                                  Illinois Official Reports

                                          Appellate Court




                              People v. Young, 2013 IL App (1st) 111733




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      RICHARD YOUNG, Defendant-Appellant.


District & No.               First District, Fifth Division
                             Docket No. 1-11-1733



Filed                        December 6, 2013
Rehearing denied             January 23, 2014



Held                         In proceedings on defendant’s postconviction petition in which he
(Note: This syllabus         alleged for the first time on appeal that his sentences were void due to
constitutes no part of the   the trial court’s failure to include the mandatory statutory firearm
opinion of the court but     enhancement and that he was entitled to withdraw his negotiated pleas
has been prepared by the     and plead anew or have a trial, the denial of the petition was upheld,
Reporter of Decisions        since defendant had the benefit of a more lenient sentence for almost a
for the convenience of       decade before seeking rescission of his plea agreement, and that
the reader.)                 unreasonable delay barred him from now seeking such relief.




Decision Under               Appeal from the Circuit Court of Cook County, No. 00-CR-15730; the
Review                       Hon. Garritt E. Howard, Judge, presiding.
     Judgment                 Affirmed.


     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Jessica A. Hunter, all of
     Appeal                   State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Amy M. Watroba, and Sheilah O’Grady-Krajniak, Assistant State’s
                              Attorneys, of counsel), for the People.


     Panel                    JUSTICE McBRIDE delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Gordon and Justice Palmer concurred in the
                              judgment and opinion.


                                              OPINION


¶1         Defendant Richard Young appeals from an order of the circuit court of Cook County
       denying his petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1
       et seq. (West 2010)) after an evidentiary hearing. On appeal, defendant has abandoned the
       allegations in his petition and contends, for the first time, that the sentences he received as a
       result of his negotiated guilty pleas were void because they did not include the mandatory
       statutory firearm enhancement compelled by the indictments and factual basis for the offenses.
       He, therefore, requests that his cause be remanded to the circuit court where he can withdraw
       his guilty pleas and plead anew, or proceed to trial on the charges.
¶2         On January 5, 2004, defendant entered negotiated pleas of guilty to first degree murder and
       attempted murder and was sentenced to consecutive terms of 25 and 10 years’ imprisonment,
       respectively. The trial court admonished defendant as to the charges for which he was entering
       a guilty plea and the sentence guidelines. Specifically, the court told defendant that the
       sentencing range for first degree murder was 20 to 60 years with 3 years of mandatory
       supervised release, and the sentencing range for attempted first degree murder was 6 to 30
       years with 3 years of mandatory supervised release. The court also stated that the sentences
       would be served consecutively. The court also advised defendant that by pleading guilty,
       defendant was giving up his right to a trial in front of either a judge or a jury and specifically
       asked defendant if he understood what a jury trial was. The court asked defendant if he wished
       to have a trial or plead guilty, and defendant responded that he wished to plead guilty.
       Defendant confirmed that his signature was on the jury waiver form. The court also inquired of
       defendant if anyone had said or done anything to force defendant to plead guilty. Defendant
                                                   -2-
     said that he understood his jury waiver and denied that anyone had forced him to plead guilty.
     The State offered the following factual basis for the plea.
¶3       Pam Waters would testify that on June 6, 2000, she was in the area of 1206 Pitner in
     Evanston, Illinois, with a number of other individuals, including Richard Tinch. She was
     seated in a car with the door open. A dark blue Oldsmobile with a driver and passenger slowly
     drove by and then stopped. The passenger then fired multiple gunshots out of the window and
     gang slogans were yelled. Waters suffered a gunshot to her leg and Tinch died as a result of a
     gunshot wound.
¶4       An investigator would testify that defendant was arrested in connection with the shooting
     and on June 8, 2000, he gave a court-reported statement. In the statement, he admitted that he
     was the passenger in the Oldsmobile and codefendant Kevin Jones was the driver. Defendant
     was in possession of a loaded gun and his intention was to shoot a rival. Defendant and Jones
     went to an area where they believed they could find the rival. Jones drove into the alley at 1206
     Pitner and stopped the car. Defendant then fired a number of shots out of the car window and
     into a crowd of people. Defendant told the investigator that he later learned that he had shot and
     killed Tinch.
¶5       The trial court then entered the finding of guilty for the first degree murder of Tinch and the
     attempted murder of Waters.
¶6       Defendant filed a pro se motion to withdraw his pleas, alleging that they were the result of
     coercion and ineffective assistance of trial counsel. Defendant was appointed other counsel on
     his motion, who filed a supplemental motion alleging that defendant was coerced into pleading
     guilty and had a valid alibi defense that trial counsel failed to investigate. On March 1, 2005,
     defense counsel filed an amended motion to withdraw the guilty pleas in which he realleged
     the allegation of coercion.
¶7       At the hearing on the motion to withdraw his guilty pleas, defendant and three public
     defenders, including the attorney who represented him at the guilty plea proceedings, testified.
     Following that hearing, the court denied defendant’s motion to withdraw finding that
     defendant’s responses to the court’s inquiries regarding the voluntariness of his pleas
     contradicted his claims.
¶8       On appeal, defendant argued that he should be allowed to withdraw his guilty pleas
     because trial counsel was ineffective for failing to investigate his alibi defense, that there was
     other exculpatory evidence, that he was innocent, and that he was coerced into pleading guilty
     by trial counsels’ strong-arm tactics. This court affirmed, finding, in particular, that defendant
     was not coerced into pleading guilty. People v. Young, No. 1-05-0620 (2006) (unpublished
     order under Supreme Court Rule 23).
¶9       On January 5, 2007, defendant, through private counsel, filed a postconviction petition
     alleging ineffective assistance of trial counsel for failing to properly investigate and present his
     alibi defense. Counsel also filed an amended postconviction petition, alleging that defendant
     was coerced into pleading guilty, that there was no probable cause for his arrest, and that he
     received ineffective assistance of trial counsel.


