                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Smith, 2013 IL App (3d) 110738




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MICKEY D. SMITH, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-11-0738


Filed                      August 2, 2013


Held                       Defendant’s conviction and sentence for first degree murder pursuant to
(Note: This syllabus       a plea agreement were reversed and the cause was remanded to allow
constitutes no part of     defendant to withdraw his plea and proceed to trial, if he chooses, since
the opinion of the court   his plea agreement and sentence were void due to the lack of an
but has been prepared      admonishment about the mandatory firearm enhancement and the failure
by the Reporter of         to include the enhancement in his sentence, even though the indictment
Decisions for the          and factual basis for the plea established that defendant used a firearm in
convenience of the         killing the victim.
reader.)


Decision Under             Appeal from the Circuit Court of Will County, No. 10-CF-1345; the Hon.
Review                     Amy M. Bertani-Tomczak, Judge, presiding.



Judgment                   Reversed and remanded with directions.
Counsel on                 Kerry J. Bryson, of State Appellate Defender’s Office, of Ottawa, for
Appeal                     appellant.

                           James Glasgow, State’s Attorney, of Joliet (Terry A. Mertel and Nadia L.
                           Chaudhry, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      JUSTICE SCHMIDT delivered the judgment of the court, with opinion
                           Justice Carter specially concurred, with opinion, joined by Presiding
                           Justice Wright.




                                            OPINION

¶1           Pursuant to a fully negotiated plea agreement, defendant, Mickey D. Smith, pled guilty
        to first degree murder (720 ILCS 5/9-1(a)(2) (West 2010)) and was sentenced to 30 years’
        imprisonment. Defendant appeals from the summary dismissal of his postconviction petition,
        arguing that he presented the gist of a constitutional claim that his sentence is void. We
        reverse and remand.

¶2                                            FACTS
¶3          On May 4, 2011, defendant entered into a fully negotiated plea agreement, in which he
        pled guilty to one count of first degree murder. 720 ILCS 5/9-1(a)(2) (West 2010). The
        indictment and factual basis for the plea established that on June 29, 2010, defendant shot
        and killed Douglas White with a handgun. During the admonitions, the trial court advised
        defendant that the State was withdrawing its notice of intent to seek a firearm enhancement
        of 25 years. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010). Defendant was then advised that
        he was eligible for a sentence of 20 to 60 years’ imprisonment. Defendant’s plea was
        accepted, and the court sentenced defendant to the agreed 30 years’ imprisonment. Defendant
        did not pursue a direct appeal.
¶4          On August 16, 2011, defendant filed a pro se postconviction petition, alleging that his
        guilty plea should be vacated under People v. White, 2011 IL 109616. Defendant alleged that
        his plea agreement and sentence were void because he was neither admonished of, nor did
        his sentence include, the mandatory firearm enhancement, which was statutorily required
        based on the factual basis for his plea. The trial court summarily dismissed defendant’s
        petition as frivolous and patently without merit, noting that defendant received the benefit
        of his plea agreement when the State withdrew its intent to seek the firearm enhancement.
        Defendant filed a motion to reconsider, which the trial court denied. Defendant appeals.


