People v. Valladares

2026 IL App (1st) 240576
                                           No. 1-24-0576
                                     Opinion filed April 10, 2026
                                                                                        Sixth Division
 ______________________________________________________________________________



                                                IN THE
                                 APPELLATE COURT OF ILLINOIS
                                          FIRST DISTRICT
 ______________________________________________________________________________
 THE PEOPLE OF THE STATE OF ILLINOIS,                          )    Appeal from the
                                                               )    Circuit Court of
          Plaintiff-Appellee,                                  )    Cook County.
                                                               )
     v.                                                        )    No. 09 CR 21812 (02)
                                                               )
 BERLY VALLADARES,                                             )    Honorable
                                                               )    Ursula Walowski,
          Defendant-Appellant.                                 )    Judge, presiding.



          JUSTICE HYMAN delivered the judgment of the court, with opinion.
          Justice Pucinski concurred in the judgment and opinion.
          Justice Gamrath specially concurred, with opinion.

                                             OPINION

¶1     Illinois courts may not use void judgments for any purpose, especially not to punish

defendants at sentencing. Yet for several years, our courts sustained a maze of rules and procedures

petitioners had to navigate to vindicate their rights.

¶2     Berly Valladares successfully vacated a prior conviction as void and then sought leave to

file a successive postconviction petition, alleging that the sentencing court relied on that void

conviction when punishing him. We review the caselaw in effect when Valladares filed his initial

postconviction petition and examine the record of his sentencing hearing. We conclude (i) the
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circuit court erred by denying him leave to file his petition and (ii) the record contains all available

evidence necessary to establish his claim. We reverse and remand for a new sentencing hearing.

¶3                                        BACKGROUND

¶4     Berly Valladares successfully vacated a prior conviction and then sought leave to file a

successive postconviction petition. He contended that the vacated conviction, which was void

under People v. Aguilar, 2013 IL 112116, had impacted his sentencing hearing for separate

offenses. The circuit court denied Valladares leave to file. We recount the facts necessary to

resolve this appeal.

¶5                                               Trial

¶6     On Halloween 2009, three men arrived at a house party uninvited but left at the host’s

behest. A short time later, one of the men, Narcisco Gatica, returned and discharged a firearm,

killing Francisco Valencia and wounding Daisy Camacho. Cell phone records and a police

investigation placed Valladares near the scene at the time of the shooting.

¶7     Valladares admitted, during the investigation and in his trial testimony, that, as a long-time

gang member and the gang’s “gun holder,” he provided a loaded firearm to Gatica the night of the

shooting and knew Gatica wanted it for retaliation. Valladares accompanied Gatica to the party,

wore a hood to conceal his identity, and fled when Gatica discharged the firearm.

¶8     The jury, instructed on accountability, found Valladares guilty of first degree murder

committed with a firearm and aggravated battery with a firearm.




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¶9                                         Sentencing

¶ 10   The presentence investigation indicated that Valladares was 21 years old at the time of the

shooting and had prior convictions for criminal defacement of property with a year’s supervision

(in 2006) and aggravated unlawful use of a weapon (AUUW) with two years’ probation (in 2007).

¶ 11   Valladares was close to his parents and siblings and had a “good childhood” in a “stable”

home, although it was in a “bad neighborhood.” He admitted belonging to a gang since age 12. He

reported having a good relationship with his young son but did not provide financial support. He

completed elementary school, was in special education in the ninth grade, and quit high school in

the eleventh grade. He worked as a forklift operator before his arrest. He claimed to be in good

physical and mental health and used, but did not abuse, alcohol and marijuana.

¶ 12   In aggravation, the State presented victim impact statements and other testimony. Camacho

described her friendship with Valencia and stated that the shooting “permeates every area of [her]

life[.]” Valencia’s brother read his statement describing the support and inspiration Valencia had

provided him and his fear of crime and socializing since Valencia’s death. Valencia’s mother read

a statement providing “a glimpse of [her] unspeakable, unimaginable despair, pain, suffering, and

deep grief” and the impact Valencia had while alive. And the State provided written statements

from a sister and another parent of Valencia. Finally, a Chicago police officer testified that he

purchased a loaded firearm from Valladares in a cash transaction weeks before the shooting.

