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    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David P. STAFFORD, Defendant-Appellant.
    NO. 4-14-0309
    Appellate Court of Illinois, Fourth District.
    FILED June 19, 2018
    James E. Chadd, Jacqueline L. Bullard, and Amanda S. Kimmel, of State Appellate Defender's Office, of Springfield, for appellant.
    Gregory Minger, of Eureka (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE KNECHT delivered the judgment of the court, with opinion.

¶ 1 In August 2003, a jury found defendant, David P. Stafford, guilty of four counts of first degree murder ( 720 ILCS 5/9-1(a)(1), (2) (West 2002) ) and one count of first degree felony murder (residential burglary) (id. §§ 9-1(a)(3), 19-3(a) ). In October 2003, the trial court sentenced defendant to natural life in prison (id. § 9-1(b)(6)(a) -(c) ). Defendant appealed, arguing the trial court abused its discretion when it sentenced him to natural life in prison. In February 2006, we affirmed defendant's sentence. People v. Stafford , No. 4-03-1011, 362 Ill.App.3d 1256, 335 Ill.Dec. 814, 919 N.E.2d 533 (Feb. 23, 2006) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 2 In June 2013, defendant filed a pro se postconviction petition alleging his life sentence was unconstitutional under the United States Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because he was 17 years old when the crime was committed and his life sentence violated the eighth amendment's ban on cruel and unusual punishment ( U.S. Const., amend. VIII ). The State filed a motion to dismiss defendant's postconviction petition, which the trial court granted. Defendant appealed, arguing (1) his natural life sentence was void because it was not authorized by statute and (2) under Miller , his discretionary life sentence was imposed without individualized considerations of youth and all that accompanies it. In September 2016, we affirmed the dismissal of defendant's postconviction petition. People v. Stafford , 2016 IL App (4th) 140309, 406 Ill.Dec. 790, 61 N.E.3d 1058. Defendant filed a petition for leave to appeal with the Illinois Supreme Court.

¶ 3 In November 2017, the supreme court denied defendant's petition for leave to appeal but issued a supervisory order ( People v. Stafford , No. 121393, 419 Ill.Dec. 652, 93 N.E.3d 1069 (Ill. Nov. 22, 2017) (supervisory order) ) directing us to vacate our prior judgment and consider the effect of People v. Holman , 2017 IL 120655, 418 Ill.Dec. 889, 91 N.E.3d 849, on the issue of whether defendant's sentence violates the eighth amendment ( U.S. Const., amend. VIII ) and determine whether a different result is warranted.

¶ 4 Both defendant and the State have now filed supplemental briefs with this court. Defendant has also supplemented the record to include defense exhibits admitted into evidence at his sentencing hearing, which were not part of the record at the time of our original disposition. In accordance with the supreme court's directive, we vacate our prior judgment and reconsider in light of Holman . We again affirm the dismissal of defendant's postconviction petition.

¶ 5 I. BACKGROUND

¶ 6 A. Trial

¶ 7 The evidence presented at trial showed Cherie Gillson was murdered in the bedroom of her Eureka, Illinois, home on March 6, 2002. The victim had at least 45 discrete stab wounds in multiple locations, including her face, arms, legs, and stomach. A doctor testified, based on several of the wounds, "severe" force had been used. The victim's nine-year-old son was asleep in the basement at the time of the killing. The victim's son found his mother later in the morning and called for help. On March 7, 2002, the victim's neighbors informed the police they found a blue leather jacket, stained with blood and with dark hair caught in the zipper, in their yard. Defendant's father later identified the jacket as belonging to defendant.

¶ 8 On March 17, 2002, the police recorded defendant's confessional statement. Defendant, then 17 years old, claimed he went into the victim's home to steal videotapes. Defendant stated he knew the victim, as she was a school bus monitor, and she had previously let him borrow videotapes. He thought he heard a sound coming from one of the bedrooms. He grabbed a knife from the victim's kitchen in case he was discovered. Defendant opened the door to the victim's room and stabbed her in the stomach when she walked toward the door. The victim hit defendant, which enraged him, and he continued to stab her. Defendant lay down next to the victim as she died. Defendant stated he held her and said, "Good-bye bitch." After he determined the victim was deceased, he went into the kitchen to wash his hands and proceeded to steal videotapes from her entertainment center. Defendant later said he did not know what he would have done if the victim's son had walked into the room. After defendant's confessional statement, the police conducted a search of his bedroom. The police found two videotapes, which matched the tapes defendant said he had taken from the victim's home. Defendant's fingerprints also matched the latent prints found on the victim's remaining videos.

¶ 9 The jury found defendant guilty of four counts of first degree murder ( 720 ILCS 5/9-1(a)(1), (a)(2) (West 2002) ) (counts I, II, III, and IV) and one count of first degree felony murder (residential burglary) (id. §§ 9-1(a)(3), 19-3(a) ) (count V) for the stabbing of Cherie Gillson.

¶ 10 B. Sentencing

¶ 11 On October 6, 2003, the trial court held a sentencing hearing. The court received a presentence investigation report (PSI) and its addendum. The State presented testimony and a victim impact statement from the brother of the victim.

The State also presented a supplement to the PSI. The defense presented testimony from the probation officer tasked with preparing defendant's PSI and defendant's father. The defense also presented five exhibits of documents previously provided to the probation officer tasked with preparing the PSI.

¶ 12 In 1987, when defendant was two years old, his parents divorced. Defendant's father was given custody, and he later remarried. Defendant had a number of behavioral issues while in his father's care. On one occasion, he was caught playing with his penis on a school bus. On another occasion, he took a knife from home onto the school bus. In 1993, when defendant was eight years old, a teacher reported defendant had social and emotional problems: he liked to play he was stabbing people, and he said when he grew up, he wanted to be a murderer. That same year, defendant was diagnosed with attention deficit hyperactivity disorder and found to have a full-scale intelligence quotient (IQ) of 75.

¶ 13 In 1997, when defendant was 12 years old, a teacher noted defendant spoke with great bravado regarding how he attacked a peer and sent him to the hospital, cut an adult with a beer bottle, and threatened another adult with a gun, and he threatened a female student with a knife. That same year, defendant's father sent defendant to live with his mother in Iowa because he was having marital issues and living in a car. Since her divorce with defendant's father, defendant's mother remarried and had two additional children. Shortly after defendant arrived in Iowa, he began sexually assaulting his two younger brothers, ages 8 and 10. Defendant was taken into care, and a petition for a child in need of assistance was filed. While in care, defendant had numerous sexual issues; for example, he was fixated on sexual subjects, accused a roommate of sexually abusing him, and complained to staff he masturbated to the point of soreness. On May 9, 1997, defendant was adjudicated a child in need of assistance.

¶ 14 A May 13, 1997, psychological evaluation noted defendant "came across in the interview as perhaps mildly mentally limited * * * because[,] although he seemed alert, aware[,] and able to comprehend * * *, his responses were at times a bit inappropriate[,] * * * say[ing] exactly what was on his mind-although at times it might have been better left unsaid." Defendant tested at a full-scale IQ of 75, which placed him in the lower fifth percentile compared to other 12-year-olds. He had a fairly good fund of information and an ability to learn by what he hears. He also had reasonably good awareness of social situations, where he learned by observation. Defendant, however, needed improvement in areas reflecting abstract reasoning. His abstract reasoning scores were "low enough to put [him] into the profoundly limited range and this often means that there is some brain dysfunction as a result of a drug overdose quite probably from the time he was being carried [in utero]." The evaluator found Defendant's IQ "can be [a] fairly permanent limitation that will keep him from making significant academic progress, but his auditory learning skills should be good enough to help him get through high school."

¶ 15 On June 10, 1997, defendant was ordered to go to a mental health institute for an inpatient psychiatric evaluation due to a strange discussion with his guardian ad litem referencing Satan. Defendant was diagnosed with conduct disorder and parent-child problems. The staff observed he had an inflated self-esteem, bragged about sexual conquests, and bragged about his knowledge of gangs.

¶ 16 From ages 12 to 17, defendant was placed in approximately 13 facilities and shelters in Iowa, which he claimed was due to "anger and voices in [his] head." In July 1997, defendant was placed in a psychiatric medical institute for children, where he was hospitalized for two weeks due to a major episode of aggression. In its evaluation, the institute noted defendant was of above average intelligence and diagnosed him with major depression, attention deficit/hyperactivity disorder, and conduct disorder (childhood onset type). Defendant was consistently unable to comply with the rules, was caught in sexually inappropriate situations, was prone to stealing, and showed no remorse for sexually abusing his brothers. Defendant assaulted a female staff member, which ultimately led to his unsuccessful discharge.

¶ 17 In May 1998, defendant began a court-ordered perpetrators program. Defendant was diagnosed with attention deficit hyperactivity disorder and conduct disorder (childhood onset type). In October 1999, defendant was discharged, and it was the staff's opinion defendant would continue to commit sexual crimes against those whom he saw as weaker than him without close supervision.

¶ 18 In February 2000, defendant was placed in another perpetrator program and was discharged after a month because the staff was unable to provide protection to the community and residents due to defendant's "violent fantasies." He was then placed at a mental institution. Once stabilized, he was discharged to a shelter, where there were incidents of inappropriate touching.

¶ 19 From December 2000 to August 2001, defendant temporarily lived with his father and attended a special education program. In March 2001, defendant was diagnosed with having mood swings with secondary anger and depression. In July 2001, defendant's father requested defendant be placed in a shelter due to his inappropriate sexual and criminal behavior. Defendant's father stated defendant was stealing underwear from his stepmother and other people in the community and stole videotapes from a local police officer. Defendant also broke into a home, where he stole money and expensive stereo equipment.

¶ 20 From August 2001 to December 2001, defendant was placed in a shelter, where he received psychiatric treatment. The staff noted he did very well controlling himself, no longer appeared to be depressed, no longer had sexual fantasies, and was meeting his anger management goals.

