No. 2-14-0792 Opinion filed May 16, 2016 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 06-CF-3801 ) DEVEER D. BUFFKIN, ) Honorable ) George J. Bakalis, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.

OPINION

¶1 Defendant, Deveer D. Buffkin, appeals from the dismissal of his postconviction petition.

However, he does not assert any error in that dismissal; instead, for the first time, he raises two

claims attacking certain financial aspects of his sentence. The State confesses error. We accept

that confession and grant the requested relief, though the precise grounds on which we may do so

on his second claim require an explanation that neither party provides.

¶2 On October 2, 2007, defendant pleaded guilty to aggravated discharge of a firearm (720

ILCS 5/24-1.2(a)(2) (West 2006)) and was sentenced to 15 years’ imprisonment, with credit for

279 days served. The trial court also imposed various fines and fees. On January 24, 2012,

defendant filed a pleading that the trial court treated as a petition for a writ of habeas corpus. The

trial court denied the pleading, but on appeal we held that the trial court should have treated it as a

postconviction petition. We thus remanded the cause. People v. Buffkin,

. On remand, the trial court dismissed the petition. Defendant appealed.

¶3 On appeal, defendant raises, for the first time, two claims directed at his sentence: (1) under

section 110-14 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-14 (West

2006)), his time in presentencing custody entitles him to full credit against two fines, which total

$60; and (2) under People v. Marshall,

(2011), he is entitled to the vacatur of

his DNA analysis fee (730 ILCS 5/5-4-3 (West 2006)), which is successive. The State confesses

error on both claims, which, at least substantively, are correct. Our concern is whether,

procedurally, we may grant them at this late stage.

¶4 Defendant’s first claim does not detain us long. In People v. Caballero,

, 88

(2008), noting that section 110-14 of the Code permits the award of credit merely “upon

application of the defendant” (725 ILCS 5/110-14 (West 2006)), the supreme court held that a

defendant could apply for the credit “at any time and at any stage of court proceedings, even on

appeal in a postconviction proceeding.” Thus, here, we face no impediment in granting defendant

the credit he seeks.

¶5 Defendant’s second claim, though, is a different matter. In Marshall, the supreme court

vacated the defendant’s successive DNA analysis fee. In doing so, although the defendant had

raised the issue for the first time on appeal, the court ruled that the claim could be raised at any

time. Specifically, as the successive fee was statutorily unauthorized, it was void. Marshall,

(citing People v. Rigsby,

(2010), citing People v. Arna,

(1995)).

-2-

¶6 After Marshall, however, the supreme court decided People v. Castleberry,

, abolishing Arna’s rule that a statutorily unauthorized sentence is void. Under

Castleberry, when a sentencing court has jurisdiction—which the trial court here obviously did—a

statutorily unauthorized sentence is merely voidable, and is not subject to collateral attack. See

id. ¶ 11. Thus, here, as defendant’s DNA analysis fee is merely voidable, he may not collaterally

attack it.

¶7 Deprived of any assertion of voidness, 1 defendant cites no authority that establishes our

ability to reach this claim. He cites Caballero, where the supreme court did say that we may grant

an application for credit under section 110-14, raised for the first time on collateral appeal, in the

“ ‘interests of an orderly administration of justice.’ ” Caballero, 228 Ill. 2d at 88. However, this

statement was premised on the court’s acknowledgement that section 110-14 specifically permits

the award of credit “upon application of the defendant” (725 ILCS 5/110-14 (West 2006)), without

any limit as to time. Caballero, 228 Ill. 2d at 88. Thus, the court did not suggest that we may

reach any sentencing claim on collateral appeal where the interests of justice so require, a

suggestion that would deprive Castleberry of virtually all of its preclusive force. Rather, the

court ruled that, in the interests of justice, we may reach any claim that may be raised at any time.

Unlike section 110-14, the statute authorizing only one DNA analysis fee does not give a

1 Defendant does not argue that Castleberry should apply only prospectively. The

supreme court is soon to address that question. People v. Price, No. 118613 (Ill. May 27, 2015).

In the meantime, this court has assumed that Castleberry applies retroactively. See People v.

Brown,

.

-3-

defendant an unlimited ability to attack a successive one. See 730 ILCS 5/5-4-3 (West 2006).2

As a result, we may not reach this claim under Caballero.

¶8 Defendant also cites People v. Owens,

(1989), in which the supreme

court held that, “[w]here fundamental fairness requires, the rule of [forfeiture] will not be applied

in postconviction proceedings.” However, as the court went on to explain, “ ‘fundamental

fairness’ requires courts to review procedurally defaulted claims in collateral proceedings only

when a defendant shows cognizable ‘cause’ for his failure to make timely objection, and shows

‘actual prejudice’ flowing from the error now complained of.”

