                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Donelson, 2011 IL App (1st) 092594




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



District & No.              First District, Third Division
                            Docket No. 1-09-2594


Filed                       November 9, 2011
Rehearing denied            December 5, 2011
Held                        Defendant’s concurrent sentences for first degree murder, home invasion
(Note: This syllabus        and aggravated criminal sexual assault were void where his conviction for
constitutes no part of      aggravated criminal sexual assault triggered the statutory mandate that
the opinion of the court    consecutive sentences be imposed, and the proper remedy was to vacate
but has been prepared       the judgment and remand the cause for resentencing pursuant to
by the Reporter of          defendant’s plea agreement and the applicable statutes.
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, Nos. 98-CR-11525, 98-
Review                      CR-11527; the Hon. Lawrence E. Flood, Judge, presiding.


Judgment                    Vacated and remanded with directions.
Counsel on                 Michael J. Pelletier and Jessica D. Pamon, both of State Appellate
Appeal                     Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Douglas P. Harvath, and Sheilah C. O’Grady, Assistant State’s Attorneys,
                           of counsel), for the People.


Panel                      JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                           Justice Murphy concurred in the judgment and opinion.
                           Justice Quinn specially concurred, with opinion.



                                            OPINION

¶1          Charles Donelson, the defendant, appeals from the dismissal of his pro se petition for
        relief from judgment under section 2-1401(f) of the Code of Civil Procedure. 735 ILCS 5/2-
        1401(f) (West 2008). On appeal, he contends that the concurrent sentences imposed on his
        plea of guilty are void and that this court should vacate his plea and remand the cause to
        allow him to withdraw his plea. The State responds with three arguments: (1) that the
        concurrent sentencing was proper; (2) that defendant should be equitably estopped from
        withdrawing his plea; and (3) that the appropriate remedy is a remand for resentencing.
        Defendant also maintains that his mittimus must be corrected as it reflects the wrong count
        to which he pled guilty. For the reasons stated below, we vacate defendant’s sentences and
        remand for resentencing consistent with both the plea agreement and relevant statutes.

¶2                                        BACKGROUND
¶3          Defendant was charged in indictment number 98 CR 11525 with first degree murder,
        home invasion, residential burglary, and aggravated criminal sexual assault stemming from
        an incident in the afternoon on March 28, 1998, where defendant allegedly forcibly entered
        the home of Matthew Flowers and Sarah Tyler, forced Flowers and Tyler to have intercourse,
        and shot and killed Flowers. Defendant was also charged in indictment number 98 CR 11527
        with aggravated criminal sexual assault stemming from an incident in the morning on March
        28, 1998, where defendant allegedly forced Tyler to have sex with him. On January 30, 2001,
        pursuant to a guilty plea, defendant was convicted of first degree murder (count V: felony
        murder based on the aggravated sexual assault of Tyler) and home invasion (count VI) under
        indictment number 98 CR 11525, and aggravated criminal sexual assault (count I) under
        indictment number 98 CR 11527. The trial court admonished defendant of the rights he was
        relinquishing by pleading guilty and sentenced him to 55 years’ imprisonment for first degree
        murder, 30 years for home invasion, and 30 years for aggravated criminal sexual assault, all
        to be served concurrently.

