                                     2016 IL 118613



                                        IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                                   (Docket No. 118613)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                           DAMEN PRICE, Appellee.


                             Opinion filed December 30, 2016.



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

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

        Justice Kilbride specially concurred, with opinion.



                                        OPINION

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


¶2                                     BACKGROUND

¶3       In November 1996, following a jury trial in the circuit court of Cook County,
     defendant was convicted of aggravated arson and the first degree murder of
     4-year-old Curtis Jones, Jr., who died in the fire. Defendant had requested separate
     verdict forms for the various theories of murder charged by the State (intentional,
     knowing, and felony murder), but the trial court denied that request. The jury thus
     returned a general verdict of guilty of first degree murder and aggravated arson.
     The same jury found defendant death-penalty eligible but determined he should not
     be sentenced to death. The trial court sentenced defendant to a term of natural life
     imprisonment for murder and a consecutive term of 30 years’ imprisonment for
     aggravated arson. The appellate court affirmed defendant’s conviction and
     sentence. People v. Price, 303 Ill. App. 3d 1101 (1999) (table) (unpublished order
     under Supreme Court Rule 23).

¶4       In April 2000, and again in February 2003, defendant unsuccessfully pursued
     relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West
     2002)). Thereafter, in September 2010, defendant sought relief from judgment
     under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
     2010)), again without success. Defendant did not challenge, on direct review or on
     collateral review, the trial court’s denial of his request for separate verdict forms.

¶5       In February 2012, defendant filed his second pro se petition under section
     2-1401, which is the subject of this appeal. Defendant recognized that section
     2-1401 petitions must be filed “not later than 2 years after the entry of the order or
     judgment” (735 ILCS 5/2-1401(c) (West 2012)) but asserted that the statutory time
     bar did not apply because he was seeking relief from judgment on “voidness
     grounds.” See 735 ILCS 5/2-1401(f) (West 2012). Defendant argued that under
     People v. Smith, 233 Ill. 2d 1 (2009), the trial court erred in denying his request for
     separate verdict forms and therefore “lacked the power and authority to render
     judgment.” Defendant maintained that the appropriate remedy was to interpret the



                                              -2-
       jury’s general verdict as a verdict on felony murder and remand for resentencing.
       Although the trial court appointed counsel for defendant, the court allowed him to
       proceed pro se, upon defendant’s request. The trial court granted the State’s motion
       to dismiss defendant’s petition, agreeing with the State that the underlying
       judgment was not void and Smith did not apply retroactively on collateral review.

¶6         The appellate court reversed and remanded for resentencing on felony murder
       alone. 2014 IL App (1st) 130037-U, ¶ 31. The appellate court first rejected the
       State’s argument that defendant’s section 2-1401 petition was time-barred. The
       appellate court explained that defendant claimed “his sentence of natural life
       imprisonment was not authorized by statute and is therefore void” and “[w]hen a
       defendant challenges a void judgment, the two-year limitation does not apply.” Id.
       ¶ 15. On the merits, the appellate court held that the rule regarding special verdict
       forms announced in Smith was reaffirmed in People v. Bailey, 2013 IL 113690,
       and the rule applied retroactively on collateral review. 2014 IL App (1st)
       130037-U, ¶¶ 18-19, 25.

¶7         We allowed the State’s petition for leave to appeal. See Ill. S. Ct. R. 315 (eff.
       Jan. 1, 2015).

¶8         Shortly after the State filed its opening brief in this court, we announced our
       decision in Castleberry, abolishing the void sentence rule. At oral argument,
       questions arose as to the applicability of Castleberry. We subsequently ordered the
       parties to file supplemental briefs addressing two issues: whether Castleberry
       “should apply retroactively [to] matters on collateral review” and, if so, “what
       impact would that have on the instant case.”

¶9        As discussed below, we hold that, in light of Castleberry, defendant’s section
       2-1401 petition was untimely and properly dismissed.


