February 2, 2001

No. 3--99--0614
(Consolidated with Nos. 3--99--0615, 3--99--0616 and 3--99--0617)

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

The defendant, Thaddeus Speed, pled guilty and was convicted of attempted possession of a stolen motor vehicle (case No.97--CF--495) and unlawful possession of a weapon by a felon (case No. 98--CF--346) (625 ILCS 5/4--103(a)(1), 720 ILCS5/8--4, 24--1.1(a) (West 1996)). Pursuant to plea negotiations, the defendant was sentenced on September 1, 1998, to 30 months ofprobation. He was subsequently charged with unlawful possession of a controlled substance (cocaine) with intent to deliver(case No. 98--CF--719) (720 ILCS 570/401(c)(2) (West 1998)) and violation of the terms of his probation. Following astipulated bench trial, the defendant was convicted of the drug offense, and his probation was revoked. He was sentencedto 10 years' imprisonment in No. 98--CF--719, to be served concurrently with 4-year terms imposed in Nos. 97--CF--495and 98--CF--346. The defendant appeals from his convictions in all three cases.⁽¹⁾ He contends that the court erred byconducting proceedings via closed circuit television. For reasons that follow, we affirm the defendant's conviction in No.98--CF--719 and dismiss his appeal in Nos. 97--CF--495 and 98--CF--346.

FACTS

The record shows that the defendant made his first appearance in person in Nos. 97--CF--495 and 98--CF--346 on August19, 1997, and May 29, 1998, respectively. In both cases, he was assigned services of the public defender and thereafterappeared for proceedings only via closed circuit television. On September 1, 1998, pursuant to a negotiated agreement withthe State, the defendant pled guilty to attempted possession of a stolen motor vehicle and unlawful possession of a weaponby a felon. The court accepted the defendant's pleas and imposed concurrent 30-month periods of probation, as agreed. The defendant was admonished of his appeal rights, but he did not move to withdraw and vacate judgment or perfect anappeal from his convictions or sentence.

On November 12, 1998, the defendant was charged in No. 98--CF--719 with unlawful possession of a controlled substancewith intent to deliver. Upon return of the indictment in that case, the State petitioned for revocation of the defendant'sprobation in the two earlier cases. On June 1, 1999, the defendant appeared via closed circuit television and waived hisright to a jury trial. After admonishing the defendant of the rights he was waiving and ensuring that the defendant'sdecision was knowing and voluntary, the court accepted the jury waiver and set the cause for a bench trial.

On June 30, 1999, the defendant appeared in person for trial. At the close of the evidence, the court found the defendantguilty of the drug delivery offense in No. 98--CF--719. The court also found that the defendant had violated the terms ofhis probation in the earlier cases. The defendant was subsequently sentenced to 10 years' imprisonment for the drugoffense, to be served concurrently with 4-year sentences imposed for the earlier offenses. The defendant appeals.

JURY WAIVER IN NO. 98--CF--719

The defendant first argues that he is entitled to a new trial in No. 98--CF--719, because the court's acceptance of his jurywaiver over closed circuit television violated his constitutional rights and Illinois law. Having failed to object in the trialcourt, the defendant asks this court to consider the matter as plain error.

Our resolution of this issue is controlled by our recent decision in People v. Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841(2000), appeal allowed, 189 Ill. 2d 670 (2000). In Lindsey, as here, the defendant was arraigned and his jury waiver wasaccepted at proceedings where the defendant appeared from the jail via closed circuit television. We ruled that no plainerror was committed because the evidence of guilt was not closely balanced and there was no basis to believe thatfundamental due process protections were denied by the video procedure. We also ruled that the defendant could notprevail on his claim that the circuit court's failure to promulgate rules for the use of closed circuit television proceedingswas plain error. Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841.

