                               Illinois Official Reports

                                       Supreme Court



                                People v. Smith, 2015 IL 116572




Caption in Supreme       THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court:                   MICKEY D. SMITH, Appellee.



Docket No.               116572



Filed                    February 5, 2015



Held                       In 2011, the Illinois Supreme Court held that, if a mandatory sentence
(Note: This syllabus enhancement is called for by the factual basis of a plea agreement
constitutes no part of the accepted by the trial court, that enhancement must be imposed even if
opinion of the court but not included in the plea agreement; but it was proper to summarily
has been prepared by the dismiss a postconviction petition challenging a sentence as void under
Reporter of Decisions this decision where it was not retroactive because it announced a new
for the convenience of rule of law after the conviction at issue was final and was not a
the reader.)               “watershed” ruling impacting the conviction’s accuracy.




Decision Under           Appeal from the Appellate Court for the Third District; heard in that
Review                   court on appeal from the Circuit Court of Will County, the Hon. Amy
                         Bertani-Tomczak, Judge, presiding.




Judgment                 Appellate court judgment reversed.
                         Circuit court judgment affirmed.
     Counsel on               Lisa Madigan, Attorney General, of Springfield, and James W.
     Appeal                   Glasgow, State’s Attorney, of Joliet (Carolyn E. Shapiro, Solicitor
                              General, and Michael M. Glick and Stephen M. Soltanzadeh,
                              Assistant Attorneys General, of Chicago, and Patrick Delfino, Terry
                              A. Mertel and Nadia L. Chaudhry, of the Office of the State’s
                              Attorneys Appellate Prosecutor, of Ottawa, of counsel), for the
                              People.

                              Michael J. Pelletier, State Appellate Defender, Peter A. Carusona,
                              Deputy Defender, and Mario Kladis, Assistant Appellate Defender, of
                              the Office of the State Appellate Defender, of Chicago, for appellee.



     Justices                 JUSTICE BURKE delivered the judgment of the court, with opinion.
                              Chief Justice Garman and Justices Freeman, Thomas, Kilbride,
                              Karmeier, and Theis concurred in the judgment and opinion.



                                               OPINION

¶1         In People v. White, 2011 IL 109616, this court held that when the factual basis for a plea
       agreement which is accepted by the circuit court establishes that the defendant is subject to a
       mandatory sentencing enhancement, the court must impose it, even if the plea agreement
       between the State and the defendant included the condition that the State would not pursue the
       enhancement. At issue in this appeal is whether our holding in White applies retroactively to
       convictions which were final at the time White was decided. We conclude that it does not.

¶2                                         BACKGROUND
¶3         The defendant, Mickey D. Smith, was charged in a three-count indictment with the first
       degree murder of Douglas White. Count I alleged that defendant, without lawful justification
       and with intent to cause great bodily harm, shot White in the back with a handgun thereby
       causing his death. See 720 ILCS 5/9-1(a)(1) (West 2010). Count II alleged that defendant shot
       White with a handgun without justification knowing such act created a strong probability of
       death or great bodily harm. See 720 ILCS 5/9-1(a)(2) (West 2010). Count III alleged that
       defendant was an armed habitual criminal. See 720 ILCS 5/24-1.7 (West 2010). Subsequently,
       the State filed a “Notice of Intent to Enhance Sentencing Upon Conviction” in which it
       indicated that it intended to seek a sentencing enhancement of 25 years to natural life
       imprisonment on the ground that defendant murdered White by discharging a firearm. See 730
       ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010).
¶4         As part of a negotiated plea agreement, defendant pleaded guilty to first degree murder
       under count II. In exchange, the State dismissed counts I and III, recommended a sentence of
       30 years’ imprisonment, and withdrew its notice of intent to seek the firearm sentencing


