Court of Appeals of Illinois, First District, Fourth Division
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
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. 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 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,
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) 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 ...