NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). 20 2 3 IL App ( 3d ) 21 0 5 80

- U O rder filed March 30, 2023

____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2023 T HE PEOPLE OF THE STATE OF ) ILLINOIS, ) ) P laintiff

- Appellee, ) ) v. ) ) RYAN SPENCER ROSS BELL, ) ) Defenda nt-Appellant. ) Appeal from the Circuit Court of the 14 th Judicial Circuit, Mercer County , Illinois

. Appeal No. 3 -21-0580 Circuit No. 06- CF -40 The Honorable Jam es G. Conway, Jr. , Judge, Presiding.

____________________________________________________________________________ JUSTICE McDADE delivered the jud gment of the court

. Justice s Brennan and Davenport concurred in the judgment.

____________________________________________________________________________ ORDER ¶ 1 Held : On remand, the trial court erred by failing to vacate its 2017 amended sentencing order as directed by this court in its 2021 Rule 23 order. The court properly denied the defendant’s section 2

- 1401 motion to withdraw his 2006 guilty ple a, concluding that he failed to es tablish a valid legal basis for his request after the abolition of the void sentence rule in People v. Castleberry , 2015 IL 116916.
¶ 2 In 2006, d efendant entered a partially negotiated guilty plea to one count of felony criminal sexual assault in return for the State’s agreement to dismiss six other criminal c harges2 and was sentenced to 20 years in prison and 2 years of mandatory supervised release. The mandatory MSR term for criminal sexual assault was three years to life. T his court upheld d efendant’ s conv iction and sentence on direct appeal in 2008

. Since that ruling, d efendant has filed numerous postconviction motions and petitions. ¶ 3 In the present appeal, d efendant contends that the trial court erred in denying his section 2- 1401 motion to withdraw his guilty plea after a remand from this court’s 2021 order ( People v. Bell , 2021 IL App (3d) 190528

- U)

. W e affirm the trial court’s denial of the motion t o withdraw d efendant’ s plea and vacate its 2017 amended sentencing order

. ¶ 4 I. BACKGROUND ¶ 5 Because t he procedural history in this case is extensive , we recite only th os e portions that are relevant to the present appeal

. In May 2006, 18- year -old d efendant Ryan Spencer Ross Bell

was charged in Mercer County c ircuit court with seven counts of criminal sexual assault and battery arising out of repeated sexual assaults of a 15

- year - old girl at an underage drinking party in d efendant’s Aledo, Illinois , apartment
. Th os e seven counts w ere : (1) Class 1 felony criminal sexual assault ( 720 ILCS 5/12 -13(a)(2) (West 2016 )) , alleging the sexual penetra tion of the victim’s vagina with d efendant’s penis while the victim was unable to give consent ; (2) criminal sexual assault ( id. ), alleg ing d efendant inserted an object into the vagina of the victim, w ho was unable to give consent ; (3) criminal sexual assault ( id. ), alleging he inserted another object into the vagina of the victim, who was unable to give consent; (4) battery ( id. § 12- 3(a) (2) ), alleging that d efendant urinated on the victim’s face ; (5) battery ( id. ), alleging he slapped the victim’s face ; (6) criminal sexual assault by accountability ( id. § 5- 2(c) ), alleging defendant held down the victim, who was unable to give consent , while a second boy put his penis in the victim’s3 vagina ; and (7) criminal sexual assault by accountability ( id. ) , alleging he held down the victim , who was unable to give consent, while a third boy put his penis in the victim’s vagi na. ¶ 6 On October 24, 2006, d efendant entered a partially negotiated plea, plead ing guilty to count 1 ( Class 1 felony criminal sexual assault ( id. § 12- 13(a)(2) ) in exchange for the State’s agreement to drop counts II through VII

. The State provided an exten sive factual basis supporting the charges. Because d efendant had previously been convicted of a Class 1 felony ,
r esidential burglary, he was eligible for an extended prison sentence

. ¶ 7 Before the trial court accepted the partially negotiated plea agreement, d efendant was admonished that he faced a possible sentenc e of 8 to 30 years in prison

. After a sentencing hearing, he was sentenced to 20 years in the Illinois Department of Corrections (DOC) “followed by a requisite period of mandatory supervised release [MSR] for that crime, that would be three years.” The trial court’s written order , however, spec i fied “two (2) year[s]” MSR