¶ 13   The State argued that Valladares was a “danger” who “doesn’t care what happens with

guns that he gives out to street gang members.” The State urged the court to “[l]ook at his prior

conviction *** in 2007 for a gun offense.” The State also argued that Valladares’s two years of

probation for AUUW did not “straighten *** him out,” as shown by the “gun sale *** a few weeks

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before this happened,” which reinforced that “[h]e will pass out guns to whomever.” The State

argued Valladares was a “murderer who doesn’t care what happens with guns.”

¶ 14      In mitigation, Valladares presented 13 letters, including from his parents, siblings, minister,

and friends. Valladares’s sister read a statement describing him as a good family member and good

person.

¶ 15      Counsel argued that the effect of the shooting was undeniable, but Valladares’s family was

also destroyed by his “stupid mistake.” Counsel posited that Valladares shot no one and his

“criminal background literally consists of exactly what happened in the case, the possession of a

weapon.”

¶ 16      The court sentenced Valladares to 70 years in prison, comprising 55 years for first degree

murder, including a 15-year firearm enhancement, and 15 years for aggravated battery with a

firearm. The court stated it considered the trial evidence, sentencing evidence, and all the factors

in aggravation and mitigation. The court noted the evidence that Valladares was a good family

member but agreed with the State that Valladares was a “danger” because he “obviously deals with

guns and violence” and “[h]is prior conviction was for a weapons offense.”

¶ 17      The court later denied Valladares’s motion to reconsider the sentence. Valladares did not

challenge his sentence on direct appeal. We affirmed. People v. Valladares, 2013 IL App (1st)

112010, ¶¶ 123-24.

¶ 18                                  Other Collateral Proceedings

¶ 19      We have since affirmed the summary dismissal of Valladares’s 2014 initial postconviction

petition, the dismissal of his 2015 petition for relief from judgment, and denials of leave to file

two successive postconviction petitions in 2016. People v. Valladares, 2022 IL App (1st) 200161-

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U, ¶¶ 2-4, 13-16; People v. Valladares, 2019 IL App (1st) 163010-U, ¶¶ 2, 11-13; People v.

Valladares, No. 1-16-0865 (2018) (unpublished summary order under Illinois Supreme Court Rule

23(c)); People v. Valladares, 2016 IL App (1st) 142721-U, ¶¶ 2, 10-11. Valladares did not

challenge his sentence in those proceedings.

¶ 20   Valladares did, however, challenge his sentence when petitioning for a certificate of

innocence, as he highlighted in the amended appendix to his appellant brief. See also In re N.G.,

2018 IL 121939, ¶ 58 (authorizing courts to take judicial notice of official court records). On

September 22, 2023, the circuit court vacated his 2007 conviction for AUUW (720 ILCS 5/24-

1.6(a)(1) (West 2006)) in Cook County Case No. 07 CR 04199 and granted the certificate under

Aguilar, 2013 IL 112116.

¶ 21                           Successive Postconviction Petition

¶ 22   Valladares then petitioned for leave to file a successive postconviction petition. He argued

that his prior conviction for AUUW was void under Aguilar, and, thus, its use in aggravation at

sentencing violated due process. He could show cause because, before In re N.G., he could not

raise his claim without first vacating his conviction as void. He could show prejudice because his

void AUUW conviction may have increased his sentence.

¶ 23   The circuit court denied Valladares leave to file a successive postconviction petition. The

court found that Valladares was not entitled to resentencing because the void AUUW conviction

played an insignificant role in the sentencing court’s decision. Further, Valladares could not

establish cause because he could have argued in any of his prior postconviction petitions that his

void AUUW conviction was improperly considered at sentencing.