                                                  -3-
¶ 10        In support of the petition, defendant attached the affidavit of Earl Arthurs, who averred that
       defendant was with him on June 6, 2000, “all day long; from early morning to late in the
       evening.” Defendant also attached his own affidavit in which he attested that he was coerced
       into pleading guilty. He averred that he told his attorney about his alibi defense and that his
       attorney claimed that she contacted Arthurs and that he would not cooperate in his defense.
       Defendant averred that Arthurs never told him that his attorney contacted him or asked him to
       be a witness at his trial. Defendant further averred that his attorney told him that she could not
       defend him because she could not come up with a defense for him and that she, along with
       another attorney and their supervisor, ganged up on him to try to convince him to plead guilty,
       telling him that the only chance he had at seeing the world again was if he pleaded guilty.
¶ 11        Defendant also attached the affidavit of Assistant Public Defender Frederick Weil, who
       averred that, based on his investigation and the accompanying affidavits, he concluded that
       defendant did not want to plead guilty to the charged offenses, that he had a valid alibi defense
       that he wished to present at trial, and that his appointed counsel failed to properly investigate
       the alibi defense. Weil further averred that defendant’s guilty plea was not voluntarily and
       willingly made, and defendant felt coerced into pleading guilty by his attorneys, who told him
       that they could not defend him at trial.
¶ 12        On April 23, 2007, the State filed a motion to dismiss defendant’s petition. The circuit
       court denied the motion, and advanced the petition to the third stage for an evidentiary hearing.
       That hearing was held on May 11, 2011, where Mary Hayashi, who represented defendant at
       the guilty plea proceedings, testified that she recommended that defendant plead guilty, but she
       did not tell him that he had to do so. Hayashi also testified that she litigated several pretrial
       motions on defendant’s behalf, including motions to quash and suppress, but they were
       unsuccessful. Hayashi stated that, as a result, the evidence against defendant was
       overwhelming, including defendant’s confession and the gun used. She also investigated
       Arthurs, who was a fellow gang member of defendant, and found that he changed the time
       defendant was with him twice, telling her that defendant was with him around 5 or 6 p.m. and
       then said it was 7 p.m., but the shooting occurred at 10 p.m. Hayashi further testified that
       defendant was not amenable to her suggested defense that someone else committed the
       murder, because the person they were going to accuse was a high-ranking member of his gang.
       Hayashi told defendant that it was in his best interest to plead guilty in light of the
       overwhelming evidence against him and the fact that his alibi defense was not viable.
¶ 13        The court found Hayashi to be a highly credible witness whose testimony refuted
       defendant’s allegations and the allegations in the affidavits. The court found that Hayashi
       provided highly competent representation and that defendant was not coerced into pleading
       guilty. The court subsequently denied defendant’s petition. This appeal follows.
¶ 14        On appeal, defendant contends solely, and for the first time, that the sentences he received
       as a result of his negotiated guilty pleas were void because they did not include the mandatory
       statutory firearm enhancement. In support of his contention, defendant cites People v. White,
       2011 IL 109616, and requests that his cause be remanded to allow him to withdraw his guilty
       pleas and plead anew or to proceed to trial on the charges.

