People v. Jarrett ( 2007 )

NO. 4-06-0607 Filed 4/5/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
FELIPE R. JARRETT, ) No. 03CF1185
Defendant-Appellant. )
) Honorable
) Scott B. Diamond,
) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
Defendant, Felipe R. Jarrett, pleaded guilty to one
count of unlawful possession of a controlled substance with
intent to deliver in exchange for the State's agreement to "a cap
of 10 [years]" on his sentence and to dismiss other charges. The
trial court sentenced defendant to eight years' imprisonment and
three years of mandatory supervised release (MSR). Defendant
filed no direct appeal. In May 2006, defendant filed a
postconviction petition alleging (1) his constitutional rights
were violated because he pleaded guilty in exchange for a
specific sentence but received a different, more onerous sentence
than that to which he agreed, i.e., the 8-year prison term and
the 3 years' MSR added up to more than the agreed-upon 10-year
cap; and (2) his trial counsel was ineffective because he did not
adhere to defendant's request to file a timely motion to reduce
defendant's sentence. In July 2006, the trial court summarily
dismissed defendant's petition as frivolous and patently without
merit. Defendant appeals. We affirm.
I. BACKGROUND
On July 22, 2004, defendant entered a partially
negotiated guilty plea to unlawful possession of a controlled
substance with intent to deliver (720 ILCS 570/401(a)(1)(A) (West
2002)). In return for defendant's guilty plea, the State agreed
to drop other charges pending against defendant and "offer[ed] to
cap at 10 years." On September 9, 2004, the trial court
sentenced defendant to eight years' imprisonment and three years'
MSR. Defendant filed no direct appeal.
The transcript of the plea hearing reveals the
following. The prosecutor stated defendant would be pleading
guilty and "the State will offer to cap at 10 years. We'll
dismiss the remaining counts as well as the counts in" another
case. The following exchange then took place:
"THE COURT: And he's going to plead
guilty and apply for probation, and you're
going to recommend a cap of no more than--
[PROSECUTOR]: 10
THE COURT: --10, and all the other
charges against this defendant in both files
are going to be dismissed.
[PROSECUTOR]: Yes."
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The court then stated it understood the agreement but had to
admonish defendant pursuant to Supreme Court Rule 402 (177 Ill.
2d R. 402) to make sure defendant also understood the agreement.
The court explained defendant was charged with a Class X felony
that "has a possible sentence of from 6 to 30." The court
further noted the following:
"There's a possible fine up to
$500,000.00. There's what's called mandatory
supervisory release, what we used to call
parole, up to 3 years. You're not eligible
for probation for this offense.
Do you think you understand the
penalties you could get, not what you're
going to get[?]" (Emphasis added.)
Defendant responded "Yes." Defendant then waived his right to a
jury trial and his right to be confronted by the witnesses
against him. The trial court then reiterated that defendant was
agreeing to plead guilty to the one count, and in exchange, all
other charges would be dismissed. Defendant acknowledged that
was his understanding of the agreement. When asked if "anybody
used any force, made any threats, or made any promises to [him]
other than the promises in the plea agreement to get [him] to"
plead guilty, defendant answered no. The prosecutor recited the
factual basis for defendant's guilty plea, and the court accepted
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it. The court then stated the following:
"So that means, sir, at this time, you
know that you cannot receive more than 10
years although your counsel is free to argue
for less than 10 years.
So, at this point, I'm going to accept
your pleas of guilty, enter [j]udgment of
[c]onviction, order a [p]resentence
[i]nvestation [r]eport, and allot it for a
sentence hearing."
At sentencing on September 9, 2004, the trial court
stated it wanted to hear sentencing alternatives and asked
whether there was a plea agreement. The prosecutor stated "[t]he
People agreed to a cap of 10." After arguments, the court
sentenced defendant as stated. Defendant filed no direct appeal.
On May 30, 2006, defendant filed a pro se petition for
postconviction relief. Defendant's petition alleged his trial
counsel disregarded his request to file a motion to reduce
sentence. The petition further alleged defendant's
constitutional due-process and fundamental-fairness rights were
violated because he pleaded guilty "in exchange for a specific
sentence, but received a different, more onerous sentence than"
that to which he agreed to. Defendant characterized the nature
of his claim as a "benefit[-]of[-]the[-]bargain" claim and stated
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he sought specific performance of the plea agreement. Defendant
emphasized he did not seek to vacate his guilty plea. Defendant
further alleged the following:
"The specific terms of my plea were that
I would plead guilty in exchange for
dismissal of other charges (a different case)
and a sentence cap of 10 years. Initially
the State offered dismissal of the other case
and a sentence of 10 years (see attached
memo); however, after further negotiations,
the offer was amended to a 10[-]year cap on
the sentence rather than the original offer
of a 10[-]year sentence.
