The opinion of the court was delivered by: Justice Karmeier
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.
¶ 1 In this appeal, we consider the proper remedy where the State and the defendant, parties to a fully negotiated plea agreement, are mutually mistaken as to the manner in which sentences of imprisonment must be served, but otherwise agree upon the maximum number of years to be served. Faced with this issue, the appellate court acknowledged that consecutive sentencing was statutorily mandated, and in that respect the concurrent sentencing structure of the parties' plea agreement rendered defendant's sentencing void. 2011 IL App (1st) 092594, ¶ 9. However, the appellate court concluded that the plea agreement, "taken as a whole, is not contrary to statutory authority and thus not void," insofar as sentences could be fashioned, within statutory constraints, to effectuate the parties' intent, i.e., that the defendant "receive a total of 50 years' imprisonment." 2011 IL App (1st) 092594, ¶ 18. Thus, the appellate court remanded this cause to the circuit court "to resentence defendant in accordance with both the plea agreement and the applicable statutes." 2011 IL App (1st) 092594, ¶ 22. We allowed the defendant's petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)), and now affirm the judgment of the appellate court.
¶ 3 Defendant, Charles Donelson, was charged, in indictment number 98 CR 11525, with first degree murder, home invasion, residential burglary, and aggravated criminal sexual assault. Defendant was charged separately, in indictment number 98 CR 11527, with aggravated criminal sexual assault. The cases were consolidated and proceeded to a jury trial on January 30, 2001. After opening statements, and commencement of the State's case in chief, the parties informed the court that they had reached a plea agreement.
¶ 4 The parties agreed that defendant would plead guilty to first degree murder and home invasion, as charged in indictment number 98 CR 11525, and aggravated criminal sexual assault, under indictment number 98 CR 11527. It was further agreed that he would receive prison sentences of 55, 30 and 30 years, respectively, to be served concurrently.
¶ 5 The court admonished defendant regarding the rights he was giving up by pleading guilty. Defendant said he understood. The court advised defendant of the maximum sentences that could be imposed for each offense. Defendant again indicated he understood. The court confirmed that the proposed prison sentences-including a 55-year sentence of imprisonment for murder-met with defendant's expectations. Upon inquiry by the court, defendant responded that no one had forced him to plead guilty and no promises had been made to him other than the stated terms of the plea agreement.
¶ 6 The defendant then stipulated that the facts as stated in the prosecutor's opening statement would serve as the factual basis for the guilty plea. The court found a sufficient factual basis for the guilty plea and sentenced defendant in accordance with the parties' agreement.
¶ 7 On February 27, 2001, defendant filed a pro se motion to withdraw his guilty plea. On March 30, 2001, the circuit court denied the motion and defendant appealed. The State confessed error based on erroneous plea admonishments, and the appellate court remanded the case. People v. Donelson, No. 1-01-2127 (2002) (unpublished order pursuant to Supreme Court Rule 23).
¶ 8 On remand, defendant, by counsel, filed new motions in each case, "to withdraw the plea of guilty and vacate the sentence." Ultimately, on May 22, 2003, defense counsel announced an agreement by which defendant would withdraw his motions in exchange for the State's offer of a five-year sentence reduction on defendant's first degree murder conviction. The prosecutor confirmed the agreed sentence reduction, and added, without objection or disagreement: "As part of [the] agreement *** the defendant would withdraw the previously mentioned motions and not litigate that issue any further." The court questioned defendant as to his understanding of the agreement, and emphasized that only "one sentence" was being reduced, "first degree murder ***, the significant sentence, from 55 years to 50 years." Defendant indicated he understood and expressed his satisfaction with his attorney's performance. Pursuant to the parties' new agreement, the circuit court reduced defendant's 55-year sentence for murder to 50 years. Defendant's 30-year sentences were unaffected.
¶ 9 A little over two months after the parties' May 2003 agreement, and the resulting reduction of defendant's murder sentence, a docket entry, dated August 5, 2003, acknowledges receipt of yet another motion filed by defendant, this one for a further "reduction of sentence." In his motion, defendant referenced only his 50-year sentence. A subsequent docket entry indicates the motion was heard and denied on August 8, 2003. A late notice of appeal, to which defendant subscribed, evinces defendant's attempt to appeal from that judgment. He cited May 22, 2003, as the date of his sentence, and the only sentence specified as cause for concern was his 50-year sentence for murder. An entry of record, dated December 1, 2003, states: "Late Notice of Appeal Denied."
¶ 10 Defendant filed a pro se post-conviction petition on February 18, 2005. In that petition, defendant referenced only his 50-year sentence for murder. He generally asserted vague claims of ineffective assistance of counsel, with equally amorphous flourishes of constitutional jargon; however, he did make one specific claim: "I was promised 30 years and I didn't receive it. I was told by counsel that the State would allow me to file a reduction of sentence and if I like to file a withdraw motion of guilty plea, appeal the motion to reduce sentence." A record sheet of the circuit clerk states that post-conviction relief was "denied" on March 15, 2005. The relevant entries use the phrases "successive petition" and "frivolous and patently without merit." In this portion of an obviously jumbled and fragmentary record on appeal, a partial transcript of a March 30, 2001, hearing appears, wherein defendant's attorney as of that date told the judge she had offered the State 30 years in defendant's plea negotiations, but the State had never offered defendant the opportunity to plead guilty to murder in exchange for 30 years. The prosecutor confirmed that, stating: "Absolutely not, Judge. In fact, this would have been a case where we had sought death." This portion of the transcript bears a stamped filing date of February 18, 2005, suggesting that it was considered contemporaneously with defendant's post-conviction petition.
¶ 11 In a notice of appeal, file stamped April 26, 2005, defendant lists "murder-sexual assault" as the offenses of which he was convicted. The only sentence listed is defendant's 50-year sentence of imprisonment. It is unclear what transpired on appeal. Docket entries indicate that an appellate court mandate was filed with the circuit court on January ...