## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Avery , 2012 IL App (1st) 110298

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J ACQUES AVERY, De fenda nt-Appellant.

District & N o. First District, F ourth Division Docke t No. 1-11-0298

Filed Rehea ringdenied J une 21, 2012

J uly 24, 2012

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The decision of the I llinois Supreme Court in W hite did not apply

re t ro actively to defe ndant’s claim on appea l from denial of a pro s e postconviction petition that t h e s entence imposed on him pursuant to a guilty plea to first degree murder for the shooting of the victim was void beca use i t did not include a firea rm enhancem ent, s ince the new rule in W hite mere ly manda t ed t he application of the firea rm enhanc ement p ro vision of the murder statute any time the fac tual basis of a p l ea ag ree ment included the use of a firea rm and it did not aff

ect the integ rity

or re putation of the judicial sy stem.

Dec ision Under Review Appea l from the Circuit Cour t o f Cook County
, No. 03-CR-1729; the Hon. Dennis J. P orter, Judge , presiding

.

J udg ment Affir med; mitti mus corre cted.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, L aura A. Weiz eoric k, and Maria A. Har rig an, all of State Appellate Def ender ’s Offic e, of Chicago
, fo r appellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Miles J

. Kelehe r, and Sheila h O’ Grady -Kra jniak, Assistant State’s Att orney s, of counse l), for the People.

Panel J USTI CE FI TZ GERAL D SMI TH deliv er ed the judgme nt of the court, with opinion.
J ustices Pucinski and Sterba c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 The defe ndant, J acque s Aver y , was char g ed with multipl e counts of first degree murder (720 I L CS 5/9-1(a) (1), (a) (2), (a) (3) (West 2000)) and one count of attempted arme d robber y (720 I L CS 5/8-4, 18-2 (West 2000)) for his involve m en t i n t h e shooting of the victim, Eduardo Flor es

. T h e defe ndant pleade d guilty to one count of first degree murder in exchang e for a 33-y ear sentenc e and the dismiss al of the rema ining char g es. The defe ndant subsequently filed a pro se motion to with d raw his guilty plea, which was reje cted by the circ uit court following a hear ing. After the defe ndant’s conviction and sentenc e wer e aff irmed on appea l (see People v. Ave ry , No. 1-07-3360 (2009) (unpublished order pursuant to Supreme Court Rule 23), appeal denied
, 235 I ll. 2d 591 (2010))
, the defe ndant filed a pro

se petition for postconviction relief pursuant to the Post-Convi ction Hea ring Act (Ac t) (725 I L CS 5/122-1 et seq. (West 2006)). In that petition, the defe ndant made sever al alleg ations, including that he was denied his constitutional rig ht to eff ective assistance of counsel when: (1) his po s tp le a counsel failed to introduce any objective evidenc e of the defe ndant’s lear ning disability at the hearing on the defe ndant’s motion to withdraw hi s gu i lty plea; (2) his appellate counsel failed to raise postplea counsel’s ineffe ctiveness; and (3) his trial counsel failed t o i n v es t i gate the fac tual basis of his plea, wher e the defe ndant had alleg ed that the police coer ced a number of the State’s witnesses to prese nt evidenc e ag ainst him. The circ uit
court summarily dismiss ed the defe ndant’s pro se petition as frivolous and patently without

m er it and the defe ndant now appea ls. On appea l, the defe ndant abandons the contentions raised in his pro se petit i o n and, for the first time, argues that we should permit him to withdraw his guilty plea and proce ed to trial beca use h i s co n viction and sentence are void under the rec ent decision of our supreme court in People v. W hite
, 2011 I L 109616. For the

rea sons that follow, we d i s agre e with the defendant and aff irm the j udg ment of t he circuit
court.

-2-¶ 2 I . BA CKGROUND

¶ 3 On Dec ember 10, 2002, the victim Eduardo Flore s was shot and killed as he was sitting in the driver’ s seat of his delivery van. In J anuar y , the defe ndant was arr ested in connec tion with the shooting and indicted with 15 counts of first degree murder (720 I L CS 5/9-1(a) (1), (a) (2), (a) (3) (West 2000)) and 1 count of attempted arme d robber y (see 720 I L CS 5/8-4, 18- 2 (West 2000)). ¶ 4 On April 10, 2007, the defe ndant and the State enter ed into a neg otiated plea a g ree ment. The defe ndant pleade d guilty to one count of first degree murder in exchang e for a sentenc e of 33 year s’ imprisonment and the dismiss al of all rema ining char ges

. C o u n t I of the indictment to which the def endant plea ded guilty

specific ally

alleg ed:
“J ac q u es Avery committed the offe nse of first degree murder in that he, without lawful justification, intentionally or knowing ly shot an d killed Eduardo Flore s while

arme d with a fire arm ***.” ¶ 5 Be fore the defe ndant acc epted the plea, the circ uit court admonished him in a ccor dance wi t h I l l inois Supreme Court Rule 402 (I ll. S. Ct. R. 402 (ef f. J uly 1, 1997)). The cou rt advised the defe ndant that by pleading guilty to first degree murder, he fac ed a sentenc e betwee n 20 and 60 y ear s in prison, followed by 3 y ea rs o f m an datory supervised rele ase (her einaf ter MSR). The defe ndant indicated that he understood the char g e, the terms of the plea a g ree ment and the potential pe nalties. ¶ 6 The circ uit court further advised the defe ndant that by pleading guilty
, he was g iving up his rig hts to a bench or jury trial. The court informed the defe ndan t t h at if he chose to proce ed with a trial, he would have the rig ht to be prese nt at trial, to call witnesses in his own defe nse and to confr ont the witnesses ag ainst him. The court also informed the defe ndant that if he procee ded to trial he ha d a right to testify on his own behalf if he chose to do so. The d ef endant stated that he understood all these rig hts and that he was fre ely and volun t ar i l y relinquishing the m. ¶ 7 The circ uit court next asked the defe ndant if any body had threatened or promised hi m any thing (aside from the negoti ated plea agree ment) in return for his plea of guilty

