                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Hubbard, 2012 IL App (2d) 120060




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ROY E. HUBBARD, Defendant-Appellant.



District & No.             Second District
                           Docket Nos. 2-12-0060, 2-12-0348 cons.


Filed                      October 17, 2012


Held                       The mandate of section 12-14(d)(2) of the Criminal Code that defendant
(Note: This syllabus       had to be sentenced to life for aggravated criminal sexual assault because
constitutes no part of     he had a prior conviction for predatory criminal sexual assault of a child
the opinion of the court   did not apply to defendant, because his prior sentence was not placed
but has been prepared      before the court as part of his guilty plea; therefore, his sentence to 47½
by the Reporter of         years was not void and his petitions under section 2-1401 of the Code of
Decisions for the          Civil Procedure were properly dismissed.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Jo Daviess County, No. 05-CF-84; the
Review                     Hon. William A. Kelly, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Roy E. Hubbard, of Pontiac, appellant pro se.
Appeal

                           Terry M. Kurt, State’s Attorney, of Galena (Lawrence M. Bauer and Scott
                           Jacobson, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      JUSTICE BIRKETT delivered the judgment of the court, with opinion.
                           Justices McLaren and Hutchinson concurred in the judgment and opinion.


                                              OPINION

¶1           Defendant, Roy E. Hubbard, appeals from the dismissal of two petitions under section
        2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) in which he sought
        to vacate his 2006 conviction of aggravated criminal sexual assault (bodily harm) (720 ILCS
        5/12-14(a)(2) (West 2004)). That conviction was entered under a plea agreement by which
        defendant received a sentence of 47½ years’ imprisonment. During a conference pursuant
        to Illinois Supreme Court Rule 402 (eff. July 1, 1997) before the court’s acceptance of the
        agreement, the parties advised the court of defendant’s prior conviction of predatory criminal
        sexual assault of a child, but the parties did not formally stipulate to the conviction’s
        existence and the court did not take judicial notice of it. In his petitions, defendant asserted
        that, under the recidivist sentencing provision of section 12-14(d)(2) of the Criminal Code
        of 1961 (Criminal Code) (720 ILCS 5/12-14(d)(2) (West 2004) (now 720 ILCS 5/11-
        1.30(d)(2) (West 2010))), the existence of the earlier conviction meant that the only
        statutorily authorized sentence was a life sentence. He argued that, as a consequence, the
        sentence, the plea agreement, and the conviction all were void.
¶2           We hold that the prior conviction was not placed before the court as part of defendant’s
        guilty plea and that the mandate of section 12-14(d)(2) for a life sentence therefore did not
        apply. Thus, defendant’s sentence is not void, and no fatal flaw existed in the plea agreement
        or conviction. Consequently, no relief was available to defendant. We affirm both dismissals.

¶3                                       I. BACKGROUND
¶4          On June 6, 2005, the State charged defendant with three counts of predatory criminal
        sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)). The charges were based
        on three acts of sexual penetration with one victim, defendant’s stepdaughter, T.G. Each
        count alleged that, on February 3, 1998, defendant had been convicted of predatory criminal
        sexual assault of a child. An amended information added a fourth count, described as
        “aggravated criminal sexual assault”:
            “[I]n violation of Section 12-14(a) (2) of Act 5 of Chapter 720 of the Illinois Compiled
            Statutes of said State, in that said defendant, who was 17 years of age or older,

