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People v. Miller

Court of Appeals of Illinois, First District, Fourth Division

June 27, 2019

BRYAN MILLER, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 08 CR 9698 The Honorable Alfredo Maldonado, Judge, presiding.

          JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Reyes concurred in the judgment and opinion.



         ¶ 1 Defendant Bryan Miller was convicted after a bench trial of armed robbery and sentenced initially to nine years with the Illinois Department of Corrections (IDOC). On November 27, 2012, defendant petitioned for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)), on the ground that IDOC had impermissibly added a three-year mandatory supervised release (MSR) term to his sentence. The trial court denied his petition, and defendant appealed. On appeal, the State argued that defendant's sentence was void because the trial court had not imposed a 15-year firearm enhancement to defendant's sentence. This court affirmed the trial court's denial of defendant's section 2-1401 petition, but agreed with the State that defendant's sentence was void and remanded, based on the void sentence rule set forth in People v. Arna, 168 Ill.2d 107, 112-23 (1995), for resentencing. People v. Miller, 2014 IL App (1st) 130721-U.

         ¶ 2 After remand but before resentencing, the Illinois Supreme Court "abolished" the Arna void sentencing rule, on which our prior Rule 23 order had been based. People v. Castleberry, 2015 IL 116916, ¶ 1. Although defendant argued to the trial court prior to resentencing that his case should now be dismissed, the trial court sentenced him on May 3, 2016, to 9 years, plus a 15-year firearm enhancement, for a total of 24 years with IDOC. Defendant filed a motion to reconsider this sentence, which was denied, and defendant now appeals his 24-year sentence.

         ¶ 3 BACKGROUND

         ¶ 4 Since defendant does not challenge the sufficiency of the evidence against him or the admission of any exhibit or testimony at trial, we provide here only a summary of the facts established at trial.

         ¶ 5 Defendant was convicted after a bench trial of armed robbery. The evidence at trial established that defendant and the victim had a prior dispute; that the victim's wife was also defendant's former girlfriend; that, on April 20, 2008, defendant held a gun to the victim's head while another person removed $50 from the victim's pocket; that defendant stated to bystanders "[s]omebody take this car," referring to the victim's vehicle; that two teenagers, whom defendant did not know, took the victim's vehicle; and that the victim flagged down a police officer, who subsequently curbed the stolen vehicle. The trial court found defendant guilty of the armed robbery of $50 and not guilty of vehicular hijacking.

         ¶ 6 Since the purely legal question before us concerns the process leading up to his subsequent resentencing, we provide in detail the procedural history of this case, as well as the dates of the decisions that affected it.

         ¶ 7 At defendant's original sentencing on June 9, 2009, the victim addressed the trial court in person and asked the court to give defendant only probation. However, defense counsel observed that the applicable sentencing range was 6 to 30 years. After considering factors in aggravation and mitigation, the trial court sentenced defendant to nine years with IDOC. Defendant filed a notice of appeal, but subsequently filed a motion to dismiss the appeal, which was granted on August 19, 2010. On November 27, 2012, defendant, who was represented by counsel, filed a section 2-1401 petition arguing that his three-year MSR term was void because, although the trial court had not mentioned it at sentencing or in the mittimus, IDOC had impermissibly "added a three year term of MSR which started on or about May 14, 2012." On January 28, 2013, the trial court denied his section 2-1401 petition, and defendant filed a timely notice of appeal on February 25, 2013.

         ¶ 8 On appeal, the State argued both that defendant's petition was properly denied and that his 9-year sentence for armed robbery was void because it did not include a 15-year firearm enhancement, as required by section 18-2(a)(2) of the Criminal Code of 2008 (720 ILCS 5/18-2(a)(2) (West 2008)). Miller, 2014 IL App (1st) 130721-U, ¶ 11.

         ¶ 9 In response, defendant filed a motion to withdraw his appeal, observing that he had already "completed his sentence" on December 20, 2013. Defendant argued that the matter was now moot since the relief that he had requested, i.e., elimination of his MSR term, was no longer available. Defendant also argued that the State had failed to file a cross-appeal.

         ¶ 10 In its response to defendant's motion, the State agreed that defendant was "discharged" by IDOC for this offense on December 20, 2013, but argued that a sentence that does not include the statutorily-required 15-year enhancement is void and may be corrected at any time. The State further argued that, "[s]ince this Court is still able to grant effectual relief," namely, the 15-year enhancement sought by the State, "the appeal currently pending is not moot."

