                                      2015 IL 116572



                                 IN THE
                            SUPREME COURT
                                   OF
                          THE STATE OF ILLINOIS



                                   (Docket No. 116572)

     THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MICKEY D. SMITH,
                                 Appellee.



                              Opinion filed February 5, 2015.



        JUSTICE BURKE delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and
     Theis concurred in the judgment and opinion.



                                        OPINION

¶1       In People v. White, 2011 IL 109616, this court held that when the factual basis
     for a plea agreement which is accepted by the circuit court establishes that the
     defendant is subject to a mandatory sentencing enhancement, the court must
     impose it, even if the plea agreement between the State and the defendant included
     the condition that the State would not pursue the enhancement. At issue in this
     appeal is whether our holding in White applies retroactively to convictions which
     were final at the time White was decided. We conclude that it does not.



¶2                                   BACKGROUND

¶3       The defendant, Mickey D. Smith, was charged in a three-count indictment with
     the first degree murder of Douglas White. Count I alleged that defendant, without
     lawful justification and with intent to cause great bodily harm, shot White in the
     back with a handgun thereby causing his death. See 720 ILCS 5/9-1(a)(1) (West
     2010). Count II alleged that defendant shot White with a handgun without
     justification knowing such act created a strong probability of death or great bodily
     harm. See 720 ILCS 5/9-1(a)(2) (West 2010). Count III alleged that defendant was
     an armed habitual criminal. See 720 ILCS 5/24-1.7 (West 2010). Subsequently, the
     State filed a “Notice of Intent to Enhance Sentencing Upon Conviction” in which it
     indicated that it intended to seek a sentencing enhancement of 25 years to natural
     life imprisonment on the ground that defendant murdered White by discharging a
     firearm. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010).

¶4       As part of a negotiated plea agreement, defendant pleaded guilty to first degree
     murder under count II. In exchange, the State dismissed counts I and III,
     recommended a sentence of 30 years’ imprisonment, and withdrew its notice of
     intent to seek the firearm sentencing enhancement. The factual basis presented by
     the State in support of the plea established that defendant, while armed with a
     handgun, entered a garage where White was found. Once inside the garage,
     defendant fired a single shot, killing White. During admonitions, the circuit court
     advised defendant that the State was withdrawing its notice of intent to seek the
     firearm enhancement and that defendant was therefore eligible for a sentence of 20
     to 60 years. The circuit court accepted defendant’s guilty plea and imposed a
     sentence of 30 years’ imprisonment. Defendant did not file a direct appeal.

¶5       Defendant thereafter filed a pro se postconviction petition in which he alleged
     that his sentence and guilty plea were void under this court’s decision in White,
     2011 IL 109616, because his sentence did not include the statutory firearm
     enhancement. The circuit court of Will County summarily dismissed the petition as
     frivolous or patently without merit. Defendant appealed.

¶6       The appellate court reversed and remanded. 2013 IL App (3d) 110738. The
     appellate court concluded that defendant’s sentence and plea were void under
     White because the factual basis for defendant’s plea established that a firearm was
     used in the murder, thereby requiring the imposition of the firearm sentencing
     enhancement (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010)). The appellate court
     noted that the firearm enhancement statute required a 25-year prison term in
     addition to the minimum 20-year prison term for murder and, thus, the minimum
     required sentence for defendant’s crime was 45 years’ imprisonment. Defendant’s


                                            -2-
     30-year term fell below that statutory minimum and, therefore, according to the
     appellate court, was unauthorized and void.