¶ 10                                       ANALYSIS

¶ 11                                             I

¶ 12       As a preliminary matter, we consider defendant’s forfeiture argument.
       Defendant contends that, even if Castleberry could apply retroactively to his case,
       the State forfeited any argument that his section 2-1401 petition was untimely. We




                                               -3-
       disagree. The issue is not simply whether defendant’s petition was untimely, an
       issue the State pursued in the courts below. The issue is whether defendant’s
       petition was untimely based on retroactive application of our decision in
       Castleberry. The State could not have addressed that issue until Castleberry was
       decided, which did not occur until after the State filed its opening brief. The State
       did, however, recognize the potential significance of Castleberry when it noted in
       both its petition for leave to appeal as well as its brief that whether a statutorily
       nonconforming sentence is void or voidable was then pending before this court in
       Castleberry. The State suggested that we hold its petition for leave to appeal in
       abeyance pending our decision in Castleberry, but we elected to allow the State’s
       petition. After we announced our decision in Castleberry abolishing the void
       sentence rule, this court had the discretion to order the parties to brief the impact of
       Castleberry on this case. Under these circumstances, we reject defendant’s
       forfeiture argument.

¶ 13       We also note that while this case was pending before this court, our appellate
       court considered the retroactivity of Castleberry but did not come to a uniform
       conclusion. Compare People v. Smith, 2016 IL App (1st) 140887, ¶ 30 (holding that
       Castleberry did not announce a new rule under Teague v. Lane, 489 U.S. 288
       (1989) (plurality opinion) and, thus, cannot be applied retroactively on collateral
       review), pet. for leave to appeal pending, No. 121060 (filed Jul. 18, 2016), with
       People v. Stafford, 2016 IL App (4th) 140309, ¶ 33 (holding that because
       Castleberry did not establish a new rule under Teague, its holding does apply
       retroactively), pet. for leave to appeal pending, No. 121393 (filed Oct. 4, 2016),
       and People v. Cashaw, 2016 IL App (4th) 140759, ¶¶ 35-40 (holding that Teague
       does not control, and Castleberry applies retroactively to collateral proceedings),
       pet. for leave to appeal pending, No. 121485 (filed Oct. 26, 2016). To the extent it
       could be argued that the State failed to pursue the timeliness issue, we have the
       authority to “overlook any forfeiture in the interest of maintaining a sound and
       uniform body of precedent.” Klaine v. Southern Illinois Hospital Services, 2016 IL
       118217, ¶ 41. For this further reason, we reject defendant’s forfeiture argument and
       consider the retroactivity issue that we directed the parties to brief.




                                                -4-
¶ 14                                              II

¶ 15       In People v. Arna, 168 Ill. 2d 107, 113 (1995), we held that a “sentence which
       does not conform to a statutory requirement is void,” and the appellate court has the
       “authority to correct it at any time.” Thus, in Arna, we rejected the defendant’s
       argument that the appellate court was without authority to correct his sentence,
       sua sponte, on direct review. Id. at 112-13. So began the history of the “void
       sentence rule.”

¶ 16       Arna implicitly relied on the then-prevailing view that a court which lacks the
       “inherent power” to enter the particular judgment involved renders that judgment
       void. Id. at 113 (citing People v. Wade, 116 Ill. 2d 1 (1987)). Although we
       anticipated that, as a general rule, the State and the courts, rather than defendants,
       would be raising Arna errors (People v. Garcia, 179 Ill. 2d 55, 75 (1997)),
       defendants embraced Arna’s void sentence rule because it allowed them to attack a
       statutorily nonconforming sentence at any time, in any court, either directly or
       collaterally (see People v. Thompson, 209 Ill. 2d 19, 27 (2004)). Thus, as to
       defendants, the void sentence rule functioned as a judicially created exception to
       the forfeiture doctrine. People v. Marshall, 242 Ill. 2d 285, 302 (2011) (“challenge
       to an alleged void order is not subject to forfeiture”); Thompson, 209 Ill. 2d at 27
       (“argument that an order or judgment is void is not subject to waiver”).

