2023 IL App (2d) 220326 No. 2-22-0326 Opinion filed August 24, 2023

________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

______________________________________________________________________________ T HE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff

- Appellee, ) ) v. ) No. 10- CF -484 ) J ESUS BUCIO , ) Honorable ) Sandra T. Parga , Defendant -Appellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE B IRKETT delivered the judgment of the court, with opinion. Justices Schostok and Kennedy concurred in the judgment and opinion. O PINION ¶ 1 Defendant, Je sus Bucio, appeals a judgment granting the State’s motion to dismiss his petition for relief under the Post

- Conviction Hearing Act (Act) (725 ILCS 5/122 -1 to 122 -7 (West 2020)). Defendant contends that his amended petition made a substantial showing that, as applied to him, section 5-4.5- 115(b) of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-115(b) (West 202 0))—which enables certain prisoners sentenced on or after June 1, 2019, to apply for parole— violates the equal protection clauses of the United States and Illinois Constitutions ( U.S. Const., amend. XIV ; Ill. Const. 1970, art. I, § 2 ). We affirm.2023 IL App (2d) 220326

- 2 - ¶ 2 I. BACKGROUND ¶ 3 In 2010, the State filed an 11

- count indictment against defendant , based on his alleged actions on June 24, 2009. At that time, defendant was 15 years old. Counts I through V charged defendant under multiple theories of first degree murder (720 ILCS 5/9

- 1(a)(1), (a) (2) (West 2008)) for the killing of Donald Franklin. Cou nts VI through IX alleged the attempted first degree murders ( id. §§ 8- 4(a), 9

- 1(a) (1) ) of Theran Smith, Lawrence Mosby, Paul Woodard, and Larry Griffin , respectively . Counts X and XI charged the aggravated battery with a firearm ( id. § 12- 4. 2(a)(1)) of Smith and Mosby , respectively

.

¶ 4 On March 5, 2014, the parties presented a plea agreement to the trial court. Defendant would plead guilty to count I as amended to allege that defendant “ ‘ killed *** Franklin with a dangerous weapon ’ ” rather than “ ‘shot *** Franklin with a firearm. ’ ” The amendment enabled defendant to avoid a mandatory 25

- year add

- on based on the use of a firearm . S ee 7 30 ILCS 5/5

- 8- 1(a)(1)(d)(iii) (West 2008). Defendant would be sentenced to 3 0 years, served at 100%. In return, the State would dismiss the remaining charges. The court accepted the fully negotiated plea a nd sentenced defendant accordingly. ¶ 5 Defendant did not file a direct ap p eal. On December 2, 201 9 , he filed a pro se petition under the Act. The trial court advanced the proceedings to the second stage and appointed counsel for defendant. On September 3 0, 2020, defendant filed an amended postconviction petition raising three claims , only one of which is pertinent on ap peal. Defendant based that claim on section 5

- 4.5-115(b) of the Code (730 ILCS 5/5 -4.5- 115(b) (West Supp. 2019)) , enacted in 2019. S ee Pub. Act 100 -1182, § 5 (eff. June 1, 2019) (adding 730 ILCS 5/5 -4.5- 110); Pub. Act 101 -288, § 10 (eff. Jan. 1, 2020) (amending 730 ILCS 5/5-4.5-110 and renumbering as 730 ILCS 5/5-4.5-115).2023 IL App (2d) 220326

- 3 - ¶ 6 After defendant filed this appeal, the legislature amended section 5 -4.5- 115(b) to extend its reach

. See Pub. Act 102 -1128, § 5 (eff. Jan. 1, 2024) (amending 730 ILCS 5/5 -4.5-115(b)). We quote the entirety of the amended section 5-4.5-115(b), emphasizing the new text : “(b) A person under 21 years of age at the time of the commission of an offense or offenses , other than first degr ee murder, and who is not serving a sentence for first degree murder and who is sentenced on or after June 1, 2019 (the effective date of Public Act 100