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¶5                                            ANALYSIS
¶6         On appeal, defendant contends that his plea agreement and 30-year sentence are void
       because they do not conform to statutory requirements. Specifically, defendant argues that
       because the indictment and factual basis for his plea assert that he personally discharged a
       firearm during the commission of the offense, the trial court was required to impose a 25-
       year firearm enhancement, thereby requiring him to serve a minimum of 45 years’
       imprisonment.
¶7         The Post-Conviction Hearing Act provides for a three-stage review process for the
       adjudication of postconviction petitions. 725 ILCS 5/122-1 et seq. (West 2010); People v.
       Hodges, 234 Ill. 2d 1 (2009). At the first stage, the trial court must independently determine
       whether the petition is “frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2)
       (West 2010). The petition’s allegations, liberally construed and taken as true, need only
       present the gist of a constitutional claim. People v. Harris, 224 Ill. 2d 115 (2007). We review
       the first-stage dismissal of a postconviction petition de novo. People v. Morris, 236 Ill. 2d
       345 (2010).
¶8         Section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections sets out a sentencing
       enhancement for use of a firearm and provides that if, during the commission of the offense,
       defendant personally discharged a firearm that proximately caused death to another, 25 years
       shall be added to the term of imprisonment. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010). The
       indictment and factual basis for defendant’s plea revealed that he shot and killed the victim
       with a firearm.
¶9         Defendant relies on White, 2011 IL 109616, to support his claim that his 30-year sentence
       is void because it did not include the mandatory firearm enhancement. In White, our supreme
       court held that the trial court must impose the firearm enhancement as part of the sentence
       where the factual basis supports it, regardless of whether the parties excluded the
       enhancement in the plea agreement. Id. ¶¶ 23-27. The court held that because defendant’s
       sentence did not include the mandatory sentencing enhancement, which was required based
       on the factual basis for the plea, the sentence did not conform to the statutory requirements
       and was therefore void. Id. ¶¶ 21, 29. Additionally, the court noted that because defendant
       was not properly admonished regarding the enhancement, his entire plea agreement was also
       void. Id. ¶ 21.
¶ 10       Here, the factual basis for defendant’s plea referred to defendant’s use of a firearm, which
       caused the victim’s death. Thus, under the firearm enhancement statute, the trial court was
       required to add 25 years to the 20-year minimum sentence defendant faced for first degree
       murder, thereby requiring a minimum sentence of 45 years. See 730 ILCS 5/5-4.5-20(a)(1),
       5-8-1(a)(1)(d)(iii) (West 2010); White, 2011 IL 109616. Since defendant’s 30-year sentence
       fell below the mandatory minimum sentence, his sentence is void. See White, 2011 IL
       109616. Here, there was no admonishment about the firearm enhancement because it was
       understood by all that the State was seeking a sentence without the enhancement and
       defendant understood that his sentence would not include the enhancement.
¶ 11       The State, noting that White was issued after this case was decided in the trial court,

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       relies on People v. Avery, 2012 IL App (1st) 110298, to claim that White announced a new
       rule of law and thus cannot be applied retroactively to the instant case. In Avery, the court
       found that prior to White, the law was unclear as to whether the State could negotiate pleas
       that did not include the firearm enhancement, even where the indictment and factual basis
       for the plea included the use of a firearm in the commission of the offense. Avery, 2012 IL
       App (1st) 110298. The court emphasized the lack of clarity by citing to its prior ruling on
       defendant’s direct appeal, where the court held that defendant’s sentence was not void, even
       though the factual basis supported an enhancement that was not imposed. Id. ¶ 39. The court
       claimed that White created a new rule, not dictated by existing case law, when it mandated
       the application of a firearm enhancement any time the factual basis for the guilty plea
       supports it. Id. ¶¶ 39-40.
¶ 12       We respectfully disagree with Avery. As set out in Avery, “ ‘a case announces a new rule
       when it breaks new ground or imposes a new obligation on the States or the Federal
       Government.’ ” Avery, 2012 IL App (1st) 110298, ¶ 37 (quoting Teague v. Lane, 489 U.S.
       288, 301 (1989)). White did not break new ground or impose a new obligation. Instead, White
       specifically relied upon existing precedent, which set out the long-standing rule that courts
       are not authorized to impose a sentence that does not conform to statutory guidelines,
       because a sentence not authorized by law is void. See People v. Whitfield, 228 Ill. 2d 502
       (2007); People v. Harris, 203 Ill. 2d 111 (2003); People v. Pullen, 192 Ill. 2d 36 (2000);
       People v. Arna, 168 Ill. 2d 107 (1995); People v. Wade, 116 Ill. 2d 1 (1987). Thus, even
       without White, in applying the rules of law that existed at the time defendant’s conviction
       became final, his sentence is void because it fell below the mandatory minimum. See People
       v. Torres, 228 Ill. 2d 382 (2008) (noting that a sentence is void when it falls outside the
       lawful sentencing range required by a firearm enhancement); People v. Thompson, 209 Ill.
       2d 19 (2004) (holding that a court has no authority to impose a sentence that is not authorized
       by statute); People ex rel. Ryan v. Roe, 201 Ill. 2d 552 (2002) (holding that a sentence agreed
       to by the parties and imposed by the trial court is void when in violation of a statute).
¶ 13       Furthermore, the majority and concurring opinion in White lead us to believe that a new
       rule was not created. The court emphasized that the State has always retained the authority
       to negotiate around the mandatory sentence enhancement, but must do so by amending the
       indictment and presenting a factual basis that does not include any allegations that would
       invoke the enhancement. White, 2011 IL 109616; id. ¶ 41 (Theis, J., specially concurring).
       We also find support for our position in People v. Cortez, 2012 IL App (1st) 102184, and
       People v. Hubbard, 2012 IL App (2d) 120060. In Cortez, the court relied on White to vacate
       a plea agreement that contained unauthorized sentencing credit. Cortez, 2012 IL App (1st)
       102184. Similarly, in Hubbard, the court followed the principles of White when it held that
       the State and a defendant have the right to negotiate what facts are presented to the court in
       support of a plea agreement, but those facts must be statutorily consistent with the agreed
       sentence. Hubbard, 2012 IL App (2d) 120060. Although the court did not expressly rely on
       White to grant relief, it suggested that the holding in White did not create a new rule, as it
       applied the rule of law established in Arna, 168 Ill. 2d 107. See Hubbard, 2012 IL App (2d)
       120060.
¶ 14       Accordingly, we conclude that White did not create a new rule of law and is therefore