¶ 21 In December 2001, defendant's father stated he was not employed and wanted defendant to return home, where he could supervise him and arrange for his counseling. The temporary home arrangement was successful, and his father stated defendant was doing very well. Defendant's father noted defendant began to act strangely in March 2002. He noted defendant would leave the house in the middle of the night, and one time he walked around the house with a baseball bat for no reason. On March 5, 2002, one day before the stabbing in this case, defendant was court-ordered to be permanently placed at home with supervision.

¶ 22 Prior to trial, the defense requested, and the trial court appointed, a psychiatrist to evaluate defendant. The defense later requested a fitness examination, which the trial court rejected, concluding a bona fide doubt of fitness did not exist. Defendant created a number of problems in jail while awaiting trial. He arranged a jail escape plan where he planned to use his eyeglasses as a weapon, was aggressive with his cellmate, destroyed property, threatened to "shank" someone, used obscene language, engaged in sex acts with a cellmate, and passed notes between cells, all in violation of the jail's rules. One of the notes defendant passed referenced one of the officers and said defendant was "exactly [two] seconds away from splitting skulls." Defendant self-reported he was involved in 12 fights while in jail that were not recorded.

¶ 23 Defendant reported he had a close relationship with his father. Defendant seldom heard from his mother, and he did not have a close relationship with her. Defendant's mother was reportedly "a recovering alcoholic and drug addict with a chromosomal disorder and [had] a history of physical and emotional abuse by her biological mother." She also reportedly had "a sporadic work history and mental illness." Defendant reported his mother's boyfriends had "abused him by beating him with fists and boards." Defendant's mother previously reported a man with whom she lived for two years had sexually abused her three children.

¶ 24 Defendant's highest level of education was the tenth grade. Defendant acknowledged having difficulty with controlling his anger. Defendant's school records show he was suspended from school for fighting and, on a separate occasion, he was suspended for assaulting a student and threatening a bus driver.

¶ 25 Defendant reported his mental status at the time of the interview for the PSI was " 'pretty messed up.' " He stated he heard voices telling him to fight and come up with an escape plan from jail and court. Defendant admitted having thoughts of suicide and explained he experienced long-term depression since age seven. He provided specific instances in his life where he attempted suicide. At age seven, he attempted to set his shirt on fire because his mother came home drunk, punched him twice, and called him "worthless." At age 12, he overdosed on pills because his stepmother left without adopting him. At age 14, he tied a bedsheet around the rafters at a shelter to hang himself because he was told he could not go home until he was 18 years old. At age 16, he thought of using a paring knife to cut his arms because he was tired of his mother hurting him and tired of everyone letting him down. While incarcerated, he imagined "doing a 'swan dive off the second floor and snapping my neck' " after learning his mother was going to marry a man " 'who was in prison for beating his former wife.' "

¶ 26 Defendant's father testified defendant showed signs of aggression toward women and "ha[d] a problem with their authority." Prior to sentencing, defendant's father wrote a letter to the trial court, expressing his love for his son but also his fear defendant would hurt more people if he were ever released into society again.

¶ 27 After the presentation of the evidence, defendant was allowed the opportunity to make a statement. Defendant declined to do so.

¶ 28 In argument, the State highlighted the circumstances of the offense, noting the "brutal murder[ ] was over two videotapes and four CDs." The State highlighted a lack of demonstrated remorse by defendant. The State asserted the evidence showed defendant had "been a violent, dangerous person for the majority of his life" and "not someone that should ever be in public again." The State noted: "[T]his isn't a case where [the defendant] is so low functioning, so unintelligent that he doesn't understand the difference between right and wrong." The State argued the trial court's dealing with defendant throughout the case demonstrated defendant was intelligent. As additional support, the State cited evidence from the PSI indicating individuals who dealt with defendant believed he was intelligent, as well as defendant's creation of an in-depth escape plan while he was incarcerated. The State acknowledged defendant did not have "a criminal history in court" but noted defendant admittedly committed residential burglary and acts of sexual molestation in the past. The State noted, while a "stiff sentence" would deter others from committing similar crimes, it was more important to impose such a sentence "to protect the public from [defendant] ever committing this crime again." The State argued defendant was "a dangerous predator" who "acted out his fantasies" and, if given the chance, would do it again. The State requested defendant be sentenced to natural life in prison.

¶ 29 The defense maintained defendant was remorseful, as indicated by a letter he wrote to the victim's son. The defense argued defendant had fallen through the cracks of the system. The defense highlighted defendant's IQ, which, the defense argued, the trial court "should take strong consideration" of when determining an appropriate sentence. The defense requested defendant be sentenced to "a fair and just sentence" of not less than 20 years and not more than 60 years.

¶ 30 In imposing its sentence, the trial court stated as follows:

"Court has considered the evidence offered at trial, the [PSI], the [a]ddendum thereto, the evidence offered by the State this afternoon, as well as the evidence presented by the defendant.
In terms of factors, the court has considered each and every relevant factor of aggravation and mitigation, and in particular the court has considered that the defendant's conduct caused serious harm, that the defendant has a history of criminal activity, and a sentence is necessary to deter others from committing the same crime. Court has also considered the factors in mitigation and would note that the defendant has no prior criminal convictions or prior juvenile adjudications for neglect or for delinquency.
The court would note, however, through the various exhibits, which are both attached to the [PSI] as well as those presented by the defendant today, that the defendant at least since age * * * 12 has been committing criminal acts. You can argue how serious those might be and whether they are just a puffing by the defendant or whether they are actual serious criminal acts but, nonetheless, the court finds that criminal acts were committed.
The court, like everyone else, I suppose in this room, is absolutely appalled at the acts of Iowa. [Defense counsel] argues that Iowa should have been placed on notice of the behaviors of the defendant. And I'm sure that they probably were. Why they didn't do anything about it is surely not answered anywhere in the reports. Because it appears that even though the defendant only made it to level two in one of his treatment programs, then reverted back to his prior behaviors, they nonetheless decided that independent living was the proper choice, in which ultimately led to the determination that returning home was the appropriate placement.
But that does not excuse in any way the behavior that[ ] [has] occurred here. The difficulty-the only difficulty that the court struggles with here is the defendant's age. He is a young man. I know-although the court certainly acknowledges that young people are entitled, if you will, to learn from their mistakes. But the acts of the defendant here are too senseless and too vicious to give a great deal of weight to his age, particularly given the history here, * * * [and] the multiple attempts by the State of Iowa to rehabilitate the minor without success * * *.
And although the defendant is of a young age chronologically, he is not in terms of the efforts that have been expended to attempt to correct his behavior. The court[,] * * * fully understanding the arguments of the defense * * * that the court does not have authority to sentence the defendant to life imprisonment, finds that this is the only viable sentence for this defendant. For multiple years the State of Iowa has attempted to cure this defendant of his deviant behavior without success. This court is on notice of those prior attempts and those prior acts.
The court * * * is unwilling, given the senselessness, as well as the brutality and viciousness of this particular crime, to give [defendant] another chance at it. Sentence of this court is natural life."

¶ 31 On October 9, 2003, defendant filed a motion to reconsider, which the trial court later denied.

¶ 32 C. Appeal from the Sentence

¶ 33 On appeal from his conviction and sentence, defendant argued the trial court abused its discretion in sentencing him to natural life in prison. Among other things, defendant disagreed with the court's assessment of youth as a mitigating factor. Stafford , slip order at 7. This court found the trial court did not abuse its discretion in sentencing defendant to natural life in prison and the court adequately considered defendant's rehabilitative potential, as it mentioned age was the factor it struggled with the most. Id.

¶ 34 D. Postconviction Petition

¶ 35 On June 14, 2013, defendant filed a pro se postconviction petition. Defendant argued under Miller he was entitled to a new sentencing hearing because his life sentence was unconstitutional under the eighth amendment's ban on cruel and unusual punishment. U.S. Const., amend. VIII. The trial court appointed counsel to assist with the petition, and trial counsel filed a certificate in compliance with Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012), indicating he determined no amendments to the pro se petition were necessary.

¶ 36 On December 2, 2013, the State filed a motion to dismiss defendant's postconviction petition. The State argued the Miller decision found a mandatory life sentence for juveniles unconstitutional, unlike the discretionary life sentence defendant received.

¶ 37 On March 27, 2014, the trial court granted the State's motion to dismiss defendant's postconviction petition.

¶ 38 This appeal followed.

¶ 39 II. ANALYSIS

¶ 40 A. The Post-Conviction Hearing Act

¶ 41 The Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 to 122-7 (West 2012) ) "provides a method by which persons under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both." People v. Tate , 2012 IL 112214, ¶ 8, 366 Ill.Dec. 741, 980 N.E.2d 1100. An action under the Act is a collateral attack on the trial court proceedings, and issues that could have been raised on appeal, but were not, are forfeited. Id.

¶ 42 There are three stages for postconviction proceedings in a noncapital case. At the first stage, the trial court determines, while taking the allegations as true, whether the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2012). A petition is deemed frivolous or without merit when it has no arguable basis in either law or in fact. People v. Hodges , 234 Ill. 2d 1, 16, 332 Ill.Dec. 318, 912 N.E.2d 1204, 1212 (2009).

If the petition survives the first stage, it will advance to the second stage, where counsel may be appointed to an indigent defendant and the State is now a respondent to the litigation. 725 ILCS 5/122-4, 122-5 (West 2012). At this stage, the court must determine whether the petition makes "a substantial showing of a constitutional violation" when liberally construed in light of the trial record. (Internal quotation marks omitted.) Tate , 2012 IL 112214, ¶ 10, 366 Ill.Dec. 741, 980 N.E.2d 1100 ; People v. Coleman , 183 Ill. 2d 366, 382, 233 Ill.Dec. 789, 701 N.E.2d 1063, 1072 (1998). If a substantial showing is made, the proceeding will advance to the third stage for an evidentiary hearing. 725 ILCS 5/122-6 (West 2012). If a substantial showing is not made at the second stage, the petition is dismissed.

