People v. Brown , 49 N.E.3d 1004 ( 2016 )

2016 IL App (2d) 140458
No. 2-14-0458
Opinion filed March 8, 2016
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 06-CF-1623
)
TIZIO T. BROWN, ) Honorable
) Joseph G. McGraw,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Presiding Justice Schostok and Justice Hutchinson concurred in the judgment and
opinion.
OPINION
¶1 Defendant, Tizio T. Brown, appealed the dismissal of his petition under section 2-1401 of
the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)). Pursuant to
Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63 (1993), his
appellate counsel has moved to withdraw. Although defendant alleged a statutory violation in
his sentence, such a violation no longer renders a sentence void. Thus, we grant counsel’s
motion and affirm the judgment.
¶2 On April 14, 2008, defendant entered a negotiated plea of guilty to a single count each of
second-degree murder (720 ILCS 5/9-2(a)(2) (West 2006)) and armed robbery (720 ILCS 5/18-
2(a)(1) (West 2006)). Defendant’s agreement with the State provided that he would be
2016 IL App (2d) 140458
sentenced to consecutive prison terms of 20 years for second-degree murder and 10 years for
armed robbery. Prior to accepting defendant’s guilty plea, the trial court admonished him that he
would also be required to serve a two-year term of mandatory supervised release (MSR) (see 730
ILCS 5/5-8-1(d)(2) (West 2006)) for second-degree murder and a three-year MSR term for
armed robbery (see 730 ILCS 5/5-8-1(d)(1) (West 2006)). The trial court indicated that it was
unsure whether the MSR terms could be served concurrently or whether defendant would have to
serve an aggregate five-year MSR term. The mittimus states that defendant was sentenced to a
20-year prison term and a 2-year MSR term for second-degree murder, with that sentence
running consecutively to his sentence of 10 years’ imprisonment and 3 years’ MSR for armed
robbery.
¶3 Defendant filed a notice of appeal. However, because he had not filed a motion in the
trial court to withdraw his guilty plea, we dismissed the appeal pursuant to the holding of People
v. Linder, 186 Ill. 2d 67, 74 (1999). People v. Brown, No. 2-08-0476 (2010) (unpublished order
under Supreme Court Rule 23). Defendant subsequently petitioned for relief pursuant to the
Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)). The trial court summarily
dismissed the petition, defendant appealed, and the trial court appointed the Office of the State
Appellate Defender to represent defendant on appeal. However, we granted appellate counsel’s
motion to withdraw and we affirmed the summary dismissal of defendant’s petition. People v.
Brown, 2012 IL App (2d) 110716-U (summary order).
¶4 On September 20, 2013, defendant filed a section 2-1401 petition seeking relief from the
judgment of conviction. Defendant asserted that the trial court had imposed a five-year MSR
term that was unauthorized by statute and was therefore void. Defendant also asserted that his
attorney had not explained that consecutive sentencing would make him ineligible to increase
good-conduct credit by participating in educational programs. See 730 ILCS 5/3-6-3(a)(4) (West
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2006). The State moved to dismiss the petition, claiming, inter alia, that it was untimely. The
trial court granted the State’s motion and this appeal followed.
¶5 The Office of the State Appellate Defender has been appointed to represent defendant on
appeal. In accordance with Finley and Lee, counsel has filed a motion for leave to withdraw, in
which he states that he has reviewed the record and has concluded that this appeal presents no
arguably meritorious issue. Counsel served a copy of the motion on defendant. The clerk of this
court notified defendant of the motion and informed him that he would be afforded an
opportunity to present, within 30 days, any additional matters to this court. Defendant has filed a
response.
¶6 Counsel contends, inter alia, that the petition was properly dismissed on the basis that it
was untimely. Generally speaking, a petition for relief under section 2-1401 “must be filed not
later than 2 years after the entry of the order or judgment,” excluding “[t]ime during which the
person seeking relief is under legal disability or duress or the ground for relief is fraudulently
concealed.” 735 ILCS 5/2-1401(c) (West 2012). However, the two-year time limit does not
apply to challenges that a judgment is void. In re Haley D., 403 Ill. App. 3d 370, 373 (2010).
¶7 Defendant’s petition was filed more than five years after the entry of the judgment of
conviction. As to his claim regarding good-conduct credit, he did not allege that he was under a
legal disability or duress or that the ground for relief was fraudulently concealed. Thus, that
claim was untimely.
¶8 Defendant’s failure to file his petition within two years after the entry of the judgment
does not foreclose his voidness challenge to the MSR term imposed under the judgment.
However, that challenge fails on the merits. To be sure, by stating that defendant’s sentence
(including the MSR term) for second-degree murder will run consecutively to his sentence
(including the MSR term) for armed robbery, the mittimus suggests that defendant will serve
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2016 IL App (2d) 140458
both MSR terms, consecutively. This indeed would be a statutory violation. See 730 ILCS 5/5-
8-4(e)(2) (West 2006); People v. Jackson, 231 Ill. 2d 223, 227 (2008) (“When a defendant
receives consecutive sentences for multiple felonies, these sentences are treated as a single term,
and the defendant serves the MSR term corresponding to the most serious offense.”). Further,
until very recently, such a statutory violation rendered a sentence void. People v. Donelson,
2013 IL 113603, ¶ 15. However, in People v. Castleberry, 2015 IL 116916, the supreme court
reversed course, holding that a sentence is void only if the court that entered it lacked
jurisdiction, regardless of whether the sentence is statutorily authorized. Here, the trial court
obviously had jurisdiction to impose defendant’s sentence, including the unauthorized MSR
term. As a result, defendant’s sentence is not void.
¶9 This case thus presents an early example of Castleberry’s implications. In Castleberry,
the supreme court’s decision defeated the State’s request for an increase in a sentence that was
unlawfully low. Here, though, the decision cuts the other way, against a defendant whose
sentence, at least in part, is unlawfully high. As was noted shortly before Castleberry was
decided, “if a statutorily unauthorized sentence is merely voidable—because, after all, a criminal
case is ‘within the general class of cases that the court has the inherent power to hear and
determine’ [citation]—then a criminal defendant serving such a sentence will be strictly limited
in his ability to obtain relief from it.” In re Megan G., 2015 IL App (2d) 140148, ¶ 44
(Jorgensen, J., specially concurring). In fairness, the supreme court did suggest the possible
availability of an alternative avenue. See Castleberry, 2015 IL 116916, ¶¶ 26-27 (mandamus).
In this case, however, faced with a defendant’s challenge to a statutorily unauthorized sentence,
we can do nothing.
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2016 IL App (2d) 140458
¶ 10 Because there is no arguably meritorious basis for challenging the dismissal of
defendant’s petition, we grant counsel’s motion to withdraw and we affirm the judgment of the
circuit court of Winnebago County.
¶ 11 Affirmed.
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