No. 1-16-1687 Opinion filed June 27, 2019

FOURTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 08 CR 9698 ) BRYAN MILLER, ) The Honorable ) Alfredo Maldonado, Defendant-Appellant. ) Judge, presiding.

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

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 No. 1-16-1687

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,

(1995), for resentencing. People v. Miller,

.

¶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,

. 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.

2 No. 1-16-1687

¶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

3 No. 1-16-1687

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,

, ¶ 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.

4 No. 1-16-1687

¶ 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,

, ¶¶ 17, 27; Castleberry,

. 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,

, ¶ 17 (discussing Castleberry).

¶ 13 However, Castleberry and Price were not yet decided, and relying on

People v. Arna,

(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

5 No. 1-16-1687

add-on, it is void, and the appellate court may correct it at anytime." Miller,

, ¶ 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,

.

¶ 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,

, ¶ 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,

, ¶ 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 1 This was not an argument made by the State. 2 However, defendant claimed in his motion to reconsider sentence, filed on May 13, 2016, that his MSR for this offense terminated on December 20, 2013, eight months before this court issued its opinion. See 730 ILCS 5/3-3-8(b) (West 2008) (the Prisoner Review Board has the discretion to discharge a defendant early from MSR). 6 No. 1-16-1687

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,

. 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,

, ¶ 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,

(2001);

Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A. Inc.,

(2002); and LVNV Funding, L.L.C. v. Trice,

. See Castleberry,

7 No. 1-16-1687

, ¶¶ 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,

, ¶ 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,

).

¶ 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 been served.

***

THE COURT: Okay. The issue if, in fact, he served his [sentence]

can he be resentenced.

3 This was the effective date given by the supreme court in Castleberry. 8 No. 1-16-1687

DEFENSE COUNSEL: That's correct. *** Which the Appellate

Court sort of skirted by because they said he's still on MSR, it says right

on th[eir] website from some date that they don't specify. But at the time

you actually know he was not still serving his sentence because he was

remanded back to here. And in the new case when he was picked up

which is why you still have custody, the ability to writ him in, he was

here from Cook County *** [U]nfortunately[,] apparently the Appellate

Court doesn't understand that once he's doing the MSR in custody he got

good time credit, so his 3 years only took him a year and a half. *** So

I'm making I guess an oral motion now that we have proof other than web

sites and my statement ***."

The trial court then gave the State time to respond to defendant's oral motion.

¶ 19 On July 15, 2015, the parties appeared in court, and defense counsel

observed that the State no longer intended to file a response to defendant's oral

motion. Defense counsel asked for more time, arguing: "the Appellate Court

had a factual basis that they enunciated that was incorrect, and I don't know

how you fix the Appellate Court after they've issued the mandate." Defense

counsel argued that this issue affected the trial court "if their basis for saying

[the trial court] had jurisdiction is incorrect." The case was then continued.

9 No. 1-16-1687

¶ 20 On December 8, 2015, defense counsel argued that there was an

Apprendi issue, and observed that neither the parties nor the State had

mentioned the 15-year sentencing enhancement during the original proceeding.

See Apprendi v. New Jersey,

(2000). The trial court responded: "I

didn't mention the 15 years because I didn't impose it." 4

¶ 21 Prior to the next court date, on February 1, 2016, the original trial judge

retired, so the parties appeared before a different judge. At that time, defense

counsel observed that the Illinois Supreme Court had abolished the void

sentence rule in Arna and that defendant had completely served his sentence in

this case, as well as in another case, and, thus, would need to be released if the

trial court did not resentence him.

¶ 22 On April 5, 2016, defendant had not yet been resentenced and he filed a

motion with the trial court to dismiss the proceedings based on Castleberry.

Through his counsel, defendant argued:

"6. Fortunately for [defendant], his case does not in fact involve

retroactivity because he has not in fact been resentenced.

4 On January 19, 2016, defendant filed a written motion to dismiss the proceedings on the ground that imposing the 15-year enhancement violated Apprendi. 10 No. 1-16-1687

7. When a matter has been remanded for re-sentencing, the case is not

final until the new sentence has been pronounced. People v. Lyles,

(1st Dist. 1990).

7. [sic] The law of the case does not apply because there is an

exception where the Illinois Supreme Court makes a contrary ruling on

the precise issues of law on which the remand relied.

.

8. Since [defendant] raises exactly the same issues that Castleberry

did, the State is therefore restricted to filing a petition for mandamus to

correct if it can when the sentence has already been completed.