. ¶ 8 Defendant filed an amended motion to withdraw his guilty plea and /or reconsider his
sentence , but it was denied. Defendant appealed , and this court affirmed the trial court’s judgment in 2008, concluding that the denial of the motion to withdraw the plea was not error and the sentence imposed was not a n abuse of discret ion. People v. Bell , 382 Ill. App. 3d 1220 (2008). ¶ 9 Subsequently, d efendant filed his first postconviction petition, alleging that he should be allowed to withdraw his guilty plea because the State had failed to disclose certain a udio and video statements , as well as other exculpatory evidence. The State filed an unsuccessful motion to dismiss , and the petition advanced to a third

- stage evidentiary hearing i n August 2009 before being denied

. Defendant appealed , and this court affirmed in 2011, finding no prejudice because the undisclosed evidence was not material in light of “the weight of the evidence against4 defendant” that included corroboration of the victim’s account by six witnesses

. People v. Bell , 2011 IL App (3d) 090846

- U, ¶ 26

. ¶ 10 B efore seeking leave to file, defendant filed a second postconviction petition in April 2012 that alleged his sentence was void because the law did not provide for a two

- year MSR. T he trial court grant ed the State’s petition to dismiss the second postconviction petition in 2013, concluding that d efendant had not establish ed prejudice because any error in advising him about the applicable MSR period was cured when the Illinois Prisoner Review Board entered an order directing him to be releas ed after thr ee years of MSR . D efendant filed a motion to reconsider , and the trial court vacat ed its prior order . I n May 2013 , the court issued a written opinion and order granting the State’s motion to dismiss; d efendant appealed. ¶ 11 Th is court permitted the o ffice of the State Appellate Defender to withdraw from the representation in an order entered pursuant to Pennsylvania v. Finley , 481 U.S. 551 (1987)

. We affirmed the dismissal of d efendant’s second postconviction petition in February 2015 ( People v. Bell , No. 3-13- 0349 (2015) (unpublished dispositional order)), finding that d efendant’s petition

was untimely and he had not established his lack of culpability for the untimely filing . The order also found that d efendant “waived the issue of improper MSR admonishme nt because he failed to raise it” earlier and concluded that his petition failed “to make a substantial showing of a constitutional violation

. ” In addition, the court found that d efendant’s claim was speculative and
not yet ripe for adjudication because he might still be released from MSR before the end of the maximum sentence stated in the trial court’s admonishment , 30 year s in prison plus 2 year s of MSR

. Bell , No. 3 -13-0349, pages 4-5. ¶ 12 Continuing, t h is court found sua sponte that d efendant’s two

- year MSR period was void when the statute ma n dated a term of three years to life. Bell , No. 3 -13-349, page 5 ( citing People5 v. Thompson , 209 6 Ill. 2d 19, 23 (2004)). Therefore, the court “vacate [d] the defendant’s void MSR term and remand [ed] this cause to the trial court with directions to impose a proper MSR term of three years to life

. ” Bell , No. 3 -13-0349, page 5. ¶ 13 In September 2017, the trial court entered an amended sentencing order correct ing D efendant’s MSR to reflect a term of “three (3) year s to life.” He filed a section 2

- 1401 motion ( 735 ILCS 5/2

- 1401 ( West 2019)) seeking to withdraw his plea in January 2019 and alleging that the corrected sentencing order was void because it was filed 10 years after h is conviction . The State filed a motion to dismiss d efendant’s motion, arguing that this court’s 2015 order barred it under principles of res judicata

. ¶ 14 At the 2019 hearing on d efendant’s motion to withdraw his plea , he argued the trial court lost jurisdiction to amend his sentence 30 days after it was entered. The trial court dismissed that motion with prejudice for lack of merit, and d efendant appealed. In its Rule 23 order finding that the dismissal was erroneous , t his court relied on the reasoning in People v. Castleberry , 2015 IL 116916. People v. Bell , 2021 IL App (3d) 190528 -U. Th e c ourt agreed with defendant t hat both its 2015 order vacating his MSR term and the trial court’s 2017 amended sentencing order w ere void under Castleberry

. Id. ¶ 12. Because Castleberry deemed a MSR term that failed to conform to the statute “voidable, not void ,” this c ourt lacked jurisdiction to vacate d efendant’s MSR term in 2015. Id. ¶ 17. Accordingly, this court remanded the cause to the trial court for an initial review of the merits of d efe ndant’s section 2