                                                    -4-
¶ 15        Although any claim of violation of constitutional rights not raised in an original or
       amended petition is waived (725 ILCS 5/122-3 (West 2010)), an attack on a void judgment
       may be made at any time (People v. Thompson, 209 Ill. 2d 19, 25 (2004)). Whether a sentence
       is void is a question of law subject to de novo review. People v. Donelson, 2011 IL App (1st)
       092594, ¶ 7.
¶ 16        Under section 5-8-1 of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-1(a)(1)(a)
       (West 2000) (now 730 ILCS 5/5-4.5-20 (West 2010))), the sentencing range for first degree
       murder is 20 to 60 years’ imprisonment. However, subsection (d)(iii) of the same statute
       requires that an enhanced sentence of 25 years or up to a term of natural life be added to the
       sentence imposed by the court if, during the commission of the offense, defendant personally
       discharged a firearm that proximately caused the death of another. 730 ILCS
       5/5-8-1(a)(1)(d)(iii) (West 2000). Attempted murder is a Class X felony (720 ILCS 5/8-4(c)(1)
       (West 2000)), which provides for a sentencing range of 6 to 30 years’ imprisonment (730 ILCS
       5/5-8-1(a)(3) (West 2000) (now 730 ILCS 5/5-4.5-25 (West 2010))), and requires that 20 years
       be added to the sentence if defendant personally discharged a firearm or an addition of 25 years
       up to natural life if great bodily harm resulted from the discharge (720 ILCS 5/8-4(c)(1)(C),
       (D) (West 2000)).
¶ 17        Here, the basic sentences imposed on defendant’s plea convictions fell within the
       prescribed statutory parameters but failed to include the sentencing enhancement. Defendant
       thus maintains that the sentences are void under White, because the factual basis for the pleas,
       i.e., that he personally discharged a firearm fatally wounding Tinch and causing great bodily
       harm to Waters, required the imposition of the firearm enhancement.
¶ 18        In White, defendant pleaded guilty to first degree murder in exchange for a sentence of 28
       years’ imprisonment, and the factual basis for the plea established that a firearm was used in
       the commission of the murder. White, 2011 IL 109616, ¶¶ 4-6. Within 30 days of entering his
       guilty plea, the defendant filed a motion to withdraw his plea and included the claim that he
       was subject to the 15-year firearm sentencing enhancement. Id. ¶ 9. The supreme court found
       that the then 15-year mandatory sentencing enhancement for committing murder while armed
       with a firearm applied despite the trial court’s belief that it did not. Id. ¶ 19. The supreme court
       emphasized that a court cannot impose a sentence inconsistent with governing statutes even
       where the parties and the trial court agree to that sentence. Id. ¶ 23. The supreme court
       reasoned that, by enacting the firearm enhancement provision, the legislature took away any
       discretion the State and the trial court had to fashion a sentence that does not include this
       mandatory firearm enhancement. Id. ¶ 26. The supreme court thus held that defendant’s
       28-year sentence, which was less than the minimum with the firearm enhancement, did not
       conform to the statutory requirements and was void. Id. ¶ 31.
¶ 19        Here, as in White, defendant pleaded guilty to murder and attempted murder in exchange
       for sentences that were not authorized by statute. The firearm enhancement provision required
       that an additional 25 years be added to his sentence for murder and 20 or 25 years to the
       attempted murder sentence. It is thus apparent that defendant’s sentences of 25 and 10 years’
       imprisonment were less than required by the statute.

