Docket No. 100956.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

WOODROW BROWN, Appellee.

Opinion filed April 5, 2007.

JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

Garman, and Burke concurred in the judgment and opinion.

OPINION

Defendant, Woodrow Brown, is an inmate in the Department of

Corrections, where he is serving a 28-year sentence for attempted

murder of a police officer, a crime he committed in 1997 at the age

of 16. The issue presented by this case is whether defendant should

be granted postconviction relief on the grounds that the statute under

which he was transferred from juvenile custody to criminal court and

subsequently sentenced was declared invalid by our court in People

v. Cervantes, 189 Ill. 2d 80 (1999). The circuit court of Cook County

found defendant’s claim to be frivolous and patently without merit.

The appellate court reversed and remanded for a new transfer hearing

in accordance with the law currently in effect. 358 Ill. App. 3d 56.

The State petitioned for leave to appeal (210 Ill. 2d R. 315), which we
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allowed. Defendant then asked for cross-relief, claiming that the

appellate court erred in determining which statute should govern his

transfer hearing on remand. For the reasons that follow, the judgment

of the appellate court is affirmed in part and reversed in part, and the

cause is remanded to the circuit court for further proceedings, with

directions.

The events giving rise to this case began in October of 1997,

when Chicago Housing Authority Officer William Henderson was

shot in the face with a .22-caliber rifle at close range, breaking his

jaw. Defendant was arrested for the crime. Because he was 16 years

old at the time, he was initially the subject of a petition for

adjudication of wardship pursuant to the Juvenile Court Act of 1987

(705 ILCS 405/1–1 et seq. (West 1996)). The State’s petition alleged

that defendant had committed the offenses of attempted murder,

aggravated battery with a firearm, and aggravated discharge of a

weapon.

In February of 1998, the State petitioned to have defendant tried

as an adult under this state’s criminal laws. Pursuant to that petition,

a transfer hearing was conducted by the circuit court in accordance

with the standards set forth in section 5–4(3.3) of the Juvenile Court

Act of 1987 (705 ILCS 405/5–4(3.3) (West 1996)), which had been

enacted as part of Public Act 88–680, eff. January 1, 1995, commonly

known as the Safe Neighborhoods Law. That provision stated that if

a juvenile was charged with a Class X felony (other than armed

violence) or various other serious offenses and the court determined

that there was probable cause to believe that the allegations were true,

there was a rebuttable presumption that the minor was not a fit and

proper subject to be dealt with under the Juvenile Court Act of 1987

and that the cause should to be transferred to criminal court.

 The circuit court allowed the petition and ordered defendant’s

case to be heard under this state’s criminal laws. Defendant was

subsequently indicted on two counts of attempted first degree murder,

one count of aggravated battery with a firearm and four counts of

aggravated battery.

The following October, defendant agreed to plead guilty to one

count of attempted first degree murder of a peace officer, a Class X

felony (720 ILCS 5/8–4(c)(1) (West 1996)), in exchange for dismissal

of all other charges and imposition of a sentence of 28 years’
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imprisonment. Defendant never moved to withdraw his plea or

sentence, nor did he bring a direct appeal. In March of 1999,

however, he filed a petition under the Post-Conviction Hearing Act

(725 ILCS 5/122–1 et seq. (West 1998)) alleging that he had received

ineffective assistance of counsel because one of the public defenders

who represented him had misled him about the circumstances

regarding his guilty plea and the length of the prison term he would

receive.

Defendant’s petition was summarily dismissed by the trial court

on the grounds that it was frivolous and patently without merit. See

725 ILCS 5/122–2.1(a)(2) (West 1998). Defendant failed to timely

appeal from the circuit court’s judgment, and his motion for leave to

file a late notice of appeal was denied.

There were no further developments in the case until June of

2003, when defendant filed a new postconviction petition. Although

successive postconviction petitions are generally not permitted (see

725 ILCS 5/122–3 (West 1998)), defendant argued that fundamental

fairness called for relaxation of that rule in this case (see People v.