. The defe ndant responde d in the neg ative. The circ uit court also asked the defe ndant if he had any questions for the c ourt and the de fenda nt indicated that he did not. ¶ 8 The State then proce eded with the fac tual b as i s fo r t h e defe ndant’s plea. The State indicated that if the case wer e to proce ed to trial the fac ts would show that on Dec ember 10, 2002, at 4724 West Ohio Street i n Chicag o, the defe ndant order ed a pizz a delivery from Guy ’s Piz za to a series of addre sses culminating at 4732 West Ohio Street. When the victim, Eduardo Flore s, arr ived to deliver the pizz a, the defe ndant walked up to his delivery van and attempted to “stick him up.” The victim tried to drive awa y but the defe ndant shot him. The bullet from the def

endant’ s gun lace rate d the victim’s liver, killing him. ¶ 9 Acc ording to the State, the fac ts would further show that the defe ndant was using the cell phone of a

n individual by

the name of

Mr. Will iams, which i s the name that the defe ndant used whe n he ordered the pizz a. The evidenc e would fur ther e stablish that the defe ndant’s fing erpr ints matched those lifted from insi d e the victim’s delivery van. In addition,
eyewitnesses w ould identify the def endant a s the individual who committed the offe nse.

-3-¶ 10 After defe nse counse l stipul ated to the a fore mentioned fa cts, the circ uit court ac cepte d the defe ndant’s plea o f gu i lty on count I of the indictment and nol-prossed the rema ining char g es. The circ uit court then sentenc ed the defe ndant to 33 y ear s in prison, assessed costs of $545 and c redited the defe ndant for 1,574 da y s in jail. ¶ 11 On April 20, 2007, the defe ndant filed a pro se motion to withdraw his guilty plea as we ll

as a motion for new counsel. The defe ndant alleg ed, inter alia : (1) that h e was misled to believe that h e would only have to serve 50% of his 33-year sentenc e; (2) that he did not understand the plea proce eding s beca use of his lear

ning disability and (3) that his trial counsel was ineffe ctive. The circ uit court appointed new counsel to repr esent the defe ndant

on his motion to withdraw his guilty plea

. T h at attorney filed a cer tificate pursuant to Supreme Court Rule 604(d) ( I ll. S. C t. R. 604(d) (ef f. Jul y 1, 2006)), attesting that she had consulted with the defe ndant, revie we d h i s fi le and the transcripts of the guilty plea and
sentenc ing proce eding s, and that she had deter mined that no amendments to the motion wer e

nece ssary

. ¶ 12 On November 8, 2007, the circ uit court conducte d a hear ing on the defe ndant’s motion
to withdraw his guilty plea. At t h e h ea ri ng , the defe ndant testified that defe nse counsel
repr esenting him at the plea hear ing told him that under the plea agree ment he would serve only 50% of his 33-y ear sentenc e. Def ense counsel denied ever telling the defe ndant that he would serve only 50% of his sentenc e. Rather, defe nse counsel testified that both at his first meeting with the defe ndant, as well as on the date of the guilty plea, he advised the defe ndant that the defe ndant would have to serve 100% of his sentenc e. Def ense counsel explained that the defe ndant was char g ed with persona ll y d i s ch arg ing a firea rm and initially fac ed a minim u m s en t en ce of 45 y ear s in prison. As a result, defe nse counsel approa ched the
prosec utor and proposed that the defe ndant solely be char g ed with mur der, which car ried a sentenc e betwe en 20 to 60 y ear s’ imprisonment. Defe nse counse l stated that he wa s awa re that the defe ndant fac ed a minimum s en t en ce of 45 y ear s at 100% and that he rea ched an ag ree ment with the State for the sentenc e of 33 y ear s. Def ense counsel told the defe ndant that the minimum would be 45 y ear s if they went to tr ial, but that the y could try to ple ad to le ss if the State dismissed the “per sonally discharg ed” c ount. ¶ 13 Def

ense counsel also testified that he never observe d the defe ndant to be confuse d or to have trouble understanding the leg al proce ss. He t h er efor e never considere d order ing a behavior al clinical e x am for the defe ndant. ¶ 14 After hear ing all the testimony and arg uments by the parties, the circ uit court denied the defe ndant’s motion to withdraw his guilty plea, finding that there was no cre dible evidenc e to support any

of the de fenda

nt’s alleg ations. ¶ 15 The defe ndant appea led the trial court’s dismiss al of his pro se motion to withdraw his
guilty plea. On appea l, he asser ted that his guilty plea was void beca use his 33-year sentenc e fell b elow the minimum sentenc e require d by statute for first degree murder, while arme d with a fire arm. See People v . Ave ry , No. 1-07-3360 (2009) (unpublished order pursuant to Supreme Court Rule 23), appeal denied
, 235 I ll. 2d 591 (2010). The appellate court reje cted the defe ndant’s argument and upheld the plea agree ment. See Ave ry , No. 1-07-3360, slip op. at 4-7. In doing s o , t h e court found that althoug h “the fac tual basis [proffer ed at the plea

