                                                                                   FILED
                                    2016 IL App (4th) 140759                   September 30, 2016
                                                                                   Carla Bender
                                          NO. 4-14-0759                        4th District Appellate
                                                                                     Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,                       )   Appeal from
            Plaintiff-Appellee,                             )   Circuit Court of
            v.                                              )   Woodford County
 JAMES E. CASHAW,                                           )   No. 05CF159
            Defendant-Appellant.                            )
                                                            )   Honorable
                                                            )   Charles M. Feeney, III,
                                                            )   Judge Presiding.


               JUSTICE STEIGMANN delivered the judgment of the court.
               Justices Turner and Pope concurred in the judgment and opinion.

                                            OPINION

¶1             In March 2006, a jury convicted defendant, James E. Cashaw, of criminal sexual

assault, after which the trial court imposed a 12-year prison sentence and a $200 domestic-

violence fine. Defendant did not challenge the fine on direct review. In the years that followed,

defendant initiated multiple collateral attacks on his conviction, none of which challenged the

domestic-violence fine.

¶2             In May 2014, defendant filed a motion for leave to file a successive

postconviction petition, which the trial court later denied. On appeal, defendant for the first time

challenges his domestic-violence fine. He argues that because the fine was not authorized by

statute, it is void under the “void-sentence rule.” Defendant acknowledges that in People v. Cas-

tleberry, 2015 IL 116916, 43 N.E.3d 932, the supreme court abolished the void-sentence rule,

but he contends that Castleberry does not apply “retroactively” to his case. We disagree with de-
fendant and conclude that Castleberry applies to this appeal. As a result, we honor defendant’s

forfeiture of his claim and affirm his sentence.

¶3                                      I. BACKGROUND

¶4                After a March 2006 trial, the jury found defendant guilty of criminal sexual as-

sault (720 ILCS 5/12-13(a)(1) (West 2004)). The trial court later sentenced him to 12 years in

prison and imposed a $200 domestic-violence fine. This court affirmed defendant’s conviction

on direct appeal. People v. Cashaw, No. 4-06-0427 (Mar. 11, 2008) (unpublished order under

Supreme Court Rule 23). Defendant did not challenge the propriety of the domestic-violence fine

in that appeal.

¶5                Defendant then initiated the following series of postconviction actions, all of

which were unsuccessful, and none of which challenged the domestic-violence fine. Specifically,

in May 2008, defendant filed a petition pursuant to the Post-Conviction Hearing Act (725 ILCS

5/122-1 to 122-7 (West 2008)). The trial court dismissed that petition. In October 2008, defend-

ant filed a second postconviction petition. The court granted the State’s motion to dismiss, and

this court affirmed on appeal. People v. Cashaw, No. 4-09-0425 (Mar. 1, 2010) (unpublished or-

der pursuant to Supreme Court Rule 23). In December 2010, defendant filed a petition for relief

from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West

2010)). The trial court dismissed that petition, and this court affirmed on appeal. People v.

Cashaw, No. 4-11-0167 (Apr. 11, 2012) (unpublished summary order under Supreme Court Rule

23(c)(2)).

¶6                In May 2014, defendant filed a motion for leave to file a successive

postconviction petition, which is the subject of this appeal. The motion alleged ineffective assis-

tance of counsel. The trial court denied the motion, concluding that the motion established nei-



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ther cause nor prejudice.

¶7              This appeal followed.

¶8                                         II. ANALYSIS

¶9              Defendant argues, for the first time at any stage of these protracted proceedings,

that his $200 domestic-violence fine must be vacated. According to defendant, the trial court did

not have statutory authorization to impose that fine; therefore, he argues, the fine is void and may

be attacked at any time.

¶ 10            The State concedes that the trial court lacked statutory authorization to impose the

fine but argues that under Castleberry, the fine is not void and therefore cannot be challenged for

the first time at this stage of the proceedings.

¶ 11            Defendant agrees with the State that under Castleberry, the domestic-violence

fine in this case is not void and cannot be challenged in this appeal. However, defendant notes

that Castleberry was decided after the conclusion of defendant’s appeal of his criminal convic-

tion and sentence. He argues that, therefore, Castleberry does not automatically apply “retroac-

tively” to these collateral proceedings. As a result, defendant asks us to hold that Castleberry is

inapplicable to this appeal—meaning that the “void-sentence rule” abolished by Castleberry still

applies in full force to defendant’s sentence—and to vacate the domestic-violence fine as void.

¶ 12            To resolve this appeal, we must decide the following issue of law: whether the

holding of Castleberry may be applied in a collateral proceeding when the defendant is attacking

a sentence imposed in an underlying case that concluded prior to Castleberry—in short, whether

Castleberry applies “retroactively.” We conclude that Castleberry does apply under those cir-

cumstances.