The record in this case, as in Lindsey, provides no basis for finding plain error. The defendant does not argue that theevidence of guilt was closely balanced. Nor does he contend that his closed circuit television appearance affected thefairness of the jury waiver proceeding. From the record, it appears that the defendant was informed of the nature and causeof the charge he faced, and his waiver of a jury trial was both knowing and intelligent. Accordingly, we conclude that thedefendant was not deprived of substantial rights and his video appearance was not, therefore, plain error. Lindsey, 309 Ill.App. 3d 1031, 723 N.E.2d 841.

We further find that plain error did not result from the trial court's alleged noncompliance with the statutory directive topromulgate rules setting forth which proceedings may be conducted by closed circuit television. See 725 ILCS 5/106D--1(West 1998). The record does not disclose whether the court had complied with its statutory duty to promulgate rulessetting forth which proceedings could be conducted via closed circuit television. See 725 ILCS 5/106D--1 (West 1998). However, even were we to assume that it did not, we would conclude that such defect did not impair the fairness of the jurywaiver proceeding or constitute plain error. See Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841.

Therefore, we affirm the defendant's conviction in No. 98--CF--719.

GUILTY PLEAS IN NOS. 97--CF--495 AND 98--CF--346

Next, the defendant claims that the trial court erred in accepting his guilty pleas via closed circuit television in Nos. 97--CF--495 and 98--CF--346. Having failed to perfect an appeal from these convictions, he argues that the court's use ofclosed circuit television rendered his convictions void.

A void judgment is one entered by a court without jurisdiction or by a court that exceeded its jurisdiction by entering anorder beyond its inherent power. People v. Wade, 116 Ill. 2d 1, 506 N.E.2d 954 (1987). A void judgment may be correctedat any time. People v. Davis, 156 Ill. 2d 149, 619 N.E.2d 750 (1993). By contrast, a voidable judgment is one enterederroneously by a court acting within its jurisdiction and is correctable on review if a timely appeal is taken. See Davis, 156Ill. 2d 149, 619 N.E.2d 750.

To appeal from judgment entered on a guilty plea, a defendant must first file in the trial court, within 30 days of the datesentence is imposed, a motion to withdraw his plea and vacate judgment. 145 Ill. 2d R. 604(d). The appeal is perfected byfiling a notice of appeal within 30 days of the denial of the motion to withdraw. 145 Ill. 2d R. 604(d); Official ReportsAdvance Sheet No. 22 (November 3, 1999), R. 606(b), eff. December 1, 1999. An appeal from a sentence entered uponrevocation of probation does not revive voidable errors in the guilty plea proceeding. People v. Stueve, 66 Ill. 2d 174, 361N.E.2d 579 (1977). Thus, when the steps set forth in Rules 604 and 606 were not taken and the defendant seeks relief fromhis conviction only after probation is revoked, the appellate court is without jurisdiction to review the underlying judgmentunless that judgment is void. See People v. Morrison, 298 Ill. App. 3d 241, 698 N.E.2d 671 (1998).

The defendant claims that his guilty pleas were void in this case because the trial court lacked (1) personal jurisdiction overhim when he pled guilty; and (2) authority to accept his guilty pleas when he was not physically present in the courtroom.

1. Personal Jurisdiction

A criminal defendant confers personal jurisdiction on the trial court when he appears personally before it. People v. Kleiss,90 Ill. App. 3d 53, 412 N.E.2d 39 (1980). Once jurisdiction is acquired, it continues throughout a period of probation andno subsequent error will oust the court's jurisdiction over the defendant's person. See People v. Speight, 72 Ill. App. 3d203, 389 N.E.2d 1342 (1979); Davis, 156 Ill. 2d 149, 619 N.E.2d 750.

In this case, the defendant made his first appearances in person on August 19, 1997, and May 29, 1998, thereby conferringpersonal jurisdiction on the court. Contrary to the defendant's argument on appeal, his subsequent appearances via closedcircuit television, even if erroneous, did not oust the court's jurisdiction over his person. See Speight, 72 Ill. App. 3d 203,389 N.E.2d 1342.