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         committed an act of sexual penetration causing bodily harm to T.G., who was under 9
         years of age when the act was committed, in that said defendant placed his penis in the
         vagina of T.G.”
¶5       On January 12, 2006, defendant entered a negotiated guilty plea to the fourth count, by
     which he received a sentence of 47½ years’ imprisonment. At the plea hearing, the State
     explained the sentencing law and the agreement as follows:
              “Judge, the statute requires that when a defendant is previously convicted of
         predatory criminal sexual assault and then afterwards has another predatory criminal
         sexual assault conviction or even aggravated criminal sexual assault conviction that the
         term of his imprisonment will be natural life. Based on the fact that we have discussed
         this case in great length; attorneys for the defendant and our office and with discussion
         from the victim who is five years old, her mother who is the wife of the defendant, as
         well as a number of other parties and also given the fact that we believe it would be best
         if the child does not have to testify in court just because of her young age and all those
         factors, we have entered an agreed plea amount of time [sic] that we believe would be
         necessary for a punishment for this defendant and that agreed time would be 47.5 years.”
¶6       The court recited the charged offense to defendant. The language it used was similar, but
     not identical, to that of count IV. The recitation specified that the act took place “between
     July 1st, 2004 and April 30th, 2005.” As the State did in the information, the court described
     the offense as aggravated criminal sexual assault and cited section 12-14(a)(2) of the
     Criminal Code. The court asked defendant if he “underst[oo]d the charge to which [he would
     be pleading] guilty,” and defendant said that he did.
¶7       The court then asked the State, “Now this is a charge *** that carries with it a statutory
     disposition here of life imprisonment but in this case the sentence is going to be 47 and a half
     years, is that right?” The State agreed that it was. The State presented a factual basis
     consistent with the information: the victim would testify that the charged act occurred, and
     the State would introduce a videotape, “made very close to when it happened,” in which the
     victim described the same act. The evidence would also show bodily harm. The State did not
     mention defendant’s age. Defendant and the State then formally stipulated that the evidence
     would be as the State described. After admonishing defendant, the court accepted the plea
     and imposed the agreed sentence.
¶8       On May 7, 2007, defendant filed a postconviction petition. As amended, the petition
     asserted primarily that the court should vacate the conviction because trial counsel had been
     ineffective, but alternatively that the court had not properly admonished defendant
     concerning the inclusion of a term of mandatory supervised release in his sentence, so that,
     under the rule in People v. Whitfield, 217 Ill. 2d 177 (2005), the court should reduce his
     sentence by three years to conform to the admonitions. The parties agreed that the court
     should reduce defendant’s sentence of imprisonment to 44½ years based on the rule in
     Whitfield. During the postconviction proceedings, the trial court told defense counsel, “I just
     wanted to make sure that I understand that in the event the relief you’re seeking is granted,
     that your client appreciates *** the exposure to natural life.” In response, defense counsel
     stated, “[w]ell, they have to prove the second offense and that wasn’t proven, I don’t think;


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       I wasn’t the lawyer then.” In explaining to counsel that the court understood counsel’s point,
       the court again reminded him that defendant could be “exposed to natural life” if the
       postconviction relief he sought were granted. The court later denied the remaining claims in
       the petition. Defendant appealed, but we later dismissed the appeal on his motion. People v.
       Hubbard, No. 2-10-0725 (2011) (minute order).
¶9          On October 27, 2011, defendant filed a “Petition for Relief from Void Judgments.” In
       it, he asserted that his sentence was void because it was too long for an unenhanced Class X
       sentence, but also was not in conformity with the life-sentence mandate of section 12-
       14(d)(2).
¶ 10        The State responded, asserting that defendant had waived any objection to the sentence
       by pleading guilty. It argued in the alternative that the sentence was void and that the court
       should modify defendant’s sentence to a life term. At the hearing, it argued that no authority
       supported defendant’s claim that one can withdraw his guilty plea six years after he entered
       it. The court dismissed the petition. It ruled that forfeiture or res judicata principles barred
       the claim. Defendant then filed the first of the appeals now before this court, No. 2-12-0060,
       but did not cause the clerk to file a record.
¶ 11        With his first section 2-1401 appeal pending, defendant filed a second section 2-1401
       petition, in which he argued only that his sentence exceeded what was authorized by statute.
       He argued that, in dismissing the previous petition, the court misinterpreted Illinois’s
       voidness law. When the State did not answer, defendant filed a motion for “Summary
       Judgment”; this was, in substance, a motion for default judgment. A computerized docket
       entry dated February 28, 2012, states, “Court’s motion Motion for Summary Judgment [sic]
       not timely. [C]ase closed.” Defendant filed a notice of appeal on March 22, 2012, producing
       the second appeal at issue here, No. 2-12-0348. Defendant caused the clerk to file a standard
       record in this second appeal. Defendant moved to consolidate the two appeals, and we
       granted the motion.

¶ 12                                       II. ANALYSIS
¶ 13       On appeal in No. 2-12-0060, defendant argues that his sentence is void because it
       exceeds the Class X maximum. Contradicting his first argument, he also asserts that, because
       he had a prior conviction of predatory criminal sexual assault of a child, he is subject to the
       recidivist provision of section 12-14(d)(2):
           “A person *** who is convicted of the offense of aggravated criminal sexual assault after
           having previously been convicted of *** the offense of predatory criminal sexual assault
           of a child *** shall be sentenced to a term of natural life imprisonment. The commission
           of the second or subsequent offense is required to have been after the initial conviction
           for this paragraph (2) to apply.” 720 ILCS 5/12-14(d)(2) (West 2004).
       He therefore asks that this court vacate his sentence and conviction. His brief in appeal No.
       2-12-0348 is essentially similar.
¶ 14       The State asserts that defendant’s sentence is proper as a discretionary extended-term
       Class X sentence under sections 5-5-3.2(b) and 5-8-2 of the Unified Code of Corrections
       (Code of Corrections) (730 ILCS 5/5-5-3.2(b), 5-8-2 (West 2004)). We agree.

