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                               Appellate Court                         Date: 2017.01.09
                                                                       08:59:02 -06'00'




                   People v. Mitros, 2016 IL App (1st) 121432



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



District & No.    First District, Fourth Division
                  Docket No. 1-12-1432



Filed             November 10, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 88-CR-8544; the
Review            Hon. Kenneth J. Wadas, Judge, presiding.



Judgment          Affirmed.



Counsel on        Michael J. Pelletier, Patricia Mysza, and David M. Berger, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Assistant State’s Attorney, of counsel), for the People.



Panel             JUSTICE HOWSE delivered the judgment of the court, with opinion.
                  Justices Fitzgerald Smith and Cobbs concurred in the judgment and
                  opinion.
                                               OPINION

¶1        In 1989, defendant Anthony Mitros entered an open plea of guilty to intentional murder
     (Ill. Rev. Stat. 1987, ch. 38, ¶ 9-1(a)(1)) and residential burglary (Ill. Rev. Stat. 1987, ch. 38,
     ¶ 19-3(a)). The trial court entered respective sentences of natural life imprisonment and 15
     years in prison, to be served concurrently.
¶2        This appeal involves defendant’s 2011 pro se petition for relief from judgment pursuant to
     section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2010)). In
     that petition, defendant sought to vacate his guilty plea and argued that his sentence was void.
     The circuit court dismissed the petition sua sponte, stating defendant had not presented a claim
     that entitled him to relief. On appeal, defendant contended that his sentence of natural life
     imprisonment was not authorized by statute because the court relied on a predicate felony that
     was not included in the murder statute at the time of his offense.
¶3        In an unpublished order filed on September 11, 2014, this court found that defendant’s
     sentence was void as unauthorized by statute. This court remanded this case for defendant to be
     resentenced. People v. Mitros, 2014 IL App (1st) 121432-U.
¶4        Subsequently, on January 20, 2016, the Illinois Supreme Court denied the State’s petition
     for leave to appeal but issued a supervisory order directing this court to vacate that judgment
     and reconsider the case in light of People v. Castleberry, 2015 IL 116916, to determine
     whether a different result was warranted. The parties have filed supplemental briefs addressing
     that case’s applicability.
¶5        After reconsidering this case in light of Castleberry, we conclude that decision applies
     retroactively to defendant’s case and that defendant can no longer challenge his sentence as
     void. Therefore, the circuit court’s order dismissing defendant’s section 2-1401 petition is
     affirmed.1

¶6                                          BACKGROUND
¶7       Based on events that occurred on May 24, 1988, defendant was charged with three counts
     of first degree murder, two counts of residential burglary, one count of armed robbery, and
     several other counts relating to the stabbing death of Helen McCasland in the course of a home
     burglary. As to the murder counts, count I charged defendant with intentional murder (Ill. Rev.
     Stat. 1987, ch. 38, ¶ 9-1(a)(1)). Count II charged defendant with knowing murder (Ill. Rev.
     Stat. 1987, ch. 38, ¶ 9-1(a)(2)). Count III charged defendant with felony murder, specifically
     murder during the commission of the forcible felony of armed robbery (Ill. Rev. Stat. 1987,
     ch. 38, ¶ 9-1(a)(3)). Count IV charged defendant with residential burglary (Ill. Rev. Stat. 1987,
     ch. 38, ¶ 19-3(a)).
¶8       On May 26, 1989, defendant entered an open plea of guilty to intentional murder (count I)
     and residential burglary (count IV). All of the remaining charges against defendant, including
     armed robbery, were nol-prossed. Defendant stipulated to the presence of an aggravating
     factor that would qualify him to receive the death penalty; that aggravating factor is not
     identified in the record.

         1
          Justice Epstein participated in this appeal and is no longer with this court. Justice Cobbs has
     replaced Justice Epstein and has reviewed the briefs in this appeal.