-4-hear ing] supported a finding of first degree murder while arme d with a firea rm,” “it was the understanding of the parties that [the defe ndant] wa s pleading guilty to f irst de gree murder without an enhanc ement.” The court further not ed t hat first degree murder is a lesser included offe nse of first degree murder while arme d with a firea rm, and that the defe ndant’s
sentenc e wa s theref

ore pr oper. See Ave ry , No. 1-07-3360, slip op. at 4-5. ¶ 16 On October 28, 2010, the defe ndant fi l ed a p r o s e p etition for postconviction relief
pu rs u an t to the Post-Convi ction Hea ring Act (725 I L CS 5/122-1 et seq. (West 2006)). There in the defe ndant first alleg ed that he was deprive d of his constitutional ri gh t t o t he eff ective assistance of trial counsel wher e during his plea proce eding s defe nse counsel failed
to investigate the fac tual basis of his plea. The defe ndant specific ally asser ted that the police

coer ced a number of the State’s witnesses to prese nt damag ing eviden c e a g a inst him. Second, in his pro se petition, the defe ndant alleg ed that he was deprive d of his rig ht to the eff ective assistance of postplea counsel wher e his independe nt postpl e a c o u n s el failed to introduce any evidenc e of the defendant’s learning disability at t he hearing on the defendant’s moti on to withdraw his plea . Finally , the def endant alleg ed that his a

ppellate counsel wa s ineffe ctive for not ra ising postplea c ounsel’s ineff ectivene ss. ¶ 17 In support of hi s petitio n , the defendant attached severa l documents, i ncluding : (1) his

own aff idavit; (2) an aff

idavit of fellow inmate J onathon Meskauska s; (3) excerpts from the
transcr ipt of his plea proce eding s and from the hear ing on his motion to withdraw the guilty plea; and (4) two repor

ts from York Alternative Hig h Sch ool and Stateville Correc tional Center, doc umenting the defe ndant’s lea rningdisabiliti es. ¶ 18 On Dec ember 20, 2010, th e ci rc u i t co u rt summarily dismiss ed the defe ndant’s pro se petition. In a written order
, the circ uit court explained that the defe ndant’s claim reg arding defe nse counsel’s ineffe ctiveness in failing to investigate the fac tual basis of the defe ndant’s plea was unsupported by any documents, aff idavits, rec ords o r o t h er evidenc e. The court simil arly dismiss ed the defe ndant’s claim that postplea counsel fa i l ed t o prese nt objective evidenc e of his lear

ning disability

. The court first found this claim to be waived as it was based on the rec ord and had not been raised on direc t appea l. The court further fo und this claim to be rebutted by the rec ord, which included testimony from the def endant and
statements f

r o m p o s tp le a counsel that she investigated the defe ndant’s lear ning disability and did not think that additional evidenc e on the issue was ne cessa ry

. Finally
, the circuit court dismiss ed the defe ndant’s claim of ineffe ctive assistance of appellate counsel for failure to ch al l enge the voluntariness of his plea, as having no basis in law. The defe ndant now appea ls.

¶ 19 I I . ANALYSI S ¶ 20 A. Whether the D efe ndant’s Sentenc e and Plea Are Void ¶ 21 On appea l, the defe ndant abandons the issues raised in his pro se petition and claims for the first time that we should permit him to vacate his guilty plea and proce ed to trial beca use his conviction and sentenc e are void under the rec ent decision of our supreme court in People v. W hite , 2011 I L109616. ¶ 22 I n W

h i t e , t h e d ef

en d an t was char g ed with first degree murder, arme d robber y and

-5-attempted armed robbery in connec tion with the shooti ngof a tax i cab driver. W hite
, 2011 I L 109616, ¶ 3

. T h e d ef en dant pleade d guilty to first degree murder and possession of
contra band in a penal institution in exchang e for consec utive prison sentenc es of 28 and 4
y ear s, respe ctively

. W

hite
, 2011 I L 109616, ¶ 4. The fac tual basis for the plea established that

a firea rm was used in the commission of the murder offe nse. W hite
, 2 0 1 1 I L 109616, ¶ 4. Specifica lly
, the parties stipulated that if the case proce eded to trial the evidenc e would show that the defendant and the codefenda nt planned to rob t he tax i driver and were both inside the taxi when the driver was shot in the temple with a handgun. I t was further stipulated that afte r the driver was shot, the defe ndant took the handgun from the codef endant and put it in his back poc ket. W

hite , 2011 I L109616, ¶ 6. ¶ 23 The de fenda

nt subse quently

filed motions to withdraw his guilty pleas. W hite , 2011 I L 109616, ¶¶ 8-9. In addition to arguing that he did not understand the implication of pleading
guilty
, the defe ndant also alleg ed that he was not proper ly admonished about the sentenc ing
rang e. W hite
, 2011 I L 109616, ¶ 9. The defe ndant specific ally argued that he was subject to the 15-y ear mandatory firea rm enhanc ement provision of the first degree murder statute (see 730 I L CS 5/5-8-1(a )(1) (d)( i) (West 2004)) for being arme d with a firea rm while committing the offe nse, and that he was there fore subject to a 35- to 70-year prison sentenc e rathe r than

a 20- to 60-y ear sentenc e. W hite
, 2011 I L 109616, ¶ 9. Acc ording ly
, the defe ndant argued th at t h e 2 8 -y ear sentenc e he rec eived, which was below the m andator y 35-year minimum
, was not authorized by

statute but w as void, a

nd that his plea agree ment should be vac ated. W hite , 2011 I L109616, ¶ 9. ¶ 24 The trial court disag ree d with the defe ndant and denied his motion to withdraw his guilty plea, but the appellate court reve rsed. W hite
, 2011 I L 109616, ¶¶ 11-12. Our supreme court ag ree d with the appellate court, holding that the defe ndant’s sentenc e was void. W hite
, 2011 I L 109616, ¶ 20. In doing so, our supreme court in W hite first reiter ated that courts may not impose a sentenc e inconsistent w ith the g overning statutes even where the par ties and trial
court a g ree to that sentence

