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                                  Supreme Court                              Date: 2017.07.13
                                                                             10:09:43 -05'00'




                            People v. Price, 2016 IL 118613




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court:               DAMEN PRICE, Appellee.



Docket No.           118613



Filed                December 30, 2016
Rehearing denied     March 27, 2017



Decision Under       Appeal from the Appellate Court for the First District; heard in that
Review               court on appeal from the Circuit Court of Cook County, the Hon.
                     Steven J. Goebel, Judge, presiding.



Judgment             Appellate court judgment reversed.
                     Circuit court judgment affirmed.


Counsel on           Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
Appeal               State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz,
                     Veronica Calderon Malavia, Eric Leafblad, and Annette Collins,
                     Assistant State’s Attorneys, of counsel), for the People.

                     Michael J. Pelletier, State Appellate Defender, Patricia Mysza, Deputy
                     Defender, and Todd T. McHenry, Assistant Appellate Defender, of the
                     Office of the State Appellate Defender, for appellee.
     Justices                 JUSTICE THEIS delivered the judgment of the court, with opinion.
                              Chief Justice Karmeier and Justices Freeman, Thomas, Garman, and
                              Burke concurred in the judgment and opinion.
                              Justice Kilbride specially concurred, with opinion.



                                                OPINION

¶1         Defendant, Damen Price, filed a pro se petition for relief from judgment under section
       2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), arguing that his
       natural life sentence for first degree murder was void. The trial court dismissed the petition.
       The appellate court reversed the dismissal and remanded for resentencing. 2014 IL App (1st)
       130037-U, ¶ 31. In light of our decision in People v. Castleberry, 2015 IL 116916, in which we
       abolished the so-called “void sentence rule,” we reverse the judgment of the appellate court
       and affirm the judgment of the trial court dismissing defendant’s petition.

¶2                                           BACKGROUND
¶3          In November 1996, following a jury trial in the circuit court of Cook County, defendant
       was convicted of aggravated arson and the first degree murder of 4-year-old Curtis Jones, Jr.,
       who died in the fire. Defendant had requested separate verdict forms for the various theories of
       murder charged by the State (intentional, knowing, and felony murder), but the trial court
       denied that request. The jury thus returned a general verdict of guilty of first degree murder and
       aggravated arson. The same jury found defendant death-penalty eligible but determined he
       should not be sentenced to death. The trial court sentenced defendant to a term of natural life
       imprisonment for murder and a consecutive term of 30 years’ imprisonment for aggravated
       arson. The appellate court affirmed defendant’s conviction and sentence. People v. Price, 303
       Ill. App. 3d 1101 (1999) (table) (unpublished order under Supreme Court Rule 23).
¶4          In April 2000 and again in February 2003, defendant unsuccessfully pursued relief under
       the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2002)). Thereafter, in
       September 2010, defendant sought relief from judgment under section 2-1401 of the Code of
       Civil Procedure (735 ILCS 5/2-1401 (West 2010)), again without success. Defendant did not
       challenge, on direct review or on collateral review, the trial court’s denial of his request for
       separate verdict forms.
¶5          In February 2012, defendant filed his second pro se petition under section 2-1401, which is
       the subject of this appeal. Defendant recognized that section 2-1401 petitions must be filed
       “not later than 2 years after the entry of the order or judgment” (735 ILCS 5/2-1401(c) (West
       2012)) but asserted that the statutory time bar did not apply because he was seeking relief from
       judgment on “voidness grounds.” See 735 ILCS 5/2-1401(f) (West 2012). Defendant argued
       that under People v. Smith, 233 Ill. 2d 1 (2009), the trial court erred in denying his request for
       separate verdict forms and therefore “lacked the power and authority to render judgment.”
       Defendant maintained that the appropriate remedy was to interpret the jury’s general verdict as
       a verdict on felony murder and remand for resentencing. Although the trial court appointed
       counsel for defendant, the court allowed him to proceed pro se, upon defendant’s request. The