9. [Defendant] has completed the sentence in the cause as well as for a

subsequent conviction and should have been released in January 2016."

¶ 23 On April 27, 2016, the parties appeared in court and defense counsel

stated that defendant was moving to dismiss the proceedings based on both

Apprendi and Castleberry. Defendant indicated that he also wanted to address

the court, which the court permitted, and defendant asked: "What is the rule if

the appellate mandate come down after a sentence has been discharged?" The

trial court then ruled that the resentencing would go forward, stating: "You

may well be right and the Appellate Court may ultimately say that you are

correct. *** But *** it is not for me to disregard the remand no matter how

11 No. 1-16-1687

much I may disagree with it. Or the inequity of the situation that [defendant]

finds himself in."

¶ 24 At the sentencing hearing on May 3, 2016, the trial court reiterated that

"the Defense's position [may] be ultimately found to be the correct one, but I

believe that is for the Appellate Court to make that determination on the issue

of the law of the case issue that I think the Defense has raised." After

considering factors in aggravation and mitigation, the trial court stated that it

"resentence[d]" defendant to "the nine year term that he was sentenced to, and

following the mandate I am going to add on the 15 year enhancement," for a

total of 24 years with IDOC, plus a 2-year MSR, and a credit of 2994 days of

time served.

¶ 25 On May 13, 2016, defendant filed a written motion to reconsider

sentence based on (1) Apprendi, (2) Castleberry, and (3) the fact that he had

already served the MSR term for this offense by December 20, 2013, which was

"prior to the issuance of the mandate" by the appellate court. After the trial

court denied the motion to reconsider, defendant filed a timely notice of appeal

on June 1, 2016, and this appeal followed. Appellate briefing was completed on

May 24, 2019.

12 No. 1-16-1687

¶ 26 ANALYSIS

¶ 27 On appeal, defendant argues that, pursuant to the Illinois Supreme Court's

finding in Castleberry, he should not have been resentenced. Both parties

maintain that the standard of review on this purely legal issue is de novo; and

that is correct, particularly where, as here, the trial court repeatedly stated that it

was "for the Appellate Court" to make this determination. See, e.g., People v.

Wheeler,

(2007) (a purely "legal issue" is one that "this court

reviews de novo"); Dowling v. Chicago Options Associates, Inc.,

(2007) (where the trial court "did not conduct an evidentiary hearing"

or "make any findings of fact," and "relied on the parties' oral argument and the

record," "we review the court's ruling on this issue de novo"). De novo

consideration means that we owe no deference to the trial court's ruling, and we

perform the same analysis that a trial judge would perform. People v. Jones,

, ¶¶ 75-76.

¶ 28 We find that the Illinois Supreme Court's decision in Price governs the

outcome of the case here. In Price, the defendant filed a section 2-1401

petition, arguing that the two-year limitation on section 2-1401 petitions did not

apply because his sentence was void. Price,

. The appellate

court agreed and remanded for resentencing. Price,

.

However, before resentencing occurred, the Illinois Supreme Court allowed the

13 No. 1-16-1687

State's petition for leave to appeal. Price,

. After the State

filed its initial brief, Castleberry was decided. Price,

. The

Price defendant then argued that the State had forfeited any arguments that his

petition was untimely. Price,

.

¶ 29 The Illinois Supreme Court disagreed, finding that the issue was "not

simply" whether his sentence was void and his petition, thereby, timely or not—

"an issue that the State pursued in the courts below"—but specifically whether

the petition was untimely under Castleberry. Price,

. The

supreme court found that "[t]he State could not have addressed that question

until Castleberry was decided." Price,

.

¶ 30 In the case at bar, the positions of the parties are reversed. In our case, it

is the State who is arguing that the original sentence was void, and it is the

defense that is arguing that it is not. However, the reasoning remains the same,

no matter who it favors.

¶ 31 Similar to Price, in the case at bar, there is no law of the case on the

question of whether Castleberry applies to this case. This is simply not an issue

that this court could have ruled on "until Castleberry was decided." Price,

. The question that was before the trial court at the moment

prior to resentencing—and that is before us now—is whether Castleberry

applies, and this is not an issue that we could have ruled on until Castleberry

14 No. 1-16-1687

was decided. Thus, our prior Rule 23 order is not, and cannot be, dispositive of

this issue.

