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                              Appellate Court                            Date: 2016.12.08
                                                                         09:59:50 -06'00'




                  People v. Cashaw, 2016 IL App (4th) 140759



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JAMES E. CASHAW, Defendant-Appellant.



District & No.    Fourth District
                  Docket No. 4-14-0759



Filed             September 30, 2016



Decision Under    Appeal from the Circuit Court of Woodford County, No. 05-CF-159;
Review            the Hon. Charles M. Feeney III, Judge, presiding.



Judgment          Affirmed.



Counsel on        Michael J. Pelletier, Jacqueline L. Bullard, and Erica A. Nichols
Appeal            Cook, all of State Appellate Defender’s Office, of Springfield, for
                  appellant.

                  Gregory A. Minger, State’s Attorney, of Eureka (Patrick Delfino,
                  David J. Robinson, and Allison Paige Brooks, all of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE STEIGMANN delivered the judgment of the court, with
                  opinion.
                  Justices Turner and Pope concurred in the judgment and opinion.
                                             OPINION

¶1       In March 2006, a jury convicted defendant, James E. Cashaw, of criminal sexual assault,
     after which the trial court imposed a 12-year prison sentence and a $200 domestic-violence
     fine. Defendant did not challenge the fine on direct review. In the years that followed,
     defendant initiated multiple collateral attacks on his conviction, none of which challenged the
     domestic-violence fine.
¶2       In May 2014, defendant filed a motion for leave to file a successive postconviction
     petition, which the trial court later denied. On appeal, defendant for the first time challenges
     his domestic-violence fine. He argues that because the fine was not authorized by statute, it is
     void under the “void-sentence rule.” Defendant acknowledges that in People v. Castleberry,
     2015 IL 116916, 43 N.E.3d 932, the supreme court abolished the void-sentence rule, but he
     contends that Castleberry does not apply “retroactively” to his case. We disagree with
     defendant and conclude that Castleberry applies to this appeal. As a result, we honor
     defendant’s forfeiture of his claim and affirm his sentence.

¶3                                       I. BACKGROUND
¶4       After a March 2006 trial, the jury found defendant guilty of criminal sexual assault (720
     ILCS 5/12-13(a)(1) (West 2004)). The trial court later sentenced him to 12 years in prison and
     imposed a $200 domestic-violence fine. This court affirmed defendant’s conviction on direct
     appeal. People v. Cashaw, No. 4-06-0427 (Mar. 11, 2008) (unpublished order under Supreme
     Court Rule 23). Defendant did not challenge the propriety of the domestic-violence fine in that
     appeal.
¶5       Defendant then initiated the following series of postconviction actions, all of which were
     unsuccessful, and none of which challenged the domestic-violence fine. Specifically, in May
     2008, defendant filed a petition pursuant to the Post-Conviction Hearing Act (725 ILCS
     5/122-1 to 122-7 (West 2008)). The trial court dismissed that petition. In October 2008,
     defendant filed a second postconviction petition. The court granted the State’s motion to
     dismiss, and this court affirmed on appeal. People v. Cashaw, No. 4-09-0425 (Mar. 1, 2010)
     (unpublished order under Supreme Court Rule 23). In December 2010, defendant filed a
     petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735
     ILCS 5/2-1401 (West 2010)). The trial court dismissed that petition, and this court affirmed on
     appeal. People v. Cashaw, No. 4-11-0167 (Apr. 11, 2012) (unpublished summary order under
     Supreme Court Rule 23(c)(2)).
¶6       In May 2014, defendant filed a motion for leave to file a successive postconviction
     petition, which is the subject of this appeal. The motion alleged ineffective assistance of
     counsel. The trial court denied the motion, concluding that the motion established neither
     cause nor prejudice.
¶7       This appeal followed.

¶8                                        II. ANALYSIS
¶9      Defendant argues, for the first time at any stage of these protracted proceedings, that his
     $200 domestic-violence fine must be vacated. According to defendant, the trial court did not



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       have statutory authorization to impose that fine; therefore, he argues, the fine is void and may
       be attacked at any time.
¶ 10        The State concedes that the trial court lacked statutory authorization to impose the fine but
       argues that under Castleberry, the fine is not void and therefore cannot be challenged for the
       first time at this stage of the proceedings.
¶ 11        Defendant agrees with the State that under Castleberry, the domestic-violence fine in this
       case is not void and cannot be challenged in this appeal. However, defendant notes that
       Castleberry was decided after the conclusion of defendant’s appeal of his criminal conviction
       and sentence. He argues that, therefore, Castleberry does not automatically apply
       “retroactively” to these collateral proceedings. As a result, defendant asks us to hold that
       Castleberry is inapplicable to this appeal—meaning that the “void-sentence rule” abolished by
       Castleberry still applies in full force to defendant’s sentence—and to vacate the
       domestic-violence fine as void.
¶ 12        To resolve this appeal, we must decide the following issue of law: whether the holding of
       Castleberry may be applied in a collateral proceeding when the defendant is attacking a
       sentence imposed in an underlying case that concluded prior to Castleberry—in short, whether
       Castleberry applies “retroactively.” We conclude that Castleberry does apply under those
       circumstances.

