dissenting:1
There is no dispute that the extended-term provisions under which Hill was sentenced are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The extended-term portion of Hill’s sentence is therefore void. For the reasons set forth in my dissenting opinion in People v. Jackson, 199 Ill. 2d 286 (2002), Hill’s plea of guilty does not foreclose him raising that issue. Accordingly, the judgment of the circuit court should be affirmed, and Hill should be discharged from State custody immediately.
The justification employed by the majority to deny Hill relief is no more sound here than it was when my colleagues first put it forward in People v. Jackson, 199 Ill. 2d 286 (2002). Illinois’ extended-term sentencing provisions are unconstitutional as applied to all defendants save those who have been convicted of capital murder and found death-eligible. Because they are unconstitutional, they are void ab initia. They do not have and never had any legal force or effect. It is as if they never existed.
Because the extended-term provisions never had any legal effect, there was never any statutory authority for the extended-term sentence imposed on Hill. Where, as here, there is no statutory authority for a sentence imposed by the trial court, the sentence is void and may be attacked at any time, directly or collaterally. City of Chicago v. Roman, 184 Ill. 2d 504, 510 (1998); People v. Arna, 168 Ill. 2d 107, 113 (1995).
People v. Harvey, 196 Ill. 2d 444 (2001), decided within the last year, reiterated this point in circumstances directly analogous to those before us today. We specifically held in that case that if a trial court imposes an extended-term sentence that is not authorized by law, the extended-term portion of the sentence is void and is subject to attack in a collateral proceeding. Harvey, 196 Ill. 2d at 447-48. The circuit court was therefore correct in holding that Apprendi can be raised by defendants on collateral review to challenge sentences imposed in cases which became final before Apprendi was decided.
Where a trial court imposes a sentence for which there is no statutory authority, as the trial court did here, the fact that the defendant chose to plead guilty does not foreclose him from challenging the sentence. Indeed, the defendant is not only entitled to contest the sentence, he may do so without first having to move to have his guilty plea set aside. Jackson, 199 Ill. 2d at 304 (Harrison, C.J., dissenting, joined by Kilbride, J.). Accordingly, Hill’s plea of guilty is not a bar to his petition for a writ of habeas corpus.2
My colleagues attempt to meet this argument, as they did in Jackson, by asserting that the void ab initia doctrine is inapplicable where a statute is unconstitutional as applied, but not unconstitutional on its face. The majority advanced no basis for this distinction in Jackson and they offer none here. They cannot. There is none. See Jackson, 199 Ill. 2d at 304-05 (Harrison, C.J., dissenting, joined by Kilbride, J.).
There is likewise no merit to the majority’s claim that the sentencing provisions cannot be deemed unconstitutional as applied because Hill waived his rights when he pleaded guilty. 202 Ill. 2d at 156-57. The flaw in this argument is that it erroneously equates the relinquishment of a constitutional right with the absence of a constitutional violation. If the State has deprived a defendant of a constitutional right, the violation exists whether the defendant elects to challenge it or not. Waiver of the challenge merely constrains the defendant’s ability to obtain relief. It does not eradicate the violation and it is not a limitation on the authority of our court.
Equally flawed is the majority’s resort to analogies with the rule regarding invited error. Contrary to my colleagues’ view, Hill cannot be said to have induced the unlawful extended-term sentence imposed by the trial court when he pleaded guilty. When Hill pleaded guilty he did not know and was not admonished that he had the right to have the existence of the aggravating factors tried by a jury and established beyond a reasonable doubt. He could not have known of these rights because Apprendi had not yet been decided. Accordingly, this is not a situation where a defendant is attempting to avail himself of error he helped create or in which he knowingly acquiesced.
The majority’s analogy fails for another reason as well. If a defendant invites or acquiesces in an unlawful sentence when he pleads guilty, such invitation or acquiescence exists whether the sentence is invalid because it is unconstitutional or invalid because it is not authorized by statute. The cases are indistinguishable. Accordingly, if we were to hold that a defendant’s guilty plea precludes him from challenging his sentence on the grounds that it is unconstitutional, we would also be required to hold that a guilty plea bars a defendant from challenging his sentence on the grounds that it exceeds the trial court’s authority. But that is not the law. It is the exact opposite of the law. Our court has repeatedly held and recently reaffirmed that a plea of guilty does not preclude a criminal defendant from challenging his sentence where the basis for the challenge is that the sentence is void and was beyond the trial court’s statutory authority to impose. People v. Wagener, 196 Ill. 2d 269, 280 (2001); People v. Williams, 179 Ill. 2d 331, 333 (1997).
For the foregoing reasons, the judgment of the circuit court should be affirmed. I therefore dissent.
JUSTICE KILBRIDE joins in this dissent.
Dissent Upon Denial of Rehearing
This dissent was filed when the majority opinion in this matter was originally announced. However, by the time the majority opinion was modified upon denial of rehearing, Chief Justice Harrison had retired from the bench.
Habeas corpus is an appropriate mechanism for Hill to secure his release. See Faheem-El v. Klincar, 123 Ill. 2d 291, 295 (1988). It is not, however, the sole means by which Hill could have contested the extended-term portion of his sentence. Without deciding whether Hill had the right to bring a successive petition under the Post-Conviction Hearing Act (725 ILCS 5/122 — 1 (West 2000)) under the facts present here, I note that he could also have sought relief under section 2 — 1401 of the Code of Civil Procedure (735 ILCS 5/2 — 1401 (West 2000)). Harvey, 196 Ill. 2d at 447-48.