¶ 32 The supreme court in Price observed: "After we announced our decision

in Castleberry abolishing the void sentence rule, this court had the discretion to

order the parties to brief the impact of Castleberry on this case." Price,

. Similarly, in the case at bar, after the Illinois Supreme Court

announced its decision in Castleberry, the trial court had the discretion to hear

argument and did, in fact, hear argument about the impact of Castleberry on

this case. In both cases, the focus is on the time period prior to resentencing.

Thus, the question before us, as it was in Price, is whether Castleberry

permitted resentencing based on a prior appellate court order that the original

sentence was void.

¶ 33 Our supreme court has already answered this question for us:

"Unquestionably, Castleberry applies not only to the parties in that

case but also prospectively. As we recognized in [People v.] Thompson,

, after our decision in Castleberry, it is 'no longer

valid' to argue that a sentence that does not conform to a statutory

requirement is void. As to defendant's case, in which his section 2-1401

petition was pending in the appellate pipeline at the time Castleberry was

announced, we turn to our general rule of retroactivity. Under this rule,

15 No. 1-16-1687

our decisions apply to 'all cases that are pending when the decision is

announced, unless this court directs otherwise.' [Citations.]" Price,

.

¶ 34 The State focuses on the words "in the appellate pipeline," to argue that,

when defendant's resentencing was pending pursuant to an appellate mandate,

the case was no longer in the "appellate pipeline." See Price,

. Even if we found this logic persuasive, the above quote shows that the

supreme court did not stop there. It went on to say that Castleberry applied to

all cases that are pending when the decision is announced, unless the supreme

court directs otherwise. Price,

; People v. Williams,

(the Price court determined that Castleberry

applied to "all cases that were then pending when the Castleberry decision was

announced"). There is no question that defendant's case was still pending, as it

waited for resentencing, when the Castleberry decision was announced. Thus,

pursuant to the plain language of Price, Castleberry applied.

¶ 35 Our supreme court further found:

"In Castleberry, we did not limit the reach of our decision ***.

Indeed, not applying Castleberry would thwart the very policy espoused

in that decision—preserving the finality of judgments—by permitting

16 No. 1-16-1687

defendants to continue to argue that a statutorily nonconforming sentence

is void." Price,

.

¶ 36 Whether it is a defendant or the State that is arguing against "a statutorily

nonconforming sentence," the result is the same. See Price,

. Our supreme court stressed that it "did not limit the reach" of Castleberry.

Price,

; People v. Douglas,

(the Price court "did not limit the reach of Castleberry"). The point of the

Castleberry decision was to favor the finality of sentences. Price,

. At the moment prior to resentencing, when the trial court faced

the same question that we face now, finality of sentence favored not

resentencing—ie. not issuing yet another sentence.

¶ 37 Thus, Castleberry applied to defendant's case at the moment prior to

resentencing, and its facts are similar to the facts at bar, necessitating the same

outcome. In Castleberry, exactly as in the case at bar, the State had argued on

appeal that defendant's sentence was void because the trial court failed to

impose a statutorily-required 15-year firearm enhancement, and the appellate

court found the sentence void for this reason and remanded for resentencing.

Castleberry,

. However, the supreme court granted

defendant's petition for leave to appeal and found that, based on cases that had

been decided in the intervening 20 years, the Arna void sentence rule was no

17 No. 1-16-1687

longer good law. Castleberry,

. The supreme court

found that the appellate court lacked authority to vacate the trial court's

sentencing order and affirmed the trial court's initial sentencing decision.

Castleberry,

. We reach the same result here.

¶ 38 The State argues that Castleberry applied only "to appellate courts, not to

trial courts." However, there is no language in either Castleberry or Price that

Castleberry is limited only to appellate courts. In fact, as we noted above,

Price specifically states that Castleberry was not "limited" and applied to all

cases. Price,

. In addition, the State's argument flies

in the face of the notion of de novo review. As we stated above, de novo review

means that we perform the same analysis that the trial court would, and should

have, performed. Jones,

, ¶¶ 75-76. If we are

replicating a trial court's analysis, then Castleberry applies to the trial court as

well as an appellate court. Thus, we do not find persuasive the State's argument

that Castleberry was limited to cases pending on appeal, but not pending for

resentencing pursuant to an appellate mandate.