- 1401 motion to withdraw his plea

. Id. ¶ 19. ¶ 15 In the trial court, t he State again filed a motion to dismiss , arguing that d efendant ’s sentence was not void and that he had not stated a right to resentencing. After a hearing, t he tr ial court denied d efendant’s motion in November 2021, finding that voiding part of d efendant’s sentence d id not void his underlying plea. Al ternative ly , the court found that d efendant’s6 successive motion was barred by res judicata be cause “Defendant litigated his original S ection 2-1401 Motion in 2007 ” and the deni al of that motion was upheld on appeal. ¶ 16 The trial court added that th e 2015 appellate decision affirm ing the guilty plea p recluded any later contention that t he plea was in voluntarily entered

. Because this court determined in 2021 that the MSR term was voidable, not void, the trial court had jurisdiction to correct t he

error . The trial court ’s order included two attachments. In the first, the court suggested that th is court’s 2021 decision may have decide d sub silenti o that d efendant’s second section 2 -1401 motion was i mproper because a voidable sentence cannot be collateral ly attacked . I f so, d efendant should have pursued a hearing to enter a corrected sentenc e . I n the second attachment, the court noted that the “Prisoner Review Board Discharge” shown in the record expressly stated that d efendant would be discharged after serving three years of MSR , consistent with the statutory mandate

. Defendant appeals from t he trial court ’s judgment

. ¶ 17 II. ANALYSIS ¶ 18 The present appeal addresses two primary questions: (1) should the trial court have vacated its 2017 “Amended Sentencing Order ,” correct ing d efendant’s MSR term to be 3 years
to life? and (2) was it error to deny d efendant’s section 2-1401 motion to withdraw his guilty plea ? We review both questions de novo

. People v. Laugharn , 233 Ill. 2d 318, 322 (2009). ¶ 19 Defendant first argues that the trial court erred by failing to vacate its 2017 amended sentencing order as directed in this court ’s 2021 orde r and , consequently , by denying his section 2- 1401 petition . He asserts that it “is a settled issue despite the trial court’s insistence that the ‘Appellate Order is not void.’ ” Citing our 2021 decision ( Bell , 2021 IL App (3d) 190528

- U, ¶ 19 ), d efendant maintains that “ the issue is no longer a subject of debate. Accordingly, [his] 2- 1401 petition should have been granted, and the amended sentencing judgment should have been7 vacated as void ,” lea ving only the issue of the proper remedy to be imposed

. For its part, the State concedes in its appellate brief that both this court’s 2015 order and the trial court’s 2017 amended sentencing judgment are void. ¶ 20 In our 2021 order , this court held that our 2015 “order vacating defendant’s MSR term and the circuit court’s sentencing judgment were void and subject to collateral attack .” Bell , 2021 IL App (3d) 190528

- U, ¶ 19. Under the law of the case doctrine, on remand the trial court was bound to adhere to that legal finding. “The law of the case doctrine generally bars relitigation of an issue previously decided in the same case. People v. Tenner , 206 Ill. 2d 381, 395 [276 Ill. Dec. 343, 794 N.E.2d 238] (2002). Thus, the determination of a question of law by an appellate court in the first appeal may be binding on the court in a second appeal. Krautsack v. Anderson , 223 Ill. 2d 541, 552 [308 Ill. Dec. 302, 861 N.E.2d 633] (2006). ” People v. Coty , 2020 IL 123972, ¶ 20. Because the trial court was bound by th is court’s 2021 judgment, it erred by not
vacat ing its 2017 amended sentencing order as directed. ¶ 21 Defendant also a ssert s, however, that it was error to deny his section 2

- 1401 petition because , as a matter of settled law, the appellate order was void , “de spite the trial court’s insistence that the ‘Appellate Order is not void.’ ” That argument appears to misapprehend which appellate order the trial court was referencing. Defendant interprets the trial court’s statement that the “Appellate Order is not void” as an abandonment of our finding that our 2015 order was void under Castleberry

. T he trial court’s written order and opinion makes it abundantly clear, however, that the court was referring to th is court’s 2008 order upholding d efendant’s conviction and sentence on appeal. Because the trial court’s statement was not erro neous , we will next address the propriety of its denial of d efendant’s section 2