                                                   -2-
       trial court granted the State’s motion to dismiss defendant’s petition, agreeing with the State
       that the underlying judgment was not void and Smith did not apply retroactively on collateral
       review.
¶6          The appellate court reversed and remanded for resentencing on felony murder alone. 2014
       IL App (1st) 130037-U, ¶ 31. The appellate court first rejected the State’s argument that
       defendant’s section 2-1401 petition was time-barred. The appellate court explained that
       defendant claimed “his sentence of natural life imprisonment was not authorized by statute and
       is therefore void” and “[w]hen a defendant challenges a void judgment, the two-year limitation
       does not apply.” Id. ¶ 15. On the merits, the appellate court held that the rule regarding special
       verdict forms announced in Smith was reaffirmed in People v. Bailey, 2013 IL 113690, and
       the rule applied retroactively on collateral review. 2014 IL App (1st) 130037-U, ¶¶ 18-19, 25.
¶7          We allowed the State’s petition for leave to appeal. See Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).
¶8          Shortly after the State filed its opening brief in this court, we announced our decision in
       Castleberry, abolishing the void sentence rule. At oral argument, questions arose as to the
       applicability of Castleberry. We subsequently ordered the parties to file supplemental briefs
       addressing two issues: whether Castleberry “should apply retroactively [to] matters on
       collateral review” and, if so, “what impact would that have on the instant case.”
¶9          As discussed below, we hold that, in light of Castleberry, defendant’s section 2-1401
       petition was untimely and properly dismissed.

¶ 10                                            ANALYSIS
¶ 11                                                  I
¶ 12        As a preliminary matter, we consider defendant’s forfeiture argument. Defendant contends
       that, even if Castleberry could apply retroactively to his case, the State forfeited any argument
       that his section 2-1401 petition was untimely. We disagree. The issue is not simply whether
       defendant’s petition was untimely, an issue the State pursued in the courts below. The issue is
       whether defendant’s petition was untimely based on retroactive application of our decision in
       Castleberry. The State could not have addressed that issue until Castleberry was decided,
       which did not occur until after the State filed its opening brief. The State did, however,
       recognize the potential significance of Castleberry when it noted in both its petition for leave
       to appeal as well as its brief that whether a statutorily nonconforming sentence is void or
       voidable was then pending before this court in Castleberry. The State suggested that we hold
       its petition for leave to appeal in abeyance pending our decision in Castleberry, but we elected
       to allow the State’s petition. After we announced our decision in Castleberry abolishing the
       void sentence rule, this court had the discretion to order the parties to brief the impact of
       Castleberry on this case. Under these circumstances, we reject defendant’s forfeiture
       argument.
¶ 13        We also note that while this case was pending before this court, our appellate court
       considered the retroactivity of Castleberry but did not come to a uniform conclusion. Compare
       People v. Smith, 2016 IL App (1st) 140887, ¶ 30 (holding that Castleberry did not announce a
       new rule under Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion) and, thus, cannot be
       applied retroactively on collateral review), pet. for leave to appeal pending, No. 121060 (filed
       Jul. 18, 2016), with People v. Stafford, 2016 IL App (4th) 140309, ¶ 33 (holding that because
       Castleberry did not establish a new rule under Teague, its holding does apply retroactively),

                                                     -3-
       pet. for leave to appeal pending, No. 121393 (filed Oct. 4, 2016), and People v. Cashaw, 2016
       IL App (4th) 140759, ¶¶ 35-40 (holding that Teague does not control and Castleberry applies
       retroactively to collateral proceedings), pet. for leave to appeal pending, No. 121485 (filed
       Oct. 26, 2016). To the extent it could be argued that the State failed to pursue the timeliness
       issue, we have the authority to “overlook any forfeiture in the interest of maintaining a sound
       and uniform body of precedent.” Klaine v. Southern Illinois Hospital Services, 2016 IL
       118217, ¶ 41. For this further reason, we reject defendant’s forfeiture argument and consider
       the retroactivity issue that we directed the parties to brief.

