 23(c)).

¶ 19 3. Defendant’s First Motion for Leave to File a

Successive Postconviction Petition

¶ 20 In October 2018, defendant filed a motion for leave to file a successive

postconviction petition along with the proposed petition. The trial court denied the motion, finding

defendant had failed to establish the cause and prejudice required for a successive petition to be

permitted. Defendant appealed. Counsel again moved for leave to withdraw pursuant to the rule in

Finley, and the appellate court granted the motion. People v. Brown, No. 3-19-0018 (2020)

(unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 21 4. Defendant’s Second Section 2-1401 Petition

¶ 22 In October 2022, defendant filed a second petition under section 2-1401 of the

Procedure Code. That petition was pending at the time he filed the current appeal.

¶ 23 E. The Current Motion for Leave to File a

Successive Postconviction Petition

¶ 24 In January 2023, defendant filed his second motion for leave to file a successive

postconviction petition and his proposed successive petition. The motion asserted defendant was

“legally innocent” and his petition raised a claim of actual innocence. The foundation of his

proposed petition were claims that: (1) because no probable cause determination was made within

-5-

48 hours of his arrest, he should have been released and (2) section 5/109-1 of the Code of Criminal

Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/109-1 (West 2008) (concerning

procedural requirements applicable upon a person’s arrest) is “facially unconstitutional, in that it

is in conflict with federal law and federal regulations.” He reasoned that the “vagueness of [section]

109-1 so infected Petitioner’s conviction that his conviction violated/violates Due Process and the

Supremacy Clause of the U.S. Constitution.” Alternatively, he argued he had cause to file a

successive petition in that he had just learned of a United States Supreme Court decision, Manuel

v. City of Joliet, Illinois, 580 U.S. 357 (2017); according to his proposed petition, until Manuel, no

remedy existed for the failure to make a probable cause determination within 48 hours. In the

petition itself, defendant asserted his conviction was void due to the “facial unconstitutionality of

*** [section] 109-1,” and the failure of the trial court to hold a timely or sufficient probable cause

hearing.

¶ 25 The trial court denied defendant’s motion on February 2, 2023, finding “that the

Defendant’s motion claiming actual innocence is frivolous or patently without merit.” Defendant

filed a timely motion for reconsideration, asserting the court had failed to address his claim that

his conviction was void. The court denied the motion for reconsideration and appointed OSAD to

represent defendant on appeal.

¶ 26 This appeal followed.

¶ 27 II. ANALYSIS

¶ 28 On appeal, OSAD has filed a motion to withdraw and a supporting brief in

compliance with Finley. OSAD provided defendant a copy of his motion. Defendant has not

responded. For the reasons that follow, we grant counsel’s motion to withdraw and affirm the trial

court’s denial of leave to file a successive postconviction petition.

-6-

¶ 29 A. The Act

¶ 30 “The Act [citation] provides a statutory remedy for criminal defendants who have

suffered substantial violations of their constitutional rights at trial.” People v. Wilson, 2023 IL

127666, ¶ 22, 220 N.E.3d. 1068. “A postconviction proceeding is a collateral attack on a final

judgment, and constitutional issues that were raised and decided on direct appeal are barred from

postconviction consideration by the doctrine of res judicata, while issues that could have been

raised, but were not, are forfeited.” Id. Typically, the Act permits a prisoner to file only one

petition. 725 ILCS 5/122-1(f) (West 2022).

¶ 31 There are three exceptions to the rule against successive petitions. The first is

statutory: under section 22-1(f) of the Act, a prisoner may, by leave of court, file a successive

petition upon a showing of “cause” and “prejudice.” Id. Second, Illinois courts have recognized

fundamental fairness requires prisoners be allowed to make claims of actual innocence and that

such claims be allowed in successive petitions. People v. Coleman, 2013 IL 113307, ¶¶ 84, 91,

996 N.E.2d 617. Third, because “[a] void order may be attacked at any time or in any court, either

directly or collaterally” (People v. Thompson, 209 Ill. 2d 19, 27, 805 N.E.2d 1200, 1205 (2004)),

courts have held a successive petition is a viable method of challenging a void conviction or

sentence (e.g., People v. Waldron, 375 Ill. App. 3d 159, 160, 872 N.E.2d 1036, 1038 (2007)).

