                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Cortez, 2012 IL App (1st) 102184




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



District & No.             First District, Sixth Division
                           Docket No. 1-10-2184


Filed                      June 29, 2012
Rehearing denied           July 31, 2012
Modified upon denial
of rehearing               August 10, 2012


Held                       The agreed-upon sentence, including custody credit, imposed on an
(Note: This syllabus       already incarcerated defendant pursuant to his negotiated guilty after he
constitutes no part of     committed a new offense was legally impermissible and therefore void;
the opinion of the court   consequently, the dismissal of his petition under section 2-1401 of the
but has been prepared      Code of Civil Procedure was reversed and defendant, if he so chose,
by the Reporter of         would be allowed to withdraw his plea and proceed to trial, even though
Decisions for the          the petition was filed 11 years after he entered his plea.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 98-CR-171791; the
Review                     Hon. Nicholas R. Ford, Judge, presiding.


Judgment                   Reversed and remanded with directions.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Manuel S. Serritos, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

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


Panel                      JUSTICE PALMER delivered the judgment of the court, with opinion.
                           Justice Lampkin concurred in the judgment and opinion.
                           Justice Garcia dissented, with opinion.


                                              OPINION

¶1           Defendant Jesse Cortez appeals from the dismissal of his pro se petition for relief from
        judgment under section 2-1401(f) of the Code of Civil Procedure (Code). 735 ILCS 5/2-
        1401(f) (West 2010). On appeal, he contends that his negotiated guilty plea is void because
        the agreed-upon sentence was legally impermissible. Based on the following, we reverse the
        dismissal of defendant’s pro se petition for relief from judgment and remand the case to the
        trial court to allow defendant to withdraw his guilty plea and proceed to trial, if he so
        chooses.

¶2                                        BACKGROUND
¶3          The record shows that on May 17, 1998, defendant was serving a 35-year prison sentence
        for an unrelated crime (No. 92 CR 8378). On that date, he and another inmate, who is not a
        party to this appeal, punched a peace officer with the Cook County sheriff’s department in
        the mouth and body. Defendant was subsequently charged with aggravated battery.
¶4          At a hearing held on May 4, 1999, defense counsel stated, and defendant confirmed, that
        “[defendant was] seeking leave of court to change his plea from not guilty to guilty. He
        understands he’ll serve a sentence of two years Illinois Department of Corrections [IDOC]
        with credit for 353 days *** actually served in custody.” After accepting the plea, the court
        sentenced defendant to 2 years’ imprisonment and ordered the sentence to run consecutively
        with his 35-year sentence in case number 92 CR 8378. The mittimus indicates that the trial
        court awarded defendant 353 days’ credit. Defendant did not file a motion to withdraw his
        guilty plea and vacate the judgment or otherwise attempt to perfect an appeal from it.
¶5          On April 19, 2010, almost 11 years after the entry of his guilty plea, defendant filed a pro
        se petition for relief under section 2-1401(f) of the Code (735 ILCS 5/2-1401(f) (West
        2010)), seeking enforcement of his plea bargain. Defendant claimed that he was forced to
        serve a more onerous sentence than the one he agreed to because the IDOC declared that he
        could not receive the 353 days of credit awarded to him by the trial court. Defendant


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       repeatedly stated that he was not challenging the validity of the guilty plea or seeking to
       withdraw his plea.
¶6         On June 25, 2010, the circuit court sua sponte dismissed defendant’s petition. This
       appeal followed.
¶7         On appeal, defendant abandons the issues raised in his petition and contends for the first
       time that because the agreed-upon sentence, which included 353 days of custody credit, was
       legally impermissible, the negotiated plea is void under People v. White, 2011 IL 109616.
       We agree with defendant.

