Appeal from the Circuit Court of Cook County. Nos. 98 CR 11525 98 CR 11527 Honorable Lawrence E. Flood, Judge Presiding.
The opinion of the court was delivered by: Justice Neville
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justice Murphy concurred in the judgment and opinion.
Justice Quinn specially concurred, with opinion.
¶ 1 Charles Donelson, the defendant, appeals from the dismissal of his pro se petition for relief from judgment under section 2-1401(f) of the Code of Civil Procedure. 735 ILCS 5/2-1401(f) (West 2008). On appeal, he contends that the concurrent sentences imposed on his plea of guilty are void and that this court should vacate his plea and remand the cause to allow him to withdraw his plea. The State responds with three arguments: (1) that the concurrent sentencing was proper; (2) that defendant should be equitably estopped from withdrawing his plea; and (3) that the appropriate remedy is a remand for resentencing. Defendant also maintains that his mittimus must be corrected as it reflects the wrong count to which he pled guilty. For the reasons stated below, we vacate defendant's sentences and remand for resentencing consistent with both the plea agreement and relevant statutes.
¶ 3 Defendant was charged in indictment number 98 CR 11525 with first degree murder, home invasion, residential burglary, and aggravated criminal sexual assault stemming from an incident in the afternoon on March 28, 1998, where defendant allegedly forcibly entered the home of Matthew Flowers and Sarah Tyler, forced Flowers and Tyler to have intercourse, and shot and killed Flowers. Defendant was also charged in indictment number 98 CR 11527 with aggravated criminal sexual assault stemming from an incident in the morning on March 28, 1998, where defendant allegedly forced Tyler to have sex with him. On January 30, 2001, pursuant to a guilty plea, defendant was convicted of first degree murder (count V: felony murder based on the aggravated sexual assault of Tyler) and home invasion (count VI) under indictment number 98 CR 11525, and aggravated criminal sexual assault (count I) under indictment number 98 CR 11527. The trial court admonished defendant of the rights he was relinquishing by pleading guilty and sentenced him to 55 years' imprisonment for first degree murder, 30 years for home invasion, and 30 years for aggravated criminal sexual assault, all to be served concurrently.
¶ 4 On February 27, 2001, defendant filed a pro se motion to withdraw his guilty plea. The trial court denied the motion to withdraw and defendant appealed. The State confessed error based on erroneous plea admonishments, and this court remanded the case. People v. Donelson, No. 1-01-2127 (2002) (unpublished order pursuant to Supreme Court Rule 23). On remand, defendant filed a new motion to withdraw his pleas of guilty under both indictments. Ultimately, on May 22, 2003, defendant agreed to withdraw his motions in exchange for the State's offer of a five-year sentence reduction on his first degree murder conviction. The court agreed to reduce his 55-year sentence for murder to 50 years and vacated his original 55-year sentence. The court did not address defendant's concurrent 30-year sentences. A new mittimus was issued reflecting defendant's reduced sentence of 50 years for murder and 30 years for home invasion. When the State expressed concern that defendant would receive double credit, the trial court clarified that, "[t]he original sentence was vacated. It is not a corrected mittimus. A new sentence is imposed."
¶ 5 On April 23, 2009, defendant filed a pro se motion for leave to file a petition for relief from judgment pursuant to section 2-1401(f), along with the petition itself. Defendant challenged various aspects of his guilty plea, including that he received ineffective assistance of trial counsel, that the trial court failed to comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006), and that his plea was involuntary. He did not raise the issue of improper concurrent sentences in his motion. The circuit court dismissed defendant's petition on July 17, 2009. On July 27, 2009, defendant filed a motion to reconsider the dismissal of his petition for relief from judgment, which the circuit court denied on August 14, 2009. This appeal followed.
¶ 7 On appeal, defendant abandons the issues raised in his petition and claims for the first time that the trial court erred in sentencing him to concurrent sentences where section 5-8-4 of the Unified Code of Corrections (730 ILCS 5/5-8-4 (West 1998)) required that defendant's sentences for murder (No. 98 CR 11525) and aggravated criminal sexual assault (No. 98 CR 11527) be imposed consecutively. Defendant maintains that his plea as well as his sentences are void and thus that the judgment and plea must both be vacated. Whether a sentence is void is a question of law subject to de novo review. People v. Hauschild, 226 Ill. 2d 63, 72 (2007).
¶ 8 We initially note that the State maintains that defendant forfeited review of his claim. The State indicates that defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure, which states that, "the petition must be filed not later than 2 years after the entry of the order or judgment." 735 ILCS 5/2-1401(c) (West 2008). The State thus asserts that because defendant filed his petition more than two years after the entry of the last order in this case, his claim is waived. However, defendant is challenging his sentence as void, and a void sentence can be corrected at any time and is not subject to wavier or forfeiture. People v. Hillier, 237 Ill. 2d 539, 546-47 (2010); People v. Tolentino, 409 Ill. App. 3d 598, 604 (2011).
¶ 9 Turning to the merits of defendant's appeal, our supreme court has held that concurrent sentences are void where the statutory requirements for mandatory consecutive sentences are met. People v. Bishop, 218 Ill. 2d 232, 254 (2006). A conviction of aggravated criminal sexual assault (720 ILCS 5/12-14 (West 1998)) triggers mandatory consecutive sentences where the defendant is convicted of multiple offenses whether the offenses were committed during a single course of conduct (730 ILCS 5/5-8-4(a) (West 1998)) or whether the offenses were committed during separate courses of conduct (730 ILCS 5/5-8-4(b) (West 1998)). People v. Harris, 203 Ill. 2d 111, 116-17 (2003). Based on section 5-8-4, the court should have imposed consecutive sentences for defendant's convictions of murder and aggravated criminal sexual assault. Thus, we find that the sentence is void.
¶ 10 The State's arguments to the contrary are meritless. First, under subsection (b) of section 5-8-4, as conceded by the State, defendant's conviction of aggravated criminal sexual assault (No. 98 CR 11527) would trigger a consecutive sentence for his conviction of murder (No. 98 CR 11525) even though it occurred in a separate course of conduct and was separately indicted. The State, however, claims that the mandate of subsection (b) does not apply here because the sentences at issue were imposed separately, rather than ...