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¶ 13                    A. Forfeiture and the Post-Conviction Hearing Act

¶ 14           The Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2014)) pro-

vides a procedural vehicle under which a convicted criminal defendant imprisoned in the peni-

tentiary may allege that “in the proceedings which resulted in his or her conviction there was a

substantial denial of his or her rights under the Constitution of the United States or of the State of

Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2014). A defendant may raise an issue in an ini-

tial postconviction petition only if that issue both was not and could not have been raised and

decided on direct appeal. People v. Blair, 215 Ill. 2d 427, 443, 831 N.E.2d 604, 664-65 (2005).

Otherwise, the issue is forfeited.

¶ 15           In this case, defendant did not raise his claim about his domestic-violence fine in

the trial court. See People v. Hanson, 2014 IL App (4th) 130330, ¶¶ 14-16, 25 N.E.3d 1. He then

forfeited that claim by failing to raise it on direct review. The facts underlying the claim were

contained within the record, and therefore, the issue could have been addressed by the appellate

court on direct review. Defendant also did not raise this claim in his initial postconviction peti-

tion.

¶ 16           To file a successive postconviction petition containing new issues, a defendant

must first obtain “leave of court.” 725 ILCS 5/122-1(f) (West 2014). Leave may be granted only

when the defendant “demonstrates cause for his or her failure to bring the claim in his or her ini-

tial post-conviction proceedings and prejudice results from that failure.” Id. In this case, defend-

ant does not attempt to establish the cause demanded by section 122-1(f) of the Post-Conviction

Hearing Act.

¶ 17           Defendant concedes that he has forfeited this claim over and over again, but unde-

terred, he asks to pursue his challenge to the $200 fine under the “void-sentence rule.” (We can



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only speculate as to the value of the state resources wasted regarding the present action, not to

mention the myriad other proceedings spawned from defendant’s 2006 conviction.)

¶ 18                        B. The Void-Sentence Rule and Castleberry

¶ 19           In Illinois, a judgment rendered by a court lacking jurisdiction is “void.” Castle-

berry, 2015 IL 116916, ¶ 11, 43 N.E.3d 932. A void judgment may be attacked “at any time or in

any court, either directly or collaterally.” Sarkissian v. Chicago Board of Education, 201 Ill. 2d

95, 103, 776 N.E.2d 195, 201 (2002).

¶ 20           Generally, jurisdiction is conceived of as comprising two elements: personal ju-

risdiction and subject-matter jurisdiction. Castleberry, 2015 IL 116916, ¶ 12, 43 N.E.3d 932.

However, in addition, until recently, Illinois courts sometimes acknowledged a third jurisdiction-

al element: the court’s “power to render the particular judgment or sentence.” People v. Davis,

156 Ill. 2d 149, 156, 619 N.E.2d 750, 754 (1993). That third element gave birth to the “void-

sentence rule,” which provided that “[a] sentence which does not conform to a statutory require-

ment is void.” People v. Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445, 448 (1995) (abrogated by

Castleberry). Under the void-sentence rule, defendants could, at any time, challenge their sen-

tences as void because they were not authorized by statute, thereby bypassing the normal rules of

forfeiture. See, e.g., People v. Thompson, 209 Ill. 2d 19, 805 N.E.2d 1200 (2004) (allowing a

challenge to a sentence as void to be raised for the first time in an appeal from the denial of a

postconviction petition).

¶ 21            In Castleberry, the supreme court abolished the void-sentence rule. Castleberry,

2015 IL 116916, ¶¶ 17-19, 43 N.E.3d 932. In so doing, the court reasoned that the original juris-

diction of circuit courts is granted by the Illinois Constitution, not by statute. Id. ¶ 18; Ill. Const.

1970, art. VI, § 9 (“Circuit Courts shall have original jurisdiction of all justiciable matters ***.”)



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Therefore, a circuit court’s failure to comply with a statutory requirement cannot affect the

court’s original jurisdiction. Castleberry, 2015 IL 116916, ¶ 18, 43 N.E.3d 932. The Castleberry

court thus did away with the idea of the third, “inherent power” element of jurisdiction. Id. Un-

der Castleberry, a criminal sentence is not void for lacking statutory authorization.

¶ 22                               C. Retroactivity and Teague

¶ 23           In this case, defendant acknowledges that Castleberry abolished the void-sentence

rule. However, citing Teague v. Lane, 489 U.S. 288 (1989), defendant argues that Castleberry

does not apply “retroactively” to this appeal.