Morgan, 212 Ill. 2d 148, 153 (2004)) because the Safe

Neighborhoods Law, which added the rebuttable presumption

provision under which he was transferred to criminal court, had since

been declared unconstitutional and void ab initio by our court in

People v. Cervantes, 189 Ill. 2d 80 (1999), on the grounds that it

violated the single-subject clause of the Illinois Constitution of 1970

(Ill. Const. 1970, art. IV, §8(d)).

The circuit court rejected defendant’s argument. As it had with

defendant’sinitial postconviction petition, it dismissed his successive

petition as frivolous and patently without merit. Defendant appealed.

The appellate court unanimously reversed. In so doing, it did not rely

on the fundamental fairness exception to the normal prohibition

against successive postconviction petitions. Rather, based on a

previous decision by the appellate court in People v. Pena, 321 Ill.

App. 3d 538 (2001), the court reasoned that because the statutory

provisions under which defendant was transferred from juvenile to

criminal court and then sentenced were found to be void ab initio,

defendant’s transfer, plea and conviction were likewise void.

Invoking the principles that a claim that a judgment is void is not

subject to waiver and may be raised at any time, either directly or
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collaterally, and that courts have an independent duty to vacate void

orders and may vacate a void order sua sponte even if it is not

challenged by the parties (see People v. Thompson, 209 Ill. 2d 19, 27

(2004)), the court concluded that it was obliged to vacate defendant’s

conviction and remand for a new transfer hearing. 358 Ill. App. 3d at

60.

Having reached that conclusion, the court next considered what

law should govern the new transfer hearing following remand. The

reason this was problematic was that after our court invalidated the

Safe Neighborhoods Law in People v. Cervantes, 189 Ill. 2d 80, the

General Assembly enacted Public Act 90–590, eff. January 1, 1999,

commonly known as the Juvenile Justice Reform Provisions of 1998.

The new law, codified at 705 ILCS 405/5–805(2)(a) (West 1998),

contains a presumptive transfer provision virtually identical to the

Safe Neighborhoods Law provision under which defendant’s original

transfer was carried out. For the purposes of this appeal, the only

difference is that unlike the Safe Neighborhoods Law, the Juvenile

Justice Reform Provisions of 1998 have not been challenged on

single-subject grounds.

While the new law was not a departure from the standards which

governed defendant’s original transfer, it did represent a change as

compared to the law in effect before the Safe Neighborhoods Law

was enacted. Under the former law, there was no presumption in

favor of transfer. See 705 ILCS 405/5–4 (West 1992). Except in

certain circumstances not present in this case, the determination as to

whether a juvenile should be tried under the criminal laws was a

matter for the court’s sound discretion based on its assessment of

various statutory factors and any other relevant matters. See People

v. Clark, 119 Ill. 2d 1, 12-14 (1987). In light of this difference,

defendant argued that if he is subject to the new law on remand rather

than the law as it existed before the Safe Neighborhoods Law took

effect, it will be significantly easier for the State to obtain his transfer

to criminal court and greatly increase the possibility that the

punishment he ultimately receives will be more severe. According to

defendant, such a result would contravene the intent of the legislature
 

1Article I, section 9, clause 3, of the United States Constitution states

that no “ex post facto Law shall be passed.” Article I, section 10, clause 1,

provides that “[n]o State shall *** pass any *** ex post facto Law ***.”

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and violate the prohibitions against ex post facto laws set forth in the

United States Constitution.1

The appellate court disagreed. It held that application of the

presumptive-transfer provision would not violate the prohibition

against ex post facto laws because the provision does not provide for

a greater punishment. It merely affects the procedure by which

punishment is determined. Similarly, the court reasoned that thewhile

the provision does contain a burden of proof standard not present in

the prior law, ex post facto concerns are not implicated because the

new burden does not affect the determination of guilt or innocence,

does not make it easier for the State to obtain a conviction, and does

not alter any available defenses. 358 Ill. App. 3d at 63-64. The court

therefore held that the new presumptive-transfer provision set forth

in the Juvenile Justice Reform Act may be applied to defendant’s case

on remand. 358 Ill. App. 3d at 64-65.