¶ 43 Defendant's petition was dismissed at the second stage of postconviction proceedings. A trial court's dismissal of a postconviction petition at the second stage is reviewed de novo . People v. Snow , 2012 IL App (4th) 110415, ¶ 15, 358 Ill.Dec. 117, 964 N.E.2d 1139. A reviewing court may affirm a trial court's dismissal on any grounds substantiated by the record. Id. ¶ 17.

¶ 44 B. Void Sentence Rule

¶ 45 In his initial briefing before this court, defendant argued, for the first time on appeal from the dismissal of his postconviction petition, his life sentence was void because it was not authorized by statute. Specifically, defendant argued the felony murder statute the State used to enhance his sentence required him to be 18 years old at the time of the offense, and he was only 17. See 720 ILCS 5/9-1(b)(6) (West 2002).

¶ 46 Defendant acknowledges our supreme court abolished the void sentence rule in People v. Castleberry , 2015 IL 116916, ¶ 19, 398 Ill.Dec. 22, 43 N.E.3d 932. Defendant asserts, however, Castleberry does not apply retroactively to his case. In support, defendant relied upon the First District's decision in People v. Smith , 2016 IL App (1st) 140887, ¶ 30, 402 Ill.Dec. 96, 51 N.E.3d 848. Defendant contends he may still attack his sentence as void because it was not authorized by statute. Defendant is wrong.

¶ 47 In our initial, now-vacated opinion, we disagreed with the First District and concluded Castleberry applied retroactively. People v. Stafford , 2016 IL App (4th) 140309, ¶ 33, 406 Ill.Dec. 790, 61 N.E.3d 1058. After issuing our decision, another panel of this court reached the same conclusion, albeit on different grounds. See People v. Cashaw , 2016 IL App (4th) 140759, ¶ 33, 408 Ill.Dec. 17, 64 N.E.3d 1102.

¶ 48 Following the split amongst our districts on whether Castleberry applied retroactively, our supreme court addressed the issue in People v. Price , 2016 IL 118613, 412 Ill.Dec. 782, 76 N.E.3d 1240. The supreme court concluded Castleberry applied retroactively. Id. ¶¶ 26-27.

¶ 49 In accordance with Price , we reject defendant's argument. Castleberry applies retroactively. A sentence not authorized by statute does not render that sentence void. Defendant has not presented any alternative argument to find his sentence is void. Defendant's argument his sentence was not authorized by statute is forfeited, and we decline to consider it further.

¶ 50 C. Defendant's Sentence Under Miller

¶ 51 In his postconviction petition, defendant argued he was entitled under Miller to a new sentencing hearing because his life sentence was unconstitutional under the eighth amendment's ban on cruel and unusual punishment ( U.S. Const., amend. VIII ). In response, the State argued to the trial court defendant's petition should be dismissed because he received a discretionary life sentence, in contrast to the mandatory life sentence for juveniles banned in Miller . The court dismissed defendant's petition without a written order or an explanation on the record for the basis of the dismissal.

¶ 52 In his initial briefing before this court, defendant asked this court to vacate his sentence and remand to the trial court for a new sentencing hearing, where the court should consider individualized considerations of "youth and all that accompanies it." In response, the State argued defendant had failed to persuade he is entitled to a new sentencing hearing because the trial court gave full consideration to the mitigation of defendant's youth and age-related characteristics.

¶ 53 In his supplemental briefing before this court, defendant argues his sentence is constitutionally impermissible under Holman because the trial court (1) did not consider the Miller factors, (2) did not make a finding of permanent incorrigibility, and (3) improperly considered deterrence and criminality. In response, the State argues (1) the trial court's decision was in accordance with the Holman factors; (2) defendant's conduct showed irretrievable depravity, permanent incorrigibility, and irreparable corruption; and (3) the trial court properly considered statutory aggravating factors while exercising its discretion to impose a more severe prison term.

¶ 54 The eighth amendment of the United States Constitution prohibits the imposition of "cruel and unusual punishments" and applies to the states through the fourteenth amendment. U.S. Const., amends. VIII, XIV ; People v. Davis , 2014 IL 115595, ¶ 18, 379 Ill.Dec. 381, 6 N.E.3d 709. " 'The concept of proportionality is central to the Eighth Amendment.' " Davis , 2014 IL 115595, ¶ 18, 379 Ill.Dec. 381, 6 N.E.3d 709 (quoting Graham v. Florida , 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ). That is, "criminal punishment should be graduated and proportioned to both the offender and the offense." Id. (citing Miller , 567 U.S. at 469, 132 S.Ct. 2455, and Roper v. Simmons , 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ).

¶ 55 In a trilogy of cases, the United States Supreme Court addressed how the eighth amendment's ban on "cruel and unusual punishments" applies to sentencing juvenile defendants. In Roper , 543 U.S. at 578, 125 S.Ct. 1183, the Court ruled the eighth amendment prohibits a trial court from imposing the death penalty on a defendant who was under the age of 18 when the crime was committed. In Graham , 560 U.S. at 74, 130 S.Ct. 2011, the Court ruled the eighth amendment prohibits a trial court from sentencing a juvenile to life without parole for an offense other than homicide. In Miller , 567 U.S. at 489-90, 132 S.Ct. 2455, the Court ruled the eighth amendment forbids mandatory life sentences for juvenile offenders who are convicted of homicide. In these cases, the Court recognized juveniles differed from adults in three significant ways: (1) juveniles lack a maturity and an underdeveloped sense of responsibility, (2) juveniles are more vulnerable or susceptible to negative influences and outside pressures, such as peer pressure, and (3) a juvenile's character is not as well formed as that of an adult. See Davis , 2014 IL 115595, ¶ 19, 379 Ill.Dec. 381, 6 N.E.3d 709 (citing Graham , 560 U.S. at 68, 130 S.Ct. 2011, and Roper , 543 U.S. at 569-70, 125 S.Ct. 1183 ).

¶ 56 In ruling the eighth amendment forbids mandatory life sentences for juvenile offenders who are convicted of homicide, the Supreme Court in Miller explained a court must take into account how children are different from adults for purposes of sentencing ( 567 U.S. at 480, 132 S.Ct. 2455 ) and an offender's youth and attendant characteristics must be considered before imposition of life imprisonment without the possibility of parole ( id. at 483, 132 S.Ct. 2455 ). More recently, the Court ruled in Montgomery v. Louisiana , 577 U.S. ----, ----, 136 S.Ct. 718, 736, 193 L.Ed.2d 599 (2016), Miller applies retroactively and state courts must give Miller effect in collateral proceedings. In reaching its decision, the Court again reiterated (1) the need for a court to take into account how children are different from adults for purposes of sentencing and (2) an offender's youth and attendant characteristics must be considered before imposition of life imprisonment without the possibility of parole. Id. at 733-34.

¶ 57 In our prior, now-vacated opinion we began by addressing whether Miller applied to defendant's discretionary life sentence. Stafford , 2016 IL App (4th) 140309, ¶¶ 38-40, 406 Ill.Dec. 790, 61 N.E.3d 1058. After reviewing Miller , Montgomery , and persuasive case law addressing Miller and Montgomery , we found "the holding in Miller [was] not exclusive to mandatory life sentences for juveniles." Stafford , 2016 IL App (4th) 140309, ¶ 40, 406 Ill.Dec. 790, 61 N.E.3d 1058. We then applied Miller to defendant's discretionary life sentence to determine whether defendant was entitled to a new sentencing hearing. Id. ¶¶ 41-52. Based on our application, we found defendant's sentence was constitutionally permissible and, therefore, declined defendant's request for a new sentencing hearing. Id. at 52. We are now charged with reconsidering our prior findings in light of the supreme court's decision in Holman . Stafford , No. 121393 (Ill. Nov. 22, 2017) (supervisory order).

¶ 58 In Holman , the defendant, who was 17 years old at the time of the crime, was convicted of first degree murder. Holman , 2017 IL 120655, ¶ 6, 418 Ill.Dec. 889, 91 N.E.3d 849. At sentencing, the trial court was presented with a PSI, which had attached to it multiple psychological reports, and heard testimony from a police officer who was involved in the investigation of two other recent murders for which defendant was convicted and sentenced. Id. ¶¶ 7-13. In argument, the State highlighted the defendant's criminal history, the circumstance surrounding the offense, and defendant's continued denial of any involvement despite his fingerprints at the scene. Id. ¶ 14. The State argued, in part, a life sentence was necessary to deter others from going on similar crime sprees. Id. The defense requested the court to consider the defendant's rehabilitation and the fact he was a " 'very young man.' " Id. ¶ 15. The defense requested the court consider alternatives to life in prison " 'to give this young man an opportunity.' " Id. In imposing the sentence, the court stated as follows:

" 'In this sentence the [c]ourt has considered the factors enumerated in the Criminal Code as factors in [m]itigation and factors in [a]ggravation. The [c]ourt does not find any factors in [m]itigation. There are many factors in [a]ggravation. The [c]ourt has considered the evidence presented at the trial in this cause. The [c]ourt has considered the presentence investigation. The [c]ourt has considered the evidence presented at this hearing today and the arguments of counsel. And the [c]ourt believes that this [d]efendant cannot be rehabilitated, and that it is important that society be protected from this [d]efendant.
It is therefore the sentence of this [c]ourt and you are hereby sentenced, Mr. Holman, to the Department of Corrections for the rest of your natural life.' " Id. ¶ 17.