¶ 17       Castleberry abolished the void sentence rule because it was constitutionally
       unsound. Castleberry, 2015 IL 116916, ¶¶ 1, 19. Specifically, Castleberry
       determined that the “inherent power” view of jurisdiction, on which the rule was
       based, could not be reconciled with the constitutional grant of jurisdiction and was
       at odds with opinions from this court rejecting that view of jurisdiction in the civil
       context. Id. ¶ 18. Thus, pursuant to Castleberry, a statutorily nonconforming
       sentence is not void; it is merely voidable and subject to the usual rules of forfeiture
       or other procedural restraints. Id. ¶¶ 11-18. In addition to our constitutional
       jurisprudence, Castleberry relied on the policy favoring finality of judgments. Id.
       ¶ 15 (citing LVNV Funding, LLC v. Trice, 2015 IL 116129). After Castleberry, a
       reviewing court may no longer, sua sponte, correct a statutorily nonconforming
       sentence (id. ¶¶ 20-24), the State may no longer seek to correct such a sentence on
       direct review but must seek a writ of mandamus to do so (id. ¶¶ 26-27), and a
       defendant may no longer rely on the void sentence rule to overcome forfeiture of a




                                                -5-
       claimed sentencing error or to challenge a statutorily nonconforming sentence in
       perpetuity (id. ¶¶ 17-19). See also People v. Thompson, 2015 IL 118151, ¶ 33
       (stating that after Castleberry, it is “no longer valid” to argue that a sentence that
       does not conform to a statutory requirement is void).

¶ 18       As directed by this court, both parties filed supplemental briefs addressing
       whether Castleberry applies to matters on collateral review. Although both parties
       rely on the retroactivity analysis set forth in Teague v. Lane, 489 U.S. 288 (1989),
       adopted by this court in People v. Flowers, 138 Ill. 2d 218 (1990), they come to
       different conclusions. The State argues that the rule announced in Castleberry is
       akin to a substantive rule as defined in Teague and, thus, applies retroactively to
       matters on collateral review. Defendant argues that the rule announced in
       Castleberry does not qualify as a new substantive rule or a watershed rule of
       criminal procedure under Teague and, thus, does not apply retroactively to matters
       on collateral review. We disagree with the parties that Teague controls the
       retroactivity question.

¶ 19       The Supreme Court’s decision in Teague is a refinement of its earlier
       retroactivity jurisprudence that arose largely in response to the expansion of the
       rights of criminal defendants in the 1960s. See Mackey v. United States, 401 U.S.
       667, 676 (1971) (Harlan, J., concurring in the judgments in part and dissenting in
       part) (recognizing that the Court’s retroactivity doctrine, which came into being in
       1965, was the “product of the Court’s disquietude with the impacts of its
       fast-moving pace of constitutional innovation in the criminal field”); Lyn S.
       Entzeroth, Reflections on Fifteen Years of the Teague v. Lane Retroactivity
       Paradigm: A Study of the Persistence, the Pervasiveness, and the Perversity of the
       Court’s Doctrine, 35 N.M. L. Rev. 161, 166-67 (2005). Having expanded the
       constitutional rights of criminal defendants, the Court was faced with the question
       of which defendants should receive the benefit from those changes in the law.
       Entzeroth, supra, at 166-67.

¶ 20       The Court’s retroactivity jurisprudence distinguished between (i) cases on
       direct review at the time a new rule is announced, i.e., those cases in which the
       conviction is not yet final, and (ii) cases on collateral review at the time a new rule
       is announced, i.e., those cases in which the conviction is final. Schriro v.
       Summerlin, 542 U.S. 348, 351-52 (2004). Teague addressed the latter situation,




                                                -6-
       clarifying and limiting the circumstances under which a defendant whose
       conviction was final could claim the benefit of a new rule. Id.; Teague, 489 U.S. at
       300.

¶ 21       Underlying the application of the Teague analysis is the notion that the new
       rule, had it been in effect at the time of trial, could have made a difference in the
       outcome. In Teague, for example, the defendant, who was convicted by an
       all-white jury, sought to benefit from the Court’s decision in Batson v. Kentucky,
       476 U.S. 79 (1986), which was decided after his conviction became final.