                                                    -5-
¶ 20       However, our inquiry does not end here. In People v. Avery, 2012 IL App (1st)
       110298, ¶ 39, appeal denied, No. 114840 (Ill. Nov. 28, 2012) this court found that when the
       supreme court decided White, it announced a new rule of law prior to which there was
       confusion as to whether the State could negotiate pleas that did not include the firearm
       enhancement for first degree murder, even where the use of a firearm is noted in the factual
       basis for the pleas. As such, we found that White did not apply retroactively to defendant’s case
       on collateral review since his conviction was finalized before the White decision. Id. ¶ 46.
¶ 21       In reaching that conclusion, this court conducted the three-step analysis set forth in Teague
       v. Lane, 489 U.S. 288 (1989). This requires the reviewing court to determine the date upon
       which defendant’s conviction became final, whether the constitutional rule sought by
       defendant existed when the conviction became final, and if the rule is new, whether it falls
       within one of the two exceptions to the Teague doctrine, i.e., it places an entire category of
       primary conduct beyond the reach of criminal law or requires the observance of those
       procedures that are implicit in the concept of ordered liberty. Avery, 2012 IL App (1st) 110298,
       ¶¶ 31-34. Applying that analysis, this court noted that defendant’s conviction had been
       finalized before the supreme court decided White and that White announced a new rule of law
       because prior to that decision, there was a lack of clarity as to whether the State could negotiate
       pleas that did not include the firearm enhancement for first degree murder. Id. ¶¶ 36, 39-40.
               “In that respect, we note that prior to the decision in White, there was confusion as to
               whether the State could, in its discretion, negotiate pleas that did not include the
               firearm enhancement for first degree murder, even where the factual basis for the plea
               included the use of a firearm in the commission of the offense, since it was within the
               State’s discretion to determine what charges to pursue.” Id. ¶ 39.
¶ 22       The Avery court noted that this “lack of clarity” was evident in the defendant’s direct
       appeal in which he raised the same argument that his sentence was void. On direct appeal, we
       held that his sentence was not void and that it was the understanding of the parties as part of the
       negotiated plea not to include the firearm enhancement. Id.
¶ 23       This court then found that White did not legalize an entire category of primary, private
       individual conduct as required under the first Teague exception, and further, that the rule in
       White only affects the enhancement of a defendant’s sentence and not the integrity or
       reputation of the judicial system. Id. ¶¶ 42, 46. “ ‘[A] rule that only affects the enhancement of
       a defendant’s sentence does not amount to an error which seriously affects the fairness,
       integrity or public reputation of judicial proceedings so as to fall within the second Teague
       exception requiring retroactivity in all cases.’ ” Id. ¶ 43 (quoting People v. Morris, 236 Ill. 2d
       345, 363 (2010)).
¶ 24       Accordingly, we concluded that White did not apply retroactively to the defendant’s case.
       Id. ¶ 46. We find the reasoning in Avery sound and likewise hold that White does not apply
       retroactively to this case.
¶ 25       In reaching this conclusion, we have examined People v. Cortez, 2012 IL App (1st)
       102184, cited by defendant and find his reliance to be misplaced. In Cortez, defendant argued,
       for the first time on appeal, that his negotiated plea was based on an unlawful promise to grant