. W hite , 2011 I L109616, ¶ 20. As the c ourt explained:
“Onc e a trial court acc epts a plea of guilty
, it is the duty of th e co u rt t o fix punishment. [C itations.] We have ‘ repe atedly rec ognized the leg islature has the power to presc ribe penalties for def ined offe nses, and that power nece ssarily includes the authority to presc ribe mandatory sentenc es, even if such sentenc es restric t the judiciary ’s discretion in imposing sentenc es.’ [C itation.] A court does not have authority to impose

a sentenc e that does not confor m with statutory guidelines [citations] and a court exceeds its authority wh en i t order s a lesser or g reater sentenc e than that which the statute mandates [citation]

. [ C i t at i on.] In such a case , the defe ndant’s sentenc e is illega l and void. [ Citation.] ” W

hite , 2011 I L109616, ¶ 20. ¶ 25 The co u rt i n W h i t e t h en specific ally reje cted the State’s theory that the intent of the parities to ag ree to a murder conviction without the sentenc ing enhanc ement was controlling

. W hite
, 2011 I L 109616, ¶¶ 22-26. The court rea soned that althoug h the State can choose to neg otiate away t h e fi rea

rm element when a defe ndant is char g ed with arme d robber y , and instead char g e him with the lesser offe nse of robber y , there is no simil ar separ ate offe nse of “ ‘ar med murder’ ” or “ ‘ enhanc ed murde r’ ” that allows a similar neg otiation on a murder char g e. W

hite
, 2011 I L 109616, ¶ 26. As the court explained: “In enac ting section 5-8-

-6-1(a) (1)( d)(i), the leg islature took awa y any discretion the State and trial court had to fashion

a sentenc e that does not include this mandatory enhanc ement.” W hite
, 2011 I L 109616, ¶ 26. ¶ 26 The court then conclude d that since the fac tual basis for the defe ndant’s plea e stablished that the victim died of a gunshot wound, the 15-year sentenc ing enhanc ement was mandatory and the defe ndant’s 28-y ear sentenc e, which did not contain the enhanc ement, was void. W hite
, 2011 I L 109616, ¶ 26. Acc ording ly
, the supreme court rema nded the case to the trial
court with d i re ct i o n s to permit the defe ndant to withdraw his guilty plea. W hite
, 2011 I L 109616, ¶ 29. ¶ 27 In the prese nt case , citing to W hite
, the defe ndant contends that just as the sentenc e of the defe ndan t i n W

hite
, his sentenc e here is void as it failed to comply with the mandatory firea rm enhanc ement provision of the first degree murder statute (see 730 I L CS 5/5-8- 1(a) (1)( d)(i) (West 2004)), which dictated that the minimum sentenc e for his char g e of first deg ree murder while arme d with a firea rm be 35 y ear s’ imprisonment. The defe ndant argues that under W

hite
, our supreme court has remove d the State’s ability to neg otiate around the mandatory firea

rm enhanc ement provision (730 I L CS 5/5-8-1(a)(1) (d)( i) (West 2004)) and that the decision in W

hite applies retroa ctively to rende r his sentenc e and, thus, his guilty plea void. ¶ 28 The State initia l l y co n t en d s t hat the defe ndant has waived this claim for purposes of
appea l by failing to raise it in his postconviction petition. The State contends that our revie w is limit ed to those issues actua lly ra i s ed in the pro se petition. We acknow ledg e that, in
g ener al, a defe ndant must prese nt an issue in his postconviction petition in order to prese rve it for appea l. See People v. Jones
, 211 I ll. 2d 140, 148 (2004) (“ ‘[t] he question raised in an appea l from an order dismiss ing a post-conviction petition is whether the alleg ations in the petition
, liberally construed and taken as true, are sufficie nt to invoke relief under the Act.’ (Emphasis added.) Thus, any issues to be revie wed must be prese nted in the petition filed in the circ uit court.” (quoting People v. Coleman
, 183 I ll. 2d 366, 388 (1998)) ); see also People v. C athey
, 2012 I L 111746 (holdingthat appellate court e rrone ously rea ched the issue of a prior ruling’s retroac tive application to case s on collater al revie w wh en t hat i ssue was not raised in the defe ndant’s postconviction petition ). However, our supreme court has
repe atedly held t hat t his rule of waiver does not apply to a claim alleg ing a voi d j udg ment

or sentenc e, neither of which is subject to waiver and either of which “may be attacke d at any time or in a

ny court, either direc tly

or collate rally .” People v

. Thompson
, 209 I ll. 2d 19, 25 (2004). Since the defe ndant here solely alleg es that his conviction and sentenc e are void, we will address the me rits of that claim. 1