¶7       In so holding, the appellate court rejected the State’s argument that White did
     not apply to defendant’s case under the rationale of Teague v. Lane, 489 U.S. 288
     (1989), which was adopted by this court in People v. Flowers, 138 Ill. 2d 218
     (1990). Teague provides that, with two exceptions, a new rule of criminal
     procedure does not apply to cases that are already final at the time the judicial
     decision establishing the new rule is entered. Defendant’s conviction was final at
     the time White was decided, but the appellate court concluded that White did not
     establish a new rule of law. The appellate court determined that “White did not
     break new ground or impose a new obligation,” but merely “relied upon existing
     precedent, which set out the long-standing rule that courts are not authorized to
     impose a sentence that does not conform to statutory guidelines, because a sentence
     not authorized by law is void.” 2013 IL App (3d) 110738, ¶ 12. Finding that White
     did not establish a new rule, the appellate court concluded that it applied to
     defendant’s conviction. The appellate court therefore reversed the judgment of the
     circuit court and remanded the cause to permit defendant to withdraw his guilty
     plea and proceed to trial. The State subsequently filed a petition for leave to appeal
     in this court which we allowed. Ill. S. Ct. R. 315 (eff. July 1, 2013).



¶8                                        ANALYSIS

¶9       The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
     2010)), “provides a method by which persons under criminal sentence in this state
     can assert that their convictions were the result of a substantial denial of their rights
     under the United States Constitution or the Illinois Constitution or both.” People v.
     Hodges, 234 Ill. 2d 1, 9 (2009). Petitions filed under the Act are reviewed in three
     stages. Id. at 10. At the first stage, the circuit court must independently review the
     petition to determine whether it is “frivolous or is patently without merit.” 725
     ILCS 5/122-2.1(a)(2) (West 2010). If the court determines that the petition is either
     frivolous or patently without merit, the court must dismiss the petition in a written
     order. 725 ILCS 5/122-2.1(a)(2) (West 2010). We review de novo the circuit
     court’s summary dismissal of a postconviction petition. People v. Morris, 236 Ill.
     2d 345, 354 (2010).


                                               -3-
¶ 10       Initially, the State contends that White did not establish a constitutional rule of
       criminal procedure. Therefore, according to the State, defendant’s petition does not
       present a constitutional claim which is cognizable under the Act and the circuit
       court properly dismissed the petition.

¶ 11       In White, the defendant pleaded guilty to first degree murder and possession of
       contraband, and was sentenced to consecutive prison terms of 28 years for murder
       and 4 years for possession. White, 2011 IL 109616, ¶ 4. The factual basis for the
       defendant’s plea established that the victim was shot with a handgun. Id. ¶ 6. On
       direct appeal in this court, the defendant argued that his sentence was void because
       it did not include a mandatory firearm enhancement (730 ILCS 5/5-8-1(a) (West
       2004)). The State maintained, however, that the parties’ plea agreement had
       included the condition that the enhancement would not be included. We thus
       identified the issue presented as follows: “When the factual basis entered for a
       guilty plea makes it clear that a defendant is subject to a mandatory sentencing
       enhancement, may the trial court enter judgment imposing a sentence that does not
       include the enhancement on the basis that the enhancement was excluded by the
       parties from the plea agreement?” White, 2011 IL 109616, ¶ 1. We answered that
       question in the negative.

¶ 12       We first noted the circuit court has no authority to impose a sentence that does
       not conform to statutory guidelines and, thus, exceeds its authority when it orders a
       lesser or greater sentence. “In such a case, the defendant’s sentence is illegal and
       void.” Id. ¶ 20 (citing People v. Arna, 168 Ill. 2d 107, 113 (1995)). We then pointed
       out that the legislature had imposed a specific requirement upon the circuit court for
       an enhanced sentence when a firearm was used in the offense at issue. Id. ¶ 21.
       Because the factual basis accepted by the court established that a firearm had been
       used, and because defendant’s sentence did not include the statutory enhancement,
       we concluded the sentence was void. Moreover, because the defendant had not
       been properly admonished as to the proper sentencing range, his plea agreement
       also had to be set aside. Id.

¶ 13        The State maintained, however, that the general rule prohibiting a sentence
       outside the statutory sentencing range did not control where the parties agreed not
       to include the enhancement. We disagreed, finding that “[e]ven when a defendant,
       prosecutor, and court agree on a sentence, the court cannot give the sentence effect
       if it is not authorized by law.” (Internal quotation marks omitted.) Id. ¶ 23.