¶ 22       Here, the rule we adopted in Castleberry can make no difference in the outcome
       of a criminal trial. We simply eliminated the void sentence rule. Neither the void
       sentence rule nor its elimination impacts the accuracy of a defendant’s conviction,
       the accuracy or constitutionality of a sentence, or the fundamental fairness of a
       defendant’s trial. In short, Castleberry did not change any rule affecting the
       conduct of criminal prosecutions. Castleberry comes into play, if at all, only after
       judgment is rendered in the criminal trial. Thus, the Teague analysis is simply not
       triggered here.

¶ 23       This conclusion finds support in Welch v. United States, 578 U.S. ___, 136 S.
       Ct. 1257 (2016). There, the Supreme Court explained that the Teague retroactivity
       framework creates a balance between the need for finality in criminal cases and the
       countervailing need to ensure that criminal punishment is only imposed when
       authorized by law. Id. at ___, 136 S. Ct. at 1266. This balance depends “on whether
       the new rule itself has a procedural function or a substantive function—that is,
       whether it alters only the procedures used to obtain the conviction, or alters instead
       the range of conduct or class of persons that the law punishes.” Id. at ___, 136 S. Ct.
       at 1266. Castleberry does neither.

¶ 24       Although defendant recognizes that Castleberry, like Arna, “does not create or
       affect the underlying error” (here, defendant’s allegedly unlawful sentence),
       defendant nonetheless argues that Teague controls the retroactivity issue.
       Application of Teague to our decision in Castleberry, in the manner defendant
       urges, would turn Teague on its head. Defendant would use Teague to prevent the
       application of a new rule (Castleberry’s abolition of the void sentence rule) to his
       section 2-1401 petition and to benefit from application of an old rule (Arna’s void
       sentence rule). This is not how Teague functions. See Cashaw, 2016 IL App (4th)



                                                -7-
       140759, ¶ 39 (“defendant cannot rely on the framework of Teague to argue that a
       new rule should not apply, when the defendant is seeking to overturn an old
       judgment”).

¶ 25       We emphasize that when we ask whether a new rule or decision of this court
       should apply to “matters on collateral review,” the “matter” to which we are
       referring is defendant’s underlying conviction or sentence. Thus, when we
       conclude, based on Teague and its progeny, that a new rule should apply
       retroactively to “matters on collateral review,” what we mean is that we will treat
       the new rule as if it were in existence at the time of, and applied to, the trial
       proceeding being challenged by the defendant in his or her collateral pleading. In
       this respect, the issue we directed the parties to brief—whether Castleberry “should
       apply [to] matters on collateral review”—was misleading. The issue assumed that
       Castleberry “could” be applied to a defendant’s conviction or sentence and the only
       question was whether, under Teague, it “should” be applied where the conviction
       and sentence were final and were challenged on collateral review. This assumption
       was incorrect because, as discussed above, Castleberry has no application to
       criminal trials to begin with, rendering the Teague analysis inapplicable.

¶ 26      The question yet remains whether the rule announced in Castleberry should
       apply to defendant’s section 2-1401 petition, which was pending before this court
       when Castleberry was decided. The answer is “yes.”

¶ 27       Unquestionably, Castleberry applies not only to the parties in that case but also
       prospectively. As we recognized in Thompson, 2015 IL 118151, ¶ 33, after our
       decision in Castleberry, it is “no longer valid” to argue that a sentence that does not
       conform to a statutory requirement is void. As to defendant’s case, in which his
       section 2-1401 petition was pending in the appellate pipeline at the time
       Castleberry was announced, we turn to our general rule of retroactivity. Under this
       rule, our decisions apply to “all cases that are pending when the decision is
       announced, unless this court directs otherwise.” People v. Granados, 172 Ill. 2d
       358, 365 (1996); accord People v. Linder, 186 Ill. 2d 67, 75 (1999). This rule
       applies where, as here, the Teague retroactivity analysis does not apply. See
       Granados, 172 Ill. 2d at 365.