[MSR] was not discussed during the plea
negotiations. [T]he plea offer made no
mention of a 3[-]year MSR term in addition to
any term of imprisonment within the [10-]year
cap. I was not informed during the plea
negotiations that any parole or MSR term
would be in addition to, rather than within,
the agreed term of the sentence. I did not
agree to a sentence cap of 13 years (10 years
plus 3 years['] MSR). I was not advised, nor
was it a part of my agreement that the total
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sentence, including MSR, could exceed the
agreed cap on the sentence. The [c]ourt
imposed [an eight-]year term of imprisonment,
and because my offense is a Class X, I am
subjected to an additional [three-]year MSR
term (which is included on the judgment and
sentencing order entered in this case).
Thus, the total sentence imposed in this case
is 11 years (8 years plus 3 years['] MSR),
and said sentence exceeds the agreed sentence
cap by 1 year." (Emphasis added.)
Defendant's petition further alleges the addition of the
statutorily mandated three-year MSR term exceeds the agreed-upon
sentence cap of his plea agreement and that failure to enforce
the terms of his plea agreement would violate his constitutional
due-process rights.
Defendant also claimed he instructed his attorney to
file a motion to reduce sentence. Defendant alleged his attorney
disregarded this request after telling him he needed to withdraw
his guilty plea first.
On July 19, 2006, the trial court dismissed defendant's
postconviction petition as frivolous and without merit. The
court attached a copy of the transcript of the guilty plea
hearing. The court found defendant's contention that the trial
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court failed to admonish him of a period of three years' MSR at
the guilty-plea hearing was in error and noted that at the bottom
of page four of the transcript of the hearing the trial court had
said the following: "There's what is called a mandatory
supervisory release, what we used to call parole, up to 3 years."
The court then dismissed the instant petition.
Defendant filed a "motion to reconsider and vacate
dismissal order." The motion contained the same allegations
contained in defendant's petition for postconviction relief.
Defendant acknowledged the trial court mentioned a three-year
period of MSR when reciting the range of possible penalties.
However, defendant noted that "the court clearly specified that
these were only possible penalties that could be imposed in
absence of the plea agreement; the court stated: 'Do you think
you understand the penalties you could get, not what you're going
to get?'" The court denied the motion.
This appeal followed.
II. ANALYSIS
On appeal, defendant argues the trial court erred in
dismissing his postconviction petition because the sentence he
received was greater than that to which he agreed during his
guilty-plea hearing. Specifically, he argues he was not informed
the 3-year term of MSR would be added to his term of imprisonment
and that the MSR period would not be included in his agreed-upon
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cap of 10 years. In the alternative, defendant argues his trial
counsel was ineffective because counsel did not file a motion to
reduce sentence as instructed by defendant. We affirm.
A. Post-Conviction Hearing Act
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1
through 122-8 (West 2002)) allows a defendant to collaterally
challenge his or her conviction or sentence for violations of
federal or state constitutional rights. People v. Tenner, 175
Ill. 2d 372, 377, 677 N.E.2d 859, 862 (1997). A petition for
postconviction relief must "clearly set forth the respects in
which petitioner's constitutional rights were violated" and
"shall have attached thereto affidavits, records, or other
evidence supporting its allegations or shall state why the same
are not attached." 725 ILCS 5/122-2 (West 2002). "Any claim of
substantial denial of constitutional rights not raised in the
original or an amended petition is waived." 725 ILCS 5/122-3
(West 2002).
The Act provides a three-step process for adjudicating
petitions for postconviction relief in non-death-penalty cases.
People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106
(1996). The first stage requires the trial court to review the
petition to determine if it is "frivolous or is patently without
merit." 725 ILCS 5/122-2.1(a)(2) (West 2002). The court shall
dismiss the petition in a written order if it determines the
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petition is frivolous or patently without merit. 725 ILCS 5/122-
2.1(a)(2) (West 2002). The allegations in the petition, taken as
true and liberally construed, need only present the gist of a
constitutional claim to survive first-stage dismissal. People v.
Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001). "This
is a low threshold and a defendant need only present a limited
amount of detail in the petition. At this stage, a defendant
need not make legal arguments or cite to legal authority."
Gaultney, 174 Ill. 2d at 418, 675 N.E.2d at 106.
In the instant case, the trial court dismissed the
petition at the first stage. Accordingly, we must only determine
whether defendant's petition set forth "the 'gist of a
constitutional claim.'" Edwards 197 Ill. 2d at 244, 757 N.E.2d
at 445, quoting Gaultney, 174 Ill. 2d at 418, 675 N.E.2d at 106.