We not e that in addr ess ing this is sue we f indre le vant that al tho ugh the def end ant did not 1

ra is e t he i ssu e i n hi s po st con victi on p et it ion , he di d r ai se it on d ir ectapp eal , sp eci fi cal ly ass erti ng tha t his guilt y ple a was void bec aus e his 33- year sen te nce fe ll bel ow the m ini m um sen te nce re qui re d by st at ute for fi rs t degree m urd er whil e ar m ed wit h a fi re ar m

. T hat cl ai m , however
, was re j ect ed by the app el la te cou rt , be for e ou r s upr eme cour t’ s de ci si on i n W hit e

. See Peop le v. A ver

y , 1- 07- 3360 (20 09 ) ( u npub li she d ord er pur sua nt to Supr eme Court Rule 23)
, appe al den ie d
, 235 I ll

. 2d 591 (20 10)

. Aft er the re

j ect ion of hi s c la im by

bot h the ci rc uit and app el la te cou rt s, the def end ant had

no re aso n to bel ie ve tha t the is sue re m ai ned m er it ori ous s o a s t o j u s t i fy re ra is ing it in his

-7-¶ 29 The State alternatively contends that W hite prese nted a new rule of law and thus should
not apply retroa ctively to the defe ndant’s conviction and sentenc e, which wer e finalized befor e the decision in W

hite was announce d. The State further points out that W hite does not apply to collater al proceeding s such as the i nstant case

. In the alte rn at ive, citi ng to People

v. Donelson
, 2011 I L App (1st) 092594, the State argues that the defe ndant should be equitably estopped from withdrawing his plea, g iv en t he prejudice to the State that would otherwise r esult. For the rea sons that follow, we a g ree with the State. ¶ 30 We beg in by addre ssing whether W hite applies retroa ctively to the defe ndant’s cause

. As

a g ener al rule, the United States Constitution neither mandates nor prohibits the retroa ctive application of new constitutional rules of criminal proce dure on collater al revie w. People v. Kizer
, 318 I ll

. App. 3d 238, 244 (2000) (citing Linkletter v. W alker
, 381 U.S. 618, 629 (1965))

. In Teague v. Lane
, 489 U.S. 288 (1989), the United State Supreme Court se t f orth the proce dure for deciding the applicability of a new rule on habeas corpus collater al revie w, which our supreme court expressly adopted as ap p l i cable to new rules under the PostConviction HearingAct. See People v . Flowers , 138 I ll. 2d 218, 237 (1990). Ac cording to Teague
, a new rule should alway s be applied re t ro ac t i v el y to case s on direc t revie w, but should never be applied retr o a c ti v e ly o n c o ll a te r a l r e v iew , b a

r ring exceptional circ umstances. See Teague , 489 U.S. at 305-06. ¶ 31 “ Teague sets out a three -s t ep p ro ce s s fo r deciding the applicability of a new rule on collater al revie w.” Kizer
, 318 I ll. App. 3d at 245-46 (citing O’De ll v. Netherland
, 521 U.S. 151, 156 (1997), a

nd Teague , 489 U.S. at 301). ¶ 32 “F irst, the court deter m i n es t h e d at e upon which the defe ndant’s conviction bec ame final.” Kizer
, 318 I ll. App. 3d at 246 (citing Teague
, 489 U.S. at 301). “ ‘A state conviction and sentenc e become fi n al for purposes of retroa ctivity analy sis when the availability of direc t appea l to the state courts has been exhausted and the time for filing a petition for a writ of ce rtiorari has elapse d or a timely filed petition has bee n finally denied.’ ” Kizer , 318 I ll. App. 3d at 246 (quoting Caspari v. Bohlen , 510 U.S. 383, 390 (1994)). ¶ 33 “Second, the cour t d etermines whether the constitutional rule soug ht by the def endant exis ted when the conviction beca me final.” Kizer
, 318 I ll. App. 3d at 246 (citing O’De ll
, 521 U.S. at 156). “I f the rule exis ted at the time the defe ndant’s conviction beca me final, it is not

a new rule.” Kizer
, 3 1 8 I l l

. Ap p

. 3 d at 246. “I n that case , the rule is applied on collater al revie w, since it was the law that should have been utiliz ed in the first place .” Kizer
, 318 I ll. App. 3d at 246. “I f t he rule soug ht b y the defendant is new, however
, it is g ener ally not to be applied on collater al revie w.” Kizer
, 318 I ll. App. 3d at 246. Ac cording to the Teague plurality
, “a case announce s a new rule if the re sult was not dictated by prec edent e x isting
at the time the defe ndant’s convict ion beca me final.” (Emphasis in orig inal.) Teague
, 489 U.S. at 301. ¶ 34 T h ird, Teague direc ts that if the rule is new, the court must deter mine whether i t fa l l s within one of two narr ow exceptions to the Teague doctrine: (1) whether the rule in question
p l ac es an entire cate g ory of primary conduct beyond the rea ch of the criminal law, o r (2 )

pos tc onvict ion pet it ion

.
-8-wh et her the new rule require s the observa nce of those proce dures that are implicit i n t h e

conce pt of order ed liberty
, i.e.
, the new rule must be aimed at improving the acc urac y of trial and be of such importance that it alters our understanding of the bedroc k proce dural elements essential to a fair t rial. Kizer
, 318 I ll. App. 3d at 246-47 (citing S a w ye r v. Smith
, 497 U.S. 227, 241 (1990))

