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,

(1987), and People v. Lee,

(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

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,

(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,

(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.,

(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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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,

(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,

. However, in People v. Castleberry,

, 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.,

, ¶ 44

(Jorgensen, J., specially concurring). In fairness, the supreme court did suggest the possible

availability of an alternative avenue. See Castleberry,

(mandamus).

In this case, however, faced with a defendant’s challenge to a statutorily unauthorized sentence,

we can do nothing.

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¶ 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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