¶ 59 On appeal, the central issue before the supreme court was whether the defendant was entitled to a new sentencing hearing under Miller . Id. ¶ 1. The court first considered whether Miller applies to discretionary life sentences. Id. ¶¶ 33-40. After reviewing Miller , Montgomery , and persuasive case law addressing Miller and Montgomery , the supreme court found " Miller applies to discretionary sentences of life without parole for juvenile defendants." Id. ¶ 40. The court then considered what it meant to apply Miller . Id. ¶¶ 41-47. After reviewing the emerging body of post- Miller case law, its own precedent, and recently enacted, statutory sentencing guidelines requiring trial courts to consider factors addressed in Miller when sentencing juvenile defendants, the supreme court held as follows:

"Under Miller and Montgomery , a juvenile defendant may be sentenced to life imprisonment without parole, but only if the trial court determines that the defendant's conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation. The court may make that decision only after considering the defendant's youth and its attendant characteristics. Those characteristics include, but are not limited to, the following factors: (1) the juvenile defendant's chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant's family and home environment; (3) the juvenile defendant's degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant's incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant's prospects for rehabilitation." Id. ¶ 46.

The supreme court further held, when a reviewing court is required to revisit a juvenile defendant's life sentence to see if it is constitutionally permissible under Miller , "the only evidence that matters is evidence of the defendant's youth and its attendant characteristics at the time of sentencing ." (Emphasis added.) Id. ¶ 47. That is, the reviewing court's inquiry will be "backwards-looking" based on the "cold record." Id.

¶ 60 After holding Miller applied to discretionary life sentences for juvenile defendants and determining what it meant to apply Miller , the supreme court turned to the cold record to determine if the trial court in that case sufficiently considered the defendant's youth and its attendant characteristics when rendering a sentence. Id. ¶¶ 48-50. The supreme court noted the trial court explicitly stated it considered the trial evidence, the PSI, and the evidence and arguments from the sentencing hearing. Id. ¶ 48. The supreme court then reviewed that evidence and those arguments as it related to the defendant's youth and its attendant characteristics. Id. Based on its review, the supreme court concluded the defendant's sentence passed constitutional muster under Miller . Id. ¶ 50.

¶ 61 In accordance with Holman , we turn to the "cold record" in this case to determine whether the trial court sufficiently considered defendant's youth and its attendant characteristics prior to sentencing him to life in prison. See id. ¶ 47. In announcing defendant's sentence, the trial court explicitly stated it considered the evidence offered at trial, the PSI and its addendum, and the evidence offered by the State and defendant at the sentencing hearing. The court considered the fact defendant was 17 years old at the time of the offense. In fact, the court stated it struggled with defendant's age the most, as it believed juveniles were entitled to learn from their mistakes. The PSI and its addendum provided some insight into defendant's mentality, and both the State and the defense highlighted his mentality in their arguments at the sentencing hearing. The sentencing judge presided over the matter throughout the trial court proceedings and was provided evidence indicating defendant had a full scale IQ of 75 when he was tested at 8 and 12 years of age, individuals previously described him as intelligent, and he plotted an in-depth escape plan while incarcerated and awaiting trial. The evidence did not depict defendant as immature, impetuous, or unaware of risks. The PSI provided information concerning defendant's family and home environment. Defendant faced parental neglect and physical abuse. Defendant's father was largely responsible for caring for defendant when he was not in placement in Iowa. Defendant's father, with whom defendant was admittedly close, expressed his concern at the sentencing hearing regarding defendant's possible release, as he believed imprisonment was necessary to prevent defendant from hurting someone again. The court was aware of the particularly heinous circumstances of the murder, which did not include any element of familial or peer pressures. The evidence did not demonstrate defendant was incompetent and could not communicate with police officers or prosecutors or assist his own attorney. The court was presented with significant evidence outlining a history of deviant conduct as well as the multiple attempts to rehabilitate defendant. The evidence was such that the court could confidently conclude defendant was beyond rehabilitation. Based on our review of the record, we find the trial court considered the type of evidence Miller requires and the Holman factors were sufficiently addressed.

¶ 62 In our initial, now-vacated opinion, we found the trial court's reasoning conveyed its belief defendant was "one of the rarest of juvenile offenders whose crime showed a life sentence is appropriate." (Emphasis in original.) Stafford , 2016 IL App (4th) 140309, ¶ 52, 406 Ill.Dec. 790, 61 N.E.3d 1058 ; see Montgomery , 577 U.S. at ----, 136 S.Ct. at 734 (" Miller did bar life without parole * * * for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility."); cf. People v. Nieto , 2016 IL App (1st) 121604, ¶ 55, 402 Ill.Dec. 521, 52 N.E.3d 442 ("[T]he trial court's findings do not imply that it believed defendant was the rarest of juveniles whose crime showed that he was permanently incorrigible." (Emphasis in original.) ). We reaffirm that finding. The trial court's reasoning conveys a finding of permanent incorrigibility.

¶ 63 Defendant suggests, for the first time in his supplemental brief, his sentence violates the eighth amendment because the trial court improperly considered (1) the deterrent effect of his sentence and (2) his criminality where he never faced any charges related to his alleged sexual contact and physical aggression with his younger brothers. Defendant does not address, however, the fact the trial court had a duty to consider statutory aggravating factors while exercising its discretion to impose a more severe prison term. See 730 ILCS 5/5-5-3.2(a) (West 2002). As the State asserts, defendant has failed to persuade us the trial court's consideration of these factors violates the eighth amendment.

¶ 64 Based on the record before us, we find defendant's sentence to life in prison passes constitutional muster.

¶ 65 D. Categorical Ban

¶ 66 As a final matter, defendant requests in his supplemental brief this court adopt a categorical ban on life sentences for juveniles. We decline to do so. In Holman , the supreme court refused to adopt such a rule, noting "the justices of the United States Supreme Court have so far declared that [such sentences] may be [constitutional], provided the trial court complies with Miller ." Holman , 2017 IL 120655, ¶ 51, 418 Ill.Dec. 889, 91 N.E.3d 849. As indicated by our supreme court, "[w]hether or not discretionary life sentences for juveniles are advisable is a question for legislators." Id.

¶ 67 III. CONCLUSION

¶ 68 We affirm the trial court's dismissal of defendant's postconviction petition. As part of our judgment, we award the State its $75 statutory assessment as costs of this appeal. 55 ILCS 5/4-2002(a) (West 2014).

¶ 69 Affirmed.

Presiding Justice Harris and Justice Turner concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE MAURICE J., a Minor,
    (The People of the State of Illinois, Petitioner-Appellee, v. Maurice J., Respondent-Appellant).
    No. 1-17-2123
    Appellate Court of Illinois, First District, Third Division.
    Opinion filed June 20, 2018
    James E. Chadd, Patricia Mysza, and Sarah Curry, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Brian K. Hodes, and Margaret M. Smith, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE LAVIN delivered the judgment of the court, with opinion.

¶ 1 Minor respondent Maurice J. was adjudicated delinquent for committing the offense of aggravated unlawful use of a weapon (AUUW) by carrying a firearm on his person while under 21 years of age. On appeal, respondent asserts that (1) the trial court erroneously denied his pretrial motion to suppress evidence obtained as a result of an unreasonable traffic stop, (2) the evidence was insufficient, and (3) the trial court erroneously allowed the State to reopen its case to present evidence of respondent's age after he had moved for a directed verdict. For the following reasons, we reverse the trial court's judgment.

¶ 2 I. BACKGROUND

¶ 3 On March 26, 2017, the State filed a petition for an adjudication of wardship based on offenses respondent allegedly committed the day before. The State later filed an amended petition alleging four counts of AUUW and one count of unlawful possession of a firearm. Specifically, the amended petition alleged that respondent committed AUUW by carrying a weapon on his person, outside his land, home, or place of business, (1) without a Firearm Owners Identification (FOID) Card (counts 1 and 3) and (2) while under 21 years of age (counts 2 and 4). 720 ILCS 5/24-1.6(a)(1) (West 2016). Two of those counts also alleged that this was respondent's second offense (counts 1 and 2). The amended petition further alleged that respondent committed unlawful possession of a firearm in that he possessed a firearm while under 18 years of age. Id. § 24-3.1(a)(1). Meanwhile, respondent filed a motion to quash arrest and suppress evidence, and an evidentiary hearing was held.

¶ 4 According to 22-year-old Davon Wells, a student at Richard Daley College and an employee of Auto Zone, he was driving respondent and I.P. home at about 10 p.m. on the night in question. Wells testified that, although it was dark out, streetlights were on. In addition, Wells had known respondent for about six years, had known I.P. for about two years, and considered them to be his friends. Respondent sat in the front passenger seat, and I.P. sat in the backseat.

¶ 5 Wells testified that they were in the area of 109 West 85th Street when the police activated their siren and bright lights, which Wells acknowledged "see inside of the car." Additionally, the police car was a sport utility vehicle (SUV) and sat higher than Wells's car. Wells did not, however, see respondent or I.P. pass anything. Prior to the police activating their siren and lights, Wells was not speeding or driving erratically. He denied swerving to avoid a speed bump.

¶ 6 After Wells pulled over his car, one officer approached the driver side door, and a second officer approached the passenger side door. Neither officer had his firearm drawn. In addition, the police did not request Wells's license and registration. Wells complied with a request to exit the vehicle, however, and the officer near him placed him in handcuffs before searching him and the area in which he had been sitting. Meanwhile, the other officer had respondent exit the vehicle and handcuffed him. Finally, I.P. exited the car and was handcuffed. The officers then searched the entire car and announced that they found a firearm. Wells testified that he previously was unaware that a weapon was present. After recovering the firearm, the police arrested respondent and I.P. but did not arrest Wells.

¶ 7 Officer Delgado Fernandez testified that at the time in question, he was working with two partners, Officer Kerr and Officer Findysz, in an unmarked SUV. Officer Fernandez observed a car commit a minor traffic violation in that the driver "went around the speed bump." Specifically, the driver went toward the curb so that one set of tires was on the speed bump and the other set was level. Although the driver steered around the bump, he did not swerve. Officer Fernandez acknowledged that his reports did not say Wells avoided the speed bump.

¶ 8 After the traffic violation, Officer Fernandez activated the emergency equipment in order to curb the vehicle. From 12 to 15 feet away, he "observed the front passenger pass a handgun to the rear passenger." Officer Fernandez testified that he could clearly see that the object was a handgun and could see that three people were in the vehicle.