¶ 32 1. The Cause-and-Prejudice Exception

¶ 33 Section 122-1(f) of the Act permits filing of a successive petition by leave of court

if the petitioner demonstrates “cause” and “prejudice”:

“Leave of court may be granted only if a petitioner demonstrates cause for his or

her failure to bring the claim in his or her initial post-conviction proceedings and

prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner

-7-

shows cause by identifying an objective factor that impeded his or her ability to

raise a specific claim during his or her initial post-conviction proceedings; and (2) a

prisoner shows prejudice by demonstrating that the claim not raised during his or

her initial post-conviction proceedings so infected the trial that the resulting

conviction or sentence violated due process.” 725 ILCS 5/122-1(f) (West 2022).

¶ 34 2. The Actual-Innocence Exception

¶ 35 Although the Act contains only the cause-and-prejudice exception to the rule

against successive petitions, Illinois courts have recognized that the fundamental fairness required

under Illinois’s constitution requires a prisoner be allowed to raise a claim of actual innocence

under the Act. Coleman, 2013 IL 113307, ¶ 84.

“Procedurally, a trial court should treat [a claim of actual innocence] like any other

postconviction claim. [Citation.] Substantively, a court should grant relief only if

the defendant has presented supporting evidence that is new, material,

noncumulative and, most importantly, of such conclusive character as would

probably change the result on retrial. [Citation.]” (Internal quotation marks

omitted.) Id.

¶ 36 3. The Exception for Void Judgments

¶ 37 A claim that a judgment is void can be raised by means of a petition under the Act.

“[A]n attack on a void judgment may be raised at any time,” if an attack on a judgment as void is

raised in a petition under the Act, the attack’s viability does not depend on its satisfaction of the

Act’s requirements. People v. Brown, 225 Ill. 2d 188, 199, 866 N.E.2d 1163, 1169 (2007). Thus,

although a voidness claim may appear in a petition under the Act, it is not a claim under the Act.

¶ 38 B. This Case

-8-

¶ 39 On appeal, OSAD addresses whether it could raise a claim that defendant’s

“conviction is invalid because the Illinois statute outlining post-arrest procedure is ‘void’ as it

conflicts with precedent requiring an arrestee be provided a prompt judicial determination of

probable cause,” and that the trial court therefore erred. It concluded it would be frivolous to argue

any such error exists. We agree.

¶ 40 1. Voidness

¶ 41 Illinois recognizes two circumstances under which a judgment can be void:

(1) when a conviction is based on a facially unconstitutional law (In re N.G., 2018 IL 121939,

¶¶ 37-38, 115 N.E.3d 102); or (2) when the court that rendered it lacked personal or subject matter

jurisdiction (People v. Castleberry, 2015 IL 116916, ¶¶ 11-12, 43 N.E.3d 932). Defendant’s

conviction falls under neither category.

¶ 42 a. Conviction Under a Facially Unconstitutional Law

¶ 43 It would be frivolous to argue any of defendant’s convictions were based on facially

unconstitutional laws. Defendant did not contend that Illinois’s murder provisions are

constitutionally infirm; we thus need not address whether those provisions made his conviction

void. Concerning defendant’s convictions of unlawful possession of a weapon by a felon, although

some firearm offenses, such as section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 2012

(Criminal Code) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)), have been held to violate the

second amendment (see People v. Burns, 2015 IL 117387, ¶¶ 19-20, 79 N.E.3d 159), unlawful

possession of a weapon by a felon is not one of them.

¶ 44 Defendant’s filings in the trial court asserted that constitutional defects in section

109-1 of the Criminal Procedure Code, concerning procedures applicable upon a person’s arrest,

made his convictions void, and he was thus legally innocent. Defendant’s argument incorrectly

-9-

attempts to extend the rule that applies to a facially unconstitutional offence to his claim of

constitutional error in the proceedings. It is true a conviction based on a facially unconstitutional

law is a nullity:

“To hold that a [criminal] statute is facially unconstitutional means that the conduct

it proscribed was beyond the power of the state to punish. [Citation.] It was not, is

not, and could never be a crime. [Citation.] That being the case, the conviction must

be treated by the courts as if it did not exist, and it cannot be used for any purpose

under any circumstances.” (Emphasis added.) N.G., 2018 IL 121939, ¶ 36.

However, the logic of this rule means it does not transfer to procedural provisions of section 109-1.

Such a procedural statute could be facially unconstitutional. However, such a provision is never

the basis for a final judgment; section 1-109 and similar statutes do not purport to give the courts

power to render judgments. Thus, unsurprisingly, we find no authority for the proposition that an

error in the procedure leading to the entry of a judgment, even one of constitutional dimension,

renders a judgment void. Indeed, in People v. Hubbard, 2012 IL App (2d) 101158, ¶¶ 21-27, 964

N.E.2d 646, a Second District panel explained why such errors are not the basis for voidness

claims.