. “Unless one of the exceptions applies, the new rule should not be utiliz ed on collater al re view.” Kizer , 318 I ll. App. 3d at 246. ¶ 35 In the prese nt c ase, the def endant a sserts that W

hite applies re troac tively beca use it did
not set forth a new rule but rathe r simpl y i n terpre ted exis ting law. For the rea sons that follow, we disagree

. ¶ 36 We beg in by noting that the parties do not dispute that t h e defe ndant’s conviction was finalized befor e our supr eme c ourt dec ided W hite

. See Kizer
, 318 I ll. App. 3d at 246 (“ ‘ A state conviction and sentence become final for purposes of r et ro ac tivity analy sis when the availability

of di rec t appea l to the s tate courts has been exhausted and the time for filing a petition for a writ of certiorari has elapse d or a timely fil ed p eti tion has been finally denied.’ ” (quoting Caspari v. Bohlen
, 510 U.S. at 390 )). The defe ndant entered his guilty plea on April 10, 2007. The plea and the defe ndant’s sentenc e wer e aff irmed on direc t appea l

on November 6, 2009. The defe ndant filed his pro se postconviction petition on October 28, 2 0 1 0
, and that petition was summarily dismiss ed on Dec ember 20, 2010. The decis i o n i n W hite was published on J une 16, 2011, six months afte r the defe ndant’s pro se petition was dismiss ed. ¶ 37 We ne x t c onsider whether W hite announce d a new

rule of la w. In Teaguethe Supreme Court acknow ledg ed that it is often difficult to deter mine when a new rule is announce d, but instructed t h at , i n gen era l “a case announce s a new rule when it brea ks new g round or imposes a new obligation on the States or the Fe dera l Gover nment.” Teague
, 489 U.S. at 301. Since Teague
, the United States Supreme Court ha s had ample opportunity to explain the s cope of the “new rule” concept. In Butler v. McKellar
, 494 U.S. 407, 41 5 (1 9 9 0 ), t he Supreme Court instructed that “the fac t that a court say s that its decision is within the ‘log ical compass’ of an ear lier decision, or indeed that it is ‘con t ro lled’ by a prior decision, is not conclusive for purposes of deciding whether the curr ent decision is a ‘n ew ru l e’ under Teague .” Fur

ther, in Saffle v. Parks
, 494 U.S. 484, 488 (1990), the Supreme Court stated that

a decision constitutes a new rule unless “a state court considering [t he] claim at the time [t he] conviction became final would have felt comp ell ed by exis ting prece dent t o conclude that the rule *** w as re quired by the Constitut ion.” ¶ 38 In Flowers
, our supreme court expli citly adopted the Teague definition for a “new rule” holding that “ ‘a case announce s a new rule if t h e re s u l t was not dictated by prec edent exis ting at the time the defe ndant’s conviction beca me final.’ [C itation.] ” Flowers
, 138 I ll. 2d at 239-40 (“if prior to the rule’s being established there was a signific ant d i ff er en ce of opinion on the issue in the lower courts, this would indicate that a decision is a new rule and not merely

an applica

tion of an ea

rlier de cision to a diffe rent set of fac ts. [ Citation.] ”); see also Kizer
, 318 I ll. App. 3d at 246 (“ ‘F ew d ec i s i o n s o n appea l or collater al revie w are

“ dictated ” by what ca m e b ef

o re

. Most such cases i nvolve a question of l aw that is at l east debata ble, permitting a rational judge to resolve the case in more than one way

. Virtually no

case that prompts a dissent on the rele vant leg al point, for ex ample, could be said to be

-9-“ dictated ” by prior decisions.’ (Emphasis in orig inal.)” (quoting Teague
, 489 U.S. at 333 (B renna n, J ., dissenting, joined by Marsha ll, J .)))

. ¶ 39 Applying the se principles to the pr esent c ase, we are compelled to conclude tha t W hite did, in fac t, announce a new rule. In that respe ct, we note that prior to the decision in W hite
, there was confusion as to whether the State could, in its discretion, neg otiate pleas that did
not include the firea

rm enhanc ement for first degree murder, even wher e the fac tual basis for the plea included the use of a firea rm in the commission of the offe nse, since it wa s within the State’s discretion to deter mine what char g es to pursue. See, e.g. , People v. Jamison
, 197 I ll. 2d 135, 161 (2001) (“It ha s long been rec og nized by this c ourt that the State’s Attorney is endowe d with the exclusive discretion to decide which of sever al char g es shall be broug ht,

or whether to prosec ute at all.”). The lack of clarity in the law prior to W hite is most notably evidenc ed in this court’s ruling on the defe ndant’s direc t appea l. See Ave ry , No. 1-07-3360. As alre ady noted above, in that appea l, the defe ndant contende d that his guilty plea was void beca use his 33-y ear

sentenc e fe ll below the minimum s entenc e re quired by statute for f

irst deg ree murder while arme d with a firea rm. The appellate court disag ree d with the defe ndant and held that his sentenc e was not void, despite not including the firea rm enhanc em en t , beca use “althoug h defe ndant enter ed a neg otiated guilty plea to a char g e o f first deg ree murder while arm ed with a firea rm, it was the understanding of the parties that he was pleading guilty to first deg ree murder without an enhanc ement.” Ave ry , No. 1-07-3360, slip.
op. at 4. The appellate court further noted, contra ry to what W

hite would later hold, that the defe ndant’s sentence was not void beca use first degree murder is a lesser inc luded offense of first degree murder while arme d with a fire arm. Ave ry , No. 1-07-3360, slip. op. at 4. ¶ 40 When our supreme court decide d W hite it chang ed the law, specific ally holding that the first deg ree murder firea

rm enhanc ement is automatically trig g ere d when it is part of the fac tual basis for the underlying offe nse, reg ardle ss of whether the State seeks to pursue it as

an ag g ravating fac tor. See W hite
, 2011 I L 109616, ¶ 26 (“In enac ting section 5-8- 1(a) (1)( d)(i), the leg islature took awa y any discretion the State and trial court had to fashion

a s e nte n c e th a

t d o e s n o t include this mandatory enhanc ement.”)