In its appeal to our court, the State argues that the appellate

court’s analysis of defendant’s claims is erroneous. As previously

indicated, the appellate court’s decision was predicated on our

holding in People v. Cervantes, 189 Ill. 2d 80 (1999), that Public Act

88–680, the statute pursuant to which defendant was transferred to

criminal court and subsequently sentenced, is void. TheState does not

take issue with that holding. Rather, it contends that the appellate

court applied the holding incorrectly. Specifically, it argues that while

the statute itself may be void, defendant’s transfer, conviction and

sentence are merely voidable. As a result, defendant may not avail

himself of the rule that void judgments may be attacked at any time.

Instead, the challenge to his transfer, conviction and sentence must

meet the normal requirements governing successive petitions for

postconviction relief.

The State contendsthat those requirements have not been satisfied

by defendant in this case. In the State’s view, the arguments upon

which defendant’s postconviction petition is premised have been

waived. While the waiver rule may be relaxed based on
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considerations of “fundamental fairness,” the State argues that under

People v. Pitsonbarger, 205 Ill. 2d 444 (2002), establishing

fundamental fairness requires a showing that there was a legally

cognizable cause for defendant’s failure to raise the claim in his

initial postconviction proceeding and that actual prejudice would

result if defendant were denied consideration of the claimed error.

According to the State, defendant has failed to meet either prong of

this test. It asserts that the circuit court was therefore correct in

summarily denying defendant’s postconviction petition.

Defendant, for his part, contends that the circuit court’s judgment

was properly reversed by the appellate court. In his view, the

appellate court was correct in holding that the constitutional defects

in the Safe Neighborhoods Law rendered his transfer, conviction and

sentence void, not merely voidable, and that he was entitled to a new

transfer hearing on remand. Where defendant parts company with the

appellate court is with respect to the law which should govern the

proceedings on remand. Defendant asserts that the appellate court

erred in rejecting his ex post facto claims and that his case should be

governed by the law as it existed prior to enactment of the Safe

Neighborhoods Law and Juvenile Justice Reform Provisions of 1998.

In analyzing the parties’ respective arguments, we begin by noting

that our review of this case is de novo. That is so because the matter

comes before us on review of the summary dismissal of a

postconviction petition and presents only questions of law. See

People v. Boclair, 202 Ill. 2d 89, 97 (2002); People v. Daniels, 187

Ill. 2d 301, 307 (1999).

The first question we must address is whether the appellate court

was correct in concluding that defendant’s transfer from juvenile to

criminal court was void. We believe that it was. As indicated earlier

in this opinion, the statutory provisions pursuant to which defendant’s

transfer was carried out were enacted as part of the Safe

Neighborhoods Law (Public Act 88–680), a statute which we found

to be unconstitutional in People v. Cervantes, 189 Ill. 2d 80 (1999).

Under the established precedent of this court, a statute which violates

the single-subject clause is void in its entirety. People v. Carrera, 203

Ill. 2d 1, 16 (2002). As a result, all of the provisions of the Safe

Neighborhoods Law, including the specific provisions amending the

Juvenile Court Act of 1987 pursuant to which defendant was
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transferred to criminal court, are invalid. More than that, they are void

ab initio. As such, they have no force or effect. It is as if they had

never been passed. People v. Carrera, 203 Ill. 2d at 14.