¶ 45 b. Lack of Personal Jurisdiction

¶ 46 It would also be frivolous to argue the trial court lacked personal jurisdiction over

defendant. A trial court acquires personal jurisdiction over a defendant when that person is brought

before the court. People v. Massamillo, 2020 IL App (3d) 190765, ¶¶ 16-17, 167 N.E.3d 264.

Defects in the way that appearance has been brought about do not affect the court’s personal

jurisdiction. Id. Indeed, the court acquires personal jurisdiction despite a defendant’s illegal arrest.

Id.; see People v. Bliss, 44 Ill. 2d 363, 369, 255 N.E.2d 405, 409 (1970) (“[T]he power of a court

- 10 -

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.”). If an illegal arrest does not prevent the court from

acquiring personal jurisdiction of a defendant, a fortiori, a defect in his or her detention hearing is

not an impediment to the court’s jurisdiction.

¶ 47 c. Lack of Subject Matter Jurisdiction

¶ 48 It would be equally frivolous to argue the trial court lacked subject matter

jurisdiction over defendant. Subject matter jurisdiction “refers to a court’s power to hear and

determine cases of the general class to which the proceeding in question belongs. [Citation.]”

(Internal quotation marks omitted.) Castleberry, 2015 IL 116916, ¶ 12. Illinois’s trial courts have

subject matter jurisdiction over any “justiciable matter, i.e., a controversy appropriate for review

by the court, in that it is definite and concrete, as opposed to hypothetical or moot, touching upon

the legal relations of parties having adverse legal interests. [Citation].” (Internal quotation marks

omitted.) Id. ¶ 15. A court acquires subject matter jurisdiction in a criminal case when the offenses

alleged in the charging instrument “fall within the general class of cases that the [trial] court has

the power to hear and determine under the Criminal Code.” People v. Hughes, 2012 IL 112817,

¶ 21, 983 N.E.2d 439. A trial court acquires subject matter jurisdiction when a defendant is charged

with statutory offenses. See, e.g., People v. Rios, 2013 IL App (1st) 121072, ¶ 16, 2 N.E.3d 368

(the court acquired subject matter jurisdiction of defendant when he was charged with attempted

murder and aggravated discharge of a firearm, as the charges stated “a controversy appropriate for

consideration by the trial court”). Here, the charges against defendant, first degree murder,

aggravated discharge of a firearm, and unlawful possession of a weapon by a felon, all are statutory

offenses of the class the court can hear under the Criminal Code. The court thus had subject matter

jurisdiction.

- 11 -

¶ 49 2. Actual Innocence

¶ 50 We further note that, for reasons we have already explained, it would be frivolous

to argue defendant was “legally” actually innocent. As we discussed, defendant’s contention he

was legally actually innocent incorrectly depended on the proposition that section 109-1’s

contribution to his conviction could be equated to him being convicted under a facially

unconstitutional provision.

¶ 51 3. Cause and Prejudice

¶ 52 Finally, we point out it would be frivolous to argue defendant’s petition met the

statutory “cause and prejudice” requirement of section 122-1(f) of the Act. The “cause” portion of

the provision states: “[A] prisoner shows cause by identifying an objective factor that impeded his

or her ability to raise a specific claim during his or her initial post-conviction proceedings.” 725

ILCS 5/122-1(f) (West 2022). Defendant asserted he had “cause” based on his discovery of the

2017 Supreme Court case of Manuel, which, he said, changed the law by creating a remedy for a

failure by the trial court to make a timely probable cause determination where none existed before.

Defendant is not wholly wrong about the significance of Manuel. However, the fatal difficulty for

defendant is that Manuel concerned the availability of civil relief for wrongful detentions in section

1983 actions (42 U.S.C. § 1983 (1996)). Manuel, 580 U.S. at 362, 369. Manuel thus did nothing

to change the effect of the failure to make a timely probable cause determination on the validity of

a conviction. It thus cannot be “cause” to file a successive petition under section 122-1(f) of the

Act.

¶ 53 In sum, we conclude it would be frivolous for OSAD to argue that any of the

grounds on which a court should allow the filing of a successive petition were applicable.

¶ 54 III. CONCLUSION

- 12 -

¶ 55 For the reasons stated, we conclude there are no issues of arguable merit defendant

can raise on appeal. Accordingly, we grant OSAD’s motion to withdraw and affirm the trial court’s

judgment.

¶ 56 Affirmed.

- 13 -