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¶9         The case was continued to June 16, 1989, for the second stage of sentencing. The court
       noted: “On the last court date the defendant agreed that, in fact, a qualification factor was
       present whereby the defendant would be subject to the death penalty; that being the
       commission of the offense of residential burglary and felony murder.”
¶ 10       The court sentenced defendant to natural life without the possibility of parole on count I
       and to 15 years in prison on count III, which the court called “the less serious of the murder
       allegations.” The mittimus establishes that the court imposed a natural life sentence on count I
       for intentional murder and 15 years on count IV for residential burglary.
¶ 11       Defendant did not move to vacate his guilty plea, and no appeal was taken. Defendant later
       filed a pro se petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West
       2002)), which was dismissed at the second stage of review. On appeal, this court affirmed.
       People v. Mitros, No. 1-07-2686 (2009) (unpublished order under Supreme Court Rule 23).
¶ 12       On December 19, 2011, defendant filed a pro se petition for relief from judgment pursuant
       to section 2-1401 of the Code, asserting that his natural life sentence was void. On March 23,
       2012, the circuit court, acting sua sponte, dismissed defendant’s section 2-1401 petition,
       stating that defendant did not present a claim entitling him to relief.
¶ 13       Before addressing the parties’ arguments on appeal, we note that, as defendant observes,
       the trial court on June 16, 1989, stated that it was sentencing defendant on the intentional
       murder and felony murder counts. Although the court’s oral order generally controls where the
       report of proceedings and the common-law record conflict (see People v. Peeples, 155 Ill. 2d
       422, 496 (1993)), the trial court could not sentence defendant on two murder counts in this
       case, because the crimes involved a single murder victim. See People v. Miller, 238 Ill. 2d 161,
       165 (2010) (a defendant cannot be convicted for more than one offense arising out of the same
       physical act). Instead, the colloquy of defendant’s plea, the remainder of the report of
       proceedings, and the mittimus all indicate defendant was convicted on count I (intentional
       murder), for which the court imposed a natural life sentence, and count IV (residential
       burglary), for which the court sentenced defendant to a concurrent term of 15 years in prison.
       The State does not dispute that those convictions and sentences were entered in this case.
¶ 14       When defendant committed these crimes in 1988, the first degree murder statute (Ill. Rev.
       Stat. 1987, ch. 38, ¶ 9-1) provided, in pertinent part:
                “(a) A person who kills an individual without lawful justification commits first degree
                murder if, in performing the acts which cause the death:
                    (1) He either intends to kill or do great bodily harm to that individual or another, or
                knows that such acts will cause death to that individual or another[.]”
¶ 15       A term of natural life imprisonment could be imposed upon a finding of an aggravating
       factor listed in subsection 9-1(b) of the murder statute. Ill. Rev. Stat. 1987, ch. 38,
       ¶ 1005-8-1(a)(1)(b); Ill. Rev. Stat. 1987, ch. 38, ¶ 9-1(b). One such factor was if the victim was
       killed in the course of a forcible felony listed in the statute. Ill. Rev. Stat. 1987, ch. 38,
       ¶ 9-1(b)(6)(c). At the time of defendant’s offense, residential burglary was not listed among
       those felonies. Id. Therefore, defendant could not have been sentenced to natural life
       imprisonment for committing murder in the course of a residential burglary. The statute was
       subsequently amended by Public Act 86-1012 (eff. July 1, 1990) to include residential burglary
       among the enumerated felonies in section 9-1(b). Thus, defendant’s sentence was not



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       authorized by statute when imposed by the trial court in 1989.

¶ 16                                     VOIDNESS CHALLENGE
¶ 17       This appeal involves defendant’s 2011 pro se petition challenging his sentence as void
       under section 2-1401. Section 2-1401 of the Code provides a means by which a trial court can
       vacate or modify a final order or judgment in a civil or criminal proceeding. People v.
       Thompson, 2015 IL 118151, ¶ 28. A section 2-1401 petition must be filed no earlier than 30
       days from the entry of the final order but not more than 2 years thereafter. 735 ILCS
       5/2-1401(a), (c) (West 2010). Where, as here, a section 2-1401 petition was dismissed without
       an evidentiary hearing, we review that dismissal de novo. People v. Vincent, 226 Ill. 2d 1, 18
       (2007).
¶ 18       Clearly, defendant’s challenge to his 1989 sentence is beyond the two-year time frame
       allowed in section 2-1401. Until recently, a defendant has been able to challenge a judgment
       after the expiration of the two-year deadline set out in section 2-1401 by asserting that
       judgment was void. 735 ILCS 5/2-1401(c) (West 2010); Thompson, 2015 IL 118151, ¶ 29. A
       defendant could raise such a challenge under People v. Arna, 168 Ill. 2d 107, 113 (1995),
       which held that a sentence that did not conform to a statutory requirement could be attacked at
       any time. That was the basis of this court’s order in Mitros, 2014 IL App (1st) 121432-U, that
       defendant should be resentenced because his original term was void as unauthorized by statute.
       This court relied on People v. White, 2011 IL 109616, ¶ 20, which held that a court lacks the
       authority to impose a sentence that does not conform to a statutory requirement.
¶ 19       Arna was overturned and the void sentence rule was abolished in Castleberry, 2015 IL
       116916, ¶ 19. The supreme court stated in Castleberry that the circuit court’s power derives
       from personal and subject-matter jurisdiction over a case and held that “ ‘while the legislature
       can create new justiciable matters by enacting legislation that creates rights and duties, the
       failure to comply with a statutory requirement or prerequisite does not negate the circuit
       court’s subject matter jurisdiction or constitute a nonwaivable condition precedent to the
       circuit court’s jurisdiction.’ ” Castleberry, 2015 IL 116916, ¶ 15 (quoting LVNV Funding, LLC
       v. Trice, 2015 IL 116129, ¶ 37). Thus, the supreme court concluded that only the most
       fundamental defects, such as the lack of personal or subject-matter jurisdiction, render a
       judgment void. Castleberry, 2015 IL 116916, ¶¶ 11, 15 (citing LVNV Funding, LLC, 2015 IL
       116129, ¶ 38).
¶ 20       Several weeks after deciding Castleberry, the supreme court in Thompson addressed a
       voidness challenge under section 2-1401. The court held that under Castleberry, an argument
       that a sentence does not conform to the applicable statute “is no longer valid.” Thompson, 2015
       IL 118151, ¶ 33. Thus, presuming that the court had both personal and subject-matter
       jurisdiction in a case, a sentence that is imposed erroneously by a court is merely voidable and
       is not subject to collateral attack. Castleberry, 2015 IL 116916, ¶ 11 (citing People v. Davis,
       156 Ill. 2d 149, 155-56 (1993)). Applying the holding in Castleberry to this case, defendant’s
       statutorily unauthorized sentence cannot now be corrected.
¶ 21       In defendant’s supplemental brief, he asserts that the 2015 decision in Castleberry does not
       apply retroactively to his case, which was decided in 2014. In response to the State’s
       contention that the retroactive application of Castleberry to all cases is the most equitable
       outcome, defendant contends that he must be given some means to challenge his unauthorized
       sentence.