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       applicable to the instant case. In finding that defendant’s sentence is clearly void for
       noncompliance with the mandatory sentencing enhancement, we need not remand for further
       postconviction proceedings on this issue. See People v. Jimerson, 166 Ill. 2d 211 (1995)
       (finding that remand for further postconviction proceedings unnecessary where the error is
       plain from the record). Instead, we remand this cause to the trial court with directions to
       allow defendant to withdraw his guilty plea and proceed to trial, if he chooses.
¶ 15        While the law compels this result, the author (and as is made clear by the special
       concurrence, only the author) is less than satisfied with the result. As the trial court pointed
       out in dismissing defendant’s postconviction petition, defendant received the benefit of his
       plea agreement (or would have, had the sentence not been void). The State made it clear that
       it was not seeking a firearm enhancement as part of the plea negotiation. In White, the
       supreme court pointed out (specifically Justice Theis in her special concurring opinion) the
       State needed to do more than state it was not seeking the mandatory firearm enhancement;
       it needed to amend the indictment and present a factual basis that did not include a reference
       to a firearm. White, 2011 IL 109616, ¶ 41 (Theis, J., specially concurring). Therefore,
       because the State failed to amend the indictment and rephrase the factual basis of the plea
       to conform to what clearly was the agreement of the parties, this sentence is void; because
       it is void, this sentence can be attacked at any time. This scenario raises the spectre of some
       real mischief that might be lurking in the bushes. We have no idea how many other such void
       sentences based upon knowing agreements between the State and defendants are out there.
       It seems reasonable to assume that there are a number of them. A defendant incarcerated
       under such an agreement can wait until he knows that a key witness or witnesses have
       disappeared and then raise this argument in a postconviction petition, knowing that the
       State’s chances of convicting him of the offense to which he pled guilty are greatly reduced,
       if not totally obviated. This does not seem like a happy circumstance. The supreme court
       recently acknowledged this problem in People v. Donelson, 2013 IL 113603, ¶ 17. However,
       in Donelson, the court was able to make the agreed sentence fit within statutory guidelines.
       Here, because of the State’s failure to amend the indictment and factual basis, we cannot do
       the same.
¶ 16        If able, I would send this case back to the trial court and give the State the opportunity
       to conform the indictment and factual basis for the plea agreement to the original plea
       agreement. Then if, and only if, the State would refuse to amend the indictment and factual
       basis would I instruct the trial court to allow defendant to withdraw his guilty plea and
       proceed to trial. There is no prejudice to a defendant in this approach since it gives defendant
       exactly that for which he or she bargained. Had the State simply amended the indictment and
       the factual basis from “defendant shot the victim,” to “defendant intentionally murdered the
       victim,” the sentence would not be void. Again, by allowing the State to amend the
       indictment and factual basis for the plea, we would be doing nothing more than conforming
       the record to actually reflect what was clearly the agreement between defendant and the State.
       This would visit no prejudice upon defendant and would obviate the risks associated with
       allowing a defendant to withdraw a knowing plea after the passage of time. It also seems that
       this approach would do nothing to further escalate the natural tension that exists between the
       General Assembly’s power to prescribe penalties, even mandatory penalties, and the State’s

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       Attorney’s exclusive discretion with respect to what charges, if any, to prosecute. Just a
       thought.

¶ 17                                    CONCLUSION
¶ 18      For the foregoing reasons, the judgment of the circuit court of Will County is reversed,
       and the cause is remanded with directions.

¶ 19      Reversed and remanded with directions.

¶ 20       JUSTICE CARTER, specially concurring.
¶ 21       I agree with the conclusion that this case should be reversed and remanded with
       directions to allow the defendant to withdraw his guilty plea and to proceed to trial, if he so
       chooses. However, I write separately to clarify that I do not join in paragraphs 15 and 16 of
       the lead opinion.
¶ 22       PRESIDING JUSTICE WRIGHT joins in this special concurrence.




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