2. Authority to Accept Guilty Pleas

Next, the defendant claims that the circuit court lacked authority to conduct the guilty plea hearing by closed circuittelevision in violation of Supreme Court Rule 402 (177 Ill. 2d R. 402) and section 106D--1 of the Code of CriminalProcedure of 1963 (725 ILCS 5/106D--1 (West 1998)).

a. Supreme Court Rule 402

Rule 402 states that "[t]he court shall not accept a plea of guilty *** without first, by addressing the defendant personally inopen court, informing him of and determining that he understands [specific admonitions]." 177 Ill. 2d R. 402. InPeople v. Guttendorf, 309 Ill. App. 3d 1044, 723 N.E.2d 838 (2000), this court held that the defendant's guilty plea hearingover closed circuit television violated both Rule 402 and the defendant's constitutional right to be present, and we ruled thatthe proceeding thus conducted was plain error. Accordingly, we reversed the trial court's denial of the defendant's motionto withdraw his plea and remanded the cause for further proceedings. The defendant relies on Guttendorf in support of hisargument that the trial court in this case lacked authority to enter judgment on his guilty pleas. The defendant's reliance ismisplaced. Unlike here, the defendant in Guttendorf perfected an appeal from the judgment of conviction. We found theright to be present in person at the guilty plea hearing was a substantial constitutional right that was not waived by thedefendant's failure to object. Guttendorf, 309 Ill. App. 3d at 1048, 723 N.E.2d at 841. However, we did not rule that thetrial court lacked authority to impose a conviction and sentence where the guilty plea was taken via closed circuittelevision.

When a court with inherent power to enter an order commits a procedural error while exercising that power, the error doesnot render the court's judgment void, but merely voidable. Compare In re Steinfeld, 158 Ill. 2d 1, 630 N.E.2d 801 (1994)(failure to comply with procedural requirements, including requirements concerning respondent's presence in courtroomduring hearing, did not void court's judgment), with People v. McCarty, 94 Ill. 2d 28, 39, 445 N.E.2d 298, 304 (1983)(judgment declared void because error that was "not a procedural irregularity, *** but an error of law by the trial courtinvolving the substantive reach of [a] criminal statute"). Therefore, as a general rule, a judgment entered on a defectiveproceeding must be timely appealed to confer appellate jurisdiction. Morrison, 298 Ill. App. 3d 241, 698 N.E.2d 671. Thisrule encompasses defects of constitutional dimension. Davis, 156 Ill. 2d 149, 619 N.E.2d 750; see also People v.Dieterman, 243 Ill. App. 3d 838, 613 N.E.2d 298 (1993) (double jeopardy violation).

The error committed in this case violated Rule 402 but did not defeat the trial court's jurisdiction to enter convictions basedon the defendant's pleas. The error, even though of constitutional dimension, was clearly procedural and rendered thedefendant's convictions voidable, but not void. Accordingly, we hold appellate jurisdiction may not be found on the basisof the trial court's violation of Supreme Court Rule 402. See Morrison, 298 Ill. App. 3d 241, 698 N.E.2d 671.

b. Section 106D--1

Finally, the defendant claims that the circuit court's judgment is void because the court violated the statute requiring thecircuit court to promulgate rules for the use of closed circuit television appearances. 725 ILCS 5/106D--1 (West 1998).Section 106D--1, like Supreme Court Rule 402, is a rule of procedure which, if violated, does not deprive the circuit courtof its inherent authority to enter a conviction upon a guilty plea. Accordingly, even assuming that the court had notinstituted rules in compliance with the statute at the time of the proceedings in this case, the defendant's convictions in Nos.97--CF--495 and 98--CF--346 were not void and may not be attacked in this appeal. See Morrison, 298 Ill. App. 3d 241,698 N.E.2d 671.

CONCLUSION

For the reasons stated, we affirm the defendant's conviction in No. 98--CF--719, and we dismiss the appeal in the Nos. 97--CF--495 and 98--CF--346.

No. 98--CF--719, Judgment affirmed.

Nos. 97--CF--495 and 98--CF--346, Appeals dismissed.

HOLDRIDGE, J., concurring.