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¶4        On February 27, 2001, defendant filed a pro se motion to withdraw his guilty plea. The
     trial court denied the motion to withdraw and defendant appealed. The State confessed error
     based on erroneous plea admonishments, and this court remanded the case. People v.
     Donelson, No. 1-01-2127 (2002) (unpublished order pursuant to Supreme Court Rule 23).
     On remand, defendant filed a new motion to withdraw his pleas of guilty under both
     indictments. Ultimately, on May 22, 2003, defendant agreed to withdraw his motions in
     exchange for the State’s offer of a five-year sentence reduction on his first degree murder
     conviction. The court agreed to reduce his 55-year sentence for murder to 50 years and
     vacated his original 55-year sentence. The court did not address defendant’s concurrent 30-
     year sentences. A new mittimus was issued reflecting defendant’s reduced sentence of 50
     years for murder and 30 years for home invasion. When the State expressed concern that
     defendant would receive double credit, the trial court clarified that, “[t]he original sentence
     was vacated. It is not a corrected mittimus. A new sentence is imposed.”
¶5        On April 23, 2009, defendant filed a pro se motion for leave to file a petition for relief
     from judgment pursuant to section 2-1401(f), along with the petition itself. Defendant
     challenged various aspects of his guilty plea, including that he received ineffective assistance
     of trial counsel, that the trial court failed to comply with Illinois Supreme Court Rule 604(d)
     (eff. July 1, 2006), and that his plea was involuntary. He did not raise the issue of improper
     concurrent sentences in his motion. The circuit court dismissed defendant’s petition on July
     17, 2009. On July 27, 2009, defendant filed a motion to reconsider the dismissal of his
     petition for relief from judgment, which the circuit court denied on August 14, 2009. This
     appeal followed.

¶6                                          ANALYSIS
¶7       On appeal, defendant abandons the issues raised in his petition and claims for the first
     time that the trial court erred in sentencing him to concurrent sentences where section 5-8-4
     of the Unified Code of Corrections (730 ILCS 5/5-8-4 (West 1998)) required that defendant’s
     sentences for murder (No. 98 CR 11525) and aggravated criminal sexual assault (No. 98 CR
     11527) be imposed consecutively. Defendant maintains that his plea as well as his sentences
     are void and thus that the judgment and plea must both be vacated. Whether a sentence is
     void is a question of law subject to de novo review. People v. Hauschild, 226 Ill. 2d 63, 72
     (2007).
¶8       We initially note that the State maintains that defendant forfeited review of his claim. The
     State indicates that defendant filed a pro se petition for relief from judgment pursuant to
     section 2-1401 of the Code of Civil Procedure, which states that, “the petition must be filed
     not later than 2 years after the entry of the order or judgment.” 735 ILCS 5/2-1401(c) (West
     2008). The State thus asserts that because defendant filed his petition more than two years
     after the entry of the last order in this case, his claim is waived. However, defendant is
     challenging his sentence as void, and a void sentence can be corrected at any time and is not
     subject to wavier or forfeiture. People v. Hillier, 237 Ill. 2d 539, 546-47 (2010); People v.
     Tolentino, 409 Ill. App. 3d 598, 604 (2011).
¶9       Turning to the merits of defendant’s appeal, our supreme court has held that concurrent