¶ 39 Since Castleberry applied, the trial court should have done the same

thing that we do now, which is to apply it. The defendant argued, and the

supreme court in Castleberry agreed, that "the rule relied upon by the appellate

court—that a sentence which does not conform to statutory requirements is

18 No. 1-16-1687

void—is no longer valid in light of recent decisions from this court and, thus,

could not provide a basis for the appellate court to reverse the circuit court's

sentencing order." Castleberry,

. The Castleberry

defendant further argued, and the supreme court agreed, that, "in the absence of

the void sentence rule, the appellate court had no authority to consider the

State's request to increase his sentence." Castleberry,

.5

Thus, pursuant to Castleberry, this court had no authority to find defendant's

initial sentence void, and the trial court erred in resentencing defendant and

imposing the 15-year firearm enhancement, where his original sentence was not

void.

¶ 40 To see this issue more clearly, if an appellate court issues an opinion, and

the supreme court then issues an opinion eliminating the basis for the appellate

court opinion, thereby rendering it no longer good law, a trial court must apply

the supreme court opinion, first and foremost. Our supreme court could not

have been more clear: "The appellate court, therefore, had no authority in this

case to vacate the circuit's sentencing order in response to the State's argument."

Castleberry,

.

5 "[T]he State must seek a writ of mandamus from this court if it wishes to challenge the error committed by the circuit court." Castleberry,

. 19 No. 1-16-1687

¶ 41 In Price, our supreme court observed that it had recognized only three

types of void judgments, including: "(3) where a judgment of sentence did not

conform to a statutory requirement." Price,

. The Price

court found: "Castleberry eliminated the third type of void judgment, thus

narrowing the universe of judgments subject to attack in perpetuity." Price,

. By eliminating this third type, Castleberry eliminated the

basis of our prior Rule 23 order.

¶ 42 Thus, we find that the trial court erred by proceeding with resentencing.

¶ 43 People v. Stephens,

, cited by the State, is

completely distinguishable from the case at bar. In Stevens, the defendant was

sentenced three times. Stephens,

. First, the

defendant was sentenced in 2005 to a total of 25 years with IDOC. Stephens,

. But, on appeal, the State argued that this

sentence was void because the trial court failed to impose statutorily-required

consecutive sentences. Stephens,

. Thus, in

2009, this court vacated his original sentence, and the defendant was sentenced

a second time, in 2010, to two 25-year consecutive sentences, for a total of 50

years with IDOC. Stephens,

. After the

defendant filed a postconviction petition, we granted his request to vacate his

sentences; and at his third sentencing in 2015, he received a total of 29 years.

20 No. 1-16-1687

Stephens,

. When, on appeal, he asked us

to vacate this third sentencing—which we observed that we had ordered "at his

request"—we declined. Stephens,

. By contrast,

in the case at bar, defendant is not seeking to undo relief that he specifically

sought and received. A party cannot ask for relief, receive it, and then ask to

undo it. E.g., People v. Lawrence,

.6

¶ 44 Unlike the defendant in Stephens, defendant here argued both before and

after his resentencing that it was improper. By contrast, the defendant in

Stephens not only requested the resentencing, but also thanked the trial court

afterward, profusely, for reducing his total sentence from 50 to 29 years.

Stephens,

.

¶ 45 Also, in Stephens, the defendant was not attacking the immediately prior

appellate court decision, but rather a much earlier appellate order—the effect of

which we had already vacated at his request, providing the relief that he had

asked for. Stephens,

. In the case at bar, the

resentencing was taking place pursuant to the very appellate order whose

foundation was just undercut by a supreme court opinion. By contrast, in

6 In Stephens, we observed: "Our case involves a third sentencing, not a second, and we vacated the second sentencing at defendant's request. We would need to vacate two appellate court decisions, including one in defendant's favor," in order to provide the relief now requested by the defendant. Stephens,

. 21 No. 1-16-1687

Stephens, the appellate order that defendant sought to challenge was not the

order that served as the basis for his last resentencing. For all these reasons, we

find Stephens inapposite.

¶ 46 The State argues that the " 'law of the case doctrine bars relitigation of an

issue already decided in the same case.' " People v. Cole,

(quoting People v. Tenner,

(2002)). As we

observed above, the issue before us, as well as the issue that was before the trial

court, is whether Castleberry applies, and that issue could not have been

decided until Castleberry was issued. However, even if we found that the law

of the case doctrine applies, the doctrine has an exception for "where the

supreme court makes a contrary ruling on the precise issue of law on which the

appellate court had based its prior decision," which is what happened here.

Cole,

.

¶ 47 In Cole, the appellate court found that this exception to the law of the

case doctrine did not apply, but for reasons that do not apply to our case. The

Cole court found the exception "inapplicable because Castleberry abolished the

void sentence rule in the context of a sentence being increased, while the

sentence" in Cole "involved consecutive versus concurrent sentences rather than

a sentence increase" and, thus, "the sentence handed down upon resentence was

not an increase in defendant's sentence." Cole,

.