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¶ 15       We hold that the sentence had statutory authorization as a discretionary extended-term
       Class X sentence predicated on the aggravating factor that the victim was less than 13 years
       old at the time of the offense. Although both parties have now conceded that defendant had
       a 1998 conviction of predatory criminal sexual assault of a child, the parties did not formally
       present that conviction to the court at the plea proceedings, as they would have needed to in
       order to trigger the recidivist provision of section 12-14(d)(2).
¶ 16       We address de novo whether an order is void; because relief from void orders is available
       in any court with proper jurisdiction–even if a party raises an issue for the first time on
       appeal–the trial court’s treatment of defendant’s petitions does not affect whether we can
       give relief. See People v. Schlabach, 2012 IL App (2d) 100248, ¶ 13 (noting that actions in
       the trial court were not relevant to whether relief was available for a void judgment).
       Defendant concedes that the voidness claim is the sole basis of his claim of error.
¶ 17       The outcome in this case is largely governed by the principles set out in People v. White,
       2011 IL 109616.1 Specifically, the State and a defendant have the right to negotiate what
       facts are presented to the court in support of a plea agreement. Those facts must be statutorily
       consistent with the agreed sentence or sentencing range. The factual basis is the principal
       means of placing those facts before the court.
¶ 18       In White, the State charged the defendant with, among other things, first-degree murder.
       The charges stemmed from the death of a taxi driver in an apparent armed robbery. White,
       2011 IL 109616, ¶ 3. The State and the defendant agreed that the defendant would plead
       guilty to first-degree murder and to an offense that he committed while in custody. He would
       receive a 28-year sentence for the murder, a sentence that required the assumption that the
       15-year mandatory firearm enhancement provision (730 ILCS 5/5-8-1(a)(1)(d)(i) (West
       2004)) would not apply. White, 2011 IL 109616, ¶¶ 4, 9. In presenting the factual basis for
       the plea, the State recited that “ ‘the victim was shot in the temple one time with a
       handgun.’ ” White, 2011 IL 109616, ¶ 6. Further, the defendant was not the gunman, but had
       participated in the robbery. White, 2011 IL 109616, ¶ 6. The court accepted the plea and
       imposed the agreed sentence (White, 2011 IL 109616, ¶ 7), but the defendant later moved to
       vacate the plea, asserting that the sentence was void because it was not long enough to
       include the 15-year firearm enhancement (White, 2011 IL 109616, ¶ 9). The court denied the
       motion, ruling that the enhancement was inapplicable when a defendant was convicted under
       an accountability theory. White, 2011 IL 109616, ¶ 11.
¶ 19       The defendant appealed, and the appellate court reversed. White, 2011 IL 109616, ¶¶ 12-
       14. On further appeal by the State, the supreme court held that the enhancement was
       applicable under an accountability theory. White, 2011 IL 109616, ¶ 19. It further pointed out

               1
                 Because we do not apply White to grant relief–although we follow its principles, we
       distinguish the facts–we need not decide whether the rule in White is retroactive under the rule in
       Teague v. Lane, 489 U.S. 288 (1989). A First District panel, in People v. Avery, 2012 IL App (1st)
       110298, ¶¶ 30-47, held that, because White stated a “new rule” not dictated by existing precedent,
       the rule in White does not apply retroactively under Teague principles. We would suggest that the
       holding in White follows from the holding in People v. Arna, 168 Ill. 2d 107 (1995): that a sentence
       statutorily inconsistent with the record facts is void. However, we need not decide the point.