. W hite
, there fore
, rep r e s e nte d

a sharp depar

ture from exis ting case law and must be construed as a new rule. See Teague
, 489 U.S. at 301 (“a case announce s a new rule when it brea ks new ground or imposes a new obligation on the States or the Fe dera l Gover nment. [C itations.] To put it differ ently
, a case

announce s a new rule if the result was not dictat ed b y p re ce d ent exis ting at the time the defe ndant’s conviction beca me final.” (Emphasis in orig inal.)); see also Flowers
, 138 I ll. 2d at 237. ¶ 41 Having rea ched this conclusion, we must next d e te r mi n e wh e the r the new rule a nnounced in W hite is retroa ctively applicable to case s, such as the defe ndant’s, on collater al revie w. As alre ady noted above, retroa ctive application would be appropr iate only if the new rule falls within one of two exceptions articulated under Teague
, namely that: (1) the new rule place s

an entire cate g ory of primary
, private, individual conduct beyond the rea ch of the criminallaw-making authority to pr oscribe or (2) the rule is a water shed rule of criminal proce dure, implicit in the conce pt of order ed liberty
, and without which the likelihood of an acc urate conviction is seriously diminis hed. See Teague
, 489 U.S. a t 311- 13; see a lso Flowers , 138 I ll. 2d at 242; see also Kizer , 318 I ll. App. 3d at 246-47 (c iting Sawyer , 497 U.S. at 241).

-10-¶ 42 Since it is c lear that the rule announce d in W hite does not le g alize a

n entire cate g ory of primary
, private individual conduct as require d under the first Teague exception, we turn to the second e x ception. Our supreme court has cautioned that this exception must be “nar rowly

co n s t ru ed,” and t hat i ts focus is on the accura cy of the conviction and the finding of gui l t

. Flowers
, 138 I ll. 2d at 242; see also People v. Morris
, 236 I ll. 2d 345, 361-62 (2010) (citing Teague , 489 U. S. at 313-14). ¶ 43 Moreove r, spec ific to the ca use at ba r, our supre me cour

t has reiter ated: “[A] rule that only

aff ects the e nhance ment of a de fenda nt’s sentenc e does not amount
to a n err or which seriously aff ects the fairne ss, integ rity or public reputation of judicial
proce eding s so as t o fall wit hin the s econd Teague exception requiring re t ro activit y in all case s.” Morris
, 236 I ll. 2d at 363 (citing People v. De La Paz
, 2 0 4 I l l

. 2d 426, 438 (2003))

. ¶ 44 In Morris
, two defe ndants who enter ed negot i at ed gu i l t y p l ea s in the circ uit court challeng ed the dismiss al of their pro se postconviction petitions, eac h of which asser ted that
t he defe ndants wer e not admonished that they would be require d to serve a term o f mand atory supervised rele ase (MSR) in addition to their sentenc es, there by depriving the defe ndants of the be nefit of their neg otiated plea a g ree ment. Morris , 236 I ll. 2d at 348-49. In support of their argument, the defe ndants cited to the decision in People v. W hitfield
, 217 I ll. 2d 177, 203 (2005), which was decide d afte r the defe ndants’ postconviction petitions

wer e dismiss ed. Morris
, 236 I ll. 2d at 3 4 8 -49. W hitfield held that failure to admonish a defe ndant of his MSR obliga tion during the plea hear ing constituted a v i o l ation of the defe ndant’s due proce ss r ights and require d the fulfillment of the promise made during the plea ag ree ment throug h the modification of the de fenda nt’s sentenc e ( i.e. , the re duction of the sentenc e to include the MSR obligation). Morris
, 236 I ll. 2d at 356-59 (citing W hitfield
, 217 I ll. 2d at 181-202). ¶ 45 The defe ndants in Morris soug ht application of W hitfield to their cause s. Morris
, 236 I ll. 2d at 359-60. Our supreme co u rt , howeve r, rejected their invitation, finding that W hitfield did not apply retroa ctively to case s, such as the defe ndants’, on collater al revie w. Morris
, 236 I ll. 2d at 360. In doing so, our supreme court first held that W hitfield was not “ ‘compe lled’ ” or “ ‘ dictated’ ” by

prec edent a

nd, there fore
, announce d a new r ule of law

. Morris , 236 I ll. 2d at 360-61. The court further held that W hitfield did not fall under either of the exceptions
set forth i n T

ea g u e

. Morr is
, 236 I ll. 2d at 361-62. Specifica lly
, with respe ct to the second Teague exception, the court in Morris noted that the W hitfield rule “ca

nnot be char acte rized
as a pr ofound and swee ping chang e to r ules of criminal proce dure which is essential to the f u n d a me ntal f a ir n e s s o f criminal proce eding s” so as to require retroa ctive application to case s

on collater al review. Morris
, 236 I ll. 2d at 363. In d oing so, the court in Morris noted t hat in its prior decision in De La Paz
, 204 I ll. 2d at 438, reje cting the retroa ctive application of Apprendi v. New Jerse

y , 530 U.S. 466 (2000), to case s on collater al revie w, it had made clea r that a rule that only aff

ects the enhanc ement of a defe ndant’s sentenc e does not fall into the
cate g ory of errors th at aff ect the integ rity of t he judi cial sy stem so as t o trig g er the second Teague exception. The court in Morris noted t h at i t h ad n o rea son to deviate from this rationale

. Morris , 236 I ll. 2d at 363 (citing De La Paz , 204 I ll. 2d at 438).