¶ 13                         A. Forfeiture and the Post-Conviction Hearing Act
¶ 14        The Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2014)) provides a
       procedural vehicle under which a convicted criminal defendant imprisoned in the penitentiary
       may allege that “in the proceedings which resulted in his or her conviction there was a
       substantial denial of his or her rights under the Constitution of the United States or of the State
       of Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2014). A defendant may raise an issue in an
       initial postconviction petition only if that issue both was not and could not have been raised
       and decided on direct appeal. People v. Blair, 215 Ill. 2d 427, 443, 831 N.E.2d 604, 664-65
       (2005). Otherwise, the issue is forfeited.
¶ 15        In this case, defendant did not raise his claim about his domestic-violence fine in the trial
       court. See People v. Hanson, 2014 IL App (4th) 130330, ¶¶ 14-16, 25 N.E.3d 1. He then
       forfeited that claim by failing to raise it on direct review. The facts underlying the claim were
       contained within the record, and therefore, the issue could have been addressed by the
       appellate court on direct review. Defendant also did not raise this claim in his initial
       postconviction petition.
¶ 16        To file a successive postconviction petition containing new issues, a defendant must first
       obtain “leave of court.” 725 ILCS 5/122-1(f) (West 2014). Leave may be granted only when
       the defendant “demonstrates cause for his or her failure to bring the claim in his or her initial
       post-conviction proceedings and prejudice results from that failure.” Id. In this case, defendant
       does not attempt to establish the cause demanded by section 122-1(f) of the Post-Conviction
       Hearing Act.
¶ 17        Defendant concedes that he has forfeited this claim over and over again, but undeterred, he
       asks to pursue his challenge to the $200 fine under the “void-sentence rule.” (We can only
       speculate as to the value of the state resources wasted regarding the present action, not to



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

¶ 18                            B. The Void-Sentence Rule and Castleberry
¶ 19        In Illinois, a judgment rendered by a court lacking jurisdiction is “void.” Castleberry, 2015
       IL 116916, ¶ 11, 43 N.E.3d 932. A void judgment may be attacked “at any time or in any court,
       either directly or collaterally.” Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103,
       776 N.E.2d 195, 201 (2002).
¶ 20        Generally, jurisdiction is conceived of as comprising two elements: personal jurisdiction
       and subject-matter jurisdiction. Castleberry, 2015 IL 116916, ¶ 12, 43 N.E.3d 932. However,
       in addition, until recently, Illinois courts sometimes acknowledged a third jurisdictional
       element: the court’s “power to render the particular judgment or sentence.” People v. Davis,
       156 Ill. 2d 149, 156, 619 N.E.2d 750, 754 (1993). That third element gave birth to the
       “void-sentence rule,” which provided that “[a] sentence which does not conform to a statutory
       requirement is void.” People v. Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445, 448 (1995)
       (abrogated by Castleberry). Under the void-sentence rule, defendants could, at any time,
       challenge their sentences as void because they were not authorized by statute, thereby
       bypassing the normal rules of forfeiture. See, e.g., People v. Thompson, 209 Ill. 2d 19, 805
       N.E.2d 1200 (2004) (allowing a challenge to a sentence as void to be raised for the first time in
       an appeal from the denial of a postconviction petition).
¶ 21        In Castleberry, the supreme court abolished the void-sentence rule. Castleberry, 2015 IL
       116916, ¶¶ 17-19, 43 N.E.3d 932. In so doing, the court reasoned that the original jurisdiction
       of circuit courts is granted by the Illinois Constitution, not by statute. Id. ¶ 18; Ill. Const. 1970,
       art. VI, § 9 (“Circuit Courts shall have original jurisdiction of all justiciable matters ***.”)
       Therefore, a circuit court’s failure to comply with a statutory requirement cannot affect the
       court’s original jurisdiction. Castleberry, 2015 IL 116916, ¶ 18, 43 N.E.3d 932. The
       Castleberry court thus did away with the idea of the third, “inherent power” element of
       jurisdiction. Id. Under Castleberry, a criminal sentence is not void for lacking statutory
       authorization.