         ¶ 11 This court denied defendant's motion to withdraw his appeal, and in his reply brief defendant argued that, "while there is language saying if the sentence is void it can be corrected at any time," defendant could "find no case where the sentence was served completely" and relief was granted.

         ¶ 12 Defendant also argued that the concept of void judgments encompasses only a lack of jurisdiction or authority-an argument that our supreme court later adopted. People v. Price, 2016 IL 118813, ¶¶ 17, 27; Castleberry, 2015 IL 116916, ¶¶ 1, 11-12. The supreme court in Castleberry also agreed that the State could not seek to correct a sentence without first filing for a writ of mandamus. Price, 2016 IL 118813, ¶ 17 (discussing Castleberry).

         ¶ 13 However, Castleberry and Price were not yet decided, and relying on People v. Arna, 168 Ill.2d 107, 112-23 (1995), this court rejected his arguments. Relying on Arna, our Rule 23 order stated that, "where a sentence does not conform to a statutory requirement, such as the firearm sentencing add-on, it is void, and the appellate court may correct it at anytime." Miller, 2014 IL App (1st) 130721-U, ¶ 12. In Arna, the appellate court had sua sponte ordered the imposition of statutorily-required consecutive sentences, and the supreme court had affirmed, finding that the appellate court had the authority to do so because the trial court's order imposing concurrent terms was void, and that the appellate court's action was "not barred by our rules which limit the State's right to appeal." Arna, 168 Ill.2d at 114.

         ¶ 14 In addition, our Rule 23 order found that, although the validity of a sentence becomes moot once it is served, a sentence is not served until the completion of the MSR term.[1] Miller, 2014 IL App (1st) 130721-U, ¶ 15. We found that: "According to the record, the term of the three-year MSR in the instant case began on May 14, 2012, meaning that it will not be completed until 2015." (Emphasis added.) Miller, 2014 IL App (1st) 130721-U, ¶ 15.[2]

         ¶ 15 Our Rule 23 order was entered on August 29, 2014, and on September 5, 2014, defendant filed a petition for rehearing, stating in relevant part:

"The court found that [defendant] had not completed his sentence because his three-year Mandatory Supervised Release ('MSR') began May 14, 2012, 'meaning that it will not be completed until 2015.' (Order at P. 15).
While that would have been true if [defendant] had remained at liberty for his MSR, [defendant] had his MSR revoked and was sent back to IDOC to complete his MSR for 08 CR 9696 on July 30, 2012. [Citation.] Because [defendant] was in custody he was granted good time credit making his actual complete sentence in 08 CR 9608, including the MSR, end December 20, 2013."

         ¶ 16 Defendant's petition for rehearing was denied on October 10, 2014. On November 19, 2015, our supreme court "abolish[ed] the rule" in Arna on which we had relied. Castleberry, 2015 IL 116916, ¶ 1. In Castleberry, as in the case at bar, the State had argued, and the appellate court had found, that a sentence was void because the trial court had not imposed a statutorily-required 15-year firearm enhancement and, thus, a remand for resentencing was necessary. Castleberry, 2015 IL 116916, ¶ 6. However, unlike our case, the State conceded before the Illinois Supreme Court in Castleberry that the void sentence rule was no longer valid, based on cases decided in the intervening 20 years since Arna, such as Steinbrecher v. Steinbrecher, 197 Ill.2d 514 (2001); Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A. Inc., 199 Ill.2d 325 (2002); and LVNV Funding, L.L.C. v. Trice, 2015 IL 116129. See Castleberry, 2015 IL 116916, ¶¶ 16-17. The supreme court also observed in Castleberry that the State's "de facto cross-appeal" challenging the defendant's sentence was "impermissible" (Castleberry, 2015 IL 116916, ¶ 23), and that Illinois Supreme Court Rule 604(a) (eff. July 1, 2006)[3] does not permit the State to appeal a sentencing order (Castleberry, 2015 IL 116916, ¶ 21).

         ¶ 17 After the remand, defendant appeared pro se before the trial court on March 18, 2015. When asked where his lawyer was, he replied: "I don't even know what I'm here for actually." When the trial court informed him of the remand, he replied: "I finished the time on that case." The matter was then continued.

         ¶ 18 On May 26, 2015, defense counsel and the trial court had the following colloquy concerning whether his MSR period had run prior to the appellate court's Rule 23 order:

"DEFENSE COUNSEL: Well, we still have a problem where his sentence has already ...

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