¶1specially concurring in part and dissenting in part:
¶2At the moment the video camera was turned on at defendant’s guilty plea hearing in cases No. 97 — CF—491 and No. 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.2d 838 (2000). In People v. Davis, 156 Ill. 2d 149, 156, 619 N.E.2d 750, 754-55 (1993), our supreme court stated:
“[T]he 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 as important an element of jurisdiction as is personal jurisdiction and subject matter jurisdiction. Without such power the judgment or sentence is void. …
… [A] judgment or decree may be void where a court has exceeded its jurisdiction.”
¶3The majority relies on cases involving procedural errors or defects to bolster its case. See Davis, 156 Ill. 2d 149, 619 N.E.2d 750; 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 first instance, the judgments or orders were merely voidable. Dieterman, however, distinguished cases where “there is some defect that goes to the very foundation of the conviction.” Dieterman, 243 Ill. App. 3d at 843, 613 N.E.2d at 301.
¶4This 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), appeal allowed, 189 Ill. 2d 670 (2000). In Guttendorf, this court found a guilty plea hearing on closed circuit television denied the defendant “a substantial right at a critical stage of the proceedings under the United States Constitution, which deprived him of fundamental fairness during the proceeding.” Guttendorf, 309 Ill. App. 3d at 1048, 723 N.E.2d at 841. On the other hand, we found that where the defendant appeared at his arraignment on video, his substantial right to due process was not impaired. Lindsey, 309 Ill. App. 3d at 1035, 723 N.E.2d at 845. Lindsey involved procedural defects; Guttendorf implicated a substantial violation of defendant’s due process rights at a critical stage of his trial.
¶5Either defendant’s video appearance at his guilty plea hearing deprives him of fundamental fairness or it does not. If it does, the proceeding is void. If it does not, Guttendorf was wrongly decided, and the majority should say so.
¶6The majority says that Guttendorf did not rule that the trial court had no “authority to impose a conviction.” (Emphasis in original.) 318 Ill. App. 3d at 916. However, Guttendorf says exactly that. Guttendorf says that under the federal and state constitutions, courts are “not permitted” to hold guilty plea hearings without the defendant’s physical presence. (Emphasis added.) Guttendorf, 309 Ill. App. 3d at 1047, 723 N.E.2d at 841. Does the majority really believe that hearings which are “not permitted” are somehow “authorized”?
¶7In 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 a collateral proceeding? Although I ask this question rhetorically, its obvious answer illustrates the gravity of the error committed by the majority today.
¶8The plea in this case was constitutionally invalid from its inception. Such a constitutional defect goes to the heart of the conviction. See Dieterman, 243 Ill. App. 3d at 843, 613 N.E.2d at 301. Simply put, the trial court had no power to conduct the guilty plea hearing in this case, let alone enter a conviction.
¶9Affirming the conviction in this case significantly contradicts our reasoning and undermines our ultimate holding in Guttendorf. For these reasons, I dissent.
¶10I concur, however, with that portion of the majority opinion finding that the jury waiver issue in 98 — CF—719 was waived and does not constitute plain error. See Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841.