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     enhancement. The factual basis presented by the State in support of the plea established that
     defendant, while armed with a handgun, entered a garage where White was found. Once inside
     the garage, defendant fired a single shot, killing White. During admonitions, the circuit court
     advised defendant that the State was withdrawing its notice of intent to seek the firearm
     enhancement and that defendant was therefore eligible for a sentence of 20 to 60 years. The
     circuit court accepted defendant’s guilty plea and imposed a sentence of 30 years’
     imprisonment. Defendant did not file a direct appeal.
¶5       Defendant thereafter filed a pro se postconviction petition in which he alleged that his
     sentence and guilty plea were void under this court’s decision in White, 2011 IL 109616,
     because his sentence did not include the statutory firearm enhancement. The circuit court of
     Will County summarily dismissed the petition as frivolous or patently without merit.
     Defendant appealed.
¶6       The appellate court reversed and remanded. 2013 IL App (3d) 110738. The appellate court
     concluded that defendant’s sentence and plea were void under White because the factual basis
     for defendant’s plea established that a firearm was used in the murder, thereby requiring the
     imposition of the firearm sentencing enhancement (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West
     2010)). The appellate court noted that the firearm enhancement statute required a 25-year
     prison term in addition to the minimum 20-year prison term for murder and, thus, the minimum
     required sentence for defendant’s crime was 45 years’ imprisonment. Defendant’s 30-year
     term fell below that statutory minimum and, therefore, according to the appellate court, was
     unauthorized and void.
¶7       In so holding, the appellate court rejected the State’s argument that White did not apply to
     defendant’s case under the rationale of Teague v. Lane, 489 U.S. 288 (1989), which was
     adopted by this court in People v. Flowers, 138 Ill. 2d 218 (1990). Teague provides that, with
     two exceptions, a new rule of criminal procedure does not apply to cases that are already final
     at the time the judicial decision establishing the new rule is entered. Defendant’s conviction
     was final at the time White was decided, but the appellate court concluded that White did not
     establish a new rule of law. The appellate court determined that “White did not break new
     ground or impose a new obligation,” but merely “relied upon existing precedent, which set out
     the long-standing rule that courts are not authorized to impose a sentence that does not conform
     to statutory guidelines, because a sentence not authorized by law is void.” 2013 IL App (3d)
     110738, ¶ 12. Finding that White did not establish a new rule, the appellate court concluded
     that it applied to defendant’s conviction. The appellate court therefore reversed the judgment
     of the circuit court and remanded the cause to permit defendant to withdraw his guilty plea and
     proceed to trial. The State subsequently filed a petition for leave to appeal in this court which
     we allowed. Ill. S. Ct. R. 315 (eff. July 1, 2013).

¶8                                           ANALYSIS
¶9       The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), “provides
     a method by which persons under criminal sentence in this state can assert that their
     convictions were the result of a substantial denial of their rights under the United States
     Constitution or the Illinois Constitution or both.” People v. Hodges, 234 Ill. 2d 1, 9 (2009).
     Petitions filed under the Act are reviewed in three stages. Id. at 10. At the first stage, the circuit
     court must independently review the petition to determine whether it is “frivolous or is patently