¶ 24           While a case is being tried and until direct review of the case is completed, any

new judicially declared rules apply to the case on direct review. Griffith v. Kentucky, 479 U.S.

314, 322 (1987) (“failure to apply a newly declared constitutional rule to criminal cases pending

on direct review violates basic norms of constitutional adjudication”) (abolishing the “clean-

break rule” and holding that new, judicially declared rules apply to all cases pending on direct

review); Deichmueller Construction Co. v. Industrial Comm’n, 151 Ill. 2d 413, 416, 603 N.E.2d

516, 518 (1992) (“In general, judicial decisions are given retroactive as well as prospective ef-

fect.”).

¶ 25           However, when we ask whether new, judicially declared rules ought to apply in

collateral proceedings challenging a conviction that has already been finalized, we encounter a

more complicated answer. By “final,” we mean a judgment occurring in a case in which the

available methods for direct review have been exhausted. For instance, if a guilty plea is entered

and no postplea motion is filed, the trial court loses jurisdiction after 30 days. The case is then

final, and any attack on the judgment must be made through collateral proceedings by filing, for

example, a postconviction petition or a petition for relief from judgment under section 2-1401 of



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the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)).

¶ 26           New, judicially declared rules of criminal law that are substantive in nature gen-

erally apply retroactively to already final convictions. Schriro v. Summerlin, 542 U.S. 348, 351

(2004). That means that a defendant may file a collateral attack on his conviction utilizing the

new rule.

¶ 27           New rules of criminal procedure, however, generally do not apply retroactively to

final convictions, meaning that those rules cannot be utilized in a postconviction petition attack-

ing a conviction that became final prior to the announcement of the new rule. Id. at 352. Only

those “watershed rules of criminal procedure”—those that implicate “the fundamental fairness

and accuracy of the criminal proceeding”—apply retroactively to an already final conviction.

(Internal quotation marks omitted.) Id.

¶ 28           Although Teague and its progeny apply only to federal habeas corpus proceed-

ings, Illinois has adopted the Teague rule to govern retroactivity in State law collateral proceed-

ings. In People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674 (1990), the supreme court first

acknowledged that the holding of Teague applied only to federal habeas corpus proceedings.

(That principle was later confirmed and expounded upon by the Supreme Court of the United

States in Danforth v. Minnesota, 552 U.S. 264, 278-79 (2008); see also People v. Davis, 2014 IL

115595, ¶¶ 33-35, 6 N.E.3d 709 (discussing Teague’s application to Illinois state-law collateral

proceedings).) However, the Flowers court found the Teague holding “helpful and concise” and

therefore adopted it to determine whether a new rule should apply to proceedings pursuant to the

Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2014)). Flowers, 138 Ill. 2d at

237-39, 561 N.E.2d at 681-82; see also People v. Smith, 2015 IL 116572, 26 N.E.3d 335 (con-

firming that Teague applies to state collateral proceedings and engaging in a Teague retroactivity



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analysis).

¶ 29                          D. People v. Smith and People v. Stafford

¶ 30           In People v. Smith, 2016 IL App (1st) 140887, 51 N.E.3d 848, the Appellate

Court, First District, recently held that Castleberry does not apply retroactively to finalized con-

victions. In Smith the defendant filed a motion for leave to file a successive postconviction peti-

tion, which the trial court denied. Id. ¶ 2. Defendant appealed and argued for the first time that

the extended-term portion of his sentence was unauthorized by statute and therefore void. Id.

¶ 12. After the defendant filed his appellate brief, and while his case was still pending in the ap-

pellate court, the supreme court decided Castleberry. Id. ¶ 20. The First District was therefore

tasked with determining whether to apply the holding of Castleberry to the pending appeal in

that collateral proceeding.

¶ 31           The Smith court began its analysis by describing the issue as one of “retroactivi-

ty,” which Teague and its progeny controlled. Id. ¶ 24. Seeking to apply Teague, the Smith court

set out to determine whether Castleberry announced a “new rule” of criminal procedure.

Id. ¶¶ 27-29. The court concluded that “Castleberry did not announce a new rule, but merely

abolished [the void-sentence rule] stated in Arna, thereby reinstating the rule in effect before

Arna.” Id. ¶ 29. The court then concluded that because Castleberry did not establish a “new

rule,” its holding could not be applied retroactively to the defendant’s appeal. Id. ¶ 30. Thus, the

court concluded that “Castleberry only applies prospectively from the date of pronouncement,

November 15, 2015.” Id.