¶8                                             ANALYSIS
¶9         Although defendant did not raise this issue in his section 2-1401 petition, a void sentence
       may be attacked at any time. People v. Hillier, 237 Ill. 2d 539, 546 (2010); People v. Holmes,
       405 Ill. App. 3d 179, 183 (2010). Whether a sentence is void is a question of law subject to
       de novo review. People v. Hauschild, 226 Ill. 2d 63, 72 (2007).
¶ 10       Aggravated battery of a peace officer is a Class 3 felony punishable by two to five years’
       imprisonment. 720 ILCS 5/12-4(b)(6), (e) (West 1998); 730 ILCS 5/5-8-1(a)(6) (West 1998).
¶ 11       Here, the record shows that defendant pled guilty pursuant to a plea agreement by which
       he was promised a 353-day sentencing credit when he pleaded guilty. Defense counsel
       specifically stated at the hearing that, “[defendant] understands he’ll serve a sentence of two
       years Illinois Department of Corrections with credit for 353 days.” In accordance with those
       terms, the mittimus shows that the trial court awarded defendant 353 days of sentencing
       credit, despite the fact that the court ordered defendant’s sentence to run consecutively to his
       previous conviction in case number 92 CR 8378. We observe, and both parties agree, that
       the trial court improperly awarded defendant this sentencing credit where the 353 days were
       spent in custody on the sentence for his prior conviction. See People v. Latona, 184 Ill. 2d
       260, 271 (1998) (“to the extent that an offender sentenced to consecutive sentences had been
       incarcerated prior thereto on more than one offense simultaneously, he should be given credit
       only once for actual days served”). Based on Latona, the court could not, as a matter of law,
       award defendant 353 days of credit as a part of his plea agreement.
¶ 12       The supreme court in White, 2011 IL 109616, addressed arguments similar to those raised
       here. The factual basis in White alleged that the defendant was accountable for a murder,
       which was committed by shooting the victim with a gun. Id. ¶¶ 4-6. Although the 15-year
       mandatory firearm enhancement meant that the defendant was eligible for a 35- to 75-year
       sentence, he only received 28 years’ imprisonment. Id. ¶ 9. The supreme court held that when
       the factual basis for a guilty plea makes it clear that a defendant is subject to a mandatory
       sentencing enhancement, the trial court may not enter a judgment imposing a sentence that
       does not include such enhancement on the basis that the parties excluded it in the plea
       agreement. Id. ¶¶ 26-29. The supreme court stated that a trial court exceeds its authority
       when it orders a lesser or greater sentence than that which the statute mandates. Id. ¶ 20.
       Therefore, the supreme court held that the guilty plea entered into by the defendant was void
       and remanded the cause to the trial court with directions to withdraw the plea. Id. ¶ 31.
¶ 13       Here, the record shows that defendant was sentenced to 2 years’ imprisonment with credit

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       for 353 days in custody. However, the 353 days’ custody credit was impermissible where he
       was already serving an imposed sentence on an earlier conviction. Latona, 184 Ill. 2d 260
       at 271. This promised credit time was nearly half of the imposed sentence, but Illinois law
       made this sentencing condition unattainable. As in White, defendant’s negotiated sentence
       “did not conform to the statutory requirements and, therefore, is void.” White, 2011 IL
       109616, ¶ 21.
¶ 14       The State recognizes the holding of White but contends that it is distinguishable because,
       unlike White, defendant in this case is appealing the trial court’s dismissal of his section 2-
       1401 petition, he waited to challenge the validity of his plea until almost 11 years after the
       final judgment was entered, and the sentence imposed was not in conflict with statutory
       guidelines. However, as discussed above, the fact that defendant challenged his plea in a
       section 2-1401 petition several years after the final judgment was entered is of no
       consequence where defendant is challenging his plea as void. Despite the State’s contentions
       to the contrary, both defendant here and the defendant in White received sentences that
       conflicted with statutory guidelines.
¶ 15       The State also contends that White announced a new rule of law which does not have
       retroactive application to defendant. We disagree. In Teague v. Lane, 489 U.S. 288, 311-13
       (1989), the Supreme Court held that a new constitutional rule of criminal procedure cannot
       be applied to cases on collateral review unless the rule complies with one of two exceptions.
       However, prior to assessing whether one of the exceptions applies, a court must determine
       whether the rule is actually new. In recognizing the difficulty with first determining whether
       a new rule is announced, the Supreme Court advised “a case announces a new rule when it
       breaks new ground or imposes a new obligation on the States or the Federal Government.
       [Citations.] To put it differently, a case announces a new rule if the result was not dictated
       by precedent existing at the time the defendant’s conviction became final.” (Emphasis in
       original.) Id. at 301.
¶ 16       The central holding in White was that a sentence not authorized by statute is void. This
       rule of law has been consistently applied since People v. Arna, 168 Ill. 2d 107 (1995). See,
       e.g., People v. Jackson, 2011 IL 110615, ¶ 10; People v. Marshall, 242 Ill. 2d 285, 302
       (2011); People v. Bishop, 218 Ill. 2d 232, 254 (2006); People v. Thompson, 209 Ill. 2d 19,
       25 (2004); People v. Pinkonsly, 207 Ill. 2d 555, 569 (2003). Contrary to the State’s argument,
       the supreme court’s holding in White did not create a new rule by eliminating the
       prosecution’s discretion in seeking to include the firearm enhancement. Rather, in White the
       supreme court explained that when the facts underlying a plea agreement trigger the firearm
       enhancement statute, the minimum permissible sentence must include the term of the add-on
       despite any negotiations to the contrary. The prosecution still retains discretion whether to
       seek the enhancement when it decides how to charge the defendant and what facts to submit
       to support the plea agreement.1 White, 2011 IL 109616, ¶ 25.