¶ 28      In Castleberry, we did not limit the reach of our decision, and defendant offers
       no equitable or other reason that militates against applying Castleberry to his



                                                -8-
       pending section 2-1401 petition. Indeed, not applying Castleberry would thwart the
       very policy espoused in that decision—preserving the finality of judgments—by
       permitting defendants to continue to argue that a statutorily nonconforming
       sentence is void. See Castleberry, 2015 IL 116916, ¶ 15 (citing LVNV Funding,
       2015 IL 116129).

¶ 29       Defendant argues, however, that Castleberry is irrelevant because it only dealt
       with one type of void judgment. According to defendant, a judgment is also void
       “where it was imposed in violation of a substantive new rule,” as defined by Teague
       and its progeny. Defendant maintains that his sentence was imposed in violation of
       a substantive new rule—the rule announced in Smith and Bailey regarding special
       verdict forms—and is void, allowing his late-filed section 2-1401 petition to
       proceed.

¶ 30       Void judgments occupy a “unique place” in our legal system. (Internal
       quotation marks omitted.) Id. When we say that a judgment is void, that judgment
       may be challenged “at any time, either directly or collaterally, and the challenge is
       not subject to forfeiture or other procedural restraints.” (Internal quotation marks
       omitted.) Id. Therefore, only the most fundamental defects warrant declaring a
       judgment void. Id.

¶ 31       This court has recognized only three circumstances in which a judgment will be
       deemed void: (1) where the judgment was entered by a court that lacked personal or
       subject-matter jurisdiction, (2) where the judgment was based on a statute that is
       facially unconstitutional and void ab initio, and (3) where a judgment of sentence
       did not conform to a statutory requirement (the void sentence rule). Thompson,
       2015 IL 118151, ¶¶ 31-33. Castleberry eliminated the third type of void judgment,
       thus narrowing the universe of judgments subject to attack in perpetuity.

¶ 32       Defendant would have us reverse course and expand our voidness doctrine by
       declaring as void all judgments of conviction and sentence that do not conform to a
       later announced substantive rule, although the judgment conformed to
       constitutional standards at the time of trial. We decline to do so. If a new rule
       qualifies as a “substantive rule” under Teague, then defendants whose convictions
       are final may seek the benefit of that rule through appropriate collateral
       proceedings. See Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 729
       (2016) (“when a new substantive rule of constitutional law controls the outcome of



                                               -9-
       a case, the Constitution requires state collateral review courts to give retroactive
       effect to that rule”). Declaring the underlying judgments “void” is not warranted.

¶ 33       Finally, defendant argues that even if this court applies Castleberry to his
       pro se section 2-1401 petition, its only theoretical relevance concerns whether he
       chose the proper vehicle in which to challenge his sentence, i.e., whether he
       correctly labeled the pleading a petition for relief from judgment or whether he
       should have labeled it a motion for leave to file a successive postconviction
       petition. Citing People v. Shellstrom, 216 Ill. 2d 45 (2005), defendant contends that
       not addressing the merits of his underlying claim would be unduly harsh where he
       used the wrong heading on his petition. Thus, defendant seeks to have this court
       recharacterize his section 2-1401 petition as a successive postconviction petition
       that satisfied the cause-and-prejudice test.

¶ 34       In Shellstrom, we reaffirmed, in conformity with our precedents, that the circuit
       court may treat a pro se petitioner’s pleading, alleging a deprivation of a
       constitutional right, as a postconviction petition although the pleading was not
       labeled as such. Shellstrom, 216 Ill. 2d at 51-53. Shellstrom does not support
       defendant’s argument for recharacterizing a pro se pleading for the first time on
       appeal before this court. We also agree with the State that defendant should not be
       permitted to avoid satisfying the cause-and-prejudice test for successive
       postconviction petitions by appealing to the “spirit” of Shellstrom.

¶ 35       For the reasons stated above, we hold that Castleberry applies to defendant’s
       section 2-1401 petition that was pending at the time Castleberry was decided.
       Accordingly, defendant cannot rely on the void sentence rule, which Castleberry
       eliminated, to escape the two-year statutory time bar. See 735 ILCS 5/2-1401(c), (f)
       (West 2012). Defendant’s petition was untimely. We therefore reverse the
       judgment of the appellate court and affirm the judgment of the trial court
       dismissing defendant’s petition.