22 No. 1-16-1687

By contrast, in the case at bar, defendant's sentence was indisputably increased

upon resentencing and, thus, Cole's reasoning is not applicable to our facts. In

addition, "Cole was decided before our supreme court's decision in Price, and

thus, our supreme court's subsequent decision in Price controls our decision

here, not the earlier appellate court decision." Stephens,

. Thus, Cole struggled to apply earlier appellate court cases (Cole,

), because it lacked the benefit of our supreme

court's subsequent decision in Price.

¶ 48 Next, the State argues that resentencing was merely a "trite formaility."

If resentencing was a "trite formality" as the State argues on appeal, then this

court could have tacked on the 15-year enhancement ourselves. However,

sentencings are serious matters, not trite formalities, at which a defendant may

be personally heard, arguments are made and considered, and a trial court

carefully weights factors in aggravation and mitigation; and where the trial

court is under the same duty as this court to apply the law articulated by our

supreme court, which governs all Illinois courts.

¶ 49 Lastly, the State argues that the trial court had no choice but to obey the

appellate mandate in this case, and cites in support People v. Ruiz,

(1997) (Ruiz II). See also People v. Ruiz,

(1989) (Ruiz I). We

do not find Ruiz II dispositive for the following reasons. First, Ruiz II is a

23 No. 1-16-1687

cautionary tale against interpreting a mandate too narrowly. In Ruiz I, the

supreme court remanded for a hearing on the defendant's postconviction claim

that his counsel was ineffective at his death penalty hearing for failing "to

investigate additional sources of mitigating evidence." Ruiz I,

.

In Ruiz I, the defendant's postconviction petition had alleged that his counsel

was ineffective for failing to investigate favorable testimony from friends and

family members, and had attached supporting affidavits from them. Ruiz I,

. The supreme court found that counsel's failure to investigate

"the evidence in question" constituted ineffectiveness (Ruiz I,

-

26) and remanded for a "hearing on these portions of the defendant's petitions"

(Ruiz I,

). However, on remand, the hearing went far beyond

friends and family members, including a toxicologist who testified that the

defendant was under the influence of drugs and alcohol at the time of the

murders, and a clinical psychologist who testified about the defendant's

cognitive disfunction. Ruiz II,

. On appeal from the hearing,

the State argued that the trial court had violated the supreme court's mandate.

Ruiz II,

. However, the supreme court rejected this

argument, observing that the trial court has "wide latitude" to conduct the

hearing (Ruiz II,

) and was " 'required to use any proper

procedure necessary' " to discharge its duty in determining the defendant's

24 No. 1-16-1687

claims. Ruiz II,

(quoting People v. Wakat,

(1953)). The trial court was vested with this latitude, even though the law in the

case had remained exactly the same—unlike our case.

¶ 50 Second, we do not find Ruiz II dispositive because, in the case at bar, the

trial court faced a question that this court never had the opportunity to answer.

When we remanded for resentencing to include the 15-year enhancement,

Castleberry had not been decided. Thus, the trial court was faced with a

question of initial impression with respect to this case, namely, what

Castleberry required. If all sentencing required was the mechanical application

of 15 years to the existing 9-year sentence, we would not have needed to

remand the case to the trial court. As noted above, contrary to what the State

argues, sentencing is not trivial. The trial judge is under the same duty that we

are to exercise judgment in applying the law and deciding new questions when

they arise; and, prior to resentencing, Castleberry eliminated the entire basis of

our order. Thus, we do not find this argument persuasive.

¶ 51 Although the trial court stated that the question whether to resentence

was best left to the appellate court and that it had no choice but to apply the

mandate, we observe that, if the trial court had refused to resentence defendant,

there is nothing that this court could have done. In this respect, the supreme

court has drawn a clear line between itself and the appellate court. This clear

25 No. 1-16-1687

line is best seen in cases such as People v. Relerford,

, and

People v.Gaughan,

.

¶ 52 In Relerford, our supreme court "address[ed] the appellate court's

decision to address the validity of defendant's unsentenced convictions."

Relerford,

. In Relerford, the supreme court observed that

the appellate court's "jurisdiction extends only to final judgments and that there

is no final judgment in a criminal case unless sentence has been imposed."

