¶ 13 We also note that while this case was pending before this court, our appellate court considered the retroactivity of Castleberry but did not come to a uniform conclusion. Compare People v. Smith , 2016 IL App (1st) 140887, ¶ 30, 402 Ill.Dec. 96, 51 N.E.3d 848 (holding that Castleberry did not announce a new rule under Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion) and, thus, cannot be applied retroactively on collateral review), pet. for leave to appeal pending , No. 121060 (filed Jul. 18, 2016), with People v. Stafford , 2016 IL App (4th) 140309, ¶ 33, 406 Ill.Dec. 790, 61 N.E.3d 1058 (holding that because Castleberry did not establish a new rule under Teague , its holding does apply retroactively), pet. for leave to appeal pending , No. 121393 (filed Oct. 4, 2016), and People v. Cashaw , 2016 IL App (4th) 140759, ¶¶ 35–40, 408 Ill.Dec. 17, 64 N.E.3d 1102 (holding that Teague does not control, and Castleberry applies retroactively to collateral proceedings), pet. for leave to appeal pending , No. 121485 (filed Oct. 26, 2016). To the extent it could be argued that the State failed to pursue the timeliness issue, we have the authority to "overlook any forfeiture in the interest of maintaining a sound and uniform body of precedent."
After issuing our decision, another panel of this court reached the same conclusion, albeit on different grounds. See People v. Cashaw , 2016 IL App (4th) 140759, ¶ 33, 408 Ill.Dec. 17, 64 N.E.3d 1102. ¶ 48 Following the split amongst our districts on whether Castleberry applied retroactively, our supreme court addressed the issue in People v. Price , 2016 IL 118613, 412 Ill.Dec. 782, 76 N.E.3d 1240.
found the holding in Castleberry applies retroactively. People v. Stafford, 2016 IL App (4th) 140309, ¶ 33, 61 N.E.3d 1058; see also People v. Cashaw, 2016 IL App (4th) 140759, ¶ 33, 64 N.E.3d 1102 (agreeing "with the ultimate holding of Stafford that Castleberry applies retroactively to collateral proceedings in which a petitioner seeks to challenge a conviction that became finalized prior to the supreme court's decision in Castleberry"). Our supreme court has recently concluded Castleberry applies retroactively to a section 2-1401 petition (735 ILCS 5/2-1401 (West 2012)) that was pending at the time Castleberry was decided.
Thus, "the Teague [v. Lane, 489 U.S. 288 (1989)] retroactivity analysis [did] not apply." Id. at ¶ 27; See People v. Cashaw, 2016 IL App (4th) 140759, ¶ 39, ("defendant cannot rely on the framework of Teague to argue that a new rule should not apply, when the defendant is seeking to overturn an old judgment"). Accordingly, as defendant's case was pending in this court when Castleberry was announced, we find defendant has forfeited his challenge to his sentence by raising it for the first time on appeal.
¶ 19 Therefore, pursuant to Castleberry, a criminal sentence cannot be considered void for lacking statutory authorization. See People v. Cashaw, 2016 IL App (4th) 140759, ¶ 21. Instead, presuming the court had both personal and subject-matter jurisdiction in a given case, which defendant has not challenged here, a sentence imposed erroneously by a court is merely voidable and not subject to collateral attack.
Id. Therefore, pursuant to Castleberry, a criminal sentence cannot be considered void for lacking statutory authorization. People v. Cashaw, 2016 IL App (4th) 140759, ¶ 21. Instead, presuming the court had both personal and subject-matter jurisdiction in a
He urges us, however, to adopt the reasoning in People v. Smith, 2016 IL App (1st) 140887, ¶¶ 27-30, and conclude that Castleberry does not apply retroactively to cases that became final prior to its pronouncement.¶ 14 We note that in People v. Stafford, 2016 IL App (4th) 140309, ¶ 33, the court rejected the Smith court's conclusion regarding the retroactive applicability of Castleberry and that in People v. Cashaw, 2016 IL App (4th) 140759, ¶ 34, the court stated that it "explicitly disagree[d] with the holding in Smith." We need not weigh in on whether Smith was rightfully or wrongly decided, however, because either way, Jones is dispositive of the defendant's appeal.
The supreme court recently abolished the void-sentence rule in People v. Castleberry, 2015 IL 116916, 43 N.E.3d 932. This court has held that the holding of Castleberry applies "retroactively" to cases like defendant's, when a party files a collateral attack on a sentence that was finalized prior to the issuance of Castleberry. See People v. Stafford, 2016 IL App (4th) 140309 (Castleberry did not establish a "new rule" and therefore its holding applies retroactively); People v. Morrison, 2016 IL App (4th) 140712 (citing Stafford favorably); People v. Cashaw, 2016 IL App (4th) 140759 (a collateral petitioner cannot avail himself of the retroactivity rules of Teague v. Lane, 489 U.S. 288 (1989), to prevent retroactive application of Castleberry). Castleberry therefore applies to this appeal.¶ 12 As a result, defendant cannot claim that his sentence is void.