¶ 36      Appellate court judgment reversed.

¶ 37      Circuit court judgment affirmed.




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¶ 38      JUSTICE KILBRIDE, specially concurring:

¶ 39       Although I agree in principle with the majority’s conclusion that our decision in
       People v. Castleberry, 2015 IL 116916, should apply retroactively to cases on
       collateral review, I do not believe that defendant’s claims should be resolved under
       Castleberry. Instead, I would address the issue actually raised by the State and
       presented by the parties in their original briefs to this court. See People v. Givens,
       237 Ill. 2d 311, 323-24 (2010) (observing the well-established principle that a
       reviewing court should honor the parties’ presentation of the issues on appeal and
       should not raise new issues).

¶ 40        In 2012, defendant filed an untimely pro se section 2-1401 petition seeking
       relief from his natural life sentence under the rule on special verdict forms in
       murder cases announced in People v. Smith, 233 Ill. 2d 1 (2009). Subsequent to the
       filing of defendant’s petition, Smith was reaffirmed in People v. Bailey, 2013 IL
       113690, ¶ 57. In Bailey, this court expressly “reaffirm[ed] our holding in Smith that
       ‘where, as here, specific findings by the jury with regard to the offenses charged
       could result in different sentencing consequences, favorable to the defendant,
       specific verdict forms must be provided upon request and the failure to provide
       them is an abuse of discretion.’ ” Bailey, 2013 IL 113690, ¶ 57 (quoting Smith, 233
       Ill. 2d at 23). When a trial court violates that rule, “ ‘the appropriate remedy is to
       interpret the general verdict as a finding on felony murder’ and to impose sentence
       accordingly.” Bailey, 2013 IL 113690, ¶ 61 (quoting Smith, 233 Ill. 2d at 28).

¶ 41       Relying exclusively on Smith, defendant argued that his section 2-1401 petition
       was exempt from the ordinary two-year filing deadline because his challenge
       constituted an attack on a void judgment. The State moved to dismiss defendant’s
       petition, asserting two grounds: (1) the judgment was not void and therefore
       defendant’s petition was untimely, and (2) Smith did not apply retroactively to
       defendant’s 1996 conviction. The trial court granted the State’s motion to dismiss,
       finding that defendant had failed to advance a claim or defense that would entitle
       him to relief because Smith announced a new rule of criminal procedure and that
       decision did not apply retroactively to defendant’s case.

¶ 42       The appellate court reversed, rejecting the State’s challenge to the timeliness of
       the petition, holding that “[w]hen a defendant challenges a void judgment, the
       two-year time limitation does not apply.” 2014 IL App (1st) 130037-U, ¶ 15. The



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       appellate court explained, “[i]t is well established that a sentence entered without
       statutory authorization is void and may be attacked at any time, even on collateral
       review.” 2014 IL App (1st) 130037-U, ¶ 16. On the merits, the appellate court held
       that Smith announced a “new” and “substantive” rule that thus had retroactive
       application to defendant’s case. 2014 IL App (1st) 130037-U, ¶¶ 24-25. We granted
       the State’s petition for leave to appeal from that decision.

¶ 43       After oral argument, this court issued an order sua sponte directing the parties
       to file supplemental briefs addressing two issues: whether our recent decision in
       Castleberry “ ‘should apply retroactively [to] matters on collateral review’ ” and, if
       so, “ ‘what impact would that have on the instant case.’ ” As the majority itself now
       concedes, the issues we directed the parties to brief were “misleading.” Supra ¶ 25.
       Indeed, I believe our sua sponte order for supplemental briefing unwisely raised
       entirely new issues with arguable relevance to this appeal.