               1
                 The dissent and the appellant on rehearing contend that our decision here today is contrary
       to the recent holding of our court in People v. Avery, 2012 IL App (1st) 110298. We respectfully
       disagree. In Avery, this court held that the Illinois Supreme Court’s decision in White announced a

                                                   -4-
¶ 17       The State also advances an estoppel argument, which we find unpersuasive because we
       have consistently held that “[a] challenge to an alleged void order is not subject to
       forfeiture.” Marshall, 242 Ill. 2d at 302. The State argues, however, that defendant received
       the benefit of his bargain in that he received the minimum possible sentence. We find this
       argument disingenuous where the State fails to explain how defendant received the benefit
       of his bargain where Illinois law prohibits fulfillment of the sentencing condition of double
       custody credit and, therefore, defendant most certainly will not receive the promised custody
       credit time (353 days).
¶ 18       We also disagree with the State that the appropriate remedy where a sentence is found
       to be void is to remand the cause for resentencing. In this case, as in White, it is not just a
       portion of the sentence that is void but the entire plea agreement.
                “Our supreme court has declared that plea agreements, and in particular agreements
           for fully negotiated pleas where the parties have agreed on the appropriate sentence, are
           generally governed by contract law. People v. Absher, 242 Ill. 2d 77, 90 (2011); People
           v. Smith, 406 Ill. App. 3d 879, 888-89 (2010). A plea agreement is between the State and
           the defendant, and the circuit court is not a party to the agreement. Smith, 406 Ill. App.
           3d at 488-89. A defendant does not have an absolute right to withdraw his guilty plea and
           thus bears the burden of showing why withdrawal is necessary. Smith, 406 Ill. App. 3d
           at 885. While an illegal contract is generally void ab initio, a plea agreement is void
           when an essential part of the agreed exchange is unenforceable or illegal under the
           relevant statutes. People v. Gregory, 379 Ill. App. 3d 414, 419-20 (2008). Whether a void
           term or aspect of the sentence was essential is determined by its relative importance in
           light of the entire agreement. Gregory, 379 Ill. App. 3d at 420.” People v. Donelson,
           2011 IL App (1st) 092594, ¶ 14, appeal allowed, No. 113603 (Mar. 28, 2012).
¶ 19       We consider one of the essential terms of the plea agreement here to be that defendant
       would receive credit for 353 days’ time spent in custody against the sentence of 2 years in
       the IDOC. Essentially, the award of 353 days’ time credit meant that defendant would have
       no additional time in custody as a result of this conviction. We find that as the trial court did
       not have the authority to award credit on the consecutive sentence, the plea agreement was
       an illegal contract with regard to an essential term and therefore is void.2 We conclude that


       new rule of law and thus should not be given retroactive effect. Avery, 2012 IL App (1st) 110298,
       ¶¶ 37-39. In Avery, this court found that the “new rule” of White was that “the first degree murder
       firearm enhancement is automatically triggered when it is part of the factual basis for the underlying
       offense, regardless of whether the State seeks to pursue it as an aggravating factor.” Avery, 2012 IL
       App (1st) 110298, ¶ 40. Our opinion today does not concern the first degree murder firearm
       enhancement and relies on White only for the well-established general principles concerning void
       sentences and void plea agreements discussed infra at ¶¶ 16 and 18.
               2
                We are not concerned that our decision herein would affect the many occasions that we are
       called upon to correct a mittimus due to an inaccurate calculation of time credit. Those instances
       involve a mistake in calculating the amount of time spent in custody whereas here we are faced with
       a contractual promise made to a defendant which cannot be fulfilled.