¶ 9 When the vehicle came to a stop, Officer Fernandez approached on the driver side, Officer Kerr approached the passenger side, and Officer Findysz approached the trunk. The officers' firearms were not drawn. Officer Fernandez then ordered the occupants out of the vehicle and secured them for officer safety. Officer Fernandez testified that he knew to look for the firearm "[i]n the direction [that] the offender gave it to the co-offender." Moreover, the officers searched the occupants and found a firearm in I.P.'s purse. Officer Fernandez put on gloves to recover the loaded .45-caliber pistol and called for assisting units. Wells was released with a traffic citation for driving around the speed bump.

¶ 10 The trial court found this was a "he said, he said" situation but ultimately believed the testimony of Officer Fernandez. Accordingly, the court denied respondent's motion and proceeded to a bench trial.

¶ 11 At trial, the parties stipulated to Officer Fernandez's prior testimony. He was also recalled and testified, in pertinent part, that respondent did not admit to possessing the firearm. In addition, Officer Fernandez did not know whether any DNA results were available from the recovered firearm. The officer further testified that the firearm was recovered in a place that was not respondent's home or place of business and that he was not engaging in activities under the Wildlife Code. See 720 ILCS 5/24-1.6(a)(1), (3)(I) (West 2016). Moreover, the State presented a certified copy of respondent's prior firearm adjudication.

¶ 12 During Officer Fernandez's testimony, the State tried but failed to establish respondent's date of birth. After the State rested, respondent moved for a directed verdict on the two AUUW counts and the unlawful possession of a weapon count that required the State to prove respondent's age (counts 2, 4, and 5). The State responded:

"Your Honor, the minor's age became a subject of hearsay objections that were sustained. If the Minor Respondent stipulated to juvenile jurisdiction, the Minor Respondent is clearly under the age of 21 or he would not be here in Juvenile Court. Regarding his age of 18 on that last count, I will leave to the Court to make its best determination."

Upon the court's inquiry, the State essentially then asked the court to take judicial notice that the amended petition contained respondent's birth date and that respondent stipulated to the court's juvenile "jurisdiction" at the arraignment on that petition. Respondent objected, arguing that the State had rested its case without introducing evidence on this point. Once again, upon the court's inquiry, the State confirmed that it was asking to reopen its case. The court allowed the State to do so over respondent's objection.

¶ 13 Consequently, the State formally asked the court to take judicial notice that respondent was arraigned in the court's presence and verified the facts of the amended petition, including that he was born on June 27, 2001. We note that, on appeal, respondent disputes the accuracy of the State's representations about the arraignment. In any event, the court found it was common practice for a juvenile to stipulate to juvenile jurisdiction, which required a minor to be under 18 years of age at the time of the offense. Consequently, the court took judicial notice of respondent's age and subsequently denied his motion for a directed verdict in that regard (counts 2, 4, and 5). The trial court did, however, grant respondent a directed verdict on the counts involving respondent's lack of a FOID card (counts 1 and 3), as the State admittedly presented no evidence on that point. As part of the defense's case, the parties stipulated to Wells's testimony at the pretrial hearing.

¶ 14 The trial court once again found Officer Fernandez's testimony to be credible and found respondent guilty of the remaining counts. The court ordered that respondent be committed to the Department of Juvenile Justice for AUUW (count 2).

¶ 15 II. ANALYSIS

¶ 16 On appeal, respondent first asserts that the trial court erred in denying his motion to suppress evidence because it was not reasonable for an officer to believe that Wells committed a traffic violation. Specifically, Officer Fernandez's testimony failed to show that Wells drove upon or through private property to avoid a traffic control device. Additionally, respondent argues that speed bumps do not constitute traffic control devices. Respondent contends that because Officer Fernandez lacked a sufficient basis to initiate a stop, the trial court was required to suppress evidence that a firearm was subsequently recovered.

¶ 17 Courts apply a two-part test when reviewing the trial court's ruling on a motion to quash arrest and suppress evidence. People v. Almond , 2015 IL 113817, ¶ 55, 392 Ill.Dec. 227, 32 N.E.3d 535. The trial court's findings of fact will be reversed only if against the manifest weight of the evidence. Id. In contrast, we review the trial court's ultimate legal ruling de novo . People v. Holmes , 2017 IL 120407, ¶ 9, 418 Ill.Dec. 254, 90 N.E.3d 412. In reviewing the denial of a motion to suppress, courts may examine trial evidence in addition to the evidence presented at the hearing on the motion to suppress. People v. Hopkins , 235 Ill. 2d 453, 473, 337 Ill.Dec. 465, 922 N.E.2d 1042 (2009).

¶ 18 Under the fourth amendment and the Illinois Constitution of 1970, individuals have the right to be free from unreasonable searches and seizures. Almond , 2015 IL 113817, ¶ 56, 392 Ill.Dec. 227, 32 N.E.3d 535 (citing U.S. Const., amend. IV, and Ill. Const. 1970, art. I, § 6 ). In addition, the stop of a vehicle for a suspected violation of law constitutes a seizure, regardless of whether the seizure is brief and is made for a limited purpose. People v. Gaytan , 2015 IL 116223, ¶ 20, 392 Ill.Dec. 333, 32 N.E.3d 641. Pursuant to Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officers may conduct a brief, investigatory stop if the officer reasonably believes that the individual in question committed or is about to commit a crime. People v. Henderson , 2013 IL 114040, ¶ 25, 370 Ill.Dec. 804, 989 N.E.2d 192.

¶ 19 A reasonable articulable suspicion is required to justify an investigative stop under the fourth amendment. People v. Hackett , 2012 IL 111781, ¶ 20, 361 Ill.Dec. 536, 971 N.E.2d 1058. A police officer must be able to identify specific articulable facts, taken together with rational inferences there from, that reasonably warrant the stop. Id. Additionally, an officer's suspicion must be more than an unparticularized and inchoate suspicion or hunch. People v. Timmsen , 2016 IL 118181, ¶ 9, 401 Ill.Dec. 610, 50 N.E.3d 1092. Furthermore, a Terry stop must be justified at its inception. Id. In assessing an officer's conduct, we apply an objective standard and address whether the facts available to an officer at the time of the seizure would warrant a man of reasonable caution to believe that the officer acted appropriately. Id. If the police lacked a reasonable suspicion, the traffic stop is unconstitutional, rendering evidence obtained from the stop inadmissible. Gaytan , 2015 IL 116223, ¶ 20, 392 Ill.Dec. 333, 32 N.E.3d 641.

¶ 20 In Heien v. North Carolina , 574 U.S. ----, ----, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014), the United States Supreme Court held that a reasonable suspicion can be supported by an officer's misunderstanding of the scope of a law. Consequently, a police officer does not violate the fourth amendment when he stops a vehicle based on an objectively reasonable, albeit mistaken, belief that the driver's conduct leading to the stop violated traffic laws. Id. This reflects that the fourth amendment permits government officials to make some mistakes. Id. That being said, courts apply an objective standard in determining whether a police officer made a reasonable mistake of law, without examining the particular officer's subjective understanding. Id. at 539.

¶ 21 Here, it is undisputed that Officer Fernandez purportedly stopped Wells's car due to a minor traffic violation. As the State acknowledges, "the only description of the minor traffic violation is that Wells 'went around the speed bump,' or 'avoided' it, by driving toward the curb with one wheel on the speed bump and one wheel on the even part of the street." Respondent essentially contends that, even taking Officer Fernandez's account as true, the traffic stop lacked a reasonable articulable basis.

¶ 22 Section 11-305 of the Illinois Vehicle Code states, in pertinent part, that "[i]t is unlawful for any person to leave the roadway and travel across private property to avoid an official traffic control device." 625 ILCS 5/11-305(b) (West 2016). Thus, section 11-305 clearly applies only where a driver enters private property. Similarly, section 9-8-010(c) of the Chicago Municipal Code states that "[n]o operator of a vehicle shall attempt to avoid obedience to any traffic-control device by driving upon or through any private property, alley or traffic island." Chicago Municipal Code § 9-8-010(c) (amended Oct. 28, 2015). Accordingly, the ordinance unambiguously applies only where the driver enters private property or an alley, or drives on a traffic island. Cf. Heien , 574 U.S. at ----, 135 S.Ct. at 540 (finding the officer reasonably believed a traffic infraction occurred where the statute was subject to two reasonable interpretations); Gaytan , 2015 IL 116223, ¶¶ 31, 38, 48, 392 Ill.Dec. 333, 32 N.E.3d 641 (finding that where the statute in question was ambiguous, the officers' mistaken belief that the law had been violated was objectively reasonable and, thus, the stop was constitutionally valid).

¶ 23 In contrast, Officer Fernandez did not testify that Wells drove his vehicle upon any of the enumerated areas. Rather, Officer Fernandez testified that Wells drove to the flat edge of the street itself to partly avoid the speed bump. We find the distinction between the street itself and private property, alleys, or traffic islands to be obvious. See also Heien , 574 U.S. at ----, 135 S.Ct. at 541 (Kagan, J., concurring, joined by Ginsburg, J.) (stating that an officer has made a reasonable mistake only if a statute is truly ambiguous, requiring hard interpretive work to overturn the officer's judgment).

¶ 24 The State nonetheless argues that Officer Fernandez could have reasonably, albeit mistakenly, believed that this was a violation of the ordinance because maneuvering around a speed bump while remaining in the roadway is similar to driving onto a traffic island. We categorically disagree. While vehicles are permitted to be driven on a public street in most instances, they should almost never be driven on a raised traffic island.

¶ 25 As the Court stated in Heien , "an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce." Heien , 574 U.S. at ----, 135 S.Ct. at 539. The case before us does not present an officer's misunderstanding of the law: it presents an officer's failure to know the law.