When a court exercises its authority over a minor pursuant to the

Juvenile Court Act of 1987, as the court did here in entertaining the

State’s transfer petition, it must proceed within the confines of that

law and has no authority to act except as that law provides. See

People v. Jaime P., 223 Ill. 2d 526, 540 (2006). Because the

particular statutory provisions under which defendant was transferred

are void ab initio and have never had any valid legal force, it

necessarily follows that the transfer itself can be afforded no legal

recognition The transfer is void just as the transfer statute is void.

Defendant must therefore be granted a new transfer hearing.

The same conclusion was reached by the appellate court and

conceded by the State under similar circumstances in People v. Pena,

321 Ill. App. 3d 538, 540-41 (2001), a decision upon which the

appellate court in this case relied. Unlike Pena, in which the validity

of the transfer was challenged on direct review of a judgment

imposed following a bench trial, the attack on the transfer here comes

in the context of a successive postconviction petition following entry

of judgment based on a guilty plea. These distinctions, however, do

not alter our analysis. A guilty plea does not preclude a defendant

from challenging a circuit court’s judgment as void ab initio (People

v. Guevara, 216 Ill. 2d 533, 542-43 (2005)), and, as the appellate

court in this case correctly pointed out, an attack on a void judgment

may be raised at any time. It does not depend on the Post-Conviction

Hearing Act for its viability. People v. Thompson, 209 Ill. 2d 19, 26

(2004).

Having concluded that defendant is entitled to a new transfer

hearing, we must next consider what statute should govern that

proceeding. Because the Safe Neighborhoods Law is void ab initio,

the version of Juvenile Court Act in existence prior to its amendment

by that legislation remained in effect. Harshman v. DePhillips, 218

Ill. 2d 482, 489 n.1 (2006). The pre-Safe Neighborhoods Law version

of the statute was therefore the controlling law in 1997, when

defendant committed the offenses which gave rise to this case.

The Juvenile Justice Reform Provisions of 1998, which

reinstituted the rebuttable presumption standard of the Safe
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Neighborhoods Law, were not enacted until the following year and

did not take effect until the year after that. As we have indicated,

defendant argues that to apply the Juvenile Justice Reform Provisions

to his case would violate the United States Constitution’s prohibition

against ex post facto laws. He further asserts that subjecting his case

to the new statute would contravene the intent of the legislature as set

forth in the statute.

Statutes are presumed constitutional, and the courts of this state

have a duty to construe enactments by the General Assembly so as to

uphold their validity if there is any reasonable way to do so. People

v. Jones, 223 Ill. 2d 569, 595-96 (2006). Consistent with this

obligation, our court will not consider a constitutional question if the

case can be decided on other grounds. If a court can resolve a case on

non-constitutional grounds, it should do so. People v. Lee, 214 Ill. 2d

476, 482 (2005). Constitutional issues should be reached only as a

last resort. In the E.H., No. 100202, slip op. at 4 (December 21,

2006).

In the case before us today, the appellate court elected to resolve

the parties’ disagreement regarding which version of the law should

apply by focusing on defendant’s ex post facto challenge. Under the

principles we have just reviewed, this approach was improper. Rather

than addressing the ex post facto claims, the court should have begun

its analysis with consideration of defendant’s nonconstitutional

contention, namely, that application of the new law to his case would

be contrary to the legislature’s intent.

Where, as here, a case implicates a statute enacted after the events

giving rise to the litigation, Illinois courts evaluate the temporal reach

of the new law in accordance with the standards set forth by the

United States Supreme Court in Landgraf v. USI Film Products, 511

U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). Commonwealth

Edison Co. v. Will County Collector, 196 Ill. 2d 27, 39 (2001). Under

the Landgraf standards, the threshold inquiry is whether the

legislature has expressly prescribed the statute’s temporal reach. If it

has, that expression of legislative intent must be given effect absent

some constitutional prohibition against doing so. Allegis Realty

Investors v. Novak, 223 Ill. 2d 318, 330 (2006).