                                                    -6-
       double custody credit, and, therefore, was void. Id. ¶¶ 7, 17. This court agreed and remanded
       his cause for further proceedings. Id. ¶ 23.
¶ 26       In so concluding, we observed that White’s central holding was that a sentence not
       authorized by statute is void, and found, contrary to the State’s argument, that White did not
       create a new rule by eliminating the State’s discretion in seeking to include the firearm
       enhancement. Id. ¶ 16. In a footnote, however, we clarified that our opinion in Cortez was not
       contrary to Avery in that it did not concern the first degree murder firearm enhancement, and
       relied on White only for the well-established general principles concerning void sentences and
       void plea agreements. Id. ¶ 16 n.1.
¶ 27       In his reply brief, defendant takes issue with this “narrow” interpretation, and asserts,
       relying on the dissent in Cortez, that Avery cannot be so easily dismissed based on addressing a
       different charge than the one at issue, explaining that the holding in White does not “morph
       depending on the context.” He maintains that reviewing courts have long held that when
       parties enter into a plea agreement that results in a void sentence, the sentence must be vacated
       and the plea must be withdrawn, and that White affirmed these long-standing principles, and as
       such, did not announce a new rule.
¶ 28       Cortez, on the other hand, did not involve the issue presented here and addressed in Avery,
       namely, whether the parties can negotiate around the statutory firearm enhancement
       requirements during plea proceedings. Cortez is thus factually inapposite as it dealt with the
       issue of whether a plea bargain based on an unlawful promise to grant double custody credit
       was void. Id. ¶ 19.
¶ 29       As in Avery, we are compelled to conclude that White did announce a new rule. Prior to the
       decision in White, there was confusion as to whether the State could, in its discretion, negotiate
       pleas without the firearm enhancement for first degree murder, even where the factual basis for
       the plea included the use of a firearm in the commission of the offense. Avery, 2012 IL App
       (1st) 110298, ¶ 39.
¶ 30       Here, we note that the offenses for which defendant entered a plea of guilty took place on
       June 6, 2000, approximately six months after the firearm enhancement provision took effect.
       See Pub. Act 91-404 (eff. Jan. 1, 2000) (adding 720 ILCS 5/8-4(c)(1)(B), (C), (D), and 730
       ILCS 5/5-8-1(a)(1)(d)). However, the plea hearing took place four years after the enactment
       became effective. The defendant and the prosecutor reached an agreement without the
       mandatory enhancement for both the first degree murder and attempted murder counts. At the
       plea proceeding, the factual basis included a statement that defendant fired a gun into a crowd
       of people. In light of this, the attorneys and the trial judge agreed that the sentences were
       appropriate in this case. The record thus shows that there was confusion four years after the
       enactment as to the mandatory nature of the firearm enhancement when the parties had
       engaged in plea bargaining.
¶ 31       We acknowledge that other districts have disagreed with Avery. In People v. Smith, 2013
       IL App (3d) 110738, appeal allowed, No. 116572 (Ill. Nov. 27, 2013), the Third District
       disagreed with Avery and concluded that White did not create a new rule of law. There, the
       defendant pled guilty to first degree murder in exchange for a sentence of 30 years. At the plea
       hearing, the trial court advised the defendant that the State was withdrawing its notice of intent
                                                    -7-
       to seek a firearm enhancement of 25 years. Id. ¶ 3. The reviewing court held that the
       defendant’s sentence was void for failing to comply with the mandatory sentencing
       enhancement and remanded to the trial court to allow the defendant to withdraw his guilty plea.
       Id. ¶ 14.
¶ 32       However, the Smith authoring justice observed that while “the law compels this result,” he
       was “less than satisfied with the result.” Id. ¶ 15.
               “Therefore, because the State failed to amend the indictment and rephrase the factual
               basis of the plea to conform to what clearly was the agreement of the parties, this
               sentence is void; because it is void, this sentence can be attacked at any time. This
               scenario raises the spectre of some real mischief that might be lurking in the bushes.
               We have no idea how many other such void sentences based upon knowing agreements
               between the State and defendants are out there. It seems reasonable to assume that there
               are a number of them. A defendant incarcerated under such an agreement can wait until
               he knows that a key witness or witnesses have disappeared and then raise this argument
               in a postconviction petition, knowing that the State’s chances of convicting him of the
               offense to which he pled guilty are greatly reduced, if not totally obviated. This does
               not seem like a happy circumstance.” Id.
¶ 33       Although the reviewing court in Smith did not agree with the conclusion reached in Avery,
       we observe that Smith supports the conclusion that White announced a new rule because more
       than 10 years after the enactment of the mandatory firearm enhancement, trial courts,
       prosecutors, and defense attorneys believed that plea agreements could be entered into in
       which the enhancement was not included as part of the sentence. That confusion existed within
       multiple appellate districts in the state, as shown in the instant case and in Smith until White
       was decided.
¶ 34       In People v. Hubbard, 2012 IL App (2d) 120060, ¶ 17 n.1, the Second District stated in
       dicta in a footnote that it would “suggest” that the holding in White follows from Arna and that
       the holding in White is retroactive, but that it did not need to decide the matter because it did