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       sentences are void where the statutory requirements for mandatory consecutive sentences are
       met. People v. Bishop, 218 Ill. 2d 232, 254 (2006). A conviction of aggravated criminal
       sexual assault (720 ILCS 5/12-14 (West 1998)) triggers mandatory consecutive sentences
       where the defendant is convicted of multiple offenses whether the offenses were committed
       during a single course of conduct (730 ILCS 5/5-8-4(a) (West 1998)) or whether the offenses
       were committed during separate courses of conduct (730 ILCS 5/5-8-4(b) (West 1998)).
       People v. Harris, 203 Ill. 2d 111, 116-17 (2003). Based on section 5-8-4, the court should
       have imposed consecutive sentences for defendant’s convictions of murder and aggravated
       criminal sexual assault. Thus, we find that the sentence is void.
¶ 10        The State’s arguments to the contrary are meritless. First, under subsection (b) of section
       5-8-4, as conceded by the State, defendant’s conviction of aggravated criminal sexual assault
       (No. 98 CR 11527) would trigger a consecutive sentence for his conviction of murder (No.
       98 CR 11525) even though it occurred in a separate course of conduct and was separately
       indicted. The State, however, claims that the mandate of subsection (b) does not apply here
       because the sentences at issue were imposed separately, rather than simultaneously. In
       making its argument, the State relies on the following wording appearing in subsection (a)
       but not repeated in subsection (b):
            “When multiple sentences of imprisonment are imposed on a defendant at the same time,
            or when a term of imprisonment is imposed on a defendant who is already subject to
            sentence in this State, *** the sentences shall run concurrently or consecutively as
            determined by the court.” 730 ILCS 5/5-8-4(a) (West 1998).
       However, this language applies to both subsections (a) and (b). See People v. Hayes, 336 Ill.
       App. 3d 145, 152 (2002).
¶ 11        Furthermore, the State’s argument that defendant’s murder sentence was separately
       imposed from the sentence for his aggravated criminal sexual assault conviction is
       unpersuasive. Defendant’s reduced murder sentence, although entered in 2003, was entered
       to take effect as of February 2001, when he filed his motion to withdraw his entire plea. That
       plea encompassed all three offenses under both indictments, including the first degree murder
       and aggravated criminal sexual assault charges. In reducing defendant’s murder sentence, the
       court stated, “I’m allowing you to make a motion to reduce the sentence as of February 28,
       [20]01, within 30 days, the date I sentenced you, from 55 years to 50 years and the State is
       not objecting to that as part of the agreement.” Defendant thus withdrew his motion to
       withdraw his plea, leaving the plea and the resulting convictions and sentence intact but for
       the reduced murder sentence. Therefore, although defendant’s murder sentence was reduced
       after the original plea, and a new mittimus was issued, the new sentence was entered as part
       of that original sentence from two years earlier.
¶ 12        Our conclusion that defendant’s sentence is void finds support in our supreme court’s
       recent decision in People v. White, 2011 IL 109616. In White, the defendant pled guilty to
       first degree murder and possession of contraband in a penal institution in exchange for
       consecutive prison sentences of 28 and 4 years, respectively, and the factual basis for the plea
       established that a firearm was used in the commission of the murder offense. White, 2011 IL
       109616, ¶¶ 4-6. The supreme court found that the 15-year mandatory sentencing


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       enhancement for committing first degree murder while armed with a firearm applied despite
       the trial court’s belief that it did not. White, 2011 IL 109616, ¶ 11. The White court reiterated
       the axiom that a court cannot impose a sentence inconsistent with the governing statutes even
       where the parties and trial court agree to that sentence. White, 2011 IL 109616, ¶ 23. The
       supreme court thus held that the guilty plea entered into by the defendant was void,
       remanding the case to the trial court with directions to allow defendant to withdraw his plea.
       White, 2011 IL 109616, ¶ 31.
¶ 13       However, we agree with the State that, under the circumstances of this case, the
       appropriate remedy for defendant’s void sentence is a remand for resentencing. While the
       sentence is void, the plea agreement taken as a whole is not void and defendant is not entitled
       to withdraw his plea.
¶ 14       Our supreme court has declared that plea agreements, and in particular agreements for
       fully negotiated pleas where the parties have agreed on the appropriate sentence, are
       generally governed by contract law. People v. Absher, 242 Ill. 2d 77, 90 (2011); People v.
       Smith, 406 Ill. App. 3d 879, 888-89 (2010). A plea agreement is between the State and the
       defendant, and the circuit court is not a party to the agreement. Smith, 406 Ill. App. 3d at
       888-89. A defendant does not have an absolute right to withdraw his guilty plea and thus
       bears the burden of showing why withdrawal is necessary. Smith, 406 Ill. App. 3d at 885.
       While an illegal contract is generally void ab initio, a plea agreement is void when an
       essential part of the agreed exchange is unenforceable or illegal under the relevant statutes.
       People v. Gregory, 379 Ill. App. 3d 414, 419-20 (2008). Whether a void term or aspect of
       the sentence was essential is determined by its relative importance in light of the entire
       agreement. Gregory, 379 Ill. App. 3d at 420. We consider the essential terms of the plea
       agreement here to be the charges to which defendant pled guilty and the overall or total
       sentence of imprisonment for those offenses.
¶ 15       We acknowledge that in White, our supreme court remanded the defendant’s void
       sentence to the circuit court with directions to allow the defendant to withdraw his guilty plea
       and proceed to trial. However, White is distinguishable from the instant case on the key issue
       of whether the plea agreement is void. The object of the agreement in White–that the
       defendant plead guilty to first degree murder and possession of contraband and received a
       total of 32 years’ imprisonment–was contrary to statutory authority which mandated that he
       receive at least 35 years’ imprisonment for the murder charge with the firearm enhancement.
       Had the supreme court remanded only the sentence, the circuit court would not have been
       able to impose the total number of years to which the defendant agreed. Under those
       circumstances, the White court concluded that the plea agreement itself was void.1