We review a trial court's dismissal of a postconviction petition
without an evidentiary hearing de novo. People v. Simms, 192
Ill. 2d 348, 360, 736 N.E.2d 1092, 1105-06 (2000).
B. Illinois Supreme Court's Ruling in Whitfield
Defendant relies primarily on People v. Whitfield, 217
Ill. 2d 177, 840 N.E.2d 658 (2005), as support for his argument
that this court should vacate his sentence and remand to the
circuit court with directions that it impose a sentence of seven
years' imprisonment, to be followed by a term of three years'
MSR. In Whitfield, the prosecutor set forth the terms of the
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agreement by stating the defendant "'will receive 25 years IDOC'"
for his guilty plea to felony murder and a concurrent "'six years
IDOC'" for his guilty plea to armed robbery. Whitfield, 217 Ill.
2d at 179, 840 N.E.2d at 661. Neither the trial court nor the
prosecutor advised the defendant he would be subject to a 3-year
period of MSR following his 25-year sentence for felony murder.
Whitfield, 217 Ill. 2d at 180, 840 N.E.2d at 661. The sentencing
order did not reference the three-year MSR term required by law.
Whitfield, 217 Ill. 2d at 180 n.1, 840 N.E.2d at 661 n.1. The
defendant took no direct appeal. Whitfield, 217 Ill.2d at 180,
840 N.E.2d at 661.
Sometime later, while serving his prison sentence, the
defendant became aware that a 3-year term of MSR had been added
to his 25-year sentence by operation of law. Whitfield, 217 Ill.
2d at 180, 840 N.E.2d at 661. Defendant filed a pro se motion
contending his fourteenth-amendment due-process rights were
violated because he was never advised of the MSR term that "had
been added to his negotiated sentence and resulted in a 'more
onerous' sentence than the one he had agreed to when he pled
guilty." Whitfield, 217 Ill. 2d at 180, 840 N.E.2d at 661. The
defendant did not seek to withdraw his guilty plea; instead he
sought to hold the State to the terms of the plea agreement.
Whitfield, 217 Ill. 2d at 180-81, 840 N.E.2d at 661.
Accordingly, the defendant sought to eliminate the MSR term or to
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reduce his prison term by the length of the MSR term. Whitfield,
217 Ill. 2d at 181, 840 N.E.2d at 661. The circuit court
dismissed the postconviction petition at the second stage.
Whitfield, 217 Ill. 2d at 181, 840 N.E.2d at 662. The appellate
court affirmed. Whitfield, 217 Ill. 2d at 182, 840 N.E.2d at
662.
On appeal to the supreme court, the defendant
maintained the due-process clauses of the Illinois and United
States Constitutions and Illinois Supreme Court Rule 402(a) (177
Ill. 2d R. 402(a)) required the circuit court to admonish him
that a three-year MSR term would be added to his sentence before
accepting his negotiated plea for the offense of murder.
Whitfield, 217 Ill. 2d at 182, 840 N.E.2d at 662. Further, the
defendant argued that because the circuit court failed to
admonish him, adding the MSR term to his sentence violated due
process, fundamental fairness, and principles of contract law.
Whitfield, 217 Ill. 2d at 182, 840 N.E.2d at 662. The defendant
asked the court to afford him the benefit of his plea bargain
with the State by modifying his sentence to a term of 25 years,
inclusive of the 3-year MSR term. Whitfield, 217 Ill. 2d at 182,
840 N.E.2d at 662. The State argued the defendant did not
demonstrate his constitutional rights were substantially violated
at the plea hearing that produced his conviction and sentence.
Whitfield, 217 Ill. 2d at 183, 840 N.E.2d at 663.
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In its opinion, the supreme court sided with the
defendant and stated the following:
"In the case at bar, defendant pled
guilty pursuant to a negotiated plea
agreement. The terms of the plea agreement,
as set forth by the prosecutor at the plea
hearing, included a specific sentence of 25
years. The trial court ratified this
agreement and failed to admonish defendant,
as required by Supreme Court Rule 402, that a
mandatory supervised release term would be
added to the sentence defendant had agreed
to. Under these circumstances, we conclude
that adding the statutorily required three-
year MSR term to defendant's negotiated 25-
year sentence amounts to a unilateral
modification and breach of the plea agreement
by the State, inconsistent with
constitutional concerns of fundamental
fairness. We believe this conclusion is in
conformity with earlier decisions of this
court and with decisions reached by other
jurisdictions." Whitfield, 217 Ill. 2d at
190-91, 840 N.E.2d at 667.