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¶ 24                                        ANALYSIS

¶ 25   Valladares contends the circuit court erred by denying him leave to file because (i) his

sentencing claim was unavailable when he filed his first postconviction petition, which establishes

cause, and (ii) that void conviction played a significant role in the sentencing court’s conclusion

that Valladares presented a danger to society, which establishes prejudice. We agree.

¶ 26                           Successive Postconviction Proceedings

¶ 27   The Post-Conviction Hearing Act (Act) contemplates the filing of one petition by right and

successive petitions with leave of court. 725 ILCS 5/122-1(f) (West 2022). This process under the

Act ensures that procedural rules do not undermine fundamental fairness. People v. Blalock, 2022

IL 126682, ¶ 38. Petitioners may litigate successive petitions by invoking the “cause and

prejudice” exception. Id.

¶ 28   A petitioner establishes “cause” by identifying an objective factor that prevented him or

her from raising a specific claim in the initial petition. 725 ILCS 5/122-1(f) (West 2022). The

supreme court has observed “ ‘ “that a showing that the factual or legal basis for a claim was not

reasonably available” ’ ” will establish cause. People v. Pitsonbarger, 205 Ill. 2d 444, 460 (2002)

(quoting Strickler v. Greene, 527 U.S. 263, 283 n.24 (1999), quoting Murray v. Carrier, 477 U.S.

478, 488 (1986)). A petitioner establishes “prejudice” by showing the claimed constitutional error

so infected the trial that the resulting conviction or sentence violated due process. People v. Davis,

2014 IL 115595, ¶ 14.

¶ 29   We review de novo whether Valladares established cause and prejudice, allowing him to

litigate his claim in a successive postconviction petition. People v. Bailey, 2017 IL 121450, ¶¶ 13,

26.

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¶ 30                                           Cause

¶ 31   Valladares contends he established cause because, at the time he filed his initial

postconviction petition, caselaw precluded him from seeking to vacate his 2007 conviction in a

petition collaterally attacking his 2009 conviction. We agree.

¶ 32   When Valladares first petitioned for postconviction relief, the proper pleading for vacating

his 2007 conviction was not a postconviction petition attacking his 2009 conviction. To be sure,

the Illinois Supreme Court had held in Aguilar that AUUW under 720 ILCS 5/24-1.6(a)(1),

(a)(3)(A), (d) (West 2008), was facially unconstitutional under the second amendment and thus void.

Aguilar, 2013 IL 112116, ¶ 22 (filed September 12, 2013, and modified on denial of hearing

December 19, 2013). But Aguilar did not address how to handle a sentencing court’s later use in

aggravation of a not-yet-vacated conviction.

¶ 33   This court took up that issue in People v. Ware, where we rejected the claim that we could

exercise jurisdiction over those prior convictions, even if the sentencing court relied on them in

aggravation and the defendant was directly appealing from that sentence. People v. Ware, 2014 IL

App (1st) 120485, ¶¶ 33-36. We likewise rejected remanding for resentencing, even if the

sentencing court had considered a void conviction in aggravation because the prior convictions

were not used as an element of the charged offense or as the basis for a statutory enhancement or

extended-term sentence. Id. ¶ 34. For the appellant in Ware, Aguilar’s substantive right had no

enforcement mechanism. See also People v. McFadden, 2016 IL 117424, ¶¶ 19-21 (concluding,

“void ab initio doctrine would enable [defendant] to seek to vacate his [void] conviction by filing

an appropriate pleading”).




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¶ 34    In 2014, Valladares needed to vacate the 2007 conviction by first filing—in that separate

case, Cook County Case No. 07 CR 04199—either a postconviction petition or section 2-1401

petition. See 725 ILCS 5/122-6 (West 2014) (articulating circuit court jurisdiction in

postconviction cases); 735 ILCS 5/2-1401(a), (b) (West 2014) (articulating relief available by

petitions for relief from judgment); see People v. Harvey, 196 Ill. 2d 444, 446-47 (2001)

(approving of use of section 2-1401 as appropriate avenue for relief from void criminal judgment);

People v. Thompson, 2015 IL 118151, ¶¶ 31-33 (abrogating Harvey but recognizing section 2-

1401 as appropriate vehicle for void ab initio challenges).