               1
                The court’s actual words were, “And, because defendant was not properly admonished, the
       entire plea agreement is void as well.” White, 2011 IL 109616, ¶ 21. It appears the court was
       referring to the particular fact scenario before it; there is no indication that the supreme court
       intended to overrule or set aside its clear and repeated statements that improper admonishments do
       not render a plea agreement or the resulting judgment void. People ex rel. Alvarez v. Skryd, 241 Ill.
       2d 34, 42 (2011); In re J.T., 221 Ill. 2d 338, 346 (2006); People v. Jones, 213 Ill. 2d 498, 509 (2004).

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¶ 16       The case cited by defendant for the proposition that resentencing is an inappropriate
       remedy, People v. Johnson, 338 Ill. App. 3d 213 (2003), is similarly distinguishable. The
       Johnson defendant pled guilty to a particular offense and received a sentence of probation
       when he was statutorily ineligible for probation. Thus, “defendant pled guilty to that crime
       upon the representation that he would receive probation. Because defendant was not eligible
       for probation, defendant and the State now necessarily lack agreement on the plea offer.”
       Johnson, 338 Ill. App. 3d at 216. The agreed-upon sentence was not achievable under the
       applicable statutes so that the plea agreement was illegal. Under such circumstances, the only
       method “[t]o return the State and defendant to their positions prior to the trial court’s
       erroneous imposition of probation,” was to allow him to withdraw his plea. Johnson, 338 Ill.
       App. 3d at 216.
¶ 17       While this court in People v. Hare, 315 Ill. App. 3d 606 (2000), declined a defendant’s
       request for “specific performance” or reformation of a plea agreement, the instant case is
       distinguishable. The agreement in Hare was to recommend a four-year prison sentence in the
       mistaken belief that it was the minimum sentence, when the actual minimum prison term was
       six years. Hare, 315 Ill. App. 3d at 607-08. The parties did not dispute that the sentence was
       void but joined issue on whether the plea agreement was therefore void; the defendant
       contended that the nature of the agreement was that the State recommend the minimum
       sentence, so that he should receive a six-year prison term under the agreement. Hare, 315 Ill.
       App. 3d at 609. However, the circuit court found after a hearing, and this court affirmed, that
       the nature or substance of the agreement was to recommend a four-year term, an illegal
       sentence and thus an unenforceable plea agreement. Hare, 315 Ill. App. 3d at 609-11.
¶ 18       By contrast, the plea agreement in the instant case, taken as a whole, is not contrary to
       statutory authority and thus not void. Defendant pled guilty to first degree murder, aggravated
       criminal sexual assault, and home invasion, and maintained that plea, ultimately in exchange
       for concurrent prison terms of 50, 30, and 30 years respectively; that is, in exchange for a
       total of 50 years’ imprisonment. For the same three offenses, with the sentences to be served
       consecutively pursuant to section 5-8-4 as stated above, we find that defendant could
       properly receive a total of 50 years’ imprisonment in light of the sentencing ranges of 20 to
       60 years for first degree murder and 6 to 30 years for the other two offenses. 720 ILCS 5/12-
       11(c), 12-14(d)(1) (West 1998); 730 ILCS 5/5-8-1(a)(1)(a), (a)(3) (West 1998).
¶ 19       We conclude that the plea agreement here, taken as a whole, was not void even though
       the particular sentence imposed in implementation of that agreement was void. Defendant
       does not have the right to withdraw his plea, as this would be contrary to the State’s right to
       the benefit of the parties’ bargain. Instead, the appropriate remedy is to enforce the overall
       plea agreement consistent with the relevant statutes by vacating the void sentence and
       remanding for resentencing of the pled offenses to a total prison term, with mandatory
       consecutive sentencing, of 50 years.
¶ 20       Defendant further maintains, and the State correctly agrees, that the trial court erred upon
       resentencing when it entered sentence on count III of defendant’s indictment, which was first
       degree murder based on home invasion, where his initial mittimus reflects that he pled guilty
       to count V, which was first degree murder based on aggravated criminal sexual assault
       involving Flowers and Sarah (No. 98 CR 11525). Thus, the mittimus issued upon