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       without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2010). If the court determines that the petition
       is either frivolous or patently without merit, the court must dismiss the petition in a written
       order. 725 ILCS 5/122-2.1(a)(2) (West 2010). We review de novo the circuit court’s summary
       dismissal of a postconviction petition. People v. Morris, 236 Ill. 2d 345, 354 (2010).
¶ 10       Initially, the State contends that White did not establish a constitutional rule of criminal
       procedure. Therefore, according to the State, defendant’s petition does not present a
       constitutional claim which is cognizable under the Act and the circuit court properly dismissed
       the petition.
¶ 11       In White, the defendant pleaded guilty to first degree murder and possession of contraband,
       and was sentenced to consecutive prison terms of 28 years for murder and 4 years for
       possession. White, 2011 IL 109616, ¶ 4. The factual basis for the defendant’s plea established
       that the victim was shot with a handgun. Id. ¶ 6. On direct appeal in this court, the defendant
       argued that his sentence was void because it did not include a mandatory firearm enhancement
       (730 ILCS 5/5-8-1(a) (West 2004)). The State maintained, however, that the parties’ plea
       agreement had included the condition that the enhancement would not be included. We thus
       identified the issue presented as follows: “When the factual basis entered for a guilty plea
       makes it clear that a defendant is subject to a mandatory sentencing enhancement, may the trial
       court enter judgment imposing a sentence that does not include the enhancement on the basis
       that the enhancement was excluded by the parties from the plea agreement?” White, 2011 IL
       109616, ¶ 1. We answered that question in the negative.
¶ 12       We first noted the circuit court has no authority to impose a sentence that does not conform
       to statutory guidelines and, thus, exceeds its authority when it orders a lesser or greater
       sentence. “In such a case, the defendant’s sentence is illegal and void.” Id. ¶ 20 (citing People
       v. Arna, 168 Ill. 2d 107, 113 (1995)). We then pointed out that the legislature had imposed a
       specific requirement upon the circuit court for an enhanced sentence when a firearm was used
       in the offense at issue. Id. ¶ 21. Because the factual basis accepted by the court established that
       a firearm had been used, and because defendant’s sentence did not include the statutory
       enhancement, we concluded the sentence was void. Moreover, because the defendant had not
       been properly admonished as to the proper sentencing range, his plea agreement also had to be
       set aside. Id.
¶ 13       The State maintained, however, that the general rule prohibiting a sentence outside the
       statutory sentencing range did not control where the parties agreed not to include the
       enhancement. We disagreed, finding that “[e]ven when a defendant, prosecutor, and court
       agree on a sentence, the court cannot give the sentence effect if it is not authorized by law.”
       (Internal quotation marks omitted.) Id. ¶ 23.
¶ 14       The State further contended that because it has the exclusive discretion to decide which
       criminal charges shall be brought, or whether to prosecute at all, it had the authority to
       negotiate a sentence that did not include the enhancement. We again disagreed. We did not
       dispute that the State has the discretion to decide what charges to bring, nor did we dispute that
       the State’s discretionary authority permits it to negotiate away a firearm enhancement when
       separate offenses are involved, such as when a defendant is charged with robbery rather than
       armed robbery. Id. ¶ 25. However, we noted that unlike robbery and armed robbery, which are
       distinct offenses, first degree murder is a single offense and there is no separate offense of
       “armed murder” or “enhanced murder.” Id. ¶ 26. Further, in enacting the sentencing


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       enhancement, the legislature took away any discretion the State and courts had to fashion a
       sentence that did not include the enhancement with respect to murder. Id.
¶ 15       Finally, we rejected the State’s argument that, pursuant to People v. Summers, 291 Ill. App.
       3d 656 (1997), it could concede a version of the facts which would fail to acknowledge that a
       firearm had been used in the commission of the underlying offense and then make sentencing
       concessions based on those facts. We determined that the version of facts agreed to by the State
       in White and presented in the factual basis for the plea established that a firearm had been used
       in the commission of the murder. Thus, the mandatory enhancement had been triggered. White,
       2011 IL 109616, ¶ 27.
¶ 16       Having rejected the State’s arguments, we concluded: “Defendant pled guilty to
       committing the offense of first degree murder and the factual basis provided to the court in
       support of defendant’s plea made it clear that a firearm was used in the commission of the
       offense. Under these circumstances, the legislature has mandated that an additional period of
       15 years must be added to the sentence. Thus, the trial court could not impose a sentence that
       did not include the 15-year mandatory enhancement.” Id. ¶ 29. We therefore remanded the
       cause with directions to allow the defendant to withdraw his guilty plea and proceed to trial if
       he so chose.
¶ 17       We agree with the State that White did not establish a rule of constitutional procedure.
       White did not rely on any constitutional provision in reaching its result. Thus, the White rule
       cannot be characterized as a constitutional rule for postconviction purposes.
¶ 18       Nevertheless, defendant maintains that, even if White did not announce a constitutional
       rule, he may still rely on that decision to obtain relief in this case. Defendant notes that, under
       People v. Thompson, 209 Ill. 2d 19 (2004), a void sentencing order may be challenged in a
       postconviction proceeding. Id. at 27 (“Defendant’s argument that the extended-term portion of
       his sentence is void does not depend for its viability on his postconviction petition.”). Further,
       according to defendant, White simply reaffirmed the principle that a sentence which does not
       conform to statutory requirements is void. Thus, defendant maintains he may rely on White
       here and, in accordance with that decision, his sentence and plea must be set aside. The
       analysis, however, is not so simple.
¶ 19       Our decision in White did rest, in part, on the principle that a sentence which is not
       authorized by statute is void. However, White also rested on another, equally important,
       threshold principle. White held that a circuit court may not disregard a fact, such as the use of a
       firearm, that requires the imposition of a statutory sentencing enhancement if that fact is
       included in the factual basis accepted by the court. This is true, White concluded, even if the
       plea agreement between the State and the defendant included the condition that the State would
       not pursue the enhancement. This legal principle must have been in effect at the time
       defendant’s sentence was entered in this case in order for him to be entitled to relief. This is so
       because if, at the time defendant was sentenced, the circuit court could properly have
       disregarded the fact that a firearm was used in the murder to which defendant pleaded guilty,
       then there would have been nothing unlawful about defendant’s sentence. His sentence would
       have conformed to statutory requirements and would not be void.
¶ 20       There is no dispute that the principle which holds that a statutorily unauthorized sentence is
       void was in effect when defendant was convicted and sentenced in this case. However, the
       State maintains that White’s holding that the circuit court may not disregard the fact that a


