Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 10-CF-1345 Honorable Amy M. Bertani-Tomczak, Judge, Presiding.
JUSTICE SCHMIDT delivered the judgment of the court, with opinion Justice Carter specially concurred, with opinion, joined by Presiding Justice Wright.
¶ 1 Pursuant to a fully negotiated plea agreement, defendant, Mickey D. Smith, pled guilty to first degree murder (720 ILCS 5/9-1(a)(2) (West 2010)) and was sentenced to 30 years' imprisonment. Defendant appeals from the summary dismissal of his postconviction petition, arguing that he presented the gist of a constitutional claim that his sentence is void. We reverse and remand.
¶ 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. 720 ILCS 5/9-1(a)(2) (West 2010). The indictment and factual basis for the plea established that on June 29, 2010, defendant shot and killed Douglas White with a handgun. During the admonitions, the trial court advised defendant that the State was withdrawing its notice of intent to seek a firearm enhancement of 25 years. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010). Defendant was then advised that he was eligible for a sentence of 20 to 60 years' imprisonment. Defendant's plea was accepted, and the court sentenced defendant to the agreed 30 years' imprisonment. Defendant did not pursue a direct appeal.
¶ 4 On August 16, 2011, defendant filed a pro se postconviction petition, alleging that his guilty plea 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.
¶ 5 ANALYSIS
¶ 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 of 45 years' imprisonment.
¶ 7 The Post-Conviction Hearing Act provides for a three-stage review process for the adjudication of postconviction petitions. 725 ILCS 5/122-1 et seq. (West 2010); People v. Hodges, 234 Ill.2d 1 (2009). At the first stage, the trial court must independently determine whether the petition is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2010). The petition's allegations, liberally construed and taken as true, need only present the gist of a constitutional claim. People v. Harris, 224 Ill.2d 115 (2007). We review the first-stage dismissal of a postconviction petition de novo. People v. Morris, 236 Ill.2d 345 (2010).
¶ 8 Section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections sets out a sentencing 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. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010). The indictment and factual basis for defendant's plea revealed that he shot and killed the victim with a firearm.
¶ 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. at ¶¶ 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. at ¶¶ 21, 29. Additionally, the court noted that because defendant was not properly admonished regarding the enhancement, his entire plea agreement was also void. Id. at ¶ 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 court 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 730 ILCS 5/5-4.5-20(a)(1), 5-8-1(a)(1)(d)(iii) (West 2010); White, 2011 IL 109616. Since defendant's 30-year sentence fell below the mandatory minimum sentence, his sentence is void. See White, 2011 IL 109616. Here, there was no admonishment about the firearm enhancement because it was understood by all that the State was seeking a sentence without the enhancement and defendant understood that his sentence would not include the enhancement.
¶ 11 The State, noting that White was issued after this case was decided in the trial court, relies on People v. Avery, 2012 IL App (1st) 110298, to claim that White announced a new rule of law and thus cannot be applied retroactively to the instant case. In Avery, the court found that prior to White, the law was unclear as to whether the State could negotiate pleas that did not include the firearm enhancement, even where the indictment and factual basis for the plea included the use of a firearm in the commission of the offense. Avery, 2012 IL App (1st) 110298. The court emphasized the lack of clarity by citing to its prior ruling on defendant's direct appeal, where the court held that defendant's sentence was not void, even though the factual basis supported an enhancement that was not imposed. Id. at ¶ 39. The court ...