¶ 14                                                  II
¶ 15       In People v. Arna, 168 Ill. 2d 107, 113 (1995), we held that a “sentence which does not
       conform to a statutory requirement is void,” and the appellate court has the “authority to
       correct it at any time.” Thus, in Arna, we rejected the defendant’s argument that the appellate
       court was without authority to correct his sentence, sua sponte, on direct review. Id. at 112-13.
       So began the history of the “void sentence rule.”
¶ 16       Arna implicitly relied on the then-prevailing view that a court which lacks the “inherent
       power” to enter the particular judgment involved renders that judgment void. Id. at 113 (citing
       People v. Wade, 116 Ill. 2d 1 (1987)). Although we anticipated that, as a general rule, the State
       and the courts, rather than defendants, would be raising Arna errors (People v. Garcia, 179 Ill.
       2d 55, 75 (1997)), defendants embraced Arna’s void sentence rule because it allowed them to
       attack a statutorily nonconforming sentence at any time, in any court, either directly or
       collaterally (see People v. Thompson, 209 Ill. 2d 19, 27 (2004)). Thus, as to defendants, the
       void sentence rule functioned as a judicially created exception to the forfeiture doctrine.
       People v. Marshall, 242 Ill. 2d 285, 302 (2011) (“challenge to an alleged void order is not
       subject to forfeiture”); Thompson, 209 Ill. 2d at 27 (“argument that an order or judgment is
       void is not subject to waiver”).
¶ 17       Castleberry abolished the void sentence rule because it was constitutionally unsound.
       Castleberry, 2015 IL 116916, ¶¶ 1, 19. Specifically, Castleberry determined that the “inherent
       power” view of jurisdiction, on which the rule was based, could not be reconciled with the
       constitutional grant of jurisdiction and was at odds with opinions from this court rejecting that
       view of jurisdiction in the civil context. Id. ¶ 18. Thus, pursuant to Castleberry, a statutorily
       nonconforming sentence is not void; it is merely voidable and subject to the usual rules of
       forfeiture or other procedural restraints. Id. ¶¶ 11-18. In addition to our constitutional
       jurisprudence, Castleberry relied on the policy favoring finality of judgments. Id. ¶ 15 (citing
       LVNV Funding, LLC v. Trice, 2015 IL 116129). After Castleberry, a reviewing court may no
       longer, sua sponte, correct a statutorily nonconforming sentence (id. ¶¶ 20-24), the State may
       no longer seek to correct such a sentence on direct review but must seek a writ of mandamus to
       do so (id. ¶¶ 26-27), and a defendant may no longer rely on the void sentence rule to overcome
       forfeiture of a claimed sentencing error or to challenge a statutorily nonconforming sentence in
       perpetuity (id. ¶¶ 17-19). See also People v. Thompson, 2015 IL 118151, ¶ 33 (stating that after
       Castleberry, it is “no longer valid” to argue that a sentence that does not conform to a statutory
       requirement is void).
¶ 18       As directed by this court, both parties filed supplemental briefs addressing whether
       Castleberry applies to matters on collateral review. Although both parties rely on the