¶ 26 As stated, Officer Fernandez's mistaken belief that Wells committed a traffic violation was unreasonable where Wells never left the street to avoid a speed bump. It follows that the seizure of respondent as an occupant in Wells's car, which occurred when the police activated their lights and siren, was also unreasonable. In addition, the State does not dispute that this seizure is what led the officers to observe respondent with the firearm and to recover it. Consequently, respondent was entitled to the suppression of such evidence.

¶ 27 Respondent asserts that we must reverse the trial court's judgment outright because the State could not prove he possessed the firearm without the suppressed evidence. See People v. Abdur-Rahim , 2014 IL App (3d) 130558, ¶ 33, 384 Ill.Dec. 510, 16 N.E.3d 903. While the State asks us to affirm this case, it does not dispute that reversal without remand is appropriate should we find affirmance to be inappropriate here. Accordingly, we reverse the adjudication of delinquency outright. In light of our determination, we need not consider respondent's remaining contentions.

¶ 28 For the foregoing reasons, we reverse the trial court's judgment.

¶ 29 Reversed.

Justices Fitzgerald Smith and Howse concurred in the judgment and opinion.


text:
    Gerald R. WARD, Individually and as Administrator of the Estate of Clarence R. Ward, Deceased, Plaintiff-Appellant, v. DECATUR MEMORIAL HOSPITAL, Defendant-Appellee.
    NO. 4-17-0573
    Appellate Court of Illinois, Fourth District.
    Filed June 21, 2018 Rehearing denied July 23, 2018
    Randall A. Wolter, of Wolter, Beeman, Lynch & Londrigan, of Springfield, for appellant.
    Michael J. Kehart and Regan Lewis, of Kehart, Wise, Toth & Lewis, of Decatur, for appellee.
   JUSTICE CAVANAGH delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Gerald R. Ward, appeals from a summary judgment in favor of defendant, Decatur Memorial Hospital, on the ground of res judicata . In our de novo review (see Illinois Department of Financial & Professional Regulation v. Rodriguez , 2012 IL 113706, ¶ 10, 368 Ill.Dec. 181, 983 N.E.2d 985 ), we find an element of res judicata to be missing: a final adjudication on the merits. Therefore, we reverse the trial court's judgment, and we remand this case for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 Plaintiff filed the present case, Ward v. Decatur Memorial Hospital, Macon County case No. 16-L-51 (Ward II ), after voluntarily dismissing, without prejudice, a previous case, Ward v. Decatur Memorial Hospital, Macon County case No. 09-L-209 (Ward I ). We will begin by recounting what happened in the two cases.

¶ 4 A. Ward I

¶ 5 1. The Dismissal of All But One Count of the Original Complaint, With Permission To File an Amended Complaint

¶ 6 On December 17, 2009, in Ward I , plaintiff sued defendant, Decatur Memorial Hospital Home Health Services (Home Health), and "unknown employees" of defendant for alleged negligence in their medical treatment of his brother, Clarence R. Ward, whose death, plaintiff claimed, resulted from the negligence.

¶ 7 On May 7, 2010, pursuant to section 2-619.1 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619.1 (West 2010) ), defendant moved to dismiss all nine counts of the complaint. (The movant was defendant alone because, as defendant explained in its motion for dismissal, Home Health had no legal identity separate from defendant and, under Illinois law, it was impermissible to sue "unknown employees.")

¶ 8 On July 6, 2010, the trial court granted defendant's motion for dismissal, except as to count V, a survival action against Home Health. We need not enumerate the court's reasons for dismissing each of the eight counts. It is enough to observe that the court designated some counts as dismissed "without prejudice" and other counts as simply stricken. Specifically, the court dismissed counts I, II, III, IV, and VI "without prejudice" and struck counts VII, VIII, and IX, without any designation of "with prejudice" or "without prejudice." The court gave plaintiff "leave to file an amended complaint * * * within 28 days."

¶ 9 2. The Dismissal of the First Amended Complaint, With Permission To File a Second Amended Complaint

¶ 10 On August 3, 2010, plaintiff filed a first amended complaint against defendant and Home Health. It had four counts, two of which were pursuant to the Survival Act ( 755 ILCS 5/27-6 (West 2006) ) and the other two of which were pursuant to the Wrongful Death Act ( 740 ILCS 180/1 et seq. (West 2006) ).

¶ 11 On August 23, 2010, pursuant to section 2-619.1, defendant moved to dismiss the first amended complaint.

¶ 12 On October 25, 2010, the trial court granted the motion. The docket entry designated count II as "dismissed without prejudice with leave to amend within 30 days" and the remaining counts as simply dismissed. At the end, the docket entry "granted [plaintiff] leave to file the second Amended Complaint within 30 days."

¶ 13 3. The Dismissal of the Second Amended Complaint, With Permission To File a Third Amended Complaint

¶ 14 On November 24, 2010, plaintiff filed a second amended complaint, this time against defendant alone, seeking recovery under the Survival Act and the Wrongful Death Act. The second amended complaint consisted of four counts, two of which raised a theory of respondeat superior and the other two of which raised a theory of "institutional negligence."

¶ 15 On December 23, 2010, pursuant to section 2-619.1, defendant moved to dismiss the second amended complaint.

¶ 16 On April 6, 2011, the trial court granted the motion and gave plaintiff "leave to file, within 28 days, a third amended complaint."

¶ 17 4. The Third Amended Complaint

¶ 18 On May 4, 2011, after the trial court granted more time to do so, plaintiff filed a third amended complaint. This version of the complaint was against defendant alone. It consisted of two counts, both of which relied on a theory of respondeat superior . One count was pursuant to the Survival Act, and the other count was pursuant to the Wrongful Death Act.

¶ 19 On June 1, 2011, defendant filed an answer and some affirmative defense to the third amended complaint.

¶ 20 5. The Denial of Permission To File a Fourth Amended Complaint and the Granting of Defendant's Motion in Limine

¶ 21 A jury trial was scheduled for January 19, 2016.

¶ 22 On January 4, 2016, plaintiff moved for permission to file a fourth amended complaint against defendant.

¶ 23 On January 5, 2016, the trial court denied the motion, finding that the proposed fourth amended complaint was significantly different from the third amended complaint.

¶ 24 At the same time, the trial court granted defendant's motion in limine to bar two nurses, Tracy Rodgers and Nichele Gavin, from testifying as expert witnesses for plaintiff.

¶ 25 6. The Voluntary Dismissal

¶ 26 On January 11, 2016, pursuant to section 2-1009 of the Code ( 735 ILCS 5/2-1009 (West 2016) ), plaintiff moved to voluntarily dismiss Ward I . That same day, the trial court granted the motion and dismissed the case without prejudice.

¶ 27 B. Ward II

¶ 28 1. The Complaint

¶ 29 On May 5, 2016, plaintiff commenced a new action, Ward II . The complaint was almost identical to the fourth amended complaint the trial court had refused to allow plaintiff to file in Ward I .

¶ 30 2. Summary Judgment on the Ground of Res Judicata

¶ 31 On November 14, 2016, defendant filed a motion for summary judgment ( 735 ILCS 5/2-1005 (West 2016) ) on the ground of res judicata . Citing Hudson v. City of Chicago , 228 Ill. 2d 462, 321 Ill.Dec. 306, 889 N.E.2d 210 (2008), among other authorities, defendant argued that Ward II violated the rule against claim-splitting.

¶ 32 Initially, on March 20, 2017, the trial court denied defendant's motion for summary judgment because the third amended complaint remained pending when plaintiff voluntarily dismissed Ward I. Thus, there was no final judgment-no order that "fixed the parties' rights." Without a final judgment, there could be no res judicata .

¶ 33 Defendant moved for reconsideration, and on May 11, 2017, the trial court changed its mind, deciding that res judicata barred plaintiff's claims in Ward II . The court reasoned as follows:

"3. [R]es judicata bars not only every matter that was actually determined in the first suit, but also every matter that might have been raised and determined in that suit.
4. In [Ward I ], the Plaintiff asserted a number of theories that were involuntarily dismissed but not repled, thereby rendering the dismissals final.
5. At the time the Plaintiff voluntarily dismissed [Ward I ], the third amended complaint was pending[,] and the issues raised therein had not yet been determined but could have been determined therein." (Emphasis in original.)

Consequently, the court granted defendant's motion for reconsideration and entered a summary judgment in defendant's favor on the ground of res judicata . Afterward, the court denied plaintiff's own motion for reconsideration.

¶ 34 This appeal followed.

¶ 35 II. ANALYSIS

¶ 36 Defendant maintains that, under Hudson , the trial court was correct to dismiss Ward II , with prejudice, on the ground of res judicata . Defendant argues that in Ward II plaintiff resorted to claim-splitting, which the supreme court forbade in Hudson .

¶ 37 Plaintiff disagrees. He insists that Hudson is distinguishable because, unlike him, the plaintiffs in Hudson never received permission to replead in the original litigation.

¶ 38 In Hudson , the plaintiffs brought a tort action against the City of Chicago and some of its employees in the fire department. Id. at 464, 321 Ill.Dec. 306, 889 N.E.2d 210. The complaint consisted of two counts: count I, which alleged negligence, and count II, which alleged willful and wanton misconduct. Id. The circuit court granted the defendants' motion to dismiss count I with prejudice, pursuant to section 2-619(a)(9) of the Code ( 735 ILCS 5/2-619(a)(9) (West 2000) ), on the ground that the city and its employees had immunity under section 3.150 of the Emergency Medical Services (EMS) Systems Act ( 210 ILCS 50/3.150 (West 2000) ). Hudson , 228 Ill. 2d at 464-65, 321 Ill.Dec. 306, 889 N.E.2d 210.

¶ 39 After the involuntary dismissal of count I, the plaintiffs moved to voluntarily dismiss the remaining count, count II, which alleged willful and wanton misconduct. Id. at 466, 321 Ill.Dec. 306, 889 N.E.2d 210. The trial court granted their motion, dismissing that count without prejudice (see 735 ILCS 5/2-1009 (West 2000) ). Id. Hudson I thereby came to an end.