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       firearm was included in the factual basis for the plea was a new rule of criminal procedure
       which was not governing law at the time defendant was convicted. The State also asserts that,
       if White announced a new rule, that rule should not be applied to defendant. In short, the State
       contends that the rule announced in White does not apply retroactively to convictions and
       sentences, such as defendant’s, that were final at the time White was decided. Thus, in order to
       answer whether defendant may challenge his sentence as void in this proceeding, we must first
       determine whether White applies retroactively to his case.
¶ 21       Before addressing that question, we note that in its reply brief, the State for the first time
       raises an alternative argument for denying defendant relief. The State points out that the
       principle that a statutorily unauthorized sentence is void, or the “void sentence rule,” rests on
       the idea that a sentencing court’s failure to comply with a statutory sentencing provision
       deprives the court of “inherent power” or jurisdiction, thus rendering the sentence entered
       void. See, e.g., People v. Wade, 116 Ill. 2d 1, 5-7 (1987). The State contends that this concept
       of jurisdiction is outdated in light of a series of civil decisions from this court which have held
       that the “inherent power” definition of jurisdiction applies solely to courts of limited
       jurisdiction and administrative agencies. See, e.g., Steinbrecher v. Steinbrecher, 197 Ill. 2d
       514, 530 (2001); Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325,
       338 (2002). The State acknowledges that these civil decisions expressly noted that criminal
       proceedings involving the power to render judgments or sentences address a separate set of
       concerns not present in civil matters. See Steinbrecher, 197 Ill. 2d at 532. However, the State
       contends that the void sentence rule can no longer stand and, for this reason, defendant’s
       sentence and plea are not void and he is not entitled to relief.
¶ 22       Supreme Court Rule 341(h)(7) (Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008)), provides that
       points not argued in an appellant’s opening brief “are waived and shall not be raised in the
       reply brief.” The State’s argument that the void sentence rule should be overturned is not
       properly before us. Further, retroactivity is a “threshold question” considered before
       determining whether relief is warranted on the merits. Teague, 489 U.S. at 300; Morris, 236 Ill.
       2d at 355. Whether the principle that a statutorily unauthorized sentence is void should be
       overturned would not require resolution if we were to conclude that White announced a new
       rule that does not apply on collateral review. Accordingly, we turn to whether White applies
       retroactively.
¶ 23       The appellate court below applied the test set forth in Teague to determine whether White
       should be applied to defendant’s conviction. Although Teague addressed the retroactivity of
       constitutional rules, the United States Supreme Court has indicated that the Teague framework
       applies to nonconstitutional rules as well. Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004).
       Other courts have held so expressly. See, e.g., Miller v. United States, 735 F.3d 141, 145 (4th
       Cir. 2013); United States v. Martinez, 139 F.3d 412, 417 n.* (4th Cir. 1998) (“[I]t would be
       anomalous to apply new rules of statutory interpretation retroactively, but not new
       constitutional rules, when collateral relief for statutory errors is more circumscribed than for
       errors of constitutional magnitude.”); Sanabria v. United States, 916 F. Supp. 106, 111 (D.P.R.
       1996); Abreu v. United States, 911 F. Supp. 203, 207 n.5 (E.D. Va. 1996) (and cases cited
       therein); cf. People v. Hickey, 204 Ill. 2d 585, 627-29 (2001) (concluding that new supreme
       court rules did not fall under the “watershed rule[s]” exception of Teague).