       not apply White in granting relief. There, the defendant pled guilty to aggravated criminal
       sexual assault after having previously been convicted of predatory criminal sexual assault.
       Defendant was then eligible for natural life imprisonment under the recidivist provision in
       section 12-14(d)(2) of the Criminal Code of 1961 (720 ILCS 5/12-14(d)(2) (West 2004)), but
       received a sentence of 47.5 years on his guilty plea. Hubbard, 2012 IL App (2d) 120060, ¶ 1.
       In a petition filed pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS
       5/2-1401 (West 2010)), defendant contended that his sentence was void because section
       12-14(d)(2) required a sentence of natural life. Hubbard, 2012 IL App (2d) 120060, ¶¶ 9-13. In
       affirming the defendant’s 47.5-year sentence, the reviewing court distinguished this case from
       White, wherein the State did not present the defendant’s prior conviction at the formal plea
       hearing as an aggravating factor. Id. ¶ 22. The Hubbard court reasoned that this decision by the
       State was a valid element of effective plea bargaining. Id. ¶ 24.
¶ 35       We find the instant appeal indistinguishable from Avery, and thus conclude that the ruling
       in White does not apply retroactively to this case on collateral review and that defendant’s
       convictions and sentences must stand.
                                                     -8-
¶ 36        Further, even if White was not a new rule of law, defendant’s argument would not succeed
       because he is estopped from raising a belated challenge to his plea agreement when the error
       was to his benefit. “[A] reviewing court ‘can sustain the decision of a lower court for any
       appropriate reason, regardless of whether the lower court relied on those grounds and
       regardless of whether the lower court’s reasoning was correct.’ ” People v. Johnson, 208 Ill. 2d
       118, 129 (2003) (quoting People v. Novak, 163 Ill. 2d 93, 101 (1994)).
¶ 37        In Illinois, plea agreements are encouraged and are considered “vital to and highly
       desirable for our criminal justice system.” People v. Evans, 174 Ill. 2d 320, 325 (1996).
       “Although plea agreements exist in the criminal justice structure, they are governed to some
       extent by contract law principles.” Evans, 174 Ill. 2d at 326. “Absent due process concerns, the
       validity of a plea agreement is generally governed by contract law.” People v. Bannister, 236
       Ill. 2d 1, 9 (2009). “ ‘[W]hen a plea rests in any significant degree on a promise or agreement
       of the prosecutor, so that it can be said to be part of the inducement or consideration, such
       promise must be fulfilled.’ ” People v. Hughes, 2012 IL 112817, ¶ 68 (quoting Santobello v.
       New York, 404 U.S. 257, 262 (1971)). “The principal inquiry, in that respect, is whether the
       defendant has received the benefit of his bargain.” People v. Donelson, 2013 IL 113603, ¶ 19
       (citing Hughes, 2012 IL 112817, ¶ 69).
¶ 38        In Donelson, the supreme court considered a situation in which a defendant received a
       lesser concurrent sentence rather than a required consecutive sentence under the relevant
       sentencing statute. The Donelson court observed that both the State and the defendant were
       mistaken in their belief that the defendant’s sentences could be imposed to run concurrently.
       “However, pursuant to contract principles, contracting parties’ mutual mistake may be
       rectified by recourse to contract reformation (Czarobski v. Lata, 227 Ill. 2d 364, 371-72
       (2008)), where they are in actual agreement and their true intent may be discerned
       (Wheeler-Dealer, Ltd. v. Christ, 379 Ill. App. 3d 864, 869 (2008)).” Donelson, 2013 IL
       113603, ¶ 20. The supreme court detailed the procedural history of defendant’s case and found
       his claim that he negotiated for specific sentences to “ring[ ] hollow.” The court concluded that
       the defendant’s plea could be fulfilled and remanded to the trial court for resentencing in
       accordance with the plea agreement and applicable statutes. Donelson, 2013 IL 113603,
       ¶¶ 28-29.
¶ 39        Here, defendant voluntarily pled guilty for the agreed-upon sentence of 35 years, but now,
       nearly a decade after his plea was entered, he asserts that his sentence was improper because he
       should have received a sentence with the firearm enhancement, which would have subjected
       him to a minimum sentence of 76 years, with the 25-year enhancement on both convictions.
       Defendant has received the benefit of his plea agreement, a significantly lower sentence. The
       State benefitted from the plea agreement by being spared the time and expense of trial.
       Defendant is now assuming a position contrary to his agreement in his guilty plea in order to
       receive a benefit by withdrawing his guilty plea in hopes of obtaining a favorable result.
       Moreover, while defendant has received the benefit of a lesser prison sentence, if he were
       permitted to withdraw his plea at this stage, the State could be subjected to hardship on remand
       for trial since over 13 years have elapsed from the date of the offenses. Unlike Donelson,
       defendant’s negotiated sentence is unable to be reformed, but we conclude the doctrine of
                                                   -9-
       estoppel should prohibit defendant from challenging a sentence after he has already received
       the benefit of a more lenient sentence.
¶ 40       In Illinois, “[t]he doctrine of judicial estoppel prohibits a party from assuming a position in
       a legal proceeding that is contrary to a position it held in a prior legal proceeding.” Dumke v.
       City of Chicago, 2013 IL App (1st) 121668, ¶ 31; see also People v. Caballero, 206 Ill. 2d 65,
       80 (2002). “It is designed to promote the truth and to protect the integrity of the court system
       by preventing litigants from deliberately shifting positions to suit the exigencies of the
       moment.” Bidani v. Lewis, 285 Ill. App. 3d 545, 550 (1996). “The doctrine of judicial estoppel