The Juvenile Justice Reform Provisions of 1998 contain such a

provision. Although the law was enacted in June of 1998, section
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4001–99 of the statute called for its delayed implementation. The

provisions contained in article 1001 were not to take effect until

January 1, 2000. The remaining sections of the law, including the

provisions containing the rebuttable presumption on transfers, were

to take effect on January 1, 1999. In light of these terms, it is clear

that the law was intended to have only prospective application. The

State has not directed our attention to anything in the United States or

Illinois Constitution which would prohibit the law from being applied

in that way. We must therefore give effect to the legislature’s intent

and conclude that the rebuttable transfer provisions of the Juvenile

Justice Reform Provisions of 1998 are applicable only to juvenile

proceedings which commenced on or after January 1, 1999.

The juvenile proceedings involving the defendant in this case

clearly do not fall within that category of cases. As discussed earlier

in this opinion, those proceedings were initiated in late 1997, more

than a year before the pertinent portions of the Juvenile Justice

Reform Provisions of 1998 became operative. Giving effect to the

intention of the legislature, as we must, we therefore conclude that the

Juvenile Justice Reform Provisions of 1998 are inapplicable to this

matter. On remand, defendant’s transfer hearing should, instead, be

governed by the version of the Juvenile Justice Act of 1987 in effect

prior to enactment of the Safe Neighborhoods Law. In light of this

determination, there is no need to reach defendant’s claim that

subjecting him to a rebuttable presumption under the Juvenile Justice

Reform Provisions of 1998 would contravene the prohibition against

ex post facto laws. See People v. Ramsey, 192 Ill. 2d 154, 159-74

(2000) (Bilandic, J., specially concurring). To the extent that the

appellate court addressed that argument and reached a contrary result

regarding which law will control on remand, its judgment is reversed.

We also reverse the appellate court’s judgment to the extent that

it vacated defendant’s conviction outright. Proper disposition of the

conviction depends on the outcome of the new transfer hearing

following remand. If, after applying the version of the Juvenile

Justice Act of 1987 in effect prior to enactment of the Safe

Neighborhoods Law, the circuit court determines that defendant’s

case should not be transferred to criminal court, there can be no

question that defendant’s original conviction cannot be allowed to

stand. That is so because absent a transfer, there is no lawful basis for
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a conviction under this state’s criminal laws. The same is true of

defendant’s sentence. Without a valid transfer and subsequent

conviction under our criminal laws, the legal predicate for the

sentence evaporates.

The situation will be different, however, should the circuit could

ultimately conclude that transfer for trial under the state’s criminal

laws is appropriate. Unlike the transfer provisions of the Safe

Neighborhoods Law, the statutory provisions defining the criminal

offenses with which defendant was charged and the attempted murder

charge for which he was convicted were not affected by this court’s

decision in People v. Cervantes, 189 Ill. 2d 80. The substantive

offenses remain unchanged, and their validity remains unquestioned.

If the circuit court reaches the same conclusion as it did originally and

rules that the case is appropriately handled under the criminal laws,

defendant would therefore have no basis for assailing his conviction

on the grounds that it is void.

With respect to defendant’s sentence, the issue is somewhat more

complex. When defendant entered into the negotiated plea, which

included a sentence of 28 years’ imprisonment, defendant and the

State believed that his case was subject to a provision in the Safe

Neighborhoods Law that had amended section 8–4 of the Criminal

Code of 1961 (720 ILCS 5/8–4 (West 1996)) to increase the

authorized sentence for defendant’s offense from the previous range

of 15 to 60 years to a new range of 20 to 80 years. In light of People

v. Cervantes, 189 Ill. 2d 80, however, this assumption was incorrect.

When Cervantes held the Safe Neighborhoods Law to be void ab

initio, the Act’s amendment to the sentencing range was also rendered

void ab initio. For reasons we have already explained, that meant that

the old 15- to 60-year sentencing range remained in effect and was

controlling at the time the plea agreement was reached.