(citing Wainwright v. Sykes,

(1977)). To the extent that Owens holds that a claim meeting the cause-and-prejudice

test may be raised for the first time on collateral appeal, defendant does not attempt to satisfy that

test. Certainly, we can imagine no “cause” for his having failed to raise this issue directly.

¶9 Finally, defendant cites Illinois Supreme Court Rule 615(b)(1) (eff. Jan. 1, 1967), which

permits us to “modify the judgment or order from which the appeal is taken,” as limited by Illinois

Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967), which permits us to “reduce the punishment

imposed by the trial court.” See Castleberry,

. But this is precisely the

point: defendant did not take this appeal from the sentencing order; instead he took it from the

2 We observe that the Caballero court drew an analogy to cases holding that a defendant

may seek, at any time, sentencing credit under section 5-8-7(b) of the Unified Code of Corrections

(730 ILCS 5/5-8-7(b) (West 2006)). However, those cases were based on the fact that, in essence,

such a request is a motion to amend the mittimus, which, indeed, may be made at any time. See

Caballero, 228 Ill. 2d at 84 (quoting People v. Wren,

(1992)). A request

to reduce the sentence itself (as opposed to a request for credit against it) is not a motion to amend

the mittimus.

-4-

dismissal of his postconviction petition. This is a collateral appeal, and, beyond the dismissal

itself, defendant is strictly limited in what he may raise. He may raise any claim that may be

raised at any time. But he may not collaterally attack his sentence as statutorily unauthorized.

See id. ¶ 11.

¶ 10 It thus is clear that defendant may attack his DNA analysis fee only directly. His problem,

of course, is that the time to directly attack his sentence is long past. Defendant filed a timely

notice of appeal from the dismissal of his postconviction petition, giving us jurisdiction of that

judgment. But, because the time to directly appeal from his sentence expired nearly a decade ago,

ordinarily we would lack jurisdiction of that judgment. See Ill. S. Ct. R. 606(b) (eff. Sept. 1,

2006); In re J.T.,

(2006).

¶ 11 The State, however, has confessed error. Thus, the State has “revested” the courts with

jurisdiction of defendant’s sentence. For that reason only, we may reach defendant’s claim.

¶ 12 The revestment doctrine provides that, after a court’s jurisdiction of a judgment has lapsed,

the parties may restore the court’s jurisdiction of that judgment so that it may address “ ‘[s]pecial

circumstances *** in which the interests of finality are lessened.’ ” People v. Bailey,

(quoting People v. Bainter,

(1989)). “[F]or the revestment

doctrine to apply, both parties must: (1) actively participate in the proceedings; (2) fail to object to

the untimeliness of the late filing; and (3) assert positions that make the proceedings inconsistent

with the merits of the prior judgment and support the setting aside of at least part of the judgment.”

(Emphases in original.) Id. ¶ 25. Although generally the revestment doctrine is applied to a late

attack in a trial court (see id. ¶ 8), we see no basis for holding that it cannot be applied to a late

attack in this court.

-5-

¶ 13 And, indeed, the criteria of the doctrine are satisfied here. Despite the finality of

defendant’s sentence, both parties have actively participated in this appeal; the State has failed to

object to the untimeliness of defendant’s attack on his sentence; and both parties have agreed to set

aside the DNA analysis fee. Thus, we shall do so.

¶ 14 In the wake of Castleberry, we expressed our concern that defendants serving statutorily

unauthorized sentences will be unable to obtain relief therefrom. See Brown,

. As this case demonstrates, however, the revestment doctrine provides a “safeguard”

against Castleberry’s effects. See Bailey,

. 3 As has often been noted, the

State’s duty is to see that justice is done, not only for the public but also for the defendant. In re

Derrico G.,

. Even where the defendant’s attack on his statutorily

unauthorized sentence is otherwise precluded, we urge the State to “support the setting aside of at

least part of the judgment.” Bailey,

.

¶ 15 Here, we accept the State’s confession of error and remand the cause for the circuit court of

Du Page County to (1) apply a $60 credit against defendant’s fines; (2) vacate defendant’s DNA

analysis fee; and (3) recalculate the assessments outstanding and the fee for collection.

¶ 16 Remanded with directions.

3 There might also be others, of course. In Brown, we acknowledged that the Castleberry

court had suggested the possible availability of mandamus. Brown,

(citing Castleberry,

). However, the Castleberry court declined to

explore that potential remedy in the absence of a petition for it. Castleberry,

. Here, we shall follow suit.

-6-