People v. Avery
974 N.E.2d 266
Ill. App. Ct.2012Background
- Jacques Avery pled guilty to one count of first degree murder as part of a negotiated plea for 33 years, with remaining charges nol-prossed.
- Avery later moved to withdraw his plea pro se; circuit court denied and appellate review followed.
- Avery filed a pro se postconviction petition alleging ineffective assistance of counsel and coercion, which the circuit court summarily dismissed.
- On appeal, Avery argued his conviction and sentence are void under People v. White due to failure to apply the firearm enhancement.
- The court held White is a new rule and analyzed retroactivity under Teague; White does not apply retroactively to Avery’s collateral review.
- The mittimus was corrected to remove post-offense fines enacted after the offense date; total fines adjusted from $545 to $530.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity of White on collateral review | Avery seeks voidness under White. | State argues White is not retroactive and not applicable on collateral review. | White does not apply retroactively on collateral review. |
| Whether White renders Avery's sentence void | Sentence violated firearm enhancement; void under White. | Sentence upheld prior to White; waiver of enhancement via plea. | White does not render sentence void; conviction and sentence stand. |
| Teague framework applicability | Retroactivity should follow Teague exceptions. | Teague analysis supports non-retroactive application. | Teague analysis supports non-retroactive application of White. |
| Mittimus corrections for post-offense fines | Some fines imposed were invalid as enacted after offense. | Fines should be corrected to reflect valid amounts. | Mittimus corrected; remove invalid fines and adjust total. |
Key Cases Cited
- People v. White, 2011 IL 109616 (Illinois Supreme Court, 2011) (new rule; firearm enhancement mandatory regardless of plea)
- Morris, 236 Ill. 2d 345 (Illinois Supreme Court, 2010) (Whitfield retroactivity not applied; enhancement issues not Teague 'watershed')
- Flowers, 138 Ill. 2d 218 (Illinois Supreme Court, 1999) (Teague interpretation of new rules; retroactivity framework adopted)
- De La Paz, 204 Ill. 2d 426 (Illinois Supreme Court, 2003) (Apprendi retroactivity analysis; sentencing enhancements governed by Teague)
- Whitfield, 217 Ill. 2d 177 (Illinois Supreme Court, 2005) (MSR admonition; not retroactive for collateral review)
- Jamison, 197 Ill. 2d 135 (Illinois Supreme Court, 2001) (State's charging discretion discussed)
- Kizer, 318 Ill. App. 3d 238 (Illinois Appellate Court, 2001) (Teague retroactivity three-step framework)