¶ 22                                   C. Retroactivity and Teague
¶ 23       In this case, defendant acknowledges that Castleberry abolished the void-sentence rule.
       However, citing Teague v. Lane, 489 U.S. 288 (1989), defendant argues that Castleberry does
       not apply “retroactively” to this appeal.
¶ 24       While a case is being tried and until direct review of the case is completed, any new
       judicially declared rules apply to the case on direct review. Griffith v. Kentucky, 479 U.S. 314,
       322 (1987) (“failure to apply a newly declared constitutional rule to criminal cases pending on
       direct review violates basic norms of constitutional adjudication”) (abolishing the “clean-break
       rule” and holding that new, judicially declared rules apply to all cases pending on direct
       review); Deichmueller Construction Co. v. Industrial Comm’n, 151 Ill. 2d 413, 416, 603
       N.E.2d 516, 518 (1992) (“In general, judicial decisions are given retroactive as well as
       prospective effect.”).
¶ 25       However, when we ask whether new, judicially declared rules ought to apply in collateral
       proceedings challenging a conviction that has already been finalized, we encounter a more
       complicated answer. By “final,” we mean a judgment occurring in a case in which the available


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       methods for direct review have been exhausted. For instance, if a guilty plea is entered and no
       postplea motion is filed, the trial court loses jurisdiction after 30 days. The case is then final,
       and any attack on the judgment must be made through collateral proceedings by filing, for
       example, a postconviction petition or a petition for relief from judgment under section 2-1401
       of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)).
¶ 26       New, judicially declared rules of criminal law that are substantive in nature generally apply
       retroactively to already final convictions. Schriro v. Summerlin, 542 U.S. 348, 351 (2004).
       That means that a defendant may file a collateral attack on his conviction utilizing the new rule.
¶ 27       New rules of criminal procedure, however, generally do not apply retroactively to final
       convictions, meaning that those rules cannot be utilized in a postconviction petition attacking a
       conviction that became final prior to the announcement of the new rule. Id. at 352. Only those
       “watershed rules of criminal procedure”—those that implicate “the fundamental fairness and
       accuracy of the criminal proceeding”—apply retroactively to an already final conviction.
       (Internal quotation marks omitted.) Id.
¶ 28       Although Teague and its progeny apply only to federal habeas corpus proceedings, Illinois
       has adopted the Teague rule to govern retroactivity in State law collateral proceedings. In
       People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674 (1990), the supreme court first
       acknowledged that the holding of Teague applied only to federal habeas corpus proceedings.
       (That principle was later confirmed and expounded upon by the Supreme Court of the United
       States in Danforth v. Minnesota, 552 U.S. 264, 278-79 (2008); see also People v. Davis, 2014
       IL 115595, ¶¶ 33-35, 6 N.E.3d 709 (discussing Teague’s application to Illinois state-law
       collateral proceedings).) However, the Flowers court found the Teague holding “helpful and
       concise” and therefore adopted it to determine whether a new rule should apply to proceedings
       pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2014)).
       Flowers, 138 Ill. 2d at 237-39, 561 N.E.2d at 681-82; see also People v. Smith, 2015 IL
       116572, 26 N.E.3d 335 (confirming that Teague applies to state collateral proceedings and
       engaging in a Teague retroactivity analysis).

¶ 29                             D. People v. Smith and People v. Stafford
¶ 30       In People v. Smith, 2016 IL App (1st) 140887, 51 N.E.3d 848, the Appellate Court, First
       District, recently held that Castleberry does not apply retroactively to finalized convictions. In
       Smith the defendant filed a motion for leave to file a successive postconviction petition, which
       the trial court denied. Id. ¶ 2. Defendant appealed and argued for the first time that the
       extended-term portion of his sentence was unauthorized by statute and therefore void. Id. ¶ 12.
       After the defendant filed his appellate brief, and while his case was still pending in the
       appellate court, the supreme court decided Castleberry. Id. ¶ 20. The First District was
       therefore tasked with determining whether to apply the holding of Castleberry to the pending
       appeal in that collateral proceeding.
¶ 31       The Smith court began its analysis by describing the issue as one of “retroactivity,” which
       Teague and its progeny controlled. Id. ¶ 24. Seeking to apply Teague, the Smith court set out to
       determine whether Castleberry announced a “new rule” of criminal procedure. Id. ¶¶ 27-29.
       The court concluded that “Castleberry did not announce a new rule, but merely abolished [the
       void-sentence rule] stated in Arna, thereby reinstating the rule in effect before Arna.” Id. ¶ 29.
       The court then concluded that because Castleberry did not establish a “new rule,” its holding
       could not be applied retroactively to the defendant’s appeal. Id. ¶ 30. Thus, the court concluded