                                                    -6-
¶ 24        Under Teague, a judicial decision that establishes a new rule applies to all criminal cases
       pending on direct review. Schriro, 542 U.S. at 351; People v. Davis, 2014 IL 115595, ¶ 36.
       However, with two exceptions, the new rule will not apply retroactively to convictions which
       are already final at the time the new rule is announced. Id. “The purpose of the Teague
       framework is to promote the government’s interest in the finality of criminal convictions
       (Teague, 489 U.S. at 309, 103 L. Ed. 2d at 355, 109 S. Ct. at 1074) and to validate ‘reasonable,
       good-faith interpretations of existing precedents made by state courts even though they are
       shown to be contrary to later decisions’ (Butler v. McKeller, 494 U.S. 407, 414, 108 L. Ed. 2d
       347, 356, 110 S. Ct. 1212, 1217 (1990)).” People v. Sanders, 238 Ill. 2d 391, 401 (2010). The
       retroactive application of “ ‘ “rules not in existence at the time a conviction became final
       seriously undermines the principle of finality which is essential to the operation of our criminal
       justice system. Without finality, the criminal law is deprived of much of its deterrent effect.” ’
       [Citation.]” Id.
¶ 25        The Supreme Court has stated that a judicial decision announces a new rule when it breaks
       new ground or imposes a new obligation on the states or federal government. The rule must not
       be “dictated by precedent existing at the time the defendant’s conviction became final.”
       (Emphasis omitted.) Teague, 489 U.S. at 301. Further, “the fact that a court says that its
       decision is within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’
       by a prior decision, is not conclusive for purposes of deciding whether the current decision is a
       ‘new rule’ under Teague.” Butler v. McKellar, 494 U.S. 407, 415 (1990). Rather, a rule is new
       if, at the time it was decided, it was “susceptible to debate among reasonable minds.” Id. A new
       rule is one “ ‘not dictated by precedent existing at the time the defendant’s conviction became
       final’ ” (emphasis in original) (Chaidez v. United States, 568 U.S. ___, ___, 133 S. Ct. 1103,
       1107 (2013) (quoting Teague, 489 U.S. at 301)), and a rule is not dictated by precedent unless
       it would have been “ ‘apparent to all reasonable jurists’ ” (id. at ___, 133 S. Ct. at 1107
       (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997))).
¶ 26        Defendant does not dispute that his conviction was final at the time White was decided. We
       must therefore decide whether White announced a new rule. We note our appellate court is split
       on this question. Compare People v. Greco, 2014 IL App (1st) 112582, People v. Young, 2013
       IL App (1st) 111733, and People v. Avery, 2012 IL App (1st) 110298 (all holding that White
       announced a new rule), with 2013 IL App (3d) 110738, and People v. Cortez, 2012 IL App
       (1st) 102184 (holding that White did not announce a new rule).
¶ 27        We conclude that White announced a new rule. We did not, in White, hold simply that a
       sentence which does not conform to statutory requirements is void. Rather, for the first time in
       White, we held that a circuit court may not disregard a fact that requires the imposition of a
       statutory sentencing enhancement if that fact is included in the factual basis accepted by the
       court. This is true even if the plea agreement between the State and the defendant included the
       condition that the State would not pursue the enhancement.
¶ 28        Cases prior to White had made clear that the State may not negotiate a sentence which is at
       odds with statutory requirements. If, for example, a statute requires that a sentence be subject
       to the “truth-in-sentencing” method for calculating good-conduct credit, the State may not
       negotiate a sentence as part of a plea agreement which does not include that method. People ex
       rel. Ryan v. Roe, 201 Ill. 2d 552 (2002). However, unlike the terms of a sentencing statute,
       which the State cannot alter, the State has the authority to negotiate the contents of the factual