¶ 44        In my opinion, Castleberry has limited, if any, application to this case and is
       certainly not dispositive. Our holding in Castleberry, the abolition of the void
       sentence rule, has practically nothing to do with this appeal. The void sentence rule
       originated in People v. Arna, 168 Ill. 2d 107 (1995), a decision that preceded the
       filing of defendant’s pro se petition by approximately 17 years. If defendant sought
       to rely on Arna’s “void sentence rule,” he certainly would have raised such a claim
       in his petition. He did not. That is, of course, perfectly understandable. The
       now-abolished void sentence rule held that a “sentence which does not conform to a
       statutory requirement is void.” Arna, 168 Ill. 2d at 113. Because the void sentence
       rule depends on the construction of a sentencing statute, it presents a completely
       different challenge than that presented under the distinct rule articulated in Smith
       and reaffirmed in Bailey. The rule from Smith hinges on the omission of separate
       verdict forms in cases involving multiple murder charges. Although defendant’s
       pro se section 2-1401 petition is inartfully written, a close reading shows that
       defendant sought “relief from judgment on voidness grounds *** that the judgment
       or order is void,” and, relying on Smith, claims that “[b]ecause the Court rejected
       [his] request for separate verdict forms, it lacked the power and authority to render
       judgment in this case.” Castleberry only addressed one type of void judgment
       challenge—a sentence that violates a statute. Defendant has never claimed that his
       sentence was void because it did not conform to a statutory requirement; rather, he
       claimed a void judgment challenge based on the rule from Smith.




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¶ 45       Despite the distinction between these two types of challenges, the majority
       determines that our abrogation of the void sentence rule in Castleberry not only
       applies to a defendant’s petition that never relied on the void sentence rule but also
       requires its dismissal. The majority even goes so far as to state that “defendant
       cannot rely on the void sentence rule, which Castleberry eliminated, to escape the
       two-year statutory time bar.” Supra ¶ 35. This statement is unfair to defendant.

¶ 46       As I have already noted, defendant has never relied on Arna’s void sentence
       rule. Instead, defendant alleged that his natural life sentence constituted a void
       judgment under the rule from Smith. The majority seems to imply, with no
       explanation, that Castleberry, a decision limited to overruling the Arna void
       sentence rule, now controls all allegations of void judgments in section 2-1401
       petitions. The problem with the majority’s approach is that Arna’s void sentence
       rule is not the only type of voidness challenge historically recognized by this court.
       See People v. Thompson, 2015 IL 118151, ¶¶ 31-33 (explaining the types of
       voidness challenges recognized by this court in section 2-1401 proceedings).

¶ 47       More troubling, the majority’s approach has the potential to cause confusion on
       the application and proper scope of our decision in Castleberry. As the majority
       explains, “the rule we adopted in Castleberry can make no difference in the
       outcome of a criminal trial” and “[n]either the void sentence rule nor its elimination
       impacts the accuracy of a defendant’s conviction, the accuracy or constitutionality
       of a sentence, or the fundamental fairness of a defendant’s trial.” Supra ¶ 22. The
       same statements cannot be made about the rule from Smith. That rule requires, in
       the appropriate circumstances, the interpretation of a general verdict as a finding of
       felony murder and commensurate sentencing. Bailey, 2013 IL 113690, ¶ 61 (citing
       Smith, 233 Ill. 2d at 28). Thus, in stark contrast to the void sentence rule and
       Castleberry, the Smith rule potentially impacts the outcome of a criminal trial.

¶ 48       Unlike the majority, I would not graft Castleberry and the void sentence rule
       onto this appeal. Instead, I would address the original threshold issue raised in the
       State’s petition for leave to appeal—whether an alleged violation of the Smith rule
       on special verdict forms results in a “void judgment” for purposes of excusing the
       untimeliness of a defendant’s section 2-1401 petition. This was the first issue
       considered by the appellate court (2014 IL App (1st) 130037-U, ¶ 15) and was
       extensively argued by the parties in their initial briefs to this court. This approach




                                               - 13 -
       has the added benefit of not injecting potential confusion on the future applicability
       of Castleberry or the Smith rule on special verdict forms in murder cases.

¶ 49       As the majority correctly observes, this court has already explained what
       constitutes a void judgment for purposes of avoiding the two-year bar applicable to
       a section 2-1401 petition. In Thompson, this court acknowledged that our case law
       previously demonstrated three types of voidness challenges. Thompson, 2015 IL
       118151, ¶¶ 31-33.