A sentence which exceeds statutory maximums or violates the

constitution is void from its inception and subject to challenge at any

time, even where, as here, the sentence is imposed as part of a

negotiated plea. See People v. Guevara, 216 Ill. 2d 533, 542-43

(2005); People v. Pullen, 192 Ill. 2d 36, 40, 43 (2000); People v.

Williams, 179 Ill. 2d 331, 333 (1997). In this case, however,

defendant’s 28-year sentence was well within the old 15- to 60-year
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sentencing range which governed defendant’s case. Accordingly, it

did not exceed the governing statutory maximum for the offense.

Where a defendant’s sentence complies with the mandatory

sentencing guidelines in effect when the sentence was imposed, the

defendant is not entitled to a new sentencing hearing merely because

some aspect of the sentencing law was subsequently determined to be

void on the grounds that it violated the single-subject clause of the

Illinois Constitution of 1970. People v. Reedy, 186 Ill. 2d 1, 16-17

(1999). Applying this principle, our appellate court has held that

where, as here, a defendant’s sentence is proper under the version of

section 8–4 of the Criminal Code of 1961 (720 ILCS 5/8–4 (West

1996)) in effect prior to enactment of the Safe Neighborhoods Law,

the fact that the amended version of the statute was subsequently held

to be void by People v. Cervantes, 189 Ill. 2d 80 (1999), does not

entitle the defendant to a new sentencing hearing. See People v.

Cundiff, 322 Ill. App. 3d 426, 438-39 (2001).

Panels of the Appellate Court, First District, reached a different

conclusion in People v. English, 334 Ill. App. 3d 156 (2002), and

People v. Ruiz, 312 Ill. App. 3d 49 (2000). They held that defendants

who were sentenced to imprisonment for attempted murder of a

police officer under the 20- to 80-year sentencing range established

by the now-invalidated Safe Neighborhoods Law should be granted

new sentencing hearings even though the sentences originally

imposed were within the 15- to 60-year range imposed under the prior

version of the law. At the core of these two decisions is the principle

that in criminal cases, the record must establish that the sentence was

based on a proper understanding of the applicable law. People v.

English, 334 Ill. App. 3d at 170; People v. Ruiz, 312 Ill. App. 3d at

58. In each instance, it was apparent that such an understanding was

lacking. Because the Safe Neighborhoods Law had not yet been

invalidated when the sentences were imposed, the circuit court,

through no fault of its own, did not appreciate that the law’s stiffer

sentencing provisions were inapplicable.

That a trial judge must properly understand the applicable

sentencing law is a principle that can scarcely be doubted. We

nevertheless believe that the analysis in the English and Ruiz cases is

not helpful to the resolution of this case. That is so for several

reasons. First, English and Ruiz fail to take into account the well-
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established principle that a trial court’s failure to apply a sentencing

statute correctly does not necessarily render the sentence wholly

invalid as a matter of law. Where the court imposes an excessive

sentence because of a mistake of law or fact, the sentence is merely

voidable, and the error can be waived. See People v. Fouts, 319 Ill.

App. 3d 550, 552 (2001), citing People v. Davis, 156 Ill. 2d 149

(1993).

Second, while a sentence, or portion thereof, not authorized by

statute is void (People v. Thompson, 209 Ill. 2d at 23), it is void only

to the extent that it exceeds what the law permits. The legally

authorized portion of the sentence remains valid. In re T.E., 85 Ill. 2d

326, 333 (1981); see People v. Patterson, 276 Ill. App. 3d 107, 111

(1995). In this case, no aspect of defendant’s sentence exceeds the

terms authorized by the law in effect prior to enactment of the Safe

Neighborhoods Law. As we have already pointed out, the 28-year

term imposed under his plea agreement was squarely within the old

15- to 60-year sentencing range which should have governed these

proceedings.