- 1182) shall be eligible for parole review by the Prisoner Review Board after serving 10 years or more of his or her sentence or sentences, except for those serving a sentence or sentences for : (1) aggravated criminal sexual assault who shall be eligible for parole review by the Prisoner Review Board after serving 20 years or more of his or her sentence or

s entences or (2) predatory criminal sexual assault of a child who shall not be eligible for parole review by the Prisoner Review Board under this Section. A person under 21 years of age at the time of the commission of first degree murder who is sentenced o n or after June 1, 2019 (the effective date of Public Act 100

- 1182) shall be eligible for parole review by the Prisoner Review Board after serving 20 years or more of his or her sentence or sentences, except for those subject to a term of natural life imprisonment under Section 5- 8- 1 of this Code [(730 ILCS 5/5 -8- 1 (West 202 2 ))] or any person subject to sentencing under subsection (c) of Section 5 -4.5-105 of this Code [( id. § 5-4.5-105(c))], who shall be eligible for parole review by the Prisoner Review Board after serving 40 years or more of his or her sentence or sentences .” (Emphasis added.) 730 ILCS 5/5 -4.5- 115(b) (West 2022). ¶ 7 Defendant contended that, as applied to him, section 5 -4.5-115 (b) violates equal protection because it allows prisoners sentenced on or after June 1, 2019, to apply for parole but denies the2023 IL App (2d) 220326

- 4 - same opportunity to prisoners sentenced before June 1, 2019. Defendant argued that there is no rational basis for discriminatin g between convicted offenders based solely on their sentencing dates. ¶ 8 The State moved to dismiss the amended petition. As pertinent here, the State raised t hree arguments. First, defendant lacked standing to challenge the new law because he suffered no inj ury from it . Indeed, invalidating section 5 -4.5- 115(b) would not give him an opportunity for par ole review but would merely erase that opportunity for prisoners sentenced on or after June 1, 2019. Second, section 5 -4.5- 115(b) has a rational basis

— namely , it “avoids confusion and delay and also preserves judicial resources.” Third, based on People v. Jones , 2021 IL 126432, defendant’s fully negotiated guilty plea waived his challenge to section 5 -4.5-115(b). Thus, the State concluded, defendant fail ed to make a substantial showing of a constitutional violation. ¶ 9 The trial court dismissed the petition. As to the section 5 -4.5- 115(b) claim, the court agreed with the State that, under Jones , defendant’s guilty plea was both a n acceptance of present benef its and a relinquishment of benefits from future changes in the law

. Therefore, defendant could not claim the benefit of section 5 -4.5- 115(b) simply because it was a favorable departure from the premises on which he decided to plead guilty. This timely appeal followed. ¶ 10 II. ANALYSIS ¶ 11 At issue in this appeal is whether the trial court erred in dismi ssing defendant’s amended postconviction petition. Defendant ’s sole claim on appeal is that section 5 -4.5-115(b) violates the equal protection clause. The State reiterates the arguments it raised in the trial court

. ¶ 12 A prisoner may institute a proceeding under the Act by claiming that “in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both .” 725 ILCS 5/122 -1 (a)(1) (West2023 IL App (2d) 220326

- 5 - 2022). At the second stage of proceedings under the Act , a petition er must make a substantial showing of a constitutional violation. People v. Pendleton , 223 Ill. 2d 458, 473 (2006). We review de novo the second

- stage dismissal of a petition under the Act

. Id. We may affirm the judgment on any basis called for by the record. People v. Stoecker , 384 Ill. App. 3d 289, 292 (2008). We affirm the judgment here on two independent bases. ¶ 13 First, defendant’s challenge to section 5-4.5-115(b) falls outside the scope of the Act. As noted, the Act enables a prisoner to raise a claim that constitutional error was committed “ in the proceedings which resulted in his or her conviction .” (Emphasis added.) 725 ILCS 5/122 -1 (a)(1) (West 2022). Defendant’s section 5 -4.5-115(b) claim does not meet this threshold requirement. ¶ 14 People v. LaPointe , 2023 IL App (2d) 210312, controls. There, in 19 78 , the defendant pleaded guilty to first degree murder (Ill. Rev. Stat. 19 77 , ch. 38, ¶ 9- 1(a)) and was sentenced to life imprisonment. LaPointe , 2023 IL App (2d) 210312, ¶ 3. In 2020, he filed a motion for leave to file a successive petition under the Act (see 725 ILCS 5/ 122- 1(f) (West 2020))