- 1401 petition.8 ¶ 22 Defendant argues that “[ b]ecause the Appellate Court has already established that its order vacating [his] sentence was void and that the amended sentencing judgment that was entered thereafter was void, [ he] met the burden of proof on his 2

- 1401 petition,” requiring this court to decide only the proper reme dy to be granted

. In support, h e cites People v. White , 2011 IL 109616 . In that case , the defendant was properly admonished during his plea hearing that the base sentenc e for first degree murder was 20 to 6 0 years in prison ; he was not , however, informed that he also faced a ma ndatory 15

- year firearm enhancement , making his minimum sentence 35 years in prison

. Th e defendant entered into a fully negotiated plea agreement with the State and received the bargained

- for prison term of 28 year s , which was below the statutory minimum

. Unable to modify the defendant’ s sentence to in clude the 15

- year mandatory enhancement without also effectively reducing his base sentence below the statutory 20- year minimum , our supreme court held that he had to be allowed to withdraw his guilty plea and proceed to trial if he wished

. People v. Donelson , 2013 IL 113603, ¶ 26 (citing White , 2011 IL 109616, ¶¶ 19, 31). ¶ 23 In Donelson , the court distinguished White both because the defendant in Donelson did
not a llege that he was im proper ly admonish ed about the applicable individual sentencing ranges when he entered his plea and because h is 50- year agreed

- to sentence could be reconfigured to accommodate the statutory sentencing mandates while st ill providing him with the ben efit of his plea bargain. Defenda nt argues that Donelson does not apply here because the State incorrectly stated the applicable MSR term at his plea hearing and his 2 0- year sentence cannot be reconfigured to conform to the law

. Because the parties’ mistake of law c annot be remedi ed in any other way, d efendant asserts that the y must be returned to the ir pre

- plea positions , with the9 cause being remanded with directions to allow him to withdraw his plea and proceed t o tria l , the remedy i n White , 2011 IL 109616 , ¶ 31. ¶ 24 In People v. Smith , 2015 IL 116572, ¶ 34, however, our supreme court held “that White does not apply retroactively to convictions which were final at the time White was decided ” in 2011

. Nonetheless, d efendant maintains that White is applicable because his case was not “final” until after the entry of the trial court’s 2017 amended sentencing order that correctly requir ed him to serve an MSR term of three years to life , citing People v. Lyles , 208 Ill. App. 3d 370, 375 (1990) , in support

. ¶ 25 In Lyles , the defendant was convicted on two counts of murder and one count of involuntary manslaughter, offenses for which he was sentenced to death and 14 years in prison , respectively. Th os e sentence s w ere stayed during his direct appeal to the Illinois Supreme Court , in which h e argued the State’s discriminatory use of peremptory challenges denied him a fair trial

. Lyles , 208 Ill. App. 3d at 373. Rejectin g that claim, t he supreme court determined that the defendant had failed to establish that the State purposefully excluded African Americans from the jury venire. Although the court rejected the defendant’s discrimination claim, it ultimately remanded the case to the trial court for resentencing based on the prosecutor ’s serious misconduct during closing arguments. People v. Lyles , 106 Ill. 2d 373, 413 (1985). ¶ 26 While Lyles’s appeal was pending before our supreme court, the United States Supreme Court issued its decision in Batson v. Kentucky , 476 U.S. 79 (1986) , repudiating the discriminat ory use of the State’s peremptory challenges

. The year after Batson was decided, t he defendant in Lyles was re sentenced to natural life without parole . He again appealed to the appellate court, arguing that he was entitled to a new hearing on his Batson claim because that decision was “ applicable retroactively to all cases pending on direct appeal or not yet final at the10 t ime that Batson was announced. ” Lyles , 208 Ill. App. 3d at 373. The court d etermine d that Batson would generally apply in that scenario because the case was not final until after resentencing was completed on remand , which occurred after Batson was issued

. Id

. at 375. Because the supreme court had previously rejected the merits of the defendant’s discrimination claim, however, the appellate court declined to “ give Batson retroactive effect in this case ,” finding that “a relitigation of defendant's claim is directly barred by the preclusion doctrine of the law of the case

. ” Id. at 37 5. ¶ 27 We find that Lyles is readily distinguishable from the instant case

