THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICKEY D. SMITH, Defendant-Appellant.
Docket No. 3-11-0738
Appellate Court of Illinois, Third District
August 2, 2013
2013 IL App (3d) 110738
JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice Carter specially concurred, with opinion, joined by Presiding Justice Wright.
Appeal from the Circuit Court of Will County, No. 10-CF-1345; the Hon. Amy M. Bertani-Tomczak, Judge, presiding.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Defendant‘s conviction and sentence for first degree murder pursuant to a plea agreement were reversed and the cause was remanded to allow defendant to withdraw his plea and proceed to trial, if he chooses, since his plea agreement and sentence were void due to the lack of an admonishment about the mandatory firearm enhаncement and the failure to include the enhancement in his sentence, even though the indictment and factual basis for the plea established that defendant used a firearm in killing the victim.
Judgment
Reversed and remanded with directions.
Kerry J. Bryson, of State Appellate Defender‘s Office, of Ottawa, for appеllant.
James Glasgow, State‘s Attorney, of Joliet (Terry A. Mertel and Nadia L. Chaudhry, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
Panel
JUSTICE SCHMIDT delivered the judgment of the court, with opinion Justice Carter specially concurred, with oрinion, joined by Presiding Justice Wright.
OPINION
¶ 1 Pursuant to a fully negotiated plea agreement, defendant, Mickey D. Smith, pled guilty to first degree murder (
¶ 2 FACTS
¶ 3 On May 4, 2011, defendant entered into a fully negotiated plea agreement, in which he pled guilty to one count of first degree murder.
¶ 4 On August 16, 2011, defendant filed a pro se postconviction petition, alleging that his guilty рlea should be vacated under People v. White, 2011 IL 109616. Defendant alleged that his plea agreement and sentence were void because he was neither admonished of, nor did his sentence include, the mandatory firearm enhancement, which was statutorily required based on the factual basis for his plea. The trial court summarily dismissed defendant‘s petition as frivolous and patently without merit, noting that defendant received the benefit of his plea agreement when the State withdrew its intent to seek the firearm enhancement. Defendant filed a motion to reconsider, which the trial court denied. Defendant appeals.
¶ 6 On appeal, defendant contends that his plea agreement and 30-year sentence are void because they do not conform to statutory requirements. Specifically, defendant argues that because the indictment and factual basis for his plea assert that he personally discharged a firearm during the commission of the offense, the trial court was required to impose a 25-year firearm enhancement, thereby requiring him to serve a minimum оf 45 years’ imprisonment.
¶ 7 The Post-Conviction Hearing Act provides for a three-stage review process for the adjudication of postconviction petitions.
¶ 8 Section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections sets out a sentenсing enhancement for use of a firearm and provides that if, during the commission of the offense, defendant personally discharged a firearm that proximately caused death to another, 25 years shall be added to the term of imprisonment.
¶ 9 Defendant relies on White, 2011 IL 109616, to support his claim that his 30-year sentence is void because it did not include the mandatory firearm enhancement. In White, our supreme court held that the trial court must impose the firearm enhancement as part of the sentence where the factual basis supports it, regardless of whether the parties excluded the enhancement in the plea agreement. Id. ¶¶ 23-27. The court held that because defendant‘s sentence did not include the mandatory sentencing enhancement, which was required based on the factual basis for the plea, the sentence did not conform to the statutory requirements and was therefore void. Id. ¶¶ 21, 29. Additionally, the court noted that because defendant was not propеrly admonished regarding the enhancement, his entire plea agreement was also void. Id. ¶ 21.
¶ 10 Here, the factual basis for defendant‘s plea referred to defendant‘s use of a firearm, which caused the victim‘s death. Thus, under the firearm enhancement statute, the trial сourt was required to add 25 years to the 20-year minimum sentence defendant faced for first degree murder, thereby requiring a minimum sentence of 45 years. See
¶ 11 The State, noting that White was issued after this case was decided in the trial court,
¶ 12 We respectfully disagree with Avery. As set out in Avery, “‘a case аnnounces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.‘” Avery, 2012 IL App (1st) 110298, ¶ 37 (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). White did not break new ground or impose a new obligation. Instead, White specifically relied upon existing precedent, which set out the long-standing rule that сourts are not authorized to impose a sentence that does not conform to statutory guidelines, because a sentence not authorized by law is void. See People v. Whitfield, 228 Ill. 2d 502 (2007); People v. Harris, 203 Ill. 2d 111 (2003); People v. Pullen, 192 Ill. 2d 36 (2000); People v. Arna, 168 Ill. 2d 107 (1995); People v. Wade, 116 Ill. 2d 1 (1987). Thus, even without White, in applying the rules of law that existed at the time defendant‘s conviction became final, his sentence is void because it fell below the mandatory minimum. See People v. Torres, 228 Ill. 2d 382 (2008) (noting that a sentence is void when it falls outside the lawful sentencing range required by a firearm enhancement); People v. Thompson, 209 Ill. 2d 19 (2004) (holding that a court has no authority to impose a sentence that is not authorized by statute); People ex rel. Ryan v. Roe, 201 Ill. 2d 552 (2002) (holding that a sentence agreed to by the parties and imposed by the trial court is void when in violation of a statute).