                                                -4-
¶ 14        The State further contended that because it has the exclusive discretion to
       decide which criminal charges shall be brought, or whether to prosecute at all, it
       had the authority to negotiate a sentence that did not include the enhancement. We
       again disagreed. We did not dispute that the State has the discretion to decide what
       charges to bring, nor did we dispute that the State’s discretionary authority permits
       it to negotiate away a firearm enhancement when separate offenses are involved,
       such as when a defendant is charged with robbery rather than armed robbery. Id.
       ¶ 25. However, we noted that unlike robbery and armed robbery, which are distinct
       offenses, first degree murder is a single offense and there is no separate offense of
       “armed murder” or “enhanced murder.” Id. ¶ 26. Further, in enacting the
       sentencing enhancement, the legislature took away any discretion the state and
       courts had to fashion a sentence that did not include the enhancement with respect
       to murder. Id.

¶ 15       Finally, we rejected the State’s argument that, pursuant to People v. Summers,
       291 Ill. App. 3d 656 (1997), it could concede a version of the facts which would fail
       to acknowledge that a firearm had been used in the commission of the underlying
       offense and then make sentencing concessions based on those facts. We determined
       that the version of facts agreed to by the State in White and presented in the factual
       basis for the plea established that a firearm had been used in the commission of the
       murder. Thus, the mandatory enhancement had been triggered. White, 2011 IL
       109616, ¶ 27.

¶ 16       Having rejected the State’s arguments, we concluded: “Defendant pled guilty to
       committing the offense of first degree murder and the factual basis provided to the
       court in support of defendant’s plea made it clear that a firearm was used in the
       commission of the offense. Under these circumstances, the legislature has
       mandated that an additional period of 15 years must be added to the sentence. Thus,
       the trial court could not impose a sentence that did not include the 15-year
       mandatory enhancement.” Id. ¶ 29. We therefore remanded the cause with
       directions to allow the defendant to withdraw his guilty plea and proceed to trial if
       he so chose.

¶ 17      We agree with the State that White did not establish a rule of constitutional
       procedure. White did not rely on any constitutional provision in reaching its result.
       Thus, the White rule cannot be characterized as a constitutional rule for
       postconviction purposes.


                                               -5-
¶ 18       Nevertheless, defendant maintains that, even if White did not announce a
       constitutional rule, he may still rely on that decision to obtain relief in this case.
       Defendant notes that, under People v. Thompson, 209 Ill. 2d 19 (2004), a void
       sentencing order may be challenged in a postconviction proceeding. Id. at 27
       (“Defendant’s argument that the extended-term portion of his sentence is void does
       not depend for its viability on his postconviction petition.”). Further, according to
       defendant, White simply reaffirmed the principle that a sentence which does not
       conform to statutory requirements is void. Thus, defendant maintains he may rely
       on White here and, in accordance with that decision, his sentence and plea must be
       set aside. The analysis, however, is not so simple.

¶ 19       Our decision in White did rest, in part, on the principle that a sentence which is
       not authorized by statute is void. However, White also rested on another, equally
       important, threshold principle. White held that a circuit court may not disregard a
       fact, such as the use of a firearm, that requires the imposition of a statutory
       sentencing enhancement if that fact is included in the factual basis accepted by the
       court. This is true, White concluded, even if the plea agreement between the State
       and the defendant included the condition that the State would not pursue the
       enhancement. This legal principle must have been in effect at the time defendant’s
       sentence was entered in this case in order for him to be entitled to relief. This is so
       because if, at the time defendant was sentenced, the circuit court could properly
       have disregarded the fact that a firearm was used in the murder to which defendant
       pleaded guilty, then there would have been nothing unlawful about defendant’s
       sentence. His sentence would have conformed to statutory requirements and would
       not be void.