                                                  -4-
¶ 22        A judicial decision that establishes a new constitutional rule applies to all criminal cases
       pending on direct review. Schriro v. Summerlin, 542 U.S. 348, 351 (2004); see also Teague v.
       Lane, 489 U.S. 288, 309 (1989). However, a new rule should almost never be applied
       retroactively to cases on collateral review. Teague, 489 U.S. at 305-06.
¶ 23        To determine whether a new rule applies on collateral review, the court considers the date
       on which the defendant’s conviction became final and whether the constitutional rule sought
       by the defendant existed when the defendant’s conviction became final. People v. Avery, 2012
       IL App (1st) 110298, ¶¶ 32-33 (citing Teague, 489 U.S. at 301). “[A] case announces a new
       rule if the result was not dictated by precedent existing at the time the defendant’s conviction
       became final.” (Emphasis in original.) Teague, 489 U.S. at 301.
¶ 24        Therefore, a rule that existed at the time the defendant’s conviction became final is not a
       new rule. Avery, 2012 IL App (1st) 110298, ¶ 33. Accordingly, that rule can be applied on
       collateral review because “ ‘it was the law that should have been utilized in the first place.’ ”
       Id. (quoting People v. Kizer, 318 Ill. App. 3d 238, 246 (2000)).
¶ 25        In the instant case, the parties both assert that Castleberry set out a new rule, and they
       proceed to disagree as to its retroactivity. We agree with recent decisions of this court holding
       that Castleberry did not announce a new rule but instead abolished a prior rule.
¶ 26        In People v. Smith, 2016 IL App (1st) 140887, ¶ 29, the Appellate Court, First District, held
       that Castleberry “merely abolished the rule stated in Arna” and reinstated the prior rule that a
       sentence that did not comply with statutory guidelines was only void if the court lacked
       personal or subject-matter jurisdiction. Citing Smith, the Appellate Court, Fourth District, held
       in People v. Stafford, 2016 IL App (4th) 140309, ¶ 33, that Castleberry did not create a new
       rule but instead eliminated the previous rule.
¶ 27        Smith and Stafford, however, reached different results as to retroactivity. Smith held that
       Castleberry applied only prospectively because it did not announce a new rule. Smith, 2016 IL
       App (1st) 140887, ¶ 30. That result appears to be in conflict with the law set out above that if a
       rule that is not found to be new, that rule can be applied retroactively on collateral review.
       Avery, 2012 IL App (1st) 110298, ¶ 33. Indeed, as Stafford held, the fact that Castleberry did
       not create a new rule means that its holding “does apply retroactively.” (Emphasis in original.)
       Stafford, 2016 IL App (4th) 140309, ¶ 33 (citing Teague, 489 U.S. at 301).
¶ 28        The Fourth District in Stafford went on to state:
                “Due to the abolition of the void sentence rule in Castleberry, the rule pre-Arna is
                reinstated: a sentence can only be challenged at any time as void if the court lacked
                personal or subject matter jurisdiction. [Citation.] Because defendant does not
                challenge the trial court’s personal or subject matter jurisdiction, under Castleberry, we
                need not address whether his sentence is void.” Stafford, 2016 IL App (4th) 140309,
                ¶ 33.
       See also People v. Buffkin, 2016 IL App (2d) 140792, ¶ 7 n.1 (assuming the retroactive
       application of Castleberry and noting that issue is currently before the Illinois Supreme Court
       in People v. Price, No. 118613 (Ill. May 27, 2015) (oral arguments held on March 22, 2016)).
¶ 29        We agree with the analysis in Stafford and find that Castleberry applies retroactively to
       defendant in the instant case. Under Castleberry, defendant cannot now challenge his sentence
       as void.



                                                    -5-
¶ 30       Defendant asserts that under principles of due process, he must be allowed a clear remedy
       for challenging his natural life imprisonment, a term that was not allowed under the sentencing
       statute applicable to his case. We note that Castleberry and several cases applying its holding
       have set out various alternative means for obtaining a just result in these circumstances.
       However, under the facts presented in this case and the law set out above, defendant cannot
       obtain relief from his sentence by way of a voidness challenge under section 2-1401.
¶ 31       Accordingly, the circuit court’s dismissal of defendant’s section 2-1401 petition from
       judgment is affirmed.

¶ 32      Affirmed.




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