¶ 23 To determine whether a new rule applies on collateral review, the court considers the date on which the defendant's conviction became final and whether the constitutional rule sought by the defendant existed when the defendant's conviction became final. People v. Avery, 2012 IL App (1st) 110298, ¶¶ 32–33, 362 Ill.Dec. 745, 974 N.E.2d 266, citing Teague, 489 U.S. at 301, 109 S.Ct. 1060. "[A] case announces a new rule if the result was not dictated by precedent existing at the time
¶ 20 However, our inquiry does not end here. In People v. Avery, 2012 IL App (1st) 110298, ¶ 39, 362 Ill.Dec. 745, 974 N.E.2d 266,appeal denied,No. 114840, 367 Ill.Dec. 271, 981 N.E.2d 999 (Ill. Nov. 28, 2012) this court found that when the supreme court decided White, it announced a new rule of law prior to which there was confusion as to whether the State could negotiate pleas that did not include the firearm enhancement for first degree murder, even where the use of a firearm is noted in the factual basis for the pleas.
Here, there was no admonishment about the firearm enhancement because it was understood by all that the State was seeking a sentence without the enhancement and defendant understood that his sentence would not include the enhancement. ¶ 11 The State, noting that White was issued after this case was decided in the trial court, relies on People v. Avery, 2012 IL App (1st) 110298, 362 Ill.Dec. 745, 974 N.E.2d 266, to claim that White announced a new rule of law and thus cannot be applied retroactively to the instant case. In Avery, the court found that prior to White, the law was unclear as to whether the State could negotiate pleas that did not include the firearm enhancement, even where the indictment and factual basis for the plea included the use of a firearm in the commission of the offense.
On the other hand, the First District of our Appellate Court has repeatedly held that White announced a new rule because it resolved a lack of clarity in the law; thus, it does not apply retroactively. People v. Young, 2013 IL App (1st) 111733, ¶¶ 29, 32–33, 377 Ill.Dec. 529, 2 N.E.3d 445 ; People v. Avery, 2012 IL App (1st) 110298, ¶¶ 38–40, 362 Ill.Dec. 745, 974 N.E.2d 266.¶ 43 We agree with the reasoning of Young and Avery, and find that White does not apply retroactively.
Because we do not apply White to grant relief-although we follow its principles, we distinguish the facts—we need not decide whether the rule in White is retroactive under the rule in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). A First District panel, in People v. Avery, 2012 IL App (1st) 110298, ¶¶ 30–47, 362 Ill.Dec. 745, 974 N.E.2d 266, held that, because White stated a “new rule” not dictated by existing precedent, the rule in White does not apply retroactively under Teague principles. We would suggest that the holding in White follows from the holding in People v. Arna, 168 Ill.2d 107, 212 Ill.Dec. 963, 658 N.E.2d 445 (1995): that a sentence statutorily inconsistent with the record facts is void.
The application of White to the instant case is also challenged by a very recent decision of another division of this court that held White established a new rule, which renders White inapplicable to cases on collateral review, such as the case before us. People v. Avery, 2012 IL App (1st) 110298, ¶ 39, 362 Ill.Dec. 745, 754–55, 974 N.E.2d 266, 275–76. I disagree with the majority that Avery can be so easily dismissed as addressing a charge different than the one at issue here.