¶ 20       There is no dispute that the principle which holds that a statutorily unauthorized
       sentence is void was in effect when defendant was convicted and sentenced in this
       case. However, the State maintains that White’s holding that the circuit court may
       not disregard the fact that a firearm was included in the factual basis for the plea
       was a new rule of criminal procedure which was not governing law at the time
       defendant was convicted. The State also asserts that, if White announced a new
       rule, that rule should not be applied to defendant. In short, the State contends that
       the rule announced in White does not apply retroactively to convictions and
       sentences, such as defendant’s, that were final at the time White was decided. Thus,
       in order to answer whether defendant may challenge his sentence as void in this
       proceeding, we must first determine whether White applies retroactively to his case.

                                                -6-
¶ 21        Before addressing that question, we note that in its reply brief, the State for the
       first time raises an alternative argument for denying defendant relief. The State
       points out that the principle that a statutorily unauthorized sentence is void, or the
       “void sentence rule,” rests on the idea that a sentencing court’s failure to comply
       with a statutory sentencing provision deprives the court of “inherent power” or
       jurisdiction, thus rendering the sentence entered void. See, e.g., People v. Wade,
       116 Ill. 2d 1, 5-7 (1987). The State contends that this concept of jurisdiction is
       outdated in light of a series of civil decisions from this court which have held that
       the “inherent power” definition of jurisdiction applies solely to courts of limited
       jurisdiction and administrative agencies. See, e.g., Steinbrecher v. Steinbrecher,
       197 Ill. 2d 514, 530 (2001); Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A.,
       Inc., 199 Ill. 2d 325, 338 (2002). The State acknowledges that these civil decisions
       expressly noted that criminal proceedings involving the power to render judgments
       or sentences address a separate set of concerns not present in civil matters. See
       Steinbrecher, 197 Ill. 2d at 532. However, the State contends that the void sentence
       rule can no longer stand and, for this reason, defendant’s sentence and plea are not
       void and he is not entitled to relief.

¶ 22       Supreme Court Rule 341(h)(7) (Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008)),
       provides that points not argued in an appellant’s opening brief “are waived and
       shall not be raised in the reply brief.” The State’s argument that the void sentence
       rule should be overturned is not properly before us. Further, retroactivity is a
       “threshold question” considered before determining whether relief is warranted on
       the merits. Teague, 489 U.S. at 300; Morris, 236 Ill. 2d at 355. Whether the
       principle that a statutorily unauthorized sentence is void should be overturned
       would not require resolution if we were to conclude that White announced a new
       rule that does not apply on collateral review. Accordingly, we turn to whether
       White applies retroactively.

¶ 23       The appellate court below applied the test set forth in Teague to determine
       whether White should be applied to defendant’s conviction. Although Teague
       addressed the retroactivity of constitutional rules, the United States Supreme Court
       has indicated that the Teague framework applies to nonconstitutional rules as well.
       Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004). Other courts have held so
       expressly. See, e.g., Miller v. United States, 735 F.3d 141, 145 (4th Cir. 2013);
       United States v. Martinez, 139 F.3d 412, 417 n.* (4th Cir. 1998) (“[I]t would be
       anomalous to apply new rules of statutory interpretation retroactively, but not new
       constitutional rules, when collateral relief for statutory errors is more
                                                -7-
       circumscribed than for errors of constitutional magnitude.”); Sanabria v. United
       States, 916 F. Supp. 106, 111 (D.P.R. 1996); Abreu v. United States, 911 F. Supp.
       203, 207 n.5 (E.D. Va. 1996) (and cases cited therein); cf. People v. Hickey, 204 Ill.
       2d 585, 627-29 (2001) (concluding that new supreme court rules did not fall under
       the “watershed rule[s]” exception of Teague).