                                                   -4-
       retroactivity analysis set forth in Teague v. Lane, 489 U.S. 288 (1989), adopted by this court in
       People v. Flowers, 138 Ill. 2d 218 (1990), they come to different conclusions. The State argues
       that the rule announced in Castleberry is akin to a substantive rule as defined in Teague and,
       thus, applies retroactively to matters on collateral review. Defendant argues that the rule
       announced in Castleberry does not qualify as a new substantive rule or a watershed rule of
       criminal procedure under Teague and, thus, does not apply retroactively to matters on
       collateral review. We disagree with the parties that Teague controls the retroactivity question.
¶ 19        The Supreme Court’s decision in Teague is a refinement of its earlier retroactivity
       jurisprudence that arose largely in response to the expansion of the rights of criminal
       defendants in the 1960s. See Mackey v. United States, 401 U.S. 667, 676 (1971) (Harlan, J.,
       concurring in the judgments in part and dissenting in part) (recognizing that the Court’s
       retroactivity doctrine, which came into being in 1965, was the “product of the Court’s
       disquietude with the impacts of its fast-moving pace of constitutional innovation in the
       criminal field”); Lyn S. Entzeroth, Reflections on Fifteen Years of the Teague v. Lane
       Retroactivity Paradigm: A Study of the Persistence, the Pervasiveness, and the Perversity of
       the Court’s Doctrine, 35 N.M. L. Rev. 161, 166-67 (2005). Having expanded the constitutional
       rights of criminal defendants, the Court was faced with the question of which defendants
       should receive the benefit from those changes in the law. Entzeroth, supra, at 166-67.
¶ 20        The Court’s retroactivity jurisprudence distinguished between (i) cases on direct review at
       the time a new rule is announced, i.e., those cases in which the conviction is not yet final, and
       (ii) cases on collateral review at the time a new rule is announced, i.e., those cases in which the
       conviction is final. Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004). Teague addressed the
       latter situation, clarifying and limiting the circumstances under which a defendant whose
       conviction was final could claim the benefit of a new rule. Id.; Teague, 489 U.S. at 300.
¶ 21        Underlying the application of the Teague analysis is the notion that the new rule, had it
       been in effect at the time of trial, could have made a difference in the outcome. In Teague, for
       example, the defendant, who was convicted by an all-white jury, sought to benefit from the
       Court’s decision in Batson v. Kentucky, 476 U.S. 79 (1986), which was decided after his
       conviction became final.
¶ 22        Here, the rule we adopted in Castleberry can make no difference in the outcome of a
       criminal trial. We simply eliminated the void sentence rule. Neither the void sentence rule nor
       its elimination impacts the accuracy of a defendant’s conviction, the accuracy or
       constitutionality of a sentence, or the fundamental fairness of a defendant’s trial. In short,
       Castleberry did not change any rule affecting the conduct of criminal prosecutions.
       Castleberry comes into play, if at all, only after judgment is rendered in the criminal trial.
       Thus, the Teague analysis is simply not triggered here.
¶ 23        This conclusion finds support in Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257
       (2016). There, the Supreme Court explained that the Teague retroactivity framework creates a
       balance between the need for finality in criminal cases and the countervailing need to ensure
       that criminal punishment is only imposed when authorized by law. Id. at ___, 136 S. Ct. at
       1266. This balance depends “on whether the new rule itself has a procedural function or a
       substantive function—that is, whether it alters only the procedures used to obtain the
       conviction, or alters instead the range of conduct or class of persons that the law punishes.” Id.
       at ___, 136 S. Ct. at 1266. Castleberry does neither.


                                                    -5-
¶ 24        Although defendant recognizes that Castleberry, like Arna, “does not create or affect the
       underlying error” (here, defendant’s allegedly unlawful sentence), defendant nonetheless
       argues that Teague controls the retroactivity issue. Application of Teague to our decision in
       Castleberry, in the manner defendant urges, would turn Teague on its head. Defendant would
       use Teague to prevent the application of a new rule (Castleberry’s abolition of the void
       sentence rule) to his section 2-1401 petition and to benefit from application of an old rule
       (Arna’s void sentence rule). This is not how Teague functions. See Cashaw, 2016 IL App (4th)
       140759, ¶ 39 (“defendant cannot rely on the framework of Teague to argue that a new rule
       should not apply, when the defendant is seeking to overturn an old judgment”).
¶ 25        We emphasize that when we ask whether a new rule or decision of this court should apply
       to “matters on collateral review,” the “matter” to which we are referring is defendant’s
       underlying conviction or sentence. Thus, when we conclude, based on Teague and its progeny,
       that a new rule should apply retroactively to “matters on collateral review,” what we mean is
       that we will treat the new rule as if it were in existence at the time of, and applied to, the trial
       proceeding being challenged by the defendant in his or her collateral pleading. In this respect,
       the issue we directed the parties to brief—whether Castleberry “should apply [to] matters on
       collateral review”—was misleading. The issue assumed that Castleberry “could” be applied to
       a defendant’s conviction or sentence and the only question was whether, under Teague, it
       “should” be applied where the conviction and sentence were final and were challenged on
       collateral review. This assumption was incorrect because, as discussed above, Castleberry has
       no application to criminal trials to begin with, rendering the Teague analysis inapplicable.
¶ 26        The question yet remains whether the rule announced in Castleberry should apply to
       defendant’s section 2-1401 petition, which was pending before this court when Castleberry
       was decided. The answer is “yes.”
¶ 27        Unquestionably, Castleberry applies not only to the parties in that case but also
       prospectively. As we recognized in Thompson, 2015 IL 118151, ¶ 33, after our decision in
       Castleberry, it is “no longer valid” to argue that a sentence that does not conform to a statutory
       requirement is void. As to defendant’s case, in which his section 2-1401 petition was pending
       in the appellate pipeline at the time Castleberry was announced, we turn to our general rule of
       retroactivity. Under this rule, our decisions apply to “all cases that are pending when the
       decision is announced, unless this court directs otherwise.” People v. Granados, 172 Ill. 2d
       358, 365 (1996); accord People v. Linder, 186 Ill. 2d 67, 75 (1999). This rule applies where, as
       here, the Teague retroactivity analysis does not apply. See Granados, 172 Ill. 2d at 365.
¶ 28        In Castleberry, we did not limit the reach of our decision, and defendant offers no equitable
       or other reason that militates against applying Castleberry to his pending section 2-1401
       petition. Indeed, not applying Castleberry would thwart the very policy espoused in that
       decision—preserving the finality of judgments—by permitting defendants to continue to argue
       that a statutorily nonconforming sentence is void. See Castleberry, 2015 IL 116916, ¶ 15
       (citing LVNV Funding, 2015 IL 116129).
¶ 29        Defendant argues, however, that Castleberry is irrelevant because it only dealt with one
       type of void judgment. According to defendant, a judgment is also void “where it was imposed
       in violation of a substantive new rule,” as defined by Teague and its progeny. Defendant
       maintains that his sentence was imposed in violation of a substantive new rule—the rule



