People v. Smith

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).

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¶ 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

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 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

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 (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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