¶ 35    But Valladares’s deadline for filing an initial postconviction petition attacking the 2009

conviction approached quickly. See generally 725 ILCS 5/122-1(c) (West 2014) (defining time

limits for filing initial petition in 2014). We affirmed his conviction and sentence on July 24, 2013,

before the supreme court decided Aguilar. Valladares, 2013 IL App (1st) 112010, ¶¶ 123-24. The

supreme court denied him leave to appeal on November 27, 2013, before it modified Aguilar on

denial of rehearing. Valladares, 2013 IL App (1st) 112010, leave to appeal denied, No. 116628

(Ill. Nov. 23, 2013). And Valladares timely petitioned for postconviction relief on May 2, 2014.

725 ILCS 5/122-1(c) (West 2014) (defining time limits for filing initial petition in 2014).

¶ 36    Still, about one month before Valladares filed his initial petition, this court decided Ware.

Ware, 2014 IL App (1st) 120485. So even though Valladares met the deadline to file his initial

postconviction petition, caselaw had already precluded him from seeking to vacate his 2007

conviction in that petition collaterally attacking his 2009 conviction. See 725 ILCS 5/122-1(f)

(West 2022) (defining “cause” as identifying objective factor preventing petitioner from raising

specific claim in initial petition).


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¶ 37   Indeed, the Illinois Supreme Court later affirmed Ware’s reasoning in McFadden, which

held that an Aguilar conviction was not “deemed vacated until a court with reviewing authority

has so declared.” McFadden, 2016 IL 117424, ¶ 31. Because “Aguilar did not automatically

overturn that judgment of conviction,” the conviction could still be used in other legal proceedings.

Id. The supreme court stated the defendant should have “properly sought to vacate his” conviction

so that the voidness of the prior conviction “could have been adequately considered and resolved

in an appropriate proceeding.” Id. ¶ 33.

¶ 38   The defendant in McFadden had also argued that his void Aguilar conviction was an

improper sentencing factor. Id. ¶ 40. The supreme court rejected the claim, “reiterat[ing] that the

constitutional invalidity of defendant’s *** conviction is not confirmed by the record in this case.”

Id. ¶ 41. That is, although the defendant was convicted of an Aguilar offense, the record did “not

affirmatively reflect that [he had] pleaded guilty under section 24-1.6(a)(1), (a)(3)(A), the only

section held unconstitutional in Aguilar.” McFadden, 2016 IL 117424, ¶ 33. Until the voidness of

the conviction was properly recognized and vacated in an appropriate proceeding, the court

rejected the possibility of resentencing even if the sentencing court had relied on it. Id. ¶¶ 33, 41.

¶ 39   In short, Valladares’s conviction was void but not vacated when he filed his initial petition

in 2014, and at that time, the law treated that distinction as meaningful.

¶ 40   We recount this history to consider and reject the State’s suggestion that Valladares could

have raised this sentencing claim when he filed his initial postconviction petition. In support, the

State cites a 2018 decision from the Illinois Supreme Court overruling McFadden. N.G., 2018 IL

121939, ¶ 84. The State then faults Valladares for “rais[ing] an argument premised on a distinction




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of the kind N.G. overruled: that his 2007 conviction technically was never vacated, but only subject

to vacatur.”

¶ 41   The State mischaracterizes Valladares’s argument. Valladares does not ask this court to

draw the distinction N.G. overruled. He asks us to acknowledge how that distinction operated in

2014 to preclude him from seeking to vacate his 2007 conviction in a petition collaterally attacking

his 2009 conviction.

¶ 42   Nowhere in its response brief does the State address pertinent caselaw in 2014, when

Valladares filed his initial postconviction petition. Under N.G., a petitioner could successfully

petition today for postconviction relief, raising a sentencing claim identical to that in Valladares’s,

even without the prior void conviction having been vacated. See In re N.G., 2018 IL 121939, ¶ 57.