       rests not upon due process concerns, but ‘upon public policy which upholds the sanctity of the
       oath and its purpose is to bar as evidence statements and declarations which would be contrary
       to sworn testimony the party has given in the same or previous judicial proceedings.’ ”
       Caballero, 206 Ill. 2d at 80 (quoting Bidani, 285 Ill. App. 3d at 549). The following elements
       are required for the doctrine to apply: (1) the party being estopped must have taken two
       positions; (2) the two positions must be inconsistent; (3) the positions must have been taken in
       separate judicial or quasi-judicial proceedings; (4) the party must have intended for the trier of
       fact to accept the truth of the facts alleged; and (5) the party must have succeeded in asserting
       the first position and received some benefit from it. Caballero, 206 Ill. 2d at 80.
¶ 41       “Estoppel by contract precludes parties to a valid instrument from denying its force and
       effect. However, a void agreement cannot be rendered enforceable by estoppel. Thus, an
       estoppel by simple contract generally cannot be predicated on a void or invalid contract unless,
       according to some authority, it has been fully executed.” 31 C.J.S. Estoppel and Waiver § 71
       (2013).
¶ 42       We are not aware of any Illinois case applying the doctrine of judicial estoppel or estoppel
       by contract to criminal defendants who are challenging sentences that are too lenient many
       years after they have entered into fully negotiated plea agreements. However, courts from
       other jurisdictions have recognized the prejudice to the State under these circumstances and
       have estopped defendants from enjoying the benefits of the negotiated plea agreement while
       simultaneously challenging their validity. See Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004);
       Rhodes v. State, 240 S.W.3d 882, 889 (Tex. Crim. App. 2007); Punta v. State, 806 So. 2d 569,
       571 (Fla. Dist. Ct. App. 2002); Graves v. State, 822 So. 2d 1089, 1092 (Miss. Ct. App. 2002);
       People v. Hester, 992 P.2d 569, 572 (Cal. 2000).
¶ 43       In Lee, the Indiana Supreme Court held that a “defendant ‘may not enter a plea agreement
       calling for an illegal sentence, benefit from that sentence, and then later complain that it was an
       illegal sentence.’ ” Lee, 816 N.E.2d at 40 (quoting Collins v. State, 509 N.E.2d 827, 833 (Ind.
       1987)). There, the defendant had pled guilty to robbery and in exchange for the plea, the State
       dismissed an allegation of habitual offender. After completion of his sentence, he was
       convicted of “dealing in cocaine” and was sentenced to 50 years for the dealing conviction and
       an additional term of 30 years as a habitual offender. The defendant in a postconviction
       petition sought to void his robbery plea agreement asserting that the sentence was void. Lee,
       816 N.E.2d at 37.
                “ ‘[D]efendants who plead guilty to achieve favorable outcomes give up a plethora of
                substantive claims and procedural rights, such as challenges to convictions that would
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               otherwise constitute double jeopardy. Striking a favorable bargain including a
               consecutive sentence the court might otherwise not have the ability to impose falls
               within this category.’ ” Lee, 816 N.E.2d at 40 (quoting Davis v. State, 771 N.E.2d 647,
               649 n.4 (Ind. 2002)).
¶ 44       In Rhodes, the defendant sought to quash an enhancement based on his allegation that a
       prior judgment was void because he had received a concurrent sentence when the relevant
       statute required a consecutive sentence. The Texas Court of Criminal Appeals acknowledged
       two types of estoppel applicable to this situation. “Estoppel by judgment” means “ ‘[o]ne who
       accepts the benefits of a judgment, decree, or judicial order is estopped to deny the validity or
       propriety thereof, or of any part thereof, on any grounds; nor can he reject its burdensome
       consequences.’ ” Rhodes, 240 S.W.3d at 891 (quoting 31 C.J.S. Estoppel and Waiver § 130
       (2006)). The other, estoppel by contract, is “where a party who accepts benefits under a
       contract is estopped from questioning the contract’s existence, validity, or effect.” Rhodes, 240
       S.W.3d at 891. The reviewing court considered cases from other jurisdictions that have
       adhered to the estoppel doctrine and concluded that the reasoning was persuasive. “A
       defendant who has enjoyed the benefits of an agreed judgment prescribing a too-lenient
       punishment should not be permitted to collaterally attack that judgment on a later date on the
       basis of the illegal leniency.” Rhodes, 240 S.W.3d at 892.
¶ 45       As the Mississippi Court of Appeals reasoned in Graves:
               “[A] defendant should not be allowed to reap the benefits of an illegal sentence, which
               is lighter than what the legal sentence would have been, and then turn around and attack
               the legality of the illegal, lighter sentence when it serves his interest to do so. Allowing
               such actions would reap havoc upon the criminal justice system in this state. For
               example, all subsequent convictions and sentences of that defendant which are reliant
               upon the conviction concomitant with the illegal sentence would have to be set aside.
               This would result in a number of enhanced and habitual offender sentences being set
               aside for the very offender who had already enjoyed greater leniency than the law
               allows.” Graves, 822 So. 2d at 1092.
¶ 46       We find this approach to be well reasoned under the facts of this particular case. Here,
       defendant received the benefit of sentences without the 25-year firearm enhancements and he
       should be estopped from challenging a sentence that is too lenient. Defendant reaped the
       benefit of the lesser sentence and waited until more than a decade after the offenses occurred to
       attack his plea agreement with the claim he raises for the first time on appeal. Although courts
