                                                                        FOURTH DIVISION
                                                                        November 10, 2016

2016 IL App (1st) 121432

No. 1-12-1432

THE PEOPLE OF THE STATE OF ILLINOIS,                            )       Appeal from the
                                                                )       Circuit Court of
        Plaintiff-Appellee,                                     )       Cook County.
                                                                )
        v.                                                      )       No. 88 CR 8544
                                                                )
ANTHONY MITROS,                                                 )       Honorable
                                                                )       Kenneth J. Wadas,
        Defendant-Appellant.                                    )       Judge Presiding.

        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.
1-12-1432



¶3      In an unpublished order filed on September 11, 2014, this court found that defendant’s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
        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.




                                               -2­
1-12-1432



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.

¶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




                                                  -3­
1-12-1432



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


                                                 -4­
1-12-1432



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 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


                                                  -5­
1-12-1432



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.


                                                 -6­
1-12-1432



¶ 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.

¶ 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.


                                                 -7­
1-12-1432



¶ 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)).


                                                -8­
1-12-1432



¶ 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.

¶ 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.




                                               -9­