But the State fails to acknowledge how Valladares’s claim was unavailable four years before N.G.,

when he first petitioned for postconviction relief.

¶ 43   For similar reasons, we reject the State’s reliance on a Rule 23 order. In Dillon, without

citation to relevant authority, the panel stated: “[T]here is no question that defendant could have

raised this issue in his postconviction petition.” People v. Dillon, 2023 IL App (1st) 220472-U,

¶ 36. On the contrary, “[f]or many years, after Aguilar, even our courts could not agree on how a

petitioner should proceed with an Aguilar-based claim.” People v. Key, 2025 IL App (1st) 240284-

U, ¶ 36 n.4 (citing McFadden, 2016 IL 117424, ¶¶ 29-33). Dillon saying it was so did not make it

so. Cases like Ware and McFadden operated as bars to petitioners like Valladares until they were

overruled in N.G.

¶ 44   Finally, the State argues that Valladares’s 2015 petition under section 2-1401 presented an

opportunity to raise this specific claim. It did not. Under the Act, the analysis for cause rests on

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the availability of the claim during the “initial post-conviction proceedings.” 725 ILCS 5/122-1(f)

(West 2014).

¶ 45   Accordingly, Valladares established cause because, at the time he filed his initial

postconviction petition in 2014, caselaw precluded him from seeking to vacate his 2007 conviction

in a petition collaterally attacking his 2009 conviction.

¶ 46                                          Prejudice

¶ 47   Valladares also contends he established prejudice as the sentencing court relied on his void

conviction when sentencing him to 70 years in prison. We agree.

¶ 48   To begin, we observe how the State does not respond to this part of Valladares’s argument

on appeal. See Ill. S. Ct. R. 341(h)(7), (i) (eff. Oct. 1, 2020) (argument “shall contain the

contentions *** and the reasons therefor, with citation of the authorities,” and “[p]oints not argued

are forfeited”). We honor the State’s forfeiture of its argument on prejudice. See generally Vancura

v. Katris, 238 Ill. 2d 352, 369-73 (2010) (holding that point not argued is forfeited).

¶ 49                           Effect of Void Conviction at Sentencing

¶ 50   When a sentencing court cites a void conviction, we will affirm the sentence only if the

record establishes that the void conviction did not affect the sentencing decision. People v.

Hearring, 2022 IL App (1st) 192064, ¶¶ 28-30. If the record “raises the possibility that the trial

court relied on the facially invalid statute,” the case must be remanded for a new sentencing

hearing. People v. McCants, 2024 IL App (1st) 220837, ¶ 40.

¶ 51   Here, the record raises that possibility. When announcing Valladares’s sentence, the

sentencing court agreed with the State that he was a “danger” because he “obviously deals with

guns and violence” and noted that “[h]is prior conviction was for a weapons offense.” See

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Hearring, 2022 IL App (1st) 192064, ¶ 34. The court singled out Valladares’s void conviction and

the gun sale, mentioned those considerations first, and then stated that it had considered the various

statutory factors in aggravation and mitigation. Even when a sentencing court properly considers

multiple factors, the State’s introduction of a void prior conviction as an aggravating factor is

substantial enough to warrant resentencing. See People v. Alexander, 2019 IL App (3d) 170168,

¶ 29 (remand for resentencing where State presented void conviction and asked it be considered).

¶ 52   A full review of the sentencing hearing shows the court’s decision tracked the State’s

contentions in aggravation. The State leaned on Valladares’s void conviction to paint him as a

criminal with a record of gun crime, urging the court to “[l]ook at his prior conviction. . . in 2007

for a gun offense.” The State criticized Valladares for the failure of this prior conviction and its

sentence to rehabilitate him, saying the punishment “really straightened him out, didn’t it?” And

the State urged that the AUUW conviction together with the controlled gun purchase showed

Valladares was “murderer who doesn’t care what happens with guns” and “will pass out guns to

whomever.”