Relerford,

; People v. Dixon,

(1982)

("the final step in a criminal judgment is the sentence [citations], and *** in its

absence an appeal ordinarily cannot be entertained because the judgment is not

final"); People v. Flores,

(1989) ("there is no final judgment

in a criminal case until the imposition of sentence, and, in the absence of a final

judgment, an appeal cannot be entertained"). In the case at bar, if the trial court

had refused to impose a new sentence and had reinstated the original sentence,

the case would have been over, since an appeal had already been taken from

that final judgment. The State's only recourse, as we explain below, would

have been to move for leave to file a mandamus action, which may be filed

directly with the supreme court. Ill. S. Ct. R. 381(a) (eff. July 1, 2017).

¶ 53 In Relerford, the appellate court believed that it had jurisdiction based on

Dixon,

. However, the supreme court in Relerford stressed

26 No. 1-16-1687

that "Dixon must be understood to be limited" to its facts. Relerford,

. In Dixon, the circuit court had erroneously merged two of the

defendant's convictions into two other, more serious convictions, and had

sentenced only the more serious convictions, which the defendant then

appealed. Dixon,

. In Dixon, the supreme court held that

that, although the unsentenced convictions were nonfinal orders, the appellate

court had jurisdiction to order a remand for imposition of sentence on the lesser

offenses, since these offense had been merged into and were thus "intimately

related to" the sentenced convictions that the defendant had appealed. Dixon,

(discussed in Relerford,

).

¶ 54 In Relerford, our supreme court stressed that "Dixon must be given a

narrow interpretation." Relerford,

; Dixon,

("[t]he situation before us is an anomalous one"). The Relerford court

found that, in the case before it, "the appellate court lacked jurisdiction to

decide the validity of defendant's unsentenced convictions." Relerford,

. However, that did not mean that the parties were without

recourse. The Relerford court observed that, unlike the appellate court, the

supreme court has "general administrative and supervisory authority over all

courts" in Illinois. Relerford,

. Thus, "[i]n the exercise of

27 No. 1-16-1687

[the supreme] court's supervisory authority, [it] opt[ed] to exercise jurisdiction

over the unsentenced convictions." Relerford,

.

¶ 55 Similarly, in Castleberry, the supreme court found that, although the

appellate court lacked jurisdiction, the State could move for leave to file a

mandamus action (Castleberry,

, ¶ 26) which could be heard

directly by the supreme court (Ill. S. Ct. R. 381 (eff. Mar. 1, 2001)); and that is

exactly what the State's Attorney did ,

. "Illinois Supreme

Court Rule 381 authorizes original mandamus actions" in the supreme court "

'to review a judge's judicial act.' " Gaughan,

(quoting Ill.

S. Ct. R. 381 (eff. July 1, 2017)). Pursuant to this rule, the State's Attorney of

Cook County moved for leave to file a mandamus action in the supreme court

asking the highest court to order the trial judge in Castleberry to impose the

statutorily-required 15-year firearm enhancement; and the supreme court

granted leave and ordered the trial judge to vacate his sentencing order and to

resentence the defendant in Castleberry with the 15-year firearm enhancement.

Gaughan,

. Thus, contrary to the trial court's finding in

the case at bar that the decision about resentencing was up to the appellate

court, and contrary to the State's arguments before us and in the court below

about the appellate mandate, there was nothing that this court could have done

if the trial court refused to resentence. In that event, the appropriate remedy, if

28 No. 1-16-1687

the State desired further relief, would have been to move for leave to file a

mandamus action with the supreme court. Gaughan,

;

Castleberry,

; Ill. S. Ct. R. 381 (eff. July 1, 2017).

¶ 56 In addition, we observe that, in choosing to exercise its discretion to

afford mandamus relief to the State with respect to the Castleberry defendant,

the supreme court emphasized: "This is not *** a situation where an inmate is

about to walk out the prison door when the State seeks correction of his

sentence." Gaughan,

. Thus, the Castleberry/Gaughan

situation is the polar opposite of our case, where the defense informed the trial

court prior to the resentencing that, without it, defendant should have been

released months ago.

¶ 57 Since we decide this issue based on Castleberry and Price, we do not

reach the question of whether defendant's MSR term had run prior to our Rule

23 order and whether the sentencing issue was then moot.

¶ 58 CONCLUSION

¶ 59 For the foregoing reasons, we find that the trial court erred by proceeding

with resentencing; we vacate the second sentence and reinstate his original

sentence.

¶ 60 Vacated second sentence; reinstated original sentence.

29