                       Nos. 2-07-0640 & 2-07-0642 cons. Filed: 5-27-10
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 01--CF--1036
                                       )
ENRIQUE SANTANA,                       ) Honorable
                                       ) Victoria A. Rossetti,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 01--CF--1040
                                       )
ENRIQUE SANTANA,                       ) Honorable
                                       ) Victoria A. Rossetti,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE JORGENSEN delivered the opinion of the court:

       In these consolidated appeals, defendant, Enrique Santana, seeks review of orders dismissing

petitions under section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 2006)),

which sought the reduction of his sentences for aggravated discharge of a firearm (720 ILCS

5/24--1.2(a)(1), (a)(2) (West 2000)). We initially affirmed this case on February 20, 2009, finding

that the court did not err in dismissing the petitions where defendant's sentences did not run afoul
Nos. 2--07--0640 & 2--07--0642 cons.


of People v. Whitfield, 217 Ill. 2d 177 (2005). People v. Santana, 388 Ill. App. 3d 961 (2009). On

March 24, 2010, the Illinois Supreme Court issued a supervisory order, which vacated our February

20, 2009, opinion and directed us to reconsider our decision in light of People v. Morris, 236 Ill. 2d

345 (2010). We conclude that Morris does not alter our prior ruling in this case. Thus, we affirm.

       In separate prosecutions, defendant was charged with aggravated discharge of a firearm in

incidents that occurred on or about March 23, 2001 (case No. 2--07--0640), and March 28, 2001

(case No. 2--07--0642). On May 29, 2001, defendant entered negotiated guilty pleas in both cases.

The prosecutor provided the following statement of the terms of the plea agreement:

               "We have a proposed disposition. The defendant will be pleading guilty to both

       cases. *** On each case he will be sentenced to ten years in the Illinois Department of

       Corrections.

               The Court will also as part of our plea make a finding *** that consecutive sentence

       is necessary in this case having regard for the nature and circumstances of the offense and

       the history of the defendant that a consecutive term is required to protect the public. As a

       result, those sentences will run consecutively."

       The prosecutor did not explain that, by operation of law, defendant's sentences included a

two-year term of mandatory supervised release (MSR), to be served upon release from incarceration.

See 730 ILCS 5/5--8--1(d)(2) (West 2000). However, before accepting defendant's guilty pleas, the

trial court admonished him as follows:

               "If you are found guilty of [the charge arising from the March 23, 2001, incident], you

       could be sentenced from four to five [sic] years in the penitentiary followed by a two-year

       [MSR] term that used to be called parole and a fine of up to $25,000.



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                                                ***

               If you are found guilty of [the charge arising from the March 28, 2001, incident], you

       could be sentenced from four to 15 years in the penitentiary followed by a one-year [MSR]

       term that used to be called--let me start that again. If you are found guilty of that aggravated

       discharge of a firearm, you could be sentenced from four to 15 years in the penitentiary

       followed by a two-year [MSR] term that used to be called parole and a fine of up to

       $25,000."

       Defendant filed his section 2--1401 petitions in April 2007. He alleged that he "was never

admonished or even told that 2 years of MSR would have to be done once his determinate sentence

was complete." Defendant contended that the addition of a term of MSR to his sentences

contravened his plea agreement. The State moved to dismiss the petitions, and the trial court granted

the motions, concluding that the petitions were untimely and that, because defendant was properly

admonished, each petition failed to state a basis for relief. Defendant filed timely notices of appeal,

and this court ordered the appeals consolidated.

       Section 2--1401 provides "a comprehensive, statutory procedure that allows for the vacatur

of a final judgment older than 30 days." People v. Vincent, 226 Ill. 2d 1, 7 (2007). "Relief under

section 2--1401 is predicated upon proof, by a preponderance of evidence, of a defense or claim that

would have precluded entry of the judgment in the original action and diligence in both discovering

the defense or claim and presenting the petition." Vincent, 226 Ill. 2d at 7-8. Ordinarily the petition

must be brought within two years after the entry of the judgment or order from which relief is sought.

735 ILCS 5/2--1401(c) (West 2006). Relief under section 2--1401 is available in criminal as well

as civil cases. Vincent, 226 Ill. 2d at 8. The petition may be dismissed if legally or factually



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insufficient. Vincent, 226 Ill. 2d at 8. Absent an evidentiary hearing on the petition, our review of

the dismissal of the petition is de novo. Vincent, 226 Ill. 2d at 13.

       Defendant argues on appeal that his petitions set forth claims for relief pursuant to the

principles announced in People v. Whitfield, 217 Ill. 2d 177 (2005). In that case, our supreme court

noted that a violation of due process occurs when a defendant pleads guilty in exchange for a specific

sentence, but receives "a different, more onerous sentence." Whitfield, 217 Ill. 2d at 189. The

Whitfield court further observed that under Supreme Court Rule 402(a)(2) (177 Ill. 2d R.

402(a)(2))--which requires the trial court to inform the defendant of the minimum and maximum

sentences prescribed by law before accepting a guilty plea--the defendant must be informed that a

term of MSR will be added to his or her sentence. Whitfield, 217 Ill. 2d at 188, citing People v.

Wills, 61 Ill. 2d 105, 109 (1975). Without a proper admonition, adding MSR to the defendant's

sentence "amounts to a unilateral modification and breach of the plea agreement by the State,

inconsistent with constitutional concerns of fundamental fairness." Whitfield, 217 Ill. 2d at 190.