                                                    -6-
       announced in Smith and Bailey regarding special verdict forms—and is void, allowing his
       late-filed section 2-1401 petition to proceed.
¶ 30        Void judgments occupy a “unique place” in our legal system. (Internal quotation marks
       omitted.) Id. When we say that a judgment is void, that judgment may be challenged “at any
       time, either directly or collaterally, and the challenge is not subject to forfeiture or other
       procedural restraints.” (Internal quotation marks omitted.) Id. Therefore, only the most
       fundamental defects warrant declaring a judgment void. Id.
¶ 31        This court has recognized only three circumstances in which a judgment will be deemed
       void: (1) where the judgment was entered by a court that lacked personal or subject-matter
       jurisdiction, (2) where the judgment was based on a statute that is facially unconstitutional and
       void ab initio, and (3) where a judgment of sentence did not conform to a statutory requirement
       (the void sentence rule). Thompson, 2015 IL 118151, ¶¶ 31-33. Castleberry eliminated the
       third type of void judgment, thus narrowing the universe of judgments subject to attack in
       perpetuity.
¶ 32        Defendant would have us reverse course and expand our voidness doctrine by declaring as
       void all judgments of conviction and sentence that do not conform to a later announced
       substantive rule, although the judgment conformed to constitutional standards at the time of
       trial. We decline to do so. If a new rule qualifies as a “substantive rule” under Teague, then
       defendants whose convictions are final may seek the benefit of that rule through appropriate
       collateral proceedings. See Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 729
       (2016) (“when a new substantive rule of constitutional law controls the outcome of a case, the
       Constitution requires state collateral review courts to give retroactive effect to that rule”).
       Declaring the underlying judgments “void” is not warranted.
¶ 33        Finally, defendant argues that even if this court applies Castleberry to his pro se section
       2-1401 petition, its only theoretical relevance concerns whether he chose the proper vehicle in
       which to challenge his sentence, i.e., whether he correctly labeled the pleading a petition for
       relief from judgment or whether he should have labeled it a motion for leave to file a
       successive postconviction petition. Citing People v. Shellstrom, 216 Ill. 2d 45 (2005),
       defendant contends that not addressing the merits of his underlying claim would be unduly
       harsh where he used the wrong heading on his petition. Thus, defendant seeks to have this
       court recharacterize his section 2-1401 petition as a successive postconviction petition that
       satisfied the cause-and-prejudice test.
¶ 34        In Shellstrom, we reaffirmed, in conformity with our precedents, that the circuit court may
       treat a pro se petitioner’s pleading, alleging a deprivation of a constitutional right, as a
       postconviction petition although the pleading was not labeled as such. Shellstrom, 216 Ill. 2d at
       51-53. Shellstrom does not support defendant’s argument for recharacterizing a pro se
       pleading for the first time on appeal before this court. We also agree with the State that
       defendant should not be permitted to avoid satisfying the cause-and-prejudice test for
       successive postconviction petitions by appealing to the “spirit” of Shellstrom.
¶ 35        For the reasons stated above, we hold that Castleberry applies to defendant’s section
       2-1401 petition that was pending at the time Castleberry was decided. Accordingly, defendant
       cannot rely on the void sentence rule, which Castleberry eliminated, to escape the two-year
       statutory time bar. See 735 ILCS 5/2-1401(c), (f) (West 2012). Defendant’s petition was
       untimely. We therefore reverse the judgment of the appellate court and affirm the judgment of


                                                   -7-
       the trial court dismissing defendant’s petition.