                                                    -5-
       the appropriate remedy does not allow us to keep defendant’s plea intact and remand for
       resentencing where, as here, an essential part of the plea was illegal. Gregory, 379 Ill. App.
       3d at 419-22 (citing People v. Hare, 315 Ill. App. 3d 606, 609-11 (2000)); People v. Johnson,
       338 Ill. App. 3d 213, 216 (2003); People v. Caban, 318 Ill. App. 3d 1082, 1087-89 (2001).
       We see no need to divert from the supreme court’s decision in White where the cause was
       remanded to the trial court for the withdrawal of the defendant’s guilty plea, if defendant
       chooses. White, 2011 IL 109616, ¶ 31.
¶ 20       The State’s reliance on People v. Whitfield, 217 Ill. 2d 177 (2005), as support is
       unavailing because in Whitfield, the defendant’s sentence was not void. Whitfield, 217 Ill. 2d
       at 205. Here, there is no argument that defendant’s plea was involuntary or a violation of his
       due process rights as not providing the benefit of his bargain. On the contrary, the argument
       is that defendant’s sentence was void and, therefore, his negotiated sentence was illegal.
       People ex rel. Ryan v. Roe, 201 Ill. 2d 552 (2002), is equally inapplicable where the source
       of voidness in the defendant’s sentence was the failure to apply the truth-in-sentencing
       statute. In Roe, the supreme court exercised its supervisory authority to award a writ of
       mandamus finding an equitable solution uncontested by the State in order to provide the
       defendant with the benefit of his original bargain. Roe, 201 Ill. 2d at 557-58.
¶ 21       In response to the State’s argument that allowing defendant to withdraw his guilty plea
       and potentially proceed to trial could cause prejudice to the State after so much time has
       elapsed since the plea was entered, we return to the distinguishing factors between those
       cases cited by the State where the plea at issue violated the defendants’ due process rights
       because the defendants were not admonished regarding mandatory supervised release (see
       Whitfield, 217 Ill. 2d at 180; Smith, 406 Ill. App. 3d at 893-94), and the instant plea, which
       is unquestionably void. The State does not cite to any cases instructing this court to consider
       the potential prejudice to the State if defendant decided to seek a trial upon remand following
       the withdrawal of his void plea.

¶ 22                                         CONCLUSION
¶ 23       As the trial court’s imposition of a 2-year prison term with 353 days’ custody credit is
       void, we reverse the trial court’s dismissal of defendant’s section 2-1401 petition and remand
       this case to the trial court with instructions to allow defendant to withdraw his guilty plea and
       proceed to trial, if he so chooses.

¶ 24       Reversed and remanded with directions.

¶ 25        JUSTICE GARCIA, dissenting.
¶ 26        I have several fundamental disagreements with the majority.
¶ 27        First, I question the remand to permit the defendant to withdraw his guilty plea and
       proceed to trial, “if he so chooses.” Supra ¶ 1. As the majority implicitly acknowledges in
       its discussion of the defendant’s pro se petition, it is not clear that the defendant truly desires
       to withdraw his guilty plea that resulted in the minimum statutory sentence for aggravated


                                                  -6-
       battery in 1999, though that is the request of his appellate counsel. In light of this uncertainty,
       before we decide whether the sentence is void, we should remand this matter for a hearing
       on the defendant’s section 2-1401 petition in which he expressly declared that he was not
       seeking to withdraw his plea of guilty. See People v. Burrows, 172 Ill. 2d 169, 181 (1996)
       (circuit court held an evidentiary hearing on the defendant’s section 2-1401 petition to
       determine whether he was entitled to a new trial after which it granted relief, which the
       supreme court affirmed).
¶ 28        Second, I disagree that the trial judge, when he awarded the defendant 353 days’ credit
       for time in custody on his plea of guilty to aggravated battery, exceeded his statutory
       authority so as to void the 2-year sentence he imposed, a sentence that conformed with
       statutory guidelines for a Class 3 felony. The sentencing order informed the defendant that
       his 2-year sentence would be served consecutive to the 35-year sentence he was serving for
       murder, which placed the defendant on notice that his credit for time in custody following
       his aggravated battery arrest would apply only to one conviction. Given that the defendant
       is entitled to credit on only one sentence, we could theoretically order the Illinois Department
       of Corrections (IDOC) to give the defendant 353 days’ credit against his 2-year sentence for
       aggravated battery, to avoid having to decide whether the trial court exceeded its authority
       under the circumstances in this case. But that is not what the defendant wants. The defendant
       wants those 353 days credited against both his murder sentence and his aggravated battery
       sentence, which we all agree is legally untenable under People v. Latona, 184 Ill. 2d 260
       (1998).
¶ 29        Third, I disagree that People v. White, 2011 IL 109616, stands as clear authority to
       declare void the defendant’s lawful 2-year sentence for aggravated battery based on the
       erroneous award of 353 days for time in custody, which the IDOC informed the defendant
       he would not receive against his aggravated battery sentence because those same 353 days
       were credited against his murder sentence. (It bears noting that under the majority’s analysis,
       even one day’s credit against the defendant’s aggravated battery sentence voids his sentence.)
       However, the legal issue before us is not whether the credit was erroneously awarded, but
       whether the erroneous credit for time in custody voided the defendant’s plea agreement, an
       issue never addressed in White. In White, the defendant filed a timely motion to vacate his
       guilty plea in which he argued that “he did not understand the implication of pleading guilty”
       and that he was not properly admonished, suggesting the defendant’s principal contention
       was that his plea of guilty under those circumstances was involuntary. Id. ¶ 9. The instant
       case does not involve a direct appeal; nor did the defendant below ever contend he did not
       understand the implications of pleading guilty. Also in White, the sentence of 28 years
       imposed on the defendant was itself illegal as below the statutory minimum of 35 years based
       on the use of a firearm (id. ¶ 29); no one contends that the 2-year sentence imposed in this
       case was illegal. As Justice Theis made clear in her special concurrence in White, the State
       is free “to negotiate around the mandatory sentence enhancement *** [by] amending the
       indictment and presenting a factual basis that referred to a dangerous weapon, rather than a
       firearm.” Id. ¶ 41 (Theis, J., specially concurring). In the instant case, there was no manner
       available to either party to lawfully credit the defendant for the days he was serving on his
       murder sentence against his aggravated battery sentence as well. The application of White to