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       resentencing shall reflect that defendant was sentenced on count V, not count III.
¶ 21        Lastly, we note that defendant contended in his initial brief that his sentence is void
       because the circuit court lacked the authority to reduce his sentence without first vacating his
       plea. Defendant effectively abandoned this contention in his reply brief, not only by not
       referring to it but by making arguments in the reply brief utterly contrary to this contention.
       To the extent that the contention is still an active one, we reject it. Defendant filed a written
       motion to withdraw his plea, thus vesting the court with jurisdiction to consider the validity
       of his plea. Illinois Supreme Court Rule 604(d) (eff. July 1, 2006) authorizes a court faced
       with a properly filed postplea motion to “modify the sentence or vacate the judgment and
       permit the defendant to withdraw the plea of guilty and plead anew,” with no distinction
       between motions to reduce sentence and to withdraw a plea. While defendant argues that he
       withdrew his motion and then the court allowed him to move orally to reduce his sentence,
       these events occurred within a single hearing mere moments apart. We see no reason to
       conclude, placing technicality over practicality, that this particular sequence of events
       deprived the court of jurisdiction to act in the manner requested by the parties in a properly
       held hearing.
¶ 22        For the foregoing reasons, we vacate the judgment of the circuit court and remand for the
       court to resentence defendant in accordance with both the plea agreement and the applicable
       statutes, with the new mittimus reflecting that defendant was sentenced on count V, not count
       III.

¶ 23       Vacated and remanded with directions.

¶ 24       JUSTICE QUINN, specially concurring:
¶ 25       I agree with the holding of the majority that the concurrent nature of the defendant’s
       sentences was improper, and therefore, the sentences are void. I also agree with the majority
       that this does not make the plea void. I write separately because I am concerned that today’s
       decision could be read to require courts to vacate pleas of guilty where a defendant files a
       section 2-1401 petition asserting that his sentence was void as his sentence did not comply
       with the required minimum years after entering a fully negotiated guilty plea.
¶ 26       One of the guiding principles determining section 2-1401 relief is that the petition
       invokes the equitable powers of the circuit court to prevent enforcement of a judgment when
       doing so would be unfair, unjust or unconscionable. People v. Lawton, 212 Ill. 2d 285, 297
       (2004).
¶ 27       In the instant case, defendant filed a section 2-1401 petition for relief from judgment
       almost six years after withdrawing his motion to withdraw his plea in 2003 and receiving a
       reduced sentence of 50 years. The circuit court’s order of July 17, 2009 dismissing the
       petition was clearly legally correct. The first time any court or the State was made aware that
       defendant was seeking to withdraw his pleas of guilty based on improper concurrent
       sentences was on September 30, 2010 when this issue was raised in defendant’s appellate
       brief. This brief was filed more than nine years after defendant pled guilty in No. 98 CR
       11527 and more than seven years after defendant was resentenced in No. 98 CR 11525.