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       that it had long held that a court lacks authority–jurisdiction–to impose a sentence that does
       not conform with statutory requirements, so that such a sentence is void. White, 2011 IL
       109616, ¶ 20. Because the use of a firearm was part of the factual basis, it followed that the
       sentence had to be consistent with firearm use:
            “The version of the facts agreed to by the State and presented by it in the factual basis to
            the court established that a firearm was used in the commission of the offense. Thus, ***
            the mandatory sentence enhancement was triggered.” White, 2011 IL 109616, ¶ 27.
¶ 20        The State argued that “in negotiating the guilty plea, it could concede a version of the
       facts which would fail to acknowledge that a firearm was used in the commission of the
       offense and make sentencing concessions based on that set of facts.” White, 2011 IL 109616,
       ¶ 27. The White court held that, because the facts that the State had conceded were those of
       the factual basis, the “principle relied upon by the State [was] not relevant.” White, 2011 IL
       109616, ¶ 27. The court thus implicitly accepted that such concessions of fact are proper,
       provided that the factual basis given is consistent with such a concession. Further, the special
       concurrence of Justice Theis made explicit what she read as implicit in the majority opinion.
       White, 2011 IL 109616, ¶ 35 (Theis, J., specially concurring). She stated that, had the State
       set out a factual basis in which the handgun was replaced with a “dangerous weapon,” the
       sentence would have been valid. White, 2011 IL 109616, ¶ 41 (Theis, J., specially
       concurring).
¶ 21        The holdings of White are amenable to restatement in contract terms. See People v.
       Bannister, 236 Ill. 2d 1, 9 (2009) (“Absent due process concerns, the validity of a plea
       agreement is generally governed by contract law.”). The parties to a plea agreement are the
       State and the defendant. People v. Smith, 406 Ill. App. 3d 879, 888-89 (2010). As the White
       majority implied and the special concurrence made explicit, the terms that the parties
       negotiate include not only the sentence, but the facts that the State will present to the court.
       The parties set out the agreement by means of the plea hearing; they introduce the facts
       through the factual basis (and those counts of the charging instrument to which the defendant
       pleads guilty). Those facts determine the validity of the sentence.
¶ 22        Returning to the facts here, the issue is whether the mere mention of defendant’s prior
       conviction during the conference pursuant to Illinois Supreme Court Rule 402 (eff. July 1,
       1997) and during the preliminary proceedings before the formal entry of the plea bound the
       trial court without regard to the clear intent of the parties to omit the prior conviction from
       the factual basis for the plea. “The principal purpose of Rule 402 was to remove the aura of
       secrecy from plea agreements so that their details would be recorded and clearly understood.”
       People v. Lambrechts, 69 Ill. 2d 544, 558 (1977). The record discloses that, prior to the
       formal entry of the plea, the parties met with the court in chambers and disclosed the
       tentative plea agreement. Consistent with Rule 402, during the conference the court received
       the reasons for the tentative agreement, including factors in aggravation and mitigation. The
       court indicated its concurrence to the parties and took the plea in open court pursuant to the
       terms agreed upon. The State’s Attorney, in his discretion, decided not to invoke the law that
       would have otherwise called for the imposition of a mandatory life sentence. The colloquy
       between the court and counsel before the entry of the plea merely fulfilled the purpose of
       Rule 402, to make sure that the “details” or reasons for the agreement were recorded and

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       clearly understood. We reject defendant’s argument that it can be “reasonably inferred” that
       the court “took judicial notice” of defendant’s prior conviction of predatory criminal sexual
       assault of a child. The court certainly could have, in its discretion, taken judicial notice of
       defendant’s prior conviction as a reason not to concur in the agreement. See People v.
       Barham, 337 Ill. App. 3d 1121, 1129-30 (2003) (Illinois courts may, in their discretion, take
       judicial notice, if otherwise appropriate, without a request from a party.); Ill. R. Evid. 201(c)
       (eff. Jan. 1, 2011).
¶ 23       A court is mandated to take judicial notice only where requested to do so by a party and
       where the necessary information is supplied. Ill. R. Evid. 201(d). Had the State formally
       offered evidence of defendant’s prior conviction at a sentencing hearing for the instant
       offense where the charging instrument alleged the prior conviction (pursuant to section 111-
       3(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010))), the trial
       court would have been required to sentence defendant to natural life. See People v. Henry,
       20 Ill. App. 3d 73 (1974) (State’s Attorney is vested with power to determine the offense that
       can and should properly be charged, and the trial court is without authority to strike alleged
       prior conviction from the charging instrument, thus reducing the charge from a felony to a
       misdemeanor). “ ‘The State’s Attorney is vested with exclusive discretion in the initiation
       and management of a criminal prosecution. That discretion includes the choice of which
       charges shall be brought. A criminal does not have the right to choose his or her prosecution
       or punishment.’ ” People v. Davis, 213 Ill. 2d 459, 478-79 (2004) (quoting People v. Ceja,
       204 Ill. 2d 332, 362 (2003)). The State’s Attorney “has the discretion not only to decide what
       charges to bring, but to decide whether charges should be dismissed.” People v. Van Schoyck,
       232 Ill. 2d 330, 339 (2009); see People v. Rhodes, 38 Ill. 2d 389, 391 (1967). As reviewing
       courts have repeatedly recognized, prosecutors are “entrusted with broad discretion ‘ “to
       determine the extent of the societal interest in prosecution.” ’ ” People v. Moore, 345 Ill.
       App. 3d 1043, 1047 (2003) (quoting People v. Flanagan, 201 Ill. App. 3d 1071, 1076 (1990),
       quoting United States v. Goodwin, 457 U.S. 368, 382 (1982)). This discretion is necessary
       to the effective administration of justice because the legislature “ ‘ “cannot fairly describe
       every possible set of circumstances which might present themselves *** in each case [to]
       predetermine [the] course of action by statute.” ’ ” Moore, 345 Ill. App. 3d at 1047 (quoting
       People v. Flanagan, 201 Ill. App. 3d at 1076, quoting People v. Golz, 53 Ill. App. 3d 654,
       659 (1977)). State’s Attorneys have always enjoyed wide discretion in the initiation and
       management of criminal cases. Defendant cites no authority to establish that the State was
       not free to forgo seeking a natural life sentence by nol-prossing counts I, II, and III in
       exchange for an agreed term of years. Such a finding would be at odds with the view that
       “the plea bargaining process and the negotiated plea agreements that result have been
       recognized not only as constitutional, but also as vital to and highly desirable for our criminal
       justice system.” People v. Evans, 174 Ill. 2d 320, 325 (1996) (citing Bordenkircher v. Hayes,
       434 U.S. 357, 363-64 (1978), and Santobello v. New York, 404 U.S. 257, 260-61 (1971)).
¶ 24       The authority of prosecutors to forgo proving up aggravating factors (either as elements
       of the offense or as prior convictions) at sentencing is a recognized element of effective plea
       bargaining. In Bordenkircher, the State charged the defendant with uttering a forged
       instrument. During plea negotiations, the prosecutor informed the defendant that, if he did