¶ 24       Under Teague, a judicial decision that establishes a new rule applies to all
       criminal cases pending on direct review. Schriro, 542 U.S. at 351; People v. Davis,
       2014 IL 115595, ¶ 36. However, with two exceptions, the new rule will not apply
       retroactively to convictions which are already final at the time the new rule is
       announced. Id. “The purpose of the Teague framework is to promote the
       government’s interest in the finality of criminal convictions (Teague, 489 U.S. at
       309, 103 L. Ed. 2d at 355, 109 S. Ct. at 1074) and to validate ‘reasonable,
       good-faith interpretations of existing precedents made by state courts even though
       they are shown to be contrary to later decisions’ (Butler v. McKeller, 494 U.S. 407,
       414, 108 L. Ed. 2d 347, 356, 110 S. Ct. 1212, 1217 (1990)).” People v. Sanders,
       238 Ill. 2d 391, 401 (2010). The retroactive application of “ ‘ “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.
       Without finality, the criminal law is deprived of much of its deterrent effect.” ’
       [Citation.]” Id.

¶ 25       The Supreme Court has stated that a judicial decision announces a new rule
       when it breaks new ground or imposes a new obligation on the states or federal
       government. The rule must not be “dictated by precedent existing at the time the
       defendant’s conviction became final.” (Emphasis omitted.) Teague, 489 U.S. at
       301. Further, “the fact that a court says that its decision is within the ‘logical
       compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision,
       is not conclusive for purposes of deciding whether the current decision is a ‘new
       rule’ under Teague.” Butler v. McKellar, 494 U.S. 407, 415 (1990). Rather, a rule is
       new if, at the time it was decided, it was “susceptible to debate among reasonable
       minds.” Id. A new rule is one “ ‘not dictated by precedent existing at the time the
       defendant’s conviction became final’ ” (emphasis in original) (Chaidez v. United
       States, 568 U.S. ___, ___, 133 S. Ct. 1103, 1107 (2013) (quoting Teague, 489 U.S.
       at 301)), and a rule is not dictated by precedent unless it would have been
       “ ‘apparent to all reasonable jurists’ ” (id. at ___, 133 S. Ct. at 1107 (quoting
       Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997))).

                                                -8-
¶ 26       Defendant does not dispute that his conviction was final at the time White was
       decided. We must therefore decide whether White announced a new rule. We note
       our appellate court is split on this question. Compare People v. Greco, 2014 IL App
       (1st) 112582, People v. Young, 2013 IL App (1st) 111733, and People v. Avery,
       2012 IL App (1st) 110298 (all holding that White announced a new rule), with 2013
       IL App (3d) 110738, and People v. Cortez, 2012 IL App (1st) 102184 (holding that
       White did not announce a new rule).

¶ 27       We conclude that White announced a new rule. We did not, in White, hold
       simply that a sentence which does not conform to statutory requirements is void.
       Rather, for the first time in White, we held that a circuit court may not disregard a
       fact that requires the imposition of a statutory sentencing enhancement if that fact is
       included in the factual basis accepted by the court. This is true even if the plea
       agreement between the State and the defendant included the condition that the State
       would not pursue the enhancement.

¶ 28       Cases prior to White had made clear that the State may not negotiate a sentence
       which is at odds with statutory requirements. If, for example, a statute requires that
       a sentence be subject to the “truth-in-sentencing” method for calculating
       good-conduct credit, the State may not negotiate a sentence as part of a plea
       agreement which does not include that method. People ex rel. Ryan v. Roe, 201 Ill.
       2d 552 (2002). However, unlike the terms of a sentencing statute, which the State
       cannot alter, the State has the authority to negotiate the contents of the factual basis
       presented to the circuit court in support of a plea agreement. Indeed, the State is free
       to concede to a set of facts which do not state that a firearm was used in the
       commission of the underlying offense. People v. Summers, 291 Ill. App. 3d 656
       (1997). Further, Supreme Court Rule 402(c) (Ill. S. Ct. R. 402(c) (eff. July 1,
       2012)), which requires the circuit court to determine that there is a factual basis for
       a guilty plea, does not address whether the circuit court may disregard any portion
       of the factual basis. See, e.g., People v. Jackson, 199 Ill. 2d 286, 298-99 (2002)
       (noting that Rule 402(c) requires only that there appear on the record a basis from
       which the judge could reasonably reach the conclusion that the defendant actually
       committed the acts with the intent (if any) required to constitute the offense to
       which the defendant is pleading guilty).