                                                    -5-
       that “Castleberry only applies prospectively from the date of pronouncement, November 15,
       2015.” Id.
¶ 32       More recently, this court decided People v. Stafford, 2016 IL App (4th) 140309, which
       disagreed with Smith and held that Castleberry does apply retroactively in collateral
       proceedings. The Stafford court cited Smith and agreed with its initial determination that
       Castleberry did not establish a “new rule” but instead abolished the void-sentence rule and
       reinstated the rule in existence before Arna. Id. ¶ 33. However, the Stafford court concluded
       that because the holding of Castleberry was not a “new rule,” the holding should apply
       retroactively. Id. See also People v. Morrison, 2016 IL App (4th) 140712, ¶ 24, where this
       court recently cited Stafford approvingly.
¶ 33       We agree with the ultimate holding of Stafford that Castleberry applies retroactively to
       collateral proceedings in which a petitioner seeks to challenge a conviction that became
       finalized prior to the supreme court’s decision in Castleberry because Castleberry did not
       create a new rule. We also find an alternative basis to support Castleberry’s retroactivity,
       discussed below.
¶ 34       We note that in reaching its decision in Smith, the Appellate Court, First District, stated the
       following: “Although the State was given the opportunity to explain how or why Castleberry
       applies to the issue presently before this court, the State has failed to do so both in their brief
       and in oral argument.” Smith, 2016 IL App (1st) 140887, ¶ 23, 51 N.E.3d 848. Fortunately for
       this court, the State has provided persuasive argument and authority to explain why
       Castleberry applies retroactively, which we find convincing for the foregoing reasons set forth
       below. As a result, we explicitly disagree with the holding of Smith.

¶ 35                              E. Teague Does Not Control This Case
¶ 36       The Teague retroactivity analysis applies to solve the following specific inquiry: whether a
       (1) judicially announced (2) new rule (3) that is favorable to the defendant should apply (4) in
       collateral proceedings (5) challenging a judgment in a criminal case that concluded prior to the
       announcement of the new rule.
¶ 37       Here, the third element is the most glaring problem preventing the application of Teague.
       Teague is a “one-way street” (Free v. Peters, 12 F.3d 700, 703 (7th Cir. 1993)) in that it applies
       only when a defendant seeks to overturn his conviction by retroactively applying a new rule
       that is favorable to him. This limitation stems from the purpose of Teague: to protect the State
       and society’s interest in the finality of criminal convictions. Teague, 489 U.S. at 309
       (“Application of constitutional rules not in existence at the time a conviction became final
       seriously undermines the principle of finality which is essential to the operation of our criminal
       justice system.”).
¶ 38       Under Teague, the State, not the petitioner, may object to the application of a new rule to an
       old, concluded case. See People v. Granados, 172 Ill. 2d 358, 365, 666 N.E.2d 1191, 1194
       (1996) (not applying Teague to determine whether a new rule unfavorable to defendant applied
       retroactively to the pending appeal in a postconviction proceeding and describing the Teague
       rule as one that applies to determine the retroactivity of “a new constitutional rule of criminal
       procedure that is favorable to the defendant” (emphasis added)).
¶ 39       In this case, defendant turns Teague on its head. He seeks to prevent the application of a
       new rule to an old case, but he seeks to do so in order to apply the old rule to disturb the finality


                                                     -6-
       of a judgment. That is not the function of Teague. A 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. As the Supreme Court explained in Lockhart v. Fretwell, 506 U.S. 364, 372
       (1993), the retroactivity rule of Teague “was motivated by a respect for the State’s strong
       interest in the finality of criminal convictions.” A petitioner attempting to overturn his
       conviction “has no interest in the finality of the state-court judgment under which he is
       incarcerated.” Id. at 373. Because of that difference in interests, “the State will benefit from our
       Teague decision in some federal habeas cases, while the habeas petitioner will not.” Id. “This
       result is not *** a ‘windfall’ for the State, but instead is a perfectly logical limitation of Teague
       to the circumstances which gave rise to it. Cessante ratione legis, cessat et ipsa lex. [(Where
       the reason for the law ceases, the law itself should also cease.)]” Id. Accordingly, Teague
       cannot be used as the defendant attempts to use it here: to overturn an already final judgment
       by utilizing old law that has since changed.
¶ 40       As a result, Castleberry applies, the domestic-violence fine is not void, and defendant has
       forfeited his claim that the fine was unauthorized by statute. We therefore affirm the
       imposition of the domestic-violence fine.

¶ 41                                       III. CONCLUSION
¶ 42       For the foregoing reasons, we affirm the trial court’s judgment.
¶ 43       As part of our judgment, we award the State its $50 statutory assessment against defendant
       as costs of this appeal. 55 ILCS 5/4-2002 (West 2014).

¶ 44       Affirmed.




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