However, because a defendant sentenced to imprisonment must also serve a term of MSR, the

Whitfield court concluded that the remedy most closely approximating the defendant's bargain with

the State is to reduce the defendant's prison term by a period equal to the MSR term. Whitfield, 217

Ill. 2d at 203-05. Accordingly, in Whitfield, where the defendant pleaded guilty in exchange for a

25-year prison term and was not told he would also have to serve a 3-year term of MSR, the court

reduced the prison term by 3 years.

       Defendant argues that, in accordance with Whitfield, his prison terms should be reduced by

two years. Defendant contends that his failure to file his petitions within two years after his

conviction does not bar relief. According to defendant, the portion of his sentences exceeding what



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is permissible under Whitfield is void and may be challenged at any time under section 2--1401.

Defendant alternatively argues that, if section 2--1401's time limit does in fact apply, the trial court

should have recharacterized his petition as one seeking relief under the Post-Conviction Hearing Act

(Act) (725 ILCS 5/122--1 et seq. (West 2006)), in which case the trial court would have to appoint

counsel to represent defendant before considering the timeliness of the petition. See generally

People v. Boclair, 202 Ill. 2d 89 (2002). We disagree for three reasons.

       First, we disagree with defendant's theory that a sentence that runs afoul of Whitfield is partly

void. "Whether a judgment is void or voidable presents a question of jurisdiction." People v. Davis,

156 Ill. 2d 149, 155 (1993). A judgment is void if the court entered it without personal or subject

matter jurisdiction or if the court "lacked the power to render the particular judgment or sentence."

People v. Rodriguez, 355 Ill. App. 3d 290, 296 (2005). There is no question that the trial court

possessed jurisdiction over defendant's person and over the subject matter. The only issue is whether

the court lacked the power to impose sentences that violated defendant's agreement with the State.

Our supreme court has observed that the requirement that a court have the "inherent power" to render

a particular judgment is largely a relic of the period prior to 1964, when courts exercised only limited

jurisdiction conferred by statute. Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 529-30 (2001). In

criminal cases, the "inherent power" requirement endures mainly as a limitation on the court's ability

to impose a sentence contravening a statutory requirement. Thus, "a sentence not conforming to a

statutory requirement is void and may be corrected at any time." People v. Davison, 378 Ill. App.

3d 1010, 1018 (2008), appeal allowed, 228 Ill. 2d 540 (2008).

       Here, defendant's sentences--including MSR--are authorized by statute. Whether or not

defendant's sentences comport with Whitfield, the trial court clearly had the power to impose the



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sentences. Even if the trial court failed to sufficiently admonish defendant concerning MSR, the

error would not vitiate the trial court's power to impose a sentence authorized by statute. As our

supreme court has noted, "jurisdiction or power to render a particular judgment does not mean that

the judgment rendered must be the one that should have been rendered, for the power to decide

carries with it the power to decide wrong as well as to decide right." Davis, 156 Ill. 2d at 156.

       Second, we do not believe that the trial court erred by declining to recharacterize defendant's

section 2--1401 petition as one brought under the Act. In support of his argument, defendant relies

on People v. Smith, 386 Ill. App. 3d 473 (2008). Smith held that the trial court abused its discretion

in failing to recharacterize, sua sponte, an untimely pro se section 2--1401 petition that would have

been timely under the Act. Smith, 386 Ill. App. 3d at 475-76. The result in Smith is questionable.

The trial court is under no obligation to recharacterize a pleading on its own. Section 122--1(d) of

the Act provides that "[a] trial court that has received a petition complaining of a conviction or

sentence that fails to specify in the petition or its heading that it is filed under [the Act] need not

evaluate the petition to determine whether it could otherwise have stated some grounds for relief

under [the Act]." (Emphasis added.) 725 ILCS 5/122--1(d) (West 2006). In any event, Smith is

distinguishable. First, unlike in Smith, defendant's petitions were time-barred not only under section

2--1401, but under the Act as well. Even if we agreed with Smith, we would not extend its holding

to a case like this one, where the defendant's ultimate success would depend not only on the

recharacterization of the petition but also on the defendant establishing an excuse for the late filing

or the State deciding to forgo a valid challenge under the Act to the timeliness of the petition. Such

circumstances would not justify overriding the trial court's discretion in determining whether to

recharacterize a defendant's petition.



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       Third, even under the Act, defendant's petitions fail to establish grounds for relief under

Whitfield. In Morris, our supreme court recently concluded that Whitfield does not retroactively

apply to convictions that were finalized before Whitfield was decided, i.e., prior to December 20,

2005. Morris, 236 Ill. 2d at 366. Here, the trial court accepted defendant's guilty plea and entered

a judgment of conviction and sentence on May 29, 2001. Defendant took no direct appeal; therefore,

his conviction was final well before the Whitfield decision in 2005. See People v. Sanders, 393 Ill.

App. 3d 152, 162 (2009) (a defendant's conviction becomes final for retroactivity analysis when the

defendant has exhausted any available direct appeal), appeal allowed, 234 Ill. 2d 545 (2009). Thus,

defendant is not entitled to the application of Whitfield. Because defendant's entire remaining

argument on appeal is premised on Whitfield, we affirm the trial court's dismissal of defendant's

section 2--1401 petitions.

       For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

       Affirmed.

       McLAREN and HUTCHINSON, JJ., concur.




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