. As our supreme court has explained, “ ‘ the final judgment in a criminal case is the sentence. ’ ( People v. Warship , 59 Ill. 2d 125, 130 (1974) ).” Id. Moreover, the court has held that ‘ [a] judgment is final if it determines the litigation on the merits so that if affirmed, the only thing remaining is to proceed with the execution on the ju dgment.’ ( Relph v. Board of Education , 84 Ill. 2d 436, 441 (1981)).” Id

. The appellate court in Lyles properly applied those principles to conclude that the defendant ’s
sentence there was not final until his initial appeal was resolved and his resentencin g was completed on remand

. Id

. ¶ 28 In contrast, here d efendant was originally sentenced in 2007, and this court upheld both his conviction and sentence in 2008, obviating any need for remand. Because d efendant’s case
was not remand ed to the trial court as it was in Lyles , his conviction and sentence became final for purposes of our retroactivity analysis after th is court issued its 2008 decision. ¶ 29 We note that if we a dopted d efendant’s argument a criminal defendant’s conviction and
sentence might never be deemed “final” because the original judgment would a lways be subject
to potential modification in a postconviction proceeding

. Under defendant’s view of Lyle , his judgment would be “final” only so long as he chose not to challenge it in a nother postconviction11 challenge

. Defendant’s own lengthy history of postconviction filings, stretching from his direct appeal in 2007 to his present filings, exemplif ie s how repeated postconviction actions may be used to delay a finding that the trial court’s original judgment was final. Thus, we conclude that because d efendant’s conviction became final after his initial appeal was resolved in 2008, three years prior to the decision in White , t hat case does not apply retroactively to this case

. See People v. Smith , 2015 IL 116572, ¶ 34. ¶ 30 Finally, defendant argues that h is conviction, sentence, and plea agreement should be vacated and he should be allowed to enter a new plea under the reasoning in Pe ople v. Strom , 2012 IL App (3d) 1 00198 . There , the defendant ple d guilty to criminal sexual assault and was sentenced to four years in prison and two years of MSR , which, as here, failed to comport with the mandatory MS R term of three years to life for that off ense . The trial court denied the defendant ’s postconviction petition, and he appealed. During the pendency of that appeal, the defendant became eligible to start his MSR term, which the DOC had unilaterally m odified to comply with the statutory mandate of three years to life

. Id . at ¶¶ 3, 5. T he appellate court concluded that “when the parties agree to a sentence that is unauth o rized by statute, the entire plea agreement is void because the defendant was not properly admonished with regard to th e possible penalties he might face. This is true even if the prosecutor, defendant, and judge agree to a lesser sentence than is authorized by law .” Id. § 9 (citing White , 2011 IL 109616 ).
T he court added that the only proper remedy for the imposition of a void plea term, such as an invalid MSR term, is to permit the defendant to withdraw his guilty plea and proceed to trial if he

so chooses. Id. ¶¶ 10 -11. Defendant argues that the same remedy must be applied here.12 ¶ 31 Unlike in Strom , however, this court has previously ruled that d efendant’s statutorily nonconforming MSR term wa s voidable, not vo id , based on our supreme court’s 2015 decision in People v. Castleberry , 2015 IL 116916

. Bell , 2021 IL App (3d) 190528

- U, ¶ 17. In that case, the supreme co urt abolished the void sentencing rule, which stated that “ ‘ [a] sentence which does not conform to a statutory requirement is void .’ ” Castleberry , 2015 IL 116916, ¶ 1 (quoting People v. Arna , 168 Ill. 2d 107, 113 (1995))

. Thus, unlike in Strom , both Castleberry and the law of the case here dictate that d efendant’s original MSR term is merely voidable, not void

. To the extent that the rationale applied in Strom may survive the abolition of the void sentence rule, an issue not currently before this court, we reject d efendant’s claim that we must grant the same remedy here and vacate d efendant’s conviction, sentence, and plea agreement , permitting him to proceed t o trial

. Because d efen d ant has not established a valid legal basis to support the relief requested in his section 2

- 1401 motion to withdraw his guilty plea , the trial court did not err by denying that motion. ¶ 32 III. CONCLUSION ¶ 33 For the reasons state d , we vacate the Mercer County c ircuit court’s 2017 amended sentencing order and affirm its denial of d efendant’s section 2

- 1401 motion to withdraw his guilty plea

. ¶ 34 Affirm ed in part and vacated in part

.