-11-¶ 46 Applying the principles a rticulated in Morris to the prese nt c ase, we too a re compelled
to conclude that the decision in W hite did “not amount to an err or which seriously aff ects the fairne ss, integ rity or public reputation of judicial proce eding s so as to fall within the second Teague exception requiring retroa ctivi t y i n al l ca ses.” Morris
, 236 I ll. 2d at 363. The new rule announce d in W

hite mere ly mandates the application of the firea rm enhanc ement provision of the murder statute (730 I L CS 5/5-8-1(a )(1) (d)( i) (West 2004)) any time the fac tual basis of a plea ag ree ment includes the use of a firea rm. As such the rule only “af fec ts the enhanc ement of a d ef en dant’s sentenc e” and not the integ rity or the reputa tion of the judicial sy stem. See Morris , 236 I ll. 2d at 363; see also People v. De La Paz , 204 I ll. 2d at 438 (holding that the decision in Apprendi v. N ew Jerse y , 530 U.S. 466 (2000), does not meet the second Teague exception so as to be applied to case s on collater al revie w, beca use that decision onl y aff

ects the enhanc ement of a defenda nt’s sentenc e and does not amount to an err or that seriously aff ects the fairne ss or reputa

tion of court proce eding s). Acc ording ly
, for all of the afor ementioned rea sons, we must concl u d e t h at W hite does not apply
retroa ctively

to the defe ndant’s ca se. ¶ 47 Since W

hite does not apply t o t h e defe ndant’s postconviction claim, the defe ndant is without remedy

and both his conviction and sente nce must stand.

¶ 48 B. Corr ection of Mittimus ¶ 49 The parties ag ree that the defe ndant’s mitti mus does not ref lect t h e co rr ec t amount of fines and fee s that should have been imposed upon the defe ndant. The trial court in this case imposed a total of $545 in fi n es an d fe es ag ainst the defe ndant, including: (1) $190 for a felony complaint filed (see 705 I L C S 1 0 5 / 2 7.2(a) (w)( 1)(A) (West 2004)); (2) $60 for a felony complaint conviction (see 55 I L CS 5/4-2002.1(a) (West 2004)); (3) $200 toward the State DNA identification sy stem (see 730 I L CS 5/5-4-3(j) (West 2004)); (4) $20 for violent crime victim assistance (725 I L CS 240/10(c) (West 2004)); (5) $30 for cler k automation and docume n t storag e (see 705 I L CS 105/27.3 (West 2004)); (6) $15 for sheriff court service s (see 55 I L CS 5/5-1103 (West 20 0 6 )); (7) $5 for court sy stems (see 55 I L CS 5/5-1101(a) (West 2 0 0 6 )) ; (8) $10 for the arr estee ’s medical costs fund (see 730 I L CS 125/17 (West 2004)); (9 ) $ 10 for the mental health court (see 55 I L CS 5/5-1101(d-5) (West 2006)); and (10) $5 towa

rd the youth divisi on/peer court (se e 55 I L CS 5/ 5-1101(e ) (West 2006)). ¶ 50 The defe ndant contends and the State conce des that the $10 mental health court and $5
youth division/peer court fee s wer e wrong fully imposed and should be vacated beca use they

wer e enac ted afte r the date of the underly ing offe nse for which the defe ndant was convicted. After a revie w of the rec ord, we agree with the parties. The leg islature enac ted both the mental health court and y outh division/peer court fines on J anuar y 1, 2005. See 55 I L CS 5/5- 1101(e) (West 2006); Pub. Act 93-982 (ef f. J an

. 1
, 2 0 0 5 ); Pub. Act 93-992 (ef f. J an. 1, 2005). The defe ndant committed the underly ing offe nse on Dec ember 10, 2002, almost three
y ear s befor e the eff

ective date of the fines. Acc ording ly
, these fines cannot be applied to his

case

. See People v. Maxwell
, 2011 I L App (4th) 100434, ¶ 105 (holding that wher e the fine
statutes went into eff

ect afte r the defe ndant committed the offe nse, the imposit ion of the fine

was a n invalid ex post facto punishment that should be vaca ted).

-12-¶ 51 Acc ording ly
, we inst ruct the cler k of the circuit court to corr ect the mitti mus to ref lect

a total of $530 in fines and fee s. See I ll. S. Ct. R. 615(b)( 1) (“[o]n appea l the revie wing court may *** modify the judgme nt or order from which the appea l is taken” ); People v. McCray
, 273 I ll. App. 3d 396, 403 (1995) (“[ r] em an d m ent is unnece ssary since this court has the authority to direc tly order the cler k of the circ uit court to make the nece ssary corr ections”)

.

¶ 52 I I I . CONCLUSI ON ¶ 53 For

all the fore g oing r easons, we aff irm the circ uit c ourt’s dismiss al of the defe ndant’s postconviction petition and direct the c lerk of the circ uit court to corr ect the mittimus.

¶ 54 Affir

med; mitti mus corre cted.

-13-