Appeal from the Circuit Court of Cook County. No. 98 CR 171791 Honorable Nicholas R. Ford, Judge Presiding.
The opinion of the court was delivered by: Justice Palmer
JUSTICE PALMER delivered the judgment of the court, with opinion. Justice Lampkin concurred in the judgment and opinion.
Justice Garcia dissented, with opinion.
¶ 1 Defendant Jesse Cortez appeals from the dismissal of his pro se petition for relief from judgment under section 2-1401(f) of the Code of Civil Procedure (Code). 735 ILCS 5/2-1401(f) (West 2010). On appeal, he contends that his negotiated guilty plea is void because the agreed-upon sentence was legally impermissible. Based on the following, we reverse the dismissal of defendant's pro se petition for relief from judgment and remand the case to the trial court to allow defendant to withdraw his guilty plea and proceed to trial, if he so chooses.
¶ 3 The record shows that on May 17, 1998, defendant was serving a 35-year prison sentence for an unrelated crime (No. 92 CR 8378). On that date, he and another inmate, who is not a party to this appeal, punched a peace officer with the Cook County sheriff's department in the mouth and body. Defendant was subsequently charged with aggravated battery.
¶ 4 At a hearing held on May 4, 1999, defense counsel stated, and defendant confirmed, that "[defendant was] seeking leave of court to change his plea from not guilty to guilty. He understands he'll serve a sentence of two years Illinois Department of Corrections [IDOC] with credit for 353 days *** actually served in custody." After accepting the plea, the court sentenced defendant to 2 years' imprisonment and ordered the sentence to run consecutively with his 35-year sentence in case number 92 CR 8378. The mittimus indicates that the trial court awarded defendant 353 days' credit. Defendant did not file a motion to withdraw his guilty plea and vacate the judgment or otherwise attempt to perfect an appeal from it.
¶ 5 On April 19, 2010, almost 11 years after the entry of his guilty plea, defendant filed a pro se petition for relief under section 2-1401(f) of the Code (735 ILCS 5/2-1401(f) (West 2010)), seeking enforcement of his plea bargain. Defendant claimed that he was forced to serve a more onerous sentence than the one he agreed to because the IDOC declared that he could not receive the 353 days of credit awarded to him by the trial court. Defendant repeatedly stated that he was not challenging the validity of the guilty plea or seeking to withdraw his plea.
¶ 6 On June 25, 2010, the circuit court sua sponte dismissed defendant's petition. This appeal followed.
¶ 7 On appeal, defendant abandons the issues raised in his petition and contends for the first time that because the agreed-upon sentence, which included 353 days of custody credit, was legally impermissible, the negotiated plea is void under People v. White, 2011 IL 109616. We agree with defendant.
¶ 9 Although defendant did not raise this issue in his section 2-1401 petition, a void sentence may be attacked at any time. People v. Hillier, 237 Ill. 2d 539, 546 (2010); People v. Holmes, 405 Ill. App. 3d 179, 183 (2010). Whether a sentence is void is a question of law subject to de novo review. People v. Hauschild, 226 Ill. 2d 63, 72 (2007).
¶ 10 Aggravated battery of a peace officer is a Class 3 felony punishable by two to five years' imprisonment. 720 ILCS 5/12-4(b)(6), (e) (West ...