¶ 40 As section 2-1009 of the Code ( 735 ILCS 5/2-1009 (West 2000) ) allowed, the plaintiffs commenced a new action within one year after the voluntary dismissal of Hudson I . Hudson , 228 Ill. 2d at 466, 321 Ill.Dec. 306, 889 N.E.2d 210. In the new action, Hudson II , the plaintiffs pleaded only one count, the same count of willful and wanton misconduct they had pleaded, and voluntarily dismissed, in Hudson I . Id. The circuit court granted a motion by the defendants to dismiss Hudson II as barred by res judicata . Id.

¶ 41 The supreme court upheld the dismissal because res judicata barred not only what was decided but whatever could have been decided in the previous action. Id. at 467, 321 Ill.Dec. 306, 889 N.E.2d 210. Before an action was barred, three conditions had to be satisfied: (1) a court of competent jurisdiction rendered a "final judgment on the merits," (2) the causes of action were identical, and (3) the parties or their privies were the same in both actions. Id. It was undisputed in Hudson that the second and third conditions were satisfied. Id. The plaintiffs disputed, however, that the first condition was satisfied. They pointed out that the count alleging willful and wanton misconduct never was adjudicated on its merits. Id. at 467-68, 321 Ill.Dec. 306, 889 N.E.2d 210.

¶ 42 Again, however, if a claim was finally adjudicated on its merits in the previous litigation, res judicata barred not only that claim but also whatever should have been adjudicated along with that claim. Id. at 467, 321 Ill.Dec. 306, 889 N.E.2d 210. The dismissal of count I was the actual adjudication, which swept up whatever else should have been adjudicated in the same action, namely, count II. Illinois Supreme Court Rule 273 (eff. Jan. 1, 1967) regarded the dismissal of count I as a final adjudication on the merits ( Hudson , 228 Ill. 2d at 468, 321 Ill.Dec. 306, 889 N.E.2d 210 ), and because count II "[arose] out of the same set of operative facts" as count I (internal quotations marks omitted) ( id. at 474, 321 Ill.Dec. 306, 889 N.E.2d 210 ), res judicata treated the two counts as one claim-count II "could have been decided" in the same action as count I ( id. at 467, 321 Ill.Dec. 306, 889 N.E.2d 210 ).

¶ 43 Rule 273 provides, "Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits." Ill. S. Ct. R. 273 (eff. Jan. 1, 1967) Although, generally, an "action" is defined as "[a] civil or criminal judicial proceeding" (Black's Law Dictionary (10th ed. 2014) ), the supreme court defined "action" to include the count of a complaint. Cf. Richter v. Prairie Farms Dairy, Inc. , 2016 IL 119518, ¶ 28, 402 Ill.Dec. 870, 53 N.E.3d 1 ("Even if a plaintiff subsequently elects to stand on his or her complaint, an order striking or dismissing a complaint is not final until a subsequent order finally dismisses the action or suit."). The dismissal of count I was unqualified. Therefore, under Rule 273, it was a dismissal with prejudice and, as such, a final adjudication on the merits. Hudson , 228 Ill. 2d at 468, 321 Ill.Dec. 306, 889 N.E.2d 210. Because the dismissal of count I was final in nature, it became immediately appealable when the trial court ended Hudson I by granting the plaintiffs' motion to voluntarily dismiss count II. Id. Given the final, unappealed judgment on the merits as to count I in Hudson I , the rule against claim-splitting barred count II in Hudson II .

¶ 44 Plaintiff highlights what he regards as a crucial difference between his case and Hudson . Ward I had something that Hudson I lacked: permission to file amended complaints. He maintains that the rule against claim-splitting is inapplicable to the present case, Ward II , because, in Ward I , each time the trial court granted a motion for involuntary dismissal, the court gave him permission to replead. Consequently, according to plaintiff, Ward I contains no "final judgment on the merits" See id. at 467, 321 Ill.Dec. 306, 889 N.E.2d 210. (He does not dispute the satisfaction of the other two conditions of res judicata , i.e. , identical causes of actions and identical parties or privies (see id. ).) He quotes Richter : "A dismissal order that grants leave to amend is interlocutory and not final. * * * [T]here was no 'adjudication upon the merits' [if, in the previous litigation,] 'the order of dismissal * * * otherwise specifie[d]' that [the plaintiff] had leave to file an amended complaint." Richter , 2016 IL 119518, ¶¶ 25-26, 402 Ill.Dec. 870, 53 N.E.3d 1 (quoting Ill. S. Ct. R. 273 (eff. Jan. 1, 1967) ).

¶ 45 Defendant counters that, even though the trial court gave plaintiff permission to replead the original, amended, first amended, and second amended complaints, the permission was qualified: the court specified certain counts as dismissed "without prejudice" and other counts as simply dismissed. Defendant argues that, under Rule 273, the simple dismissals, lacking the qualification of "without prejudice," were "adjudication[s] upon the merits" ( Ill. S. Ct. R. 273 (eff. Jan. 1, 1967) ). Thus, defendant would extend the rationale of Hudson to cases in which the trial court designated some counts as dismissed with prejudice and other counts as dismissed without prejudice and gave permission to replead. In support of that extension of Hudson , defendant cites Kiefer v. Rust-Oleum Corp. , 394 Ill. App. 3d 485, 333 Ill.Dec. 903, 916 N.E.2d 22 (2009).

¶ 46 In Kiefer , the plaintiff, a Canadian citizen, sued two American corporations. Id. at 486, 333 Ill.Dec. 903, 916 N.E.2d 22. His amended complaint consisted of two counts, both premised on strict products liability. Id. The defendants moved to dismiss the amended complaint because in British Columbia, where the injury had occurred, the law did not recognize strict products liability. Id. at 486-87, 333 Ill.Dec. 903, 916 N.E.2d 22. The trial court dismissed the amended complaint for that reason ( id. at 487, 333 Ill.Dec. 903, 916 N.E.2d 22 ) but gave the plaintiff permission to file a second amended complaint, then a third amended complaint, and, finally, a fourth amended complaint ( id. at 487-88, 333 Ill.Dec. 903, 916 N.E.2d 22 ). The fourth amended complaint consisted of two counts, both alleging negligence. Id. at 488, 333 Ill.Dec. 903, 916 N.E.2d 22. A few weeks before the trial was scheduled to begin, the court granted a motion by the plaintiff to voluntarily dismiss his negligence claims, without prejudice, pursuant to section 2-1009 ( 735 ILCS 5/2-1009 (West 2006) ). Kiefer , 394 Ill. App. 3d at 488, 333 Ill.Dec. 903, 916 N.E.2d 22. Later, the plaintiff refiled his negligence claims in a new action. Id. The defendants moved to dismiss the new action, with prejudice, on the ground of res judicata , and the court granted their motion. Id.

¶ 47 On appeal, the plaintiff disputed that the order dismissing his strict products liability claims in the previous action was a final order. Id. at 493-94, 333 Ill.Dec. 903, 916 N.E.2d 22. He argued that the order was nonfinal because (1) it granted him leave to file a second amended complaint and (2) it lacked the words "with prejudice." Id. While acknowledging the truth of both of those observations, the First District treated them as "far from dispositive regarding the effect of the order." Id. at 494, 333 Ill.Dec. 903, 916 N.E.2d 22. The First District reasoned:

"Where, as here, a dismissal order does not explicitly state that it is entered 'with prejudice' or 'without prejudice,' it is necessary 'to look to the substance of what was actually decided by the dismissal order' to determine if the order is final. McMann v. Pucinski , 218 Ill. App. 3d 101, 106 [161 Ill.Dec. 22, 578 N.E.2d 149] (1991). Here, there can be no dispute that [the plaintiff's] strict liability claims were adjudicated on its merits. * * *
* * * [The involuntary dismissal] was based on the * * * trial court's determination that [the plaintiff] could not plead any set of facts that would allow him to recover under a theory of strict product liability." Id. at 494-95, 333 Ill.Dec. 903, 916 N.E.2d 22.

It appeared, from the transcript of the hearing on the motion for dismissal, that by " 'leave to amend,' " the trial court in Kiefer intended to give the plaintiff permission to assert negligence claims but not to amend his (legally untenable) strict products liability claims. Id. at 495, 333 Ill.Dec. 903, 916 N.E.2d 22. Thus, the First District concluded, the inclusion of the words " 'leave to amend' " in the dismissal order and the lack of the words " 'with prejudice' " did "not affect the finality of the order with regard to [the plaintiff's] strict product[s] liability claims[,] as the substance of the order show[ed] that the order was determinative of those claims." Id. When the trial court granted the plaintiff's motion for a voluntary dismissal, the "final order dismissing [the plaintiff's] strict product[s] liability claims became immediately appealable." Id. Because the plaintiff never appealed it, that final order barred not only every matter actually decided in the previous case but also every matter that could have been decided-including the claims of negligence. Id. Therefore, in reliance on Hudson , the First District upheld the dismissal of the new action on the ground of res judicata . Id.

¶ 48 This result in Kiefer rests ultimately on the implied assumption that granting permission to file an amended complaint does not undo the "with prejudice" part of a preceding dismissal of a count with prejudice. Assume that in granting a motion to dismiss a complaint, the trial court designates some counts as dismissed with prejudice and other counts as dismissed without prejudice. (This would be a reasonable reading of the dismissal orders in Ward I ; designating some counts, but not others, as dismissed "without prejudice" signaled an intention to dismiss some counts with prejudice.) Assume also that the court gives the plaintiff permission to file an amended complaint. Seemingly, the court does so with the understanding that the amended complaint will omit the counts dismissed with prejudice. After all, "with prejudice" "means that [the] plaintiff will not be permitted to plead over." Perkins v. Collette , 179 Ill. App. 3d 852, 854, 128 Ill.Dec. 707, 534 N.E.2d 1312 (1989). So, the permission to amend the complaint appears to be qualified. Assume the plaintiff files an amended complaint that omits the counts dismissed with prejudice and that, before the date of the scheduled trial on the amended complaint, the court grants a motion by the plaintiff to voluntarily dismiss the amended complaint. If the plaintiff afterward commences a new action and if the counts of the complaint in the new action arise out of the same set of operative facts as the counts dismissed with prejudice in the previous action, Kiefer would lead to the conclusion that those counts are barred by res judicata -as defendant convincingly argues.