       would never hesitate to reduce a sentence entered in excess of statutory requirements, this is
       not such a case. Defendant has not cited, nor has our research disclosed, an Illinois case in
       which a defendant has been permitted to withdraw his plea entered nearly a decade earlier and
       some 13 years after the offenses occurred, because the sentence was not harsh enough. It defies
       logic to suggest that defendant actually wants to serve a longer prison sentence than the
       improper sentence he received without the firearm enhancement. Rather, defendant in this case
       is using the improper sentence as a vehicle to withdraw his guilty plea, 10 years after its entry,
       and go to trial. Defendant’s belated challenge could harm the State because it might endure
       hardship if forced to prosecute the case, given the passage of time and the recollection of
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       witnesses. As the Rhodes court observed, “[i]f he agreed to the concurrent sentencing
       provision, then through his own conduct he helped procure and benefit from the illegality and
       he should not now be allowed to complain.” Rhodes, 240 S.W.3d at 892. The same is true in
       the present case where defendant agreed to and benefitted from the lesser sentence of 35 years
       without the firearm enhancement, which would add at least 25 years to each conviction.
       Therefore, he should be estopped from asserting a contrary stance at this stage to suit his wish
       to withdraw his guilty plea.
¶ 47        We also point out that the defendant is essentially seeking a rescission of his contract with
       the State. Rescission is defined as:
                “ ‘To abrogate, annul, avoid, or cancel a contract; particularly, nullifying a contract by
                the act of a party. The right of rescission is the right to cancel (rescind) a contract upon
                the occurrence of certain kinds of default by the other contracting party. To declare a
                contract void in its inception and to put an end to it as though it never were. [Citation.]
                A “rescission” amounts to the unmaking of a contract, or an undoing of it from the
                beginning, and not merely a termination, and it may be effected by mutual agreement
                of parties, or by one of the parties declaring rescission of contract without consent of
                other if a legally sufficient ground therefor exists, or by applying to courts for a decree
                of rescission.’ ” People v. Elliott, 2012 IL App (5th) 100584, ¶ 17 (quoting Black’s
                Law Dictionary 1306 (6th ed. 1990)).
¶ 48        “ ‘Generally, rescission means the cancelling of a contract so as to restore the parties to
       their initial status.’ ” Horwitz v. Sonnenschein Nath & Rosenthal LLP, 399 Ill. App. 3d 965,
       973 (2010) (quoting Puskar v. Hughes, 179 Ill. App. 3d 522, 528 (1989)). “ ‘One seeking to
       rescind a transaction on the ground of fraud or misrepresentation must elect to do so promptly
       after learning of the fraud or misrepresentation, must announce his purpose and must adhere to
       it.’ ” Freedberg v. Ohio National Insurance Co., 2012 IL App (1st) 110938, ¶ 27 (quoting
       Mollihan v. Stephany, 35 Ill. App. 3d 101, 103 (1975)). “ ‘An unreasonable delay in taking the
       necessary steps to set aside a fraudulent contract will have the effect of affirming it.’ ” Id.
       (quoting Illinois State Bar Ass’n Mutual Insurance Co. v. Coregis Insurance Co., 355 Ill. App.
       3d 156, 165 (2004)).
¶ 49        Here, defendant delayed nearly ten years from the entry of his guilty plea to seek to
       withdraw his plea because the lenient sentence does not comport with statutory guidelines. In
       essence, defendant is seeking to rescind his guilty plea as though it never existed and proceed
       with the case. However, the State, as the other party to the plea agreement, who has honored
       the plea agreement terms, cannot be restored to the same position because of the possibility
       that witnesses’ recollection may have faded or witnesses may be unable to testify after the
       passage of time. Further, defendant is not alleging any fraud or misrepresentation by the State
       in his plea agreement. Defendant has not raised any allegations that his plea was involuntary or
       unknowing. In fact, defendant received the benefit of the bargain regarding the agreed-to
       sentence. In essence, he is seeking to withdraw his plea because he was not punished enough,
       which should not, under these particular facts, be a basis to rescind the plea agreement.
       Defendant wants to begin anew because the agreed sentence is less than what is statutorily

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       required. Thus, defendant has not set forth a legally sufficient basis to rescind his plea
       agreement.
¶ 50       We acknowledge the finding in People v. Arna, 168 Ill. 2d 107, 113 (1995), that “[a]
       sentence which does not conform to a statutory requirement is void.” But Arna presented a
       different situation in which a defendant improperly received concurrent sentences instead of
       consecutive sentences after a trial and the appellate court corrected this error on direct appeal,
       which the supreme court affirmed. Arna, 168 Ill. 2d at 112-13. Further, the defendant in White
       essentially sought a rescission of his plea agreement when he filed a motion to withdraw his
       guilty plea within 30 days of its entry. White, 2011 IL 109616, ¶ 9. In contrast, the parties in the
       instant case entered into a plea agreement and defendant benefitted from a more lenient
       sentence for nearly a decade before seeking to rescind the plea agreement. Defendant’s
       unreasonable delay in seeking a remedy should preclude him from what amounts to a
       rescission of the plea agreement.
¶ 51       In light of the foregoing, we affirm the order of the circuit court of Cook County denying
       defendant’s petition for postconviction relief after an evidentiary hearing.

¶ 52      Affirmed.




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