¶ 29      Given this background, it was uncertain, prior to White, whether the circuit
       court was required to give effect to a fact contained in the factual basis which would
       necessitate the imposition of a sentencing enhancement, such as the use of a
                                                -9-
       firearm, if the parties had not agreed to the enhancement. A circuit court could have
       reasoned that the factual basis did not reflect the true intent of the parties to the plea
       agreement and, since the factual basis could have been altered by the State in any
       event, the court could permissibly disregard the presence of the firearm. In this
       way, the sentence would conform to statutory requirements. White, however,
       rejected this view and held that once the factual basis was accepted and made of
       record, the presence of the firearm could not be disregarded by the circuit court. To
       do so, White held, would render the legislature’s intent in enacting the enhancement
       provision meaningless. White, 2011 IL 109616, ¶ 29.

¶ 30       White cited several cases in support of the principle that statutorily
       unauthorized sentences are void, but none of these cases addressed the circuit
       court’s authority to disregard any portion of the factual basis. See White, 2011 IL
       109616. These authorities, in short, did not “dictate[ ]” (Teague, 489 U.S. at 301),
       the answer in White. Moreover, we cannot say that, prior to White, it was
       “ ‘apparent to all reasonable jurists’ ” (Chaidez, 568 U.S. at ___, 133 S. Ct. at 1107
       (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997))), that the sentencing
       enhancement had to be given effect. Indeed, before White, numerous cases had
       arisen in which circuit courts assumed they could impose a sentence without the
       statutory enhancement even where the factual basis included the use of a firearm.
       See, e.g., People v. Garza, 2014 IL App (4th) 120882; People v. Young, 2013 IL
       App (1st) 117333; 2013 IL App (3d) 110738; People v. Deng, 2013 IL App (2d)
       111089; People v. Miller, 2012 IL App (4th) 110837-U; People v. Cortez, 2012 IL
       App (1st) 102184; People v. Avery, 2012 IL App (1st) 110298; People v. McRae,
       2011 IL App (2d) 090798. We hold, therefore, that White announced a new rule.

¶ 31       Under Teague, a new rule does not apply retroactively to convictions which
       were final at the time the rule was announced except in two instances: (1) the new
       rule places “certain kinds of primary, private individual conduct beyond the power
       of the criminal law-making authority to proscribe,” and (2) the new rule requires
       the observance of “those procedures that ... are implicit in the concept of ordered
       liberty.” Teague, 489 U.S. at 307.

¶ 32       The first exception clearly does not apply here. The rule announced in White
       does not legalize primary, private individual conduct. With respect to the second
       exception, the Supreme Court has described rules that come within this exception
       as “ ‘watershed rules of criminal procedure’ ” and has stated they are limited to
       those new procedures without which the likelihood of an accurate conviction is
                                                 - 10 -
       seriously diminished. Sanders, 238 Ill. 2d at 401 (quoting Teague, 489 U.S. at 311,
       313). White did not a present a “watershed” rule of criminal procedure as the
       decision does not impact the accuracy of defendant’s conviction. See also Hickey,
       204 Ill. 2d at 627-29 (alleged violations of new procedural rules which do not
       violate a defendant’s constitutional rights do not warrant postconviction relief).



¶ 33                                     CONCLUSION

¶ 34       We hold that our decision in White established a new rule within the meaning of
       Teague which does not fall within either of the Teague exceptions. We further hold,
       therefore, that White does not apply retroactively to convictions which were final at
       the time White was decided. Appellate court decisions which hold to the contrary,
       such as 2013 IL App (3d) 110738, and People v. Cortez, 2012 IL App (1st) 102184,
       are overruled.

¶ 35       For the foregoing reasons, we reverse the judgment of the appellate court and
       affirm the judgment of the circuit court dismissing defendant’s postconviction
       petition.



¶ 36      Appellate court judgment reversed.

¶ 37      Circuit court judgment affirmed.




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