                                                  -7-
       the instant case is also challenged by a very recent decision of another division of this court
       that held White established a new rule, which renders White inapplicable to cases on
       collateral review, such as the case before us. People v. Avery, 2012 IL App (1st) 110298,
       ¶ 39.3
¶ 30        Finally, only if the 353 days’ credit for time in custody awarded to the defendant on his
       aggravated battery is an essential part of his sentence to render it illegal does that “illegality
       void[ ] the entire [plea] agreement and not merely the sentence.” (Internal quotation marks
       omitted.) People v. Gregory, 379 Ill. App. 3d 414, 419 (2008). To determine whether the
       plea agreement is void, we look to whether “the infirmity affected an essential part of the
       plea agreement.” Id. “Whether a term is essential depends on the relative importance [of the
       voided term] in the light of the entire agreement between the parties.” (Internal quotation
       marks omitted.) Id. at 420. Where a “large change” is needed to the plea agreement to bring
       it into compliance with the mandates of the controlling statute, the entire agreement is void.
       (Internal quotation marks omitted.) Id. The credit erroneously awarded to the defendant on
       his aggravated battery sentence, rather than to his murder sentence, is not such a “large
       change” to render the entire agreement void. See People v. Montiel, 365 Ill. App. 3d 601, 606
       (2006) (while failure to impose the minimum statutory fine rendered a term of the
       defendant’s sentence void, the change in the sentence to add the statutory fine did not void
       the entire plea agreement); People v. McNett, 361 Ill. App. 3d 444, 448 (2005) (“a minor
       correction in a sentence[, such as cutting six months of periodic imprisonment from the
       defendant’s sentence,] should not be the undoing of what was otherwise a sound plea
       agreement”). To repeat, the defendant does not contend his plea of guilty was involuntary
       based on the custody credit wrongfully awarded against his aggravated battery sentence. See
       McNett, 361 Ill. App. 3d at 448 (“Obviously, the withdrawal of some sentencing concession
       may make a plea involuntary, but that is not at issue here.” (Emphasis omitted.)). As the
       McNett court noted in voiding only a term of the sentence, and not the entire sentence, “we
       think it is important to note that nothing the State could have done, including going to trial,
       could have given it the result it intended.” Id. at 449. Likewise here, the defendant could
       never have received credit for time in custody against both his aggravated battery sentence
       and his murder sentence, as he urged in his section 2-1401 petition.
¶ 31        I dissent from the majority’s holding that an erroneous credit for time in custody on the
       statutorily proper, minimum sentence of two years for aggravated battery renders his entire
       sentence void, a conclusion that also voids his plea agreement.




               3
                I disagree with the majority that Avery can be so easily dismissed as addressing a charge
       different than the one at issue here. Supra n.1. Either White announced a new rule of law, or it did
       not. There exists no authority for the majority’s implicit contention that the rule of law established
       in White is “new” only in the context of Avery.

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