¶ 50      The first type of challenge is jurisdictional. A petitioner raises a jurisdictional
       voidness challenge by alleging that the underlying judgment is void because the
       court that entered the judgment lacked personal or subject-matter jurisdiction.
       Thompson, 2015 IL 118151, ¶ 31. A section 2-1401 petition alleging voidness
       based on lack of jurisdiction is not subject to the two-year limitations period and
       may be raised at any time. Thompson, 2015 IL 118151, ¶ 31.

¶ 51      The second type of section 2-1401 voidness challenge is constitutional. In a
       constitutional voidness challenge, the petitioner claims a final judgment is void
       based on a facially unconstitutional statute that is void ab initio and, therefore,
       unenforceable. Thompson, 2015 IL 118151, ¶ 32. A facially unconstitutional
       voidness challenge may be raised at any time. Thompson, 2015 IL 118151, ¶ 32.

¶ 52       The third type of voidness challenge formerly available under section 2-1401
       involved a challenge to a sentence that does not conform to the applicable
       sentencing statute. Thompson, 2015 IL 118151, ¶ 33. Thompson acknowledged that
       this type of voidness challenge was based on the “void sentence rule” established in
       Arna and recognized that this court recently overruled Arna and abolished the void
       sentence rule in Castleberry. Consequently, Thompson stated that voidness
       challenges based on the former “void sentence rule” are no longer valid. Thompson,
       2015 IL 118151, ¶ 33.

¶ 53       Thompson’s explanation of the limited types of void judgment challenges is
       entirely consistent with this court’s recognition that void judgments occupy a
       “unique place” in the legal arena. Castleberry, 2015 IL 116916, ¶ 15. Because of
       the drastic consequences of labeling a judgment as void, we have explained that
       “ ‘only the most fundamental defects’ ” justify a determination that a judgment is




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       void. Castleberry, 2015 IL 116916, ¶ 15 (quoting LVNV Funding, LLC v. Trice,
       2015 IL 116129, ¶ 38).

¶ 54        In Bailey and Smith, this court did not hold that a violation of the rule from
       those decisions resulted in a void judgment or sentence.1 Nor did we find that the
       trial court lacked jurisdiction or that any statute was facially unconstitutional. See
       Thompson, 2015 IL 118151, ¶¶ 31-33 (recognizing those two types of void
       judgment challenges as appropriate voidness challenges in section 2-1401
       challenges after Castleberry.) In fact, no discussion or analysis on the issue of
       voidness appears in either Bailey or Smith. Instead, this court held only that it was
       an abuse of discretion not to issue special verdict forms in specific circumstances in
       murder cases. Bailey, 2013 IL 113690, ¶ 57 (citing Smith, 233 Ill. 2d at 23). Under
       those decisions, the error is remedied by “ ‘interpret[ing] the general verdict as a
       finding on felony murder’ and to impose sentence accordingly.” Bailey, 2013 IL
       113690, ¶ 61 (quoting Smith, 233 Ill. 2d at 28).

¶ 55       Because a violation of the Smith rule constitutes an abuse of discretion and is
       remedied by sentencing on felony murder, it cannot be said that a violation of that
       rule results in a void judgment. In other words, a violation of the rule from Smith
       cannot render a judgment void for purposes of section 2-1401. See Thompson, 2015
       IL 118151, ¶¶ 31-33 (detailing the types of voidness challenges, none predicated on
       a finding of an abuse of discretion). Accordingly, defendant cannot avoid the
       two-year filing limitation in section 2-1401, and his untimely petition is barred. On
       this basis, I agree with the majority that the appellate court’s judgment should be
       reversed and the circuit court’s judgment dismissing defendant’s petition should be
       affirmed.

¶ 56       For these reasons, I specially concur.




           1
            This point further illustrates the majority’s error in equating a challenge under Arna’s
       void sentence rule to a challenge under the Smith rule. Unlike the Smith rule, a violation of
       the now-abolished void sentence rule resulted in a void judgment or sentence that could be
       challenged at any time. See Castleberry, 2015 IL 116916, ¶ 13 (describing “void sentence
       rule” (citing Arna, 168 Ill. 2d at 113)).




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