¶ 36      Appellate court judgment reversed.
¶ 37      Circuit court judgment affirmed.

¶ 38       JUSTICE KILBRIDE, specially concurring:
¶ 39       Although I agree in principle with the majority’s conclusion that our decision in People v.
       Castleberry, 2015 IL 116916, should apply retroactively to cases on collateral review, I do not
       believe that defendant’s claims should be resolved under Castleberry. Instead, I would address
       the issue actually raised by the State and presented by the parties in their original briefs to this
       court. See People v. Givens, 237 Ill. 2d 311, 323-24 (2010) (observing the well-established
       principle that a reviewing court should honor the parties’ presentation of the issues on appeal
       and should not raise new issues).
¶ 40       In 2012, defendant filed an untimely pro se section 2-1401 petition seeking relief from his
       natural life sentence under the rule on special verdict forms in murder cases announced in
       People v. Smith, 233 Ill. 2d 1 (2009). Subsequent to the filing of defendant’s petition, Smith
       was reaffirmed in People v. Bailey, 2013 IL 113690, ¶ 57. In Bailey, this court expressly
       “reaffirm[ed] our holding in Smith that ‘where, as here, specific findings by the jury with
       regard to the offenses charged could result in different sentencing consequences, favorable to
       the defendant, specific verdict forms must be provided upon request and the failure to provide
       them is an abuse of discretion.’ ” Bailey, 2013 IL 113690, ¶ 57 (quoting Smith, 233 Ill. 2d at
       23). When a trial court violates that rule, “ ‘the appropriate remedy is to interpret the general
       verdict as a finding on felony murder’ and to impose sentence accordingly.” Bailey, 2013 IL
       113690, ¶ 61 (quoting Smith, 233 Ill. 2d at 28).
¶ 41       Relying exclusively on Smith, defendant argued that his section 2-1401 petition was
       exempt from the ordinary two-year filing deadline because his challenge constituted an attack
       on a void judgment. The State moved to dismiss defendant’s petition, asserting two grounds:
       (1) the judgment was not void and therefore defendant’s petition was untimely, and (2) Smith
       did not apply retroactively to defendant’s 1996 conviction. The trial court granted the State’s
       motion to dismiss, finding that defendant had failed to advance a claim or defense that would
       entitle him to relief because Smith announced a new rule of criminal procedure and that
       decision did not apply retroactively to defendant’s case.
¶ 42       The appellate court reversed, rejecting the State’s challenge to the timeliness of the
       petition, holding that “[w]hen a defendant challenges a void judgment, the two-year time
       limitation does not apply.” 2014 IL App (1st) 130037-U, ¶ 15. The appellate court explained,
       “[i]t is well established that a sentence entered without statutory authorization is void and may
       be attacked at any time, even on collateral review.” 2014 IL App (1st) 130037-U, ¶ 16. On the
       merits, the appellate court held that Smith announced a “new” and “substantive” rule that thus
       had retroactive application to defendant’s case. 2014 IL App (1st) 130037-U, ¶¶ 24-25. We
       granted the State’s petition for leave to appeal from that decision.
¶ 43       After oral argument, this court issued an order sua sponte directing the parties to file
       supplemental briefs addressing two issues: whether our recent decision in Castleberry
       “ ‘should apply retroactively [to] matters on collateral review’ ” and, if so, “ ‘what impact
       would that have on the instant case.’ ” As the majority itself now concedes, the issues we