. LaPointe , 2023 IL App (2d) 210312, ¶ 4. His proposed petition raised the same claim as here: as applied to him, section 5 -4.5- 115(b) violated equal protection by arbitrarily granting prisoners sentenced on or after June 1, 2019, the opportunity to apply for parole , while denying the same opportunity to prisoners sentenced before June 1, 2019. Id. ¶¶ 4-5. The trial court denied the motion, and the defendant appealed

. Id. ¶ 8. ¶ 15 We affirmed

. Id. ¶¶ 1, 20 . W e noted case law f inding claims outside the scope of the Act because they concerned errors arising after the defendant’s con viction and sentence. Id. ¶ 16 (citing People v. Flores , 153 Ill. 2d 264, 277 (1992) ( errors in prior postconviction proceedings); People v. Keller , 353 Ill. App. 3d 830, 8 32-33 (2004) (errors by the Department of Corrections while the defendant was serving his sentence); People v. Harris , 2022 IL App (1st) 211236-U, ¶¶ 25-26 (the2023 IL App (2d) 220326

- 6 - State’s destruction of evidence after the defendant’s first appeal was resolved)). Thus, we concluded that the defendant could not obtain relief from a constitutional violation that arose from
a statute passed after he was convicted and sentenced. Id. ¶ 17. LaPointe is directly on point and compels affirmance. ¶ 16 We turn to our second basis for affirmance. We agree with the State that, by entering a valid and fully negotiated guilty plea, defendant waived his challenge to section 5 -4.5-115(b)

. In
Jones , the supreme court began with the well

- established proposition that “a voluntary guilty plea waives all non

- jurisdictional errors or irregularities, including constitutional ones .” (Emphasis in original and internal quotation marks omitted .) Jones , 2021 IL 126432, ¶ 20. T he court held that the defendant, who had entered a fully negotiated plea, could not attack his plea as unknowing or involuntary merely because later

- decided case law would have made his sentence unconstitutional. Id. ¶¶ 19-21. Th is was because the defendant’s plea bargain enabled him to gain present benefit s at the cost of forgoing possible future benefits from changes in the law. Id. ¶ 21. 1 Thus, the defendant’s “knowing and voluntary guilty plea waived any constitutional challenge based on subsequent changes in the applicable law.” Id. ¶ 26. ¶ 17 Defendant attempts to distinguish Jones by arguing that his claim “ is not a challenge to his sentence” but only an attempt to “receive a statutory benefit that applies to a certain group of individuals and not to him solely because of the date that he was sentenced.” But, in so arguing, defendant concedes the first basis for our affirmance

— the alleged constitutional error did not arise

1 There are exceptions to the guilty plea waiver rule in postconviction proceedings, none of which apply to defendant’s claim. See People v. Kimmons , 2022 IL App (2d) 180589, ¶ 38; People v. Johnson , 2022 IL App (1st) 201371, ¶¶ 94-99.2023 IL App (2d) 220326

- 7 - in the proceedings that produced his conviction. Moreover, even so , Jones ’ broad holding still forecloses defendant from seeking a postjudgment benefit beyond what he bargained for in the proceedings that resulted in his conviction. ¶ 18 Because our resolution of the foregoing issues provide s adequate nonconstitutional grounds for affirmance , we decline to address defendant’s equal protection challenge. See People
v. Bass , 2021 IL 125434, ¶ 30 (“[Our] long- standing rule is that cases should be decided on nonconstitutional grounds whenever possible, reaching constitutional issues only as a last resort .”)

. ¶ 19 III. CONCLUSION ¶ 20 For the reasons stated, we affirm the judgment of the circuit court of Kane County. ¶ 21 Affirmed

.2023 IL App (2d) 220326

- 8 - People v. Bucio , 2023 IL App (2d) 220326

Decision Under Review: Appeal from the Circuit Court of Kane County, No. 10

- CF -484; the Hon. Sandra T. Parga, Judge, presiding.
Attorneys for Appellant: James E. Chadd, Thomas A. Lilien, and Drew A. Wallenstein, of State Appellate Defender’s Office, of Elgin, for appellant.

Attorneys for Appellee: Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Victoria E. Jozef, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.