¶ 49 The trouble is, we are unconvinced by Kiefer because it is logically inconsistent with Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp. , 96 Ill. 2d 150, 70 Ill.Dec. 251, 449 N.E.2d 125 (1983), and its progeny. In Foxcroft , the supreme court held that if a trial court dismisses a complaint and the plaintiff (with the court's permission) files an amended complaint that omits counts that were in the original complaint, the plaintiff will be deemed to have "abandoned and withdrawn" those counts (internal quotation marks omitted) ( Foxcroft , 96 Ill. 2d at 154, 70 Ill.Dec. 251, 449 N.E.2d 125 ) and to have "waived" them ( id. at 155, 70 Ill.Dec. 251, 449 N.E.2d 125 ), and the reviewing court will decline to address the merits of those superseded counts ( id. ). "Where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn." (Internal quotation marks omitted.) Id. at 154, 70 Ill.Dec. 251, 449 N.E.2d 125. This is called "the Foxcroft rule." Bonhomme v. St. James , 2012 IL 112393, ¶ 27, 361 Ill.Dec. 1, 970 N.E.2d 1.

¶ 50 Significantly, the Foxcroft rule applies even to cases in which the trial court dismissed counts "with prejudice." Id. ¶ 19 ; Petrowsky v. Family Service of Decatur, Inc. , 165 Ill. App. 3d 32, 35, 116 Ill.Dec. 42, 518 N.E.2d 664 (1987) ; Kincaid v. Parks Corp. , 132 Ill. App. 3d 417, 419, 87 Ill.Dec. 467, 477 N.E.2d 68 (1985). To the uninitiated, this application of the Foxcroft rule might seem paradoxical, considering that (1) amendments filed without the trial court's permission are a nullity ( Kurczaba v. Pollock , 318 Ill. App. 3d 686, 703, 252 Ill.Dec. 175, 742 N.E.2d 425 (2000) ) and (2) dismissing certain counts "with prejudice" would appear to signify that, in an amended complaint, those counts will not be permitted ( Jackson v. Alverez , 358 Ill. App. 3d 555, 559, 294 Ill.Dec. 834, 831 N.E.2d 1159 (2005) ; O'Hara v. State Farm Mutual Automobile Insurance Co. , 137 Ill. App. 3d 131, 133, 92 Ill.Dec. 103, 484 N.E.2d 834 (1985) ). However, if the court gives permission to replead, the plaintiff not only may but, on pain of waiver or forfeiture, must replead or otherwise incorporate the dismissed counts in the amended complaint-even if the court dismissed those counts "with prejudice." See Bonhomme , 2012 IL 112393, ¶ 26, 361 Ill.Dec. 1, 970 N.E.2d 1 ("[E]ven assuming that the trial court in this case had instructed [the] plaintiff to file a one-count third amended complaint and only then appeal the dismissal [with prejudice] of her other six counts, [the] plaintiff could not treat that instruction as license to ignore Foxcroft ." (Emphasis in original.) ); Petrowsky , 165 Ill. App. 3d at 35, 116 Ill.Dec. 42, 518 N.E.2d 664 ("[T]he waiver principle [in Foxcroft ] applies whether or not the dismissal was 'with prejudice.' ").

¶ 51 Effectively, then, by granting the plaintiff permission to file an amended complaint, the trial court vacates the designation of "with prejudice" in its dismissal of individual counts of the original complaint. See Reed v. Retirement Board of the Fireman's Annuity & Benefit Fund , 376 Ill. App. 3d 259, 267, 315 Ill.Dec. 94, 876 N.E.2d 94 (2007) ("Even if the trial court originally declares it has dismissed a complaint with prejudice, if[,] after reconsideration[,] the court allows the plaintiff to file an amended complaint, the prejudice of the original dismissal is vacated[,] [and] it is no longer a final order and is therefore not appealable."). If a court dismisses certain counts "with prejudice," the phrase "with prejudice" means little if the court also gives permission to file an amended complaint. (Maybe it would serve as a forecast of how the court likely would rule on a motion to dismiss the repleaded counts.) Having given permission to file an amended complaint, the court cannot require the plaintiff to leave out claims from the amended complaint and thereby abandon and forfeit them. The plaintiff has the right to preserve dismissed counts for review (see Bonhomme , 2012 IL 112393, ¶ 26, 361 Ill.Dec. 1, 970 N.E.2d 1 ; Petrowsky , 165 Ill. App. 3d at 35, 116 Ill.Dec. 42, 518 N.E.2d 664 ), and an acceptable way of doing so is to replead them in the amended complaint ( Northbrook Bank & Trust Co. v. 2120 Division LLC , 2015 IL App (1st) 133426, ¶ 11, 399 Ill.Dec. 464, 46 N.E.3d 783 ). It follows that, regardless of whether the dismissal order purports to dismiss certain counts "with prejudice," "[a] dismissal order that grants leave to amend is interlocutory and not final." Richter , 2016 IL 119518, ¶ 25, 402 Ill.Dec. 870, 53 N.E.3d 1. Because the whole point of res judicata is to prevent the resurrection of claims that already have been decided ( Scott v. Industrial Comm'n , 184 Ill. 2d 202, 219, 234 Ill.Dec. 469, 703 N.E.2d 81 (1998) ), the dismissal of a count, even "with prejudice," cannot possibly be res judicata if the Foxcroft rule, as elaborated in Bonhomme and other cases, allows the repleading of that count.

¶ 52 As defendant observes, in Ward I , plaintiff did not always replead dismissed counts. He omitted several previously dismissed counts from the final version of his complaint, the third amended complaint. True, but that omission did not make the dismissal of those counts a final order for purposes of res judicata . Instead, if plaintiff had appealed in Ward I , those counts would have been regarded as abandoned, withdrawn, superseded, waived, or procedurally forfeited. See Foxcroft , 96 Ill. 2d at 154-55, 70 Ill.Dec. 251, 449 N.E.2d 125 ; Bowman v. County of Lake , 29 Ill. 2d 268, 272, 193 N.E.2d 833 (1963) ; Amalgamated Transit Union, Local 241 v. Illinois Labor Relations Board, Local Panel , 2017 IL App (1st) 160999, ¶ 59 n.1, 417 Ill.Dec. 31, 87 N.E.3d 315 (by "waiver," the supreme court sometimes means "forfeiture"). The dismissal of a count that the plaintiff afterward abandoned in the amended complaint does not have res judicata effect. Rather, the abandoned count " 'ceases to be a part of the record for most purposes' " ( Foxcroft , 96 Ill. 2d at 154, 70 Ill.Dec. 251, 449 N.E.2d 125 (quoting Bowman , 29 Ill. 2d at 272, 193 N.E.2d 833 ) ), and " 'any ruling of the court with relation to the sufficiency of the original pleadings is not properly in the record' " (internal quotation marks omitted) ( Consolidated Construction Co. v. Great Lakes Plumbing & Heating Co. , 90 Ill. App. 2d 196, 203, 234 N.E.2d 378 (1967) (quoting Wright v. Risser , 290 Ill. App. 576, 581, 8 N.E.2d 966 (1937) ). By leaving a previously dismissed count out of the amended complaint, the plaintiff withdraws that count ( Bonhomme , 2012 IL 112393, ¶ 17, 361 Ill.Dec. 1, 970 N.E.2d 1 ; Foxcroft , 96 Ill. 2d at 154, 70 Ill.Dec. 251, 449 N.E.2d 125 ), and "[t]he withdrawal of an earlier pleading leaves the issues in the same status as if the abandoned pleading had not been filed" ( Wheeler v. Sunbelt Tool Co. , 181 Ill. App. 3d 1088, 1105, 130 Ill.Dec. 863, 537 N.E.2d 1332 (1989) ; see also Guebard v. Jabaay , 117 Ill. App. 3d 1, 7, 72 Ill.Dec. 498, 452 N.E.2d 751 (1983) ; Blazina v. Blazina , 42 Ill. App. 3d 159, 164, 1 Ill.Dec. 164, 356 N.E.2d 164 (1976) ). Although "[t]he withdrawal does not eradicate the fact that the litigant did file the pleading," it "has the effect of removing the pleading from any and all consideration, and the issues are left in the same status as though the withdrawn pleading had never been filed." 61B Am. Jur. 2d Pleading § 904 (1999). "Where a count is stricken by amendment, it will be regarded as though never introduced." 71 C.J.S. Pleading § 465 (2011).

¶ 53 In sum, the binding authority of Bonhomme and Foxcroft compels us to respectfully disagree with Kiefer 's application of Hudson . We find Hudson to be distinguishable because, in Hudson I , the trial court never gave permission to file an amended complaint after dismissing a count of the complaint with prejudice (see Hudson , 228 Ill. 2d at 466, 321 Ill.Dec. 306, 889 N.E.2d 210 ). In Ward I , by contrast, the trial court gave permission to amend, over and over again, all the way to the third amended complaint-which remained pending and completely unadjudicated at the time of the voluntary dismissal. "A dismissal order that grants leave to amend is * * * not final" ( Richter , 2016 IL 119518, ¶ 25, 402 Ill.Dec. 870, 53 N.E.3d 1 ), and without "a final judgment on the merits," there can be no res judicata ( Hudson , 228 Ill. 2d at 467, 321 Ill.Dec. 306, 889 N.E.2d 210 ).

¶ 54 III. CONCLUSION

¶ 55 For the foregoing reasons, we reverse the trial court's judgment, and we remand this case for further proceedings.

¶ 56 Reversed and remanded.

Justices Steigmann and Harris concurred in the judgment and opinion.