                                                 -7-
       not agree to a plea of guilty and a sentence of five years, the State would reindict him under
       the habitual criminal statute, which carried a mandatory life term. The defendant refused to
       plead, and the State kept its promise. The United States Supreme Court “accepted as
       constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining
       table is to persuade the defendant to forgo his right to plead not guilty.” Bordenkircher, 434
       U.S. at 364. The United States Supreme Court recently observed that “criminal justice today
       is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, ___ U.S. ___,
       ___, 132 S. Ct. 1376, 1381 (2012). The Court noted that “ninety-seven percent of federal
       convictions and ninety-four percent of state convictions are the result of guilty pleas.” Lafler,
       ___ U.S. at ___, 132 S. Ct. at 1388 (citing Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct.
       1399, 1407 (2012)). In those companion cases, the Court held that, while there is no right to
       a plea offer, where plea offers are extended the sixth amendment right to effective assistance
       of counsel extends to the plea bargaining process. See Lafler, ___ U.S. ___, 132 S. Ct. 1376;
       Frye, ___ U.S. ___, 132 S. Ct. 1399. In both Lafler and Frye the offers extended by the
       prosecution were far more lenient than the sentences the defendants would face after trial.
       In Lafler, the prosecution offered to dismiss a charge that included an element, “intent to
       murder,” that required a longer mandatory minimum sentence. Lafler, ___ U.S. at ___, 132
       S. Ct. at 1383. In Frye, the defendant was charged with driving with a revoked license.
       Because he had three prior convictions of the same offense, the defendant faced a felony
       conviction, carrying a maximum four-year prison term. Frye, ___ U.S. at ___, 132 S. Ct. at
       1401. The prosecutor sent a letter to the defendant’s attorney, offering a choice between two
       potential dispositions. One was a guilty plea to the felony with a recommended sentence of
       three years. The second was a guilty plea to a misdemeanor with a recommended sentence
       of 90 days. Frye, ___ U.S. at ___, 132 S. Ct. at 1401.
¶ 25        The United States Supreme Court recognized in these cases that the plea bargaining
       process is central to the criminal justice system and “is almost always the critical point for
       a defendant.” Frye, ___ U.S. at ___, 132 S. Ct. at 1407. That was certainly the case for
       defendant here. Had the State chosen not to convey an offer that excluded the prior
       conviction, he would have faced a mandatory life sentence. Compliance with Illinois
       Supreme Court Rule 402 (eff. July 1, 1997) in this case ensured that defendant knew and
       understood the charges against him, that he understood the benefits of accepting the State’s
       offer, and that he was aware of the rights he was surrendering by pleading guilty. Compliance
       with the rule in this case also helped to ensure against defendant’s claims. Defendant has not
       established a basis for relief.

¶ 26                                   III. CONCLUSION
¶ 27       For the reasons stated, we affirm the dismissals of both of defendant’s section 2-1401
       petitions.

¶ 28       Affirmed.




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