¶ 32           More recently, this court decided People v. Stafford, 2016 IL App (4th) 140309,

which disagreed with Smith and held that Castleberry does apply retroactively in collateral pro-

ceedings. The Stafford court cited Smith and agreed with its initial determination that Castleberry



                                                -8-
did not establish a “new rule” but instead abolished the void-sentence rule and reinstated the rule

in existence before Arna. Id. ¶ 33. However, the Stafford court concluded that because the hold-

ing of Castleberry was not a “new rule,” the holding should apply retroactively. Id. See also

People v. Morrison, 2016 IL App (4th) 140712, ¶ 24, where this court recently cited Stafford ap-

provingly.

¶ 33           We agree with the ultimate holding of Stafford that Castleberry applies retroac-

tively to collateral proceedings in which a petitioner seeks to challenge a conviction that became

finalized prior to the supreme court’s decision in Castleberry because Castleberry did not create

a new rule. We also find an alternative basis to support Castleberry’s retroactivity, discussed be-

low.

¶ 34           We note that in reaching its decision in Smith, the Appellate Court, First District,

stated the following: “Although the State was given the opportunity to explain how or why Cas-

tleberry applies to the issue presently before this court, the State has failed to do so both in their

brief and in oral argument.” Smith, 2016 IL App (1st) 140887, ¶ 23, 51 N.E.3d 848. Fortunately

for this court, the State has provided persuasive argument and authority to explain why Castle-

berry applies retroactively, which we find convincing for the foregoing reasons set forth below.

As a result, we explicitly disagree with the holding of Smith.

¶ 35                          E. Teague Does Not Control This Case

¶ 36           The Teague retroactivity analysis applies to solve the following specific inquiry:

whether a (1) judicially announced, (2) new rule (3) that is favorable to the defendant should ap-

ply (4) in collateral proceedings (5) challenging a judgment in a criminal case that concluded

prior to the announcement of the new rule.

¶ 37           Here, the third element is the most glaring problem preventing the application of



                                                -9-
Teague. Teague is a “one-way street” (Free v. Peters, 12 F.3d 700, 703 (1993)) in that it applies

only when a defendant seeks to overturn his conviction by retroactively applying a new rule that

is favorable to him. This limitation stems from the purpose of Teague: to protect the State and

society’s interest in the finality of criminal convictions. Teague, 489 U.S. at 309 (“Application of

constitutional rules not in existence at the time a conviction became final seriously undermines

the principle of finality which is essential to the operation of our criminal justice system.”).

¶ 38           Under Teague, the State, not the petitioner, may object to the application of a new

rule to an old, concluded case. See People v. Granados, 172 Ill. 2d 358, 365, 666 N.E.2d 1191,

1194 (1996) (not applying Teague to determine whether a new rule unfavorable to defendant ap-

plied retroactively to the pending appeal in a postconviction proceeding and describing the

Teague rule as one that applies to determine the retroactivity of “a new constitutional rule of

criminal procedure that is favorable to the defendant” (emphasis added)).

¶ 39           In this case, defendant turns Teague on its head. He seeks to prevent the applica-

tion of a new rule to an old case, but he seeks to do so in order to apply the old rule to disturb the

finality of a judgment. That is not the function of Teague. A defendant cannot rely on the frame-

work of Teague to argue that a new rule should not apply, when the defendant is seeking to over-

turn an old judgment. As the Supreme Court explained in Lockhart v. Fretwell, 506 U.S. 364,

372 (1993), the retroactivity rule of Teague “was motivated by a respect for the State’s strong

interest in the finality of criminal convictions.” A petitioner attempting to overturn his conviction

“has no interest in the finality of the state-court judgment under which he is incarcerated.” Id. at

373. Because of that difference in interests, “the State will benefit from our Teague decision in

some federal habeas cases, while the habeas petitioner will not.” Id. “This result is not *** a

‘windfall’ for the State, but instead is a perfectly logical limitation of Teague to the circumstanc-



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es which gave rise to it. Cessante ratione legis, cessat et ipsa lex. [Where the reason for the law

ceases, the law itself should also cease.]” Id. Accordingly, Teague cannot be used as the defend-

ant attempts to use it here: to overturn an already final judgment by utilizing old law that has

since changed.

¶ 40             As a result, Castleberry applies, the domestic-violence fine is not void, and de-

fendant has forfeited his claim that the fine was unauthorized by statute. We therefore affirm the

imposition of the domestic-violence fine.

¶ 41                                    III. CONCLUSION

¶ 42             For the foregoing reasons, we affirm the trial court’s judgment.

¶ 43             As part of our judgment, we award the State its $50 statutory assessment against

defendant as costs of this appeal. 55 ILCS 5/4-2002 (West 2014).

¶ 44             Affirmed.




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