Finally, unlike the sentences in English and Ruiz, defendant’s

sentence was not imposed by the court following trial. Rather, it was

the product of a fully negotiated plea agreement between the

defendant and the State. There is nothing in the transcript of the

hearing on the plea and sentence to suggest that there was any actual

misunderstanding of the governing sentencing standards or that such

misunderstanding affected the terms of the plea agreement.

Because defendant’s sentence is not void, his right to bring a

postconviction challenge to that sentence must conform to the normal

requirements governing postconviction proceedings. Defendant

cannot meet those requirements. As noted earlier in this opinion,

defendant’s challenge to his sentence is raised for the first time in

this, his second, postconviction petition. Where, as here, the death

penalty is not involved and the defendant makes no claim of actual

innocence, Illinois law prohibits the defendant from raising an issue

in a successive postconviction petition unless the defendant can

establish a legally cognizable cause for his or her failure to raise that

issue in an earlier proceeding and actual prejudice would result if

defendant were denied consideration of the claimed error. People v.

Pitsonbarger, 205 Ill. 2d at 459-60.
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Defendant’s challenge to the length of his sentence is predicated

exclusively on the court’s determination that the Safe Neighborhoods

Law, which raised the sentencing range, was unconstitutional and of

no effect. Although this court’s decision in People v. Cervantes,

which declared the statute invalid, was not filed until approximately

six months after defendant brought his initial postconviction petition

in March of 1999, Cervantes was not the first judicial pronouncement

on the matter. In September of 1998, approximately five months

before defendant’s first postconviction proceeding was initiated, the

Appellate Court, Third District, also declared the statute invalid. See

People v. Dainty, 299 Ill. App. 3d 235 (1998). The Second District

followed suit in February of 1999. See People v. Williams, 302 Ill.

App. 3d 975 (1999). Between 1998 and 1999, when Cervantes was

issued, the validity of the Safe Neighborhoods Law was, in fact,

addressed in published decisions by every appellate district except the

Fifth. As we noted in Cervantes, the districts split on the question.

People v. Cervantes, 189 Ill. 2d at 85. While the First District, from

which this case arose, took the view that the statute did not offend the

single-subject rule (see People v. Wiggins, 298 Ill. App. 3d 766

(1998)), it is clear that legal precedent supporting defendant’s singlesubject challenge existed and could have been invoked by him at the

time he filed his initial postconviction petition. This is therefore not

a situation where the legal basis for the claim was not yet reasonably

available. See People v. Pitsonbarger, 205 Ill. 2d at 460. While it is

true that our court had not yet definitively resolved the question, that

was not sufficient cause under the cause-and-prejudice test to excuse

defendant’s failure to challenge the validity of his sentence when he

first sought postconviction relief.

 As we indicated earlier in this opinion, the State contends that

defendant’s claim also fails the prejudice prong of the cause-andprejudice test. In light of our conclusion that defendant has failed to

establish a legally cognizable cause for his failure to challenge his

sentence in the earlier proceeding, however, it is not necessary for our

court to reach that argument. Because both cause and prejudice must

be shown under Pitsonbarger (People v. Morgan, 212 Ill. 2d 148, 153

(2004)), defendant’s failure to establish cause is sufficient to preclude

him from attacking his sentence through successive postconviction

proceedings. The issue has been procedurally defaulted. Should the
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circuit court conclude, on remand, that defendant’s case was properly

transferred to criminal court, it should therefore leave undisturbed not

only his original conviction but also the 28-year term of

imprisonment to which defendant agreed under his plea bargain with

the State.

For the foregoing reasons, the judgment of the appellate court is

affirmed in part and reversed in part, the judgment of the circuit court

is affirmed in part and reversed in part, and the cause is remanded to

the circuit court for further proceedings in accordance with the

directions set forth in this opinion.

Appellate court affirmed in part and reversed in part;

circuit court affirmed in part and reversed in part;

cause remanded with directions.