                                                   -7-
       basis presented to the circuit court in support of a plea agreement. Indeed, the State is free to
       concede to a set of facts which do not state that a firearm was used in the commission of the
       underlying offense. People v. Summers, 291 Ill. App. 3d 656 (1997). Further, Supreme Court
       Rule 402(c) (Ill. S. Ct. R. 402(c) (eff. July 1, 2012)), which requires the circuit court to
       determine that there is a factual basis for a guilty plea, does not address whether the circuit
       court may disregard any portion of the factual basis. See, e.g., People v. Jackson, 199 Ill. 2d
       286, 298-99 (2002) (noting that Rule 402(c) requires only that there appear on the record a
       basis from which the judge could reasonably reach the conclusion that the defendant actually
       committed the acts with the intent (if any) required to constitute the offense to which the
       defendant is pleading guilty).
¶ 29       Given this background, it was uncertain, prior to White, whether the circuit court was
       required to give effect to a fact contained in the factual basis which would necessitate the
       imposition of a sentencing enhancement, such as the use of a firearm, if the parties had not
       agreed to the enhancement. A circuit court could have reasoned that the factual basis did not
       reflect the true intent of the parties to the plea agreement and, since the factual basis could have
       been altered by the State in any event, the court could permissibly disregard the presence of the
       firearm. In this way, the sentence would conform to statutory requirements. White, however,
       rejected this view and held that once the factual basis was accepted and made of record, the
       presence of the firearm could not be disregarded by the circuit court. To do so, White held,
       would render the legislature’s intent in enacting the enhancement provision meaningless.
       White, 2011 IL 109616, ¶ 29.
¶ 30       White cited several cases in support of the principle that statutorily unauthorized sentences
       are void, but none of these cases addressed the circuit court’s authority to disregard any portion
       of the factual basis. See White, 2011 IL 109616. These authorities, in short, did not “dictate[ ]”
       (Teague, 489 U.S. at 301) the answer in White. Moreover, we cannot say that, prior to White, it
       was “ ‘apparent to all reasonable jurists’ ” (Chaidez, 568 U.S. at ___, 133 S. Ct. at 1107
       (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997))) that the sentencing
       enhancement had to be given effect. Indeed, before White, numerous cases had arisen in which
       circuit courts assumed they could impose a sentence without the statutory enhancement even
       where the factual basis included the use of a firearm. See, e.g., People v. Garza, 2014 IL App
       (4th) 120882; People v. Young, 2013 IL App (1st) 117333; 2013 IL App (3d) 110738; People
       v. Deng, 2013 IL App (2d) 111089; People v. Miller, 2012 IL App (4th) 110837-U; People v.
       Cortez, 2012 IL App (1st) 102184; People v. Avery, 2012 IL App (1st) 110298; People v.
       McRae, 2011 IL App (2d) 090798. We hold, therefore, that White announced a new rule.
¶ 31       Under Teague, a new rule does not apply retroactively to convictions which were final at
       the time the rule was announced except in two instances: (1) the new rule places “certain kinds
       of primary, private individual conduct beyond the power of the criminal law-making authority
       to proscribe,” and (2) the new rule requires the observance of “those procedures that ... are
       implicit in the concept of ordered liberty.” Teague, 489 U.S. at 307.
¶ 32       The first exception clearly does not apply here. The rule announced in White does not
       legalize primary, private individual conduct. With respect to the second exception, the
       Supreme Court has described rules that come within this exception as “ ‘watershed rules of
       criminal procedure’ ” and has stated they are limited to those new procedures without which
       the likelihood of an accurate conviction is seriously diminished. Sanders, 238 Ill. 2d at 401


                                                    -8-
       (quoting Teague, 489 U.S. at 311, 313). White did not a present a “watershed” rule of criminal
       procedure as the decision does not impact the accuracy of defendant’s conviction. See also
       Hickey, 204 Ill. 2d at 627-29 (alleged violations of new procedural rules which do not violate a
       defendant’s constitutional rights do not warrant postconviction relief).

¶ 33                                        CONCLUSION
¶ 34      We hold that our decision in White established a new rule within the meaning of Teague
       which does not fall within either of the Teague exceptions. We further hold, therefore, that
       White does not apply retroactively to convictions which were final at the time White was
       decided. Appellate court decisions which hold to the contrary, such as 2013 IL App (3d)
       110738, and People v. Cortez, 2012 IL App (1st) 102184, are overruled.
¶ 35      For the foregoing reasons, we reverse the judgment of the appellate court and affirm the
       judgment of the circuit court dismissing defendant’s postconviction petition.

¶ 36      Appellate court judgment reversed.
¶ 37      Circuit court judgment affirmed.




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