¶ 13 Furthermore, the majority and concurring opinion in White lead us to believe that a new rule was not created. The court emphasized that the State has always retained the authority to negotiate аround the mandatory sentence enhancement, but must do so by amending the indictment and presenting a factual basis that does not include any allegations that would invoke the enhancement. White, 2011 IL 109616; id. ¶ 41 (Theis, J., specially concurring). We also find support for our position in People v. Cortez, 2012 IL App (1st) 102184, and People v. Hubbard, 2012 IL App (2d) 120060. In Cortez, the court relied on White to vаcate a plea agreement that contained unauthorized sentencing credit. Cortez, 2012 IL App (1st) 102184. Similarly, in Hubbard, the court followed the principles of White when it held that the State and a defendant have the right to negotiate what facts are presented to the court in support of a plea agreement, but those faсts must be statutorily consistent with the agreed sentence. Hubbard, 2012 IL App (2d) 120060. Although the court did not expressly rely on White to grant relief, it suggested that the holding in White did not create a new rule, as it applied the rule of law established in Arna, 168 Ill. 2d 107. See Hubbard, 2012 IL App (2d) 120060.
¶ 14 Accordingly, we conclude that White did not create a new rule of law and is therefore
¶ 15 While the law compels this result, the author (and as is made clear by the special concurrence, only the author) is less than satisfied with the result. As the trial cоurt pointed out in dismissing defendant‘s postconviction petition, defendant received the benefit of his plea agreement (or would have, had the sentence not been void). The State made it clear that it was not seeking a firearm enhancement as part of the plea negotiation. In White, the supreme court pointed out (specifically Justice Theis in her special concurring opinion) the State needed to do more than state it was not seeking the mandatory firearm enhancement; it needed to amend the indictment and present a factual basis that did not include a reference to a firearm. White, 2011 IL 109616, ¶ 41 (Theis, J., specially concurring). Therefore, because the State failed to amend the indictment and rephrase the factual basis of the plea to conform to what clearly was the agreement of the parties, this sentence is void; because it is void, this sentence can be attacked at any time. This scenario raises the spectre of some real mischief that might be lurking in the bushes. We have no idea how many othеr such void sentences based upon knowing agreements between the State and defendants are out there. It seems reasonable to assume that there are a number of them. A defendant incarcerated under such an agreement can wait until he knows that а key witness or witnesses have disappeared and then raise this argument in a postconviction petition, knowing that the State‘s chances of convicting him of the offense to which he pled guilty are greatly reduced, if not totally obviated. This does not seem like a happy circumstance. The supreme court recently acknowledged this problem in People v. Donelson, 2013 IL 113603, ¶ 17. However, in Donelson, the court was able to make the agreed sentence fit within statutory guidelines. Here, because of the State‘s failure to amend the indictment and factual basis, we cannot do the same.
¶ 16 If able, I would send this case back to the trial court and give the State the opportunity to conform the indictment and factual basis for the plea agreement to the original plea agreement. Then if, and only if, the State would refuse to аmend the indictment and factual basis would I instruct the trial court to allow defendant to withdraw his guilty plea and proceed to trial. There is no prejudice to a defendant in this approach since it gives defendant exactly that for which he or she bargained. Had thе State simply amended the indictment and the factual basis from “defendant shot the victim,” to “defendant intentionally murdered the victim,” the sentence would not be void. Again, by allowing the State to amend the indictment and factual basis for the plea, we would be doing nothing more thаn conforming the record to actually reflect what was clearly the agreement between defendant and the State. This would visit no prejudice upon defendant and would obviate the risks associated with allowing a defendant to withdraw a knowing plea after the passage of time. It also seems that this approach would do nothing to further escalate the natural tension that exists between the General Assembly‘s power to prescribe penalties, even mandatory penalties, and the State‘s
¶ 17 CONCLUSION
¶ 18 For the foregoing reasons, the judgment of the circuit court of Will County is reversed, and the cause is remanded with directions.
¶ 19 Reversed and remanded with directions.
¶ 20 JUSTICE CARTER, specially concurring.
¶ 21 I agree with the conclusion that this case should be reversed and rеmanded with directions to allow the defendant to withdraw his guilty plea and to proceed to trial, if he so chooses. However, I write separately to clarify that I do not join in paragraphs 15 and 16 of the lead opinion.
¶ 22 PRESIDING JUSTICE WRIGHT joins in this special concurrence.