At the moment the video camera was turned on at defendant's guilty plea hearing in cases 97--CF--491 and 98--CF--346,the court's power to conduct the hearing was extinguished. See People v. Guttendorf, 309 Ill. App. 3d 1044, 723 N.E.2d838 (2000). In People v. Davis, 156 Ill. 2d 149, 156, 619 N.E.2d 750, 754-55 (1993), our supreme court stated that:

"the term 'subject matter' jurisdiction means the power to hear and determine a given case. [Citation.]

Some authorities, including this court, have held that the power to render the particular judgment or sentence is asimportant an element of jurisdiction as is personal jurisdiction and subject matter jurisdiction. Without such power thejudgment or sentence is void. ***

*** [A] judgment or decree may be void where a court has exceeded its jurisdiction."

The majority relies on cases involving procedural errors or defects to bolster its case. See Davis and People v. Dieterman,243 Ill. App. 3d 838, 613 N.E.2d 298 (1993). These cases found that since the trial courts had the power to act in the firstinstance, the judgments or orders were merely voidable. Dieterman, however, distinguished cases where "there is somedefect that goes to the very foundation of the conviction." Dieterman, 243 Ill. App. 3d at 843, 613N.E.2d at 301.

This court has recently decided two cases that point to the profound distinctions between different types of so-called"procedural defects": Guttendorf and People v. Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841 (2000), pet. for leave toappeal allowed No. 89138. In Guttendorf, this court found a guilty plea hearing on closed circuit television denied thedefendant "a substantial right at a critical stage of the proceedings under the United States Constitution, which deprivedhim of fundamental fairness during the proceeding." Guttendorf, 309 Ill. App. 3d at 1048, 723 N.E.2d at 841. On the otherhand, we found that where the defendant appeared at his arraignment on video, his substantial right to due process was notimpaired. Lindsey, 309 Ill. App. 3d at 1035, 723 N.E.2d at 845. Lindsey involved procedural defects; Guttendorfimplicated a substantial violation of defendant's due process rights at a critical stage of his trial.

Either defendant's video appearance at his guilty plea hearing deprives him of fundamental fairness or it does not. If itdoes, the proceeding is void. If it does not, Guttendorf was wrongly decided, and the majority should say so.

The majority says that Guttendorf did not rule that the trial court had no "authority to impose a conviction...." (Emphasis inoriginal.) People v. Speed, No. 3--99--0614, slip op. at 8 (___, 2001). However, Guttendorf says exactly that. Guttendorfsays that under the federal and state constitutions, courts are "not permitted" to hold guilty plea hearings without thedefendant's physical presence. (Emphasis added.) Guttendorf, 309 Ill. App. 3d at 1047, 723 N.E.2d at 841. Does themajority really believe that hearings which are "not permitted" are somehow "authorized"?

In Guttendorf, this court agreed that a guilty plea hearing is equivalent to a full trial. Guttendorf, 309 Ill. App. 3d at 1046,723 N.E.2d at 840. Would the majority seriously maintain that a video jury trial conviction is merely voidable in acollateral proceeding? Although I ask this question rhetorically, its obvious answer illustrates the gravity of the errorcommitted by the majority today.

The plea in this case was constitutionally invalid from its inception. Such a constitutional defect goes to the heart of theconviction. See Dieterman, 243 Ill. App. 3d at 843, 613 N.E.2d at 301. Simply put, the trial court had no power toconduct the guilty plea hearing in this case, let alone enter a conviction.

Affirming the conviction in this case significantly contradicts our reasoning and undermines our ultimate holding inGuttendorf. For these reasons, I dissent.

I concur, however, with that portion of the majority opinion finding that the jury waiver issue in 98--CF--719 was waivedand does not constitute plain error. See Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841.

1. The defendant was also convicted of unlawful possession of a controlled substance in No. 97--CF--201 and filed a noticeof appeal from that conviction (cause No. 3--99--0615 on appeal). However, he makes no argument with respect to No. 97--CF--201 in this consolidated appeal. Therefore, no further reference to the conviction in No. 97--CF--201 will be made inour disposition herein.