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¶ 28        In People v. White, 2011 IL 109616, the defendant raised the issue of improper
       concurrent sentences eight days after he pled guilty, when he timely filed his motion to
       withdraw his plea. Consequently, while the holding in White makes clear that the consecutive
       sentences imposed in the instant case must be vacated as void, White provides little support
       for allowing defendants who seek to withdraw their pleas of guilty years after entering into
       them under the equitable remedy available under section 2-1401.
¶ 29        Our supreme court has employed several methods to address void or voidable sentences.
       In People v. Brown, 225 Ill. 2d 188 (2007), the defendant was a juvenile charged with
       attempted first degree murder of a police officer. The defendant pled guilty and was
       sentenced to 28 years in prison. At the time of the plea, the trial court and the parties believed
       that defendant was subject to a sentencing range of 20 to 80 years. Shortly after defendant
       pled, the portion of Public Act 88-680 (effective January 1, 1995) that was commonly known
       as the Safe Neighborhoods Law (705 ILCS 405/5-4 (West 1996)) was determined to be
       unconstitutional. Consequently, defendant should only have been subject to a sentence of 15
       to 60 years. As defendant’s 28-year sentence was still within this latter range, the supreme
       court held that his sentence was not void, only voidable. The court held “while a sentence,
       or portion thereof, not authorized by statute is void (People v. Thompson, 209 Ill. 2d at 23),
       it is void only to the extent that it exceeds what the law permits. The legally authorized
       portion of the sentence remains valid. In re T.E., 85 Ill. 2d 326, 333 (1981); see People v.
       Patterson, 276 Ill. App. 3d 107, 111 (1995).” People v. Brown, 225 Ill. 2d at 205.
¶ 30        In People v. Thompson, 209 Ill. 2d 19 (2004), the defendant was sentenced to an
       extended-term sentence for violating an order of protection. Addressing the State’s argument
       that the defendant had waived his argument on appeal that his sentence was void, the
       supreme court disagreed, holding, “There is no jurisdictional impediment to the granting of
       relief from the void portion of the circuit court’s sentencing order.” (Emphasis added.)
       People v. Thompson, 209 Ill. 2d at 29. The court then vacated the extended-term portion of
       defendant’s sentence and reduced his sentence to the maximum nonextended term of three
       years’ imprisonment.
¶ 31        Recently, in People v. Marshall, 242 Ill. 2d 285 (2011), the court held that defendants
       cannot be required to supply DNA after a felony conviction when the defendant has
       previously provided DNA to the State’s database. In rejecting the State’s argument that the
       defendant had waived this argument on appeal, the court cited People v. Arna, 168 Ill. 2d
       107, 133 (1995), for its holding that “a sentence which does not conform to a statutory
       requirement is void and a reviewing court has the authority to correct it at any time.”
       (Emphasis added.) People v. Marshall, 242 Ill. 2d at 302.
¶ 32        In the instant case, it is the order of the trial court making the sentences to run
       concurrently which makes the sentences void. In keeping with the equitable nature of relief
       available under section 2-1401 and the principle that agreements in fully negotiated pleas
       where the parties have agreed on the appropriate sentence are generally governed by contract
       law (People v. Absher, 242 Ill. 2d 77, 90 (2011)), I do not believe that section 2-1401
       provides a mechanism for defendants to attempt to withdraw their pleas based on a sentence
       they allege is below the minimum permissible by law. It makes perfect sense that section 2-
       1401 may be used as a shield to protect the rights of a defendant to attack the sentence if it

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       is above the maximum permissible. There is nothing unfair, unjust or unconscionable about
       receiving a sentence less than the permissible minimum.
¶ 33        In the instant case, I agree with the majority’s decision to direct the circuit court on
       remand to resentence the defendant to a legal sentence with a “cap” of his previously
       imposed sentence, 50 years, as this is a legal sentence. However, should a defendant attempt
       to utilize section 2-1401 to withdraw his plea of guilty based on a sentence which fails to
       meet the minimum sentence as required by statute, I believe that the circuit court or court of
       review could correct the erroneous portion of the sentence by increasing it to the minimum
       necessary to comply with the appropriate sentencing statutes. See People v. Brown, 225 Ill.
       2d 188, 205 (2007); People v. Thompson, 209 Ill. 2d 19, 29 (2004); People v. Marshall, 242
       Ill. 2d 285, 302 (2011).




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