                                                    -8-
       directed the parties to brief were “misleading.” Supra ¶ 25. Indeed, I believe our sua sponte
       order for supplemental briefing unwisely raised entirely new issues with arguable relevance to
       this appeal.
¶ 44       In my opinion, Castleberry has limited, if any, application to this case and is certainly not
       dispositive. Our holding in Castleberry, the abolition of the void sentence rule, has practically
       nothing to do with this appeal. The void sentence rule originated in People v. Arna, 168 Ill. 2d
       107 (1995), a decision that preceded the filing of defendant’s pro se petition by approximately
       17 years. If defendant sought to rely on Arna’s “void sentence rule,” he certainly would have
       raised such a claim in his petition. He did not. That is, of course, perfectly understandable. The
       now-abolished void sentence rule held that a “sentence which does not conform to a statutory
       requirement is void.” Arna, 168 Ill. 2d at 113. Because the void sentence rule depends on the
       construction of a sentencing statute, it presents a completely different challenge than that
       presented under the distinct rule articulated in Smith and reaffirmed in Bailey. The rule from
       Smith hinges on the omission of separate verdict forms in cases involving multiple murder
       charges. Although defendant’s pro se section 2-1401 petition is inartfully written, a close
       reading shows that defendant sought “relief from judgment on voidness grounds *** that the
       judgment or order is void,” and, relying on Smith, claims that “[b]ecause the Court rejected
       [his] request for separate verdict forms, it lacked the power and authority to render judgment in
       this case.” Castleberry only addressed one type of void judgment challenge—a sentence that
       violates a statute. Defendant has never claimed that his sentence was void because it did not
       conform to a statutory requirement; rather, he claimed a void judgment challenge based on the
       rule from Smith.
¶ 45       Despite the distinction between these two types of challenges, the majority determines that
       our abrogation of the void sentence rule in Castleberry not only applies to a defendant’s
       petition that never relied on the void sentence rule but also requires its dismissal. The majority
       even goes so far as to state that “defendant cannot rely on the void sentence rule, which
       Castleberry eliminated, to escape the two-year statutory time bar.” Supra ¶ 35. This statement
       is unfair to defendant.
¶ 46       As I have already noted, defendant has never relied on Arna’s void sentence rule. Instead,
       defendant alleged that his natural life sentence constituted a void judgment under the rule from
       Smith. The majority seems to imply, with no explanation, that Castleberry, a decision limited
       to overruling the Arna void sentence rule, now controls all allegations of void judgments in
       section 2-1401 petitions. The problem with the majority’s approach is that Arna’s void
       sentence rule is not the only type of voidness challenge historically recognized by this court.
       See People v. Thompson, 2015 IL 118151, ¶¶ 31-33 (explaining the types of voidness
       challenges recognized by this court in section 2-1401 proceedings).
¶ 47       More troubling, the majority’s approach has the potential to cause confusion on the
       application and proper scope of our decision in Castleberry. As the majority explains, “the rule
       we adopted in Castleberry can make no difference in the outcome of a criminal trial” and
       “[n]either the void sentence rule nor its elimination impacts the accuracy of a defendant’s
       conviction, the accuracy or constitutionality of a sentence, or the fundamental fairness of a
       defendant’s trial.” Supra ¶ 22. The same statements cannot be made about the rule from Smith.
       That rule requires, in the appropriate circumstances, the interpretation of a general verdict as a
       finding of felony murder and commensurate sentencing. Bailey, 2013 IL 113690, ¶ 61 (citing