¶ 53   The State and the sentencing court highlighted the void conviction, and that impacted the

sentence Valladares received. See Alexander, 2019 IL App (3d) 170168, ¶ 29. Valladares

established prejudice because any weight given to a void conviction constitutes error requiring

resentencing. See Davis, 2014 IL 115595, ¶ 14; Hearring, 2022 IL App (1st) 192064, ¶¶ 28-41.

¶ 54   Further, because Valladares’s claim can be established on the available record, we reverse

the dismissal of his motion for leave to file, grant his petition, and remand for a new sentencing

hearing. See People v. Buffer, 2019 IL 122327, ¶¶ 46-47 (remanding postconviction petition for




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new sentencing hearing because “[a]ll of the facts and circumstances to decide defendant’s claim

are already in the record”).

¶ 55   Nothing in our decision diminishes the seriousness of the offense or the harm suffered by

the victims and their family. And we express no view on the sentence to be imposed on remand.

¶ 56   Reversed and remanded with directions.

¶ 57   JUSTICE GAMRATH, specially concurring:

¶ 58   I agree that we should not presume that a void prior conviction had no impact on sentencing

when the court takes specific note of it. I write separately to emphasize that resentencing is

unnecessary when the court thoroughly explains its sentencing decision and it is clear the void

conviction had an insignificant effect. See People v. McFadden, 2016 IL 117424, ¶ 41, overruled

on other grounds by In re N.G., 2018 IL 121939; People v. Dillon, 2025 IL App (1st) 241535,

¶ 41; People v. Ware, 2023 IL App (1st) 220579-U, ¶ 41; People v. Bridges, 2020 IL App (1st)

170129, ¶ 39.

¶ 59   This case is a close call. At the sentencing hearing, Valladares’s defense attorney

acknowledged that a life sentence was unavoidable. Valladares faced 41 to 105 years’

imprisonment, and the judge imposed a midrange sentence of 70 years. By law, Valladares must

serve 100% of the murder portion and 85% of the aggravated battery portion. His accomplice

received 90 years.

¶ 60   The sentencing court emphasized the tragedy for both sides with two families broken and

destroyed. The testimony in aggravation is heart wrenching, and the record supports defense

counsel’s characterization that Francisco Valencia “was one of the best,” whose promising life



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was cut short by Valladares without justification. He supplied the gun to the shooter, knowing it

would be used; watched the shooting happen; and fled.

¶ 61   In describing Valladares as someone who “obviously deals with guns and violence,” the

sentencing court mentioned his void AUUW conviction, as well as his position as “gun holder” of

his gang and the fact he sold a gun on the street to an undercover officer just weeks before the

murder. The court emphasized these latter two facts when it denied Valladares’s motion for

reconsideration.

¶ 62   Although Valladares’s void AUUW conviction appears minor, the State argued it, and the

court did refer to it at sentencing. As we’ve said before, “it is more prudent to remand for a

resentencing, where the trial court may impose the same sentence or a different one” than to guess

at a conviction’s impact. (Internal quotation marks omitted.) Bridges, 2020 IL App (1st) 170129,

¶ 38. However, had the court articulated its sentencing rationale more clearly or refrained from

mentioning the void AUUW conviction, resentencing would be unnecessary, sparing Daisy

Camacho’s and Francisco Valencia’s loved ones further pain. While I take no position on the

appropriate sentence upon remand, given the nature and seriousness of the offenses and the

relatively minor mention of the void AUUW conviction, the same sentence could still result after

proper consideration of all relevant aggravating and mitigating factors.




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                   People v. Valladares, 2026 IL App (1st) 240576


Decision Under Review:    Appeal from the Circuit Court of Cook County, No. 09-CR-
                          21812(02); the Hon. Ursula Walowski, Judge, presiding.


Attorneys                 James E. Chadd, Douglas R. Hoff, and Daniel H. Regenscheit,
for                       of State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:


Attorneys                 Eileen O’Neill Burke, State’s Attorney, of Chicago (John E.
for                       Nowak, Amy McGowan, and Zach Van Duyn, Assistant State’s
Appellee:                 Attorneys, of counsel), for the People.




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