                                                   -9-
       Smith, 233 Ill. 2d at 28). Thus, in stark contrast to the void sentence rule and Castleberry, the
       Smith rule potentially impacts the outcome of a criminal trial.
¶ 48       Unlike the majority, I would not graft Castleberry and the void sentence rule onto this
       appeal. Instead, I would address the original threshold issue raised in the State’s petition for
       leave to appeal—whether an alleged violation of the Smith rule on special verdict forms results
       in a “void judgment” for purposes of excusing the untimeliness of a defendant’s section 2-1401
       petition. This was the first issue considered by the appellate court (2014 IL App (1st)
       130037-U, ¶ 15) and was extensively argued by the parties in their initial briefs to this court.
       This approach has the added benefit of not injecting potential confusion on the future
       applicability of Castleberry or the Smith rule on special verdict forms in murder cases.
¶ 49       As the majority correctly observes, this court has already explained what constitutes a void
       judgment for purposes of avoiding the two-year bar applicable to a section 2-1401 petition. In
       Thompson, this court acknowledged that our case law previously demonstrated three types of
       voidness challenges. Thompson, 2015 IL 118151, ¶¶ 31-33.
¶ 50       The first type of challenge is jurisdictional. A petitioner raises a jurisdictional voidness
       challenge by alleging that the underlying judgment is void because the court that entered the
       judgment lacked personal or subject-matter jurisdiction. Thompson, 2015 IL 118151, ¶ 31. A
       section 2-1401 petition alleging voidness based on lack of jurisdiction is not subject to the
       two-year limitations period and may be raised at any time. Thompson, 2015 IL 118151, ¶ 31.
¶ 51       The second type of section 2-1401 voidness challenge is constitutional. In a constitutional
       voidness challenge, the petitioner claims a final judgment is void based on a facially
       unconstitutional statute that is void ab initio and, therefore, unenforceable. Thompson, 2015 IL
       118151, ¶ 32. A facially unconstitutional voidness challenge may be raised at any time.
       Thompson, 2015 IL 118151, ¶ 32.
¶ 52       The third type of voidness challenge formerly available under section 2-1401 involved a
       challenge to a sentence that does not conform to the applicable sentencing statute. Thompson,
       2015 IL 118151, ¶ 33. Thompson acknowledged that this type of voidness challenge was based
       on the “void sentence rule” established in Arna and recognized that this court recently
       overruled Arna and abolished the void sentence rule in Castleberry. Consequently, Thompson
       stated that voidness challenges based on the former “void sentence rule” are no longer valid.
       Thompson, 2015 IL 118151, ¶ 33.
¶ 53       Thompson’s explanation of the limited types of void judgment challenges is entirely
       consistent with this court’s recognition that void judgments occupy a “unique place” in the
       legal arena. Castleberry, 2015 IL 116916, ¶ 15. Because of the drastic consequences of
       labeling a judgment as void, we have explained that “ ‘only the most fundamental defects’ ”
       justify a determination that a judgment is void. Castleberry, 2015 IL 116916, ¶ 15 (quoting
       LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 38).
¶ 54       In Bailey and Smith, this court did not hold that a violation of the rule from those decisions
       resulted in a void judgment or sentence.1 Nor did we find that the trial court lacked jurisdiction


          1
            This point further illustrates the majority’s error in equating a challenge under Arna’s void
       sentence rule to a challenge under the Smith rule. Unlike the Smith rule, a violation of the
       now-abolished void sentence rule resulted in a void judgment or sentence that could be challenged at

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       or that any statute was facially unconstitutional. See Thompson, 2015 IL 118151, ¶¶ 31-33
       (recognizing those two types of void judgment challenges as appropriate voidness challenges
       in section 2-1401 challenges after Castleberry.) In fact, no discussion or analysis on the issue
       of voidness appears in either Bailey or Smith. Instead, this court held only that it was an abuse
       of discretion not to issue special verdict forms in specific circumstances in murder cases.
       Bailey, 2013 IL 113690, ¶ 57 (citing Smith, 233 Ill. 2d at 23). Under those decisions, the error
       is remedied by “ ‘interpret[ing] the general verdict as a finding on felony murder’ and to
       impose sentence accordingly.” Bailey, 2013 IL 113690, ¶ 61 (quoting Smith, 233 Ill. 2d at 28).
¶ 55       Because a violation of the Smith rule constitutes an abuse of discretion and is remedied by
       sentencing on felony murder, it cannot be said that a violation of that rule results in a void
       judgment. In other words, a violation of the rule from Smith cannot render a judgment void for
       purposes of section 2-1401. See Thompson, 2015 IL 118151, ¶¶ 31-33 (detailing the types of
       voidness challenges, none predicated on a finding of an abuse of discretion). Accordingly,
       defendant cannot avoid the two-year filing limitation in section 2-1401, and his untimely
       petition is barred. On this basis, I agree with the majority that the appellate court’s judgment
       should be reversed and the circuit court’s judgment dismissing defendant’s petition should be
       affirmed.
¶ 56       For these reasons, I specially concur.




       any time. See Castleberry, 2015 IL 116916, ¶ 13 (describing “void sentence rule” (citing Arna, 168 Ill.
       2d at 113)).

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