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The court further stated:
"[W]e conclude that, although substantial
compliance with Rule 402 is sufficient to
establish due process (People v. Fuller, 205
Ill. 2d 308, 323[, 793 N.E.2d 526, 537]
(2002); People v. Burt, 168 Ill. 2d 49, 64[,
658 N.E.2d 375, 382] (1995)), and an
imperfect admonishment is not reversible
error unless real justice has been denied or
the defendant has been prejudiced by the
inadequate admonishment (People v. Davis, 145
Ill. 2d 240, 250[, 582 N.E.2d 714, 719]
(1991)), there is no substantial compliance
with Rule 402 and due process is violated
when a defendant pleads guilty in exchange
for a specific sentence and the trial court
fails to advise the defendant, prior to
accepting his plea, that a mandatory
supervised release term will be added to that
sentence. In these circumstances, addition of
the MSR term to the agreed-upon sentence
violates due process because the sentence
imposed is more onerous than the one
defendant agreed to at the time of the plea
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hearing. Under these circumstances, the
addition of the MSR constitutes an unfair
breach of the plea agreement." (Emphasis
added.) Whitfield, 217 Ill. 2d at 195, 840
N.E.2d at 669.
The supreme court then turned to the issue of the
appropriate remedy. The court recognized two possible remedies
when a defendant does not receive the benefit for which he
bargained: defendant must be given the opportunity to withdraw
his guilty plea or the promise must be fulfilled. Whitfield, 217
Ill. 2d at 202, 840 N.E.2d at 673. In Whitfield, the defendant
requested enforcement of the negotiated plea agreement as he
understood it but recognized that the term of MSR was mandated by
statute and thus legally could not be struck from his sentence.
Whitfield, 217 Ill. 2d at 202, 840 N.E.2d at 673. Thus, the
defendant asked that his sentence be modified to 22 years'
imprisonment plus 3 years of MSR "to approximate the bargain that
was struck between the parties." Whitfield, 217 Ill. 2d at 203,
840 N.E.2d at 673-74. After reviewing case law from both
Illinois and other jurisdictions, the court concluded "the
appropriate remedy is to modify defendant's sentence to a term of
22 years of imprisonment, to be followed by the mandatory 3-year
term of supervised release." Whitfield, 217 Ill. 2d at 205, 840
N.E.2d at 675.
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C. Application of Whitfield to Facts of This Case
We have serious concerns about both the analysis and
remedy in Whitfield. Under Whitfield defendant's remedy is
either to entirely vacate his plea or reduce his sentence by the
statutorily required term of MSR. Years of MSR and years in
prison are not interchangeable. Although decreasing a prison
sentence by years of MSR was sanctioned by the supreme court in
Whitfield, Whitfield should not be construed as a wholesale
approval of this practice. For one, MSR is not a static period
of supervision. Sections 3-3-8(a) and 3-3-8(b) of the Code of
Criminal Procedure state that the Prisoner Review Board has
discretion to release a prisoner from MSR before his term of MSR
has expired. 730 ILCS 5/3-3-8(a), (b) (West 2004). Further,
although MSR is a hindrance on a defendant's liberty interest, so
long as the trial court informs defendant of MSR, a defendant
cannot reasonably believe that the term of MSR is included in the
possible sentence cap announced by the court. The court in
Whitfield did not choose to reduce defendant's sentence by three
years because it found that three years of MSR were included in
the maximum sentence, but rather fashioned that remedy in an
attempt to "approximate" the original deal between the State and
defendant.
If the facts were the same in the case sub judice as
they were in Whitfield, i.e., if the case before this court
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involved a fully negotiated plea, the trial court never mentioned
MSR, and the written judgment did not reflect MSR, we would be
constrained to follow Whitfield. See People v. Flatt, 82 Ill. 2d
250, 261, 412 N.E.2d 509, 515 (1980) ("the precedential scope of
a decision is limited to the facts before the court"). However,
in the case before us, the plea was a partially negotiated plea
(or a "'negotiated as to charge and/or sentence'" plea (see
People v. Linder, 186 Ill. 2d 67, 77-78, 708 N.E.2d 1169, 1174
(1999) (Freeman, J., specially concurring))).
The record shows that in this case the trial court
admonished defendant he could receive a sentence in the range of
6 to 30 years' imprisonment, a possible fine of up to $500,000,
and further that "[t]here's what's called mandatory supervisory
release, what we used to call parole, up to 3 years." The court
did not admonish defendant that the period of MSR would be in
addition to the sentence he received and would not be included in
the 10-year cap. The court's statement that the period of MSR is
"up to 3 years" correctly requires the statutory requirement.
See 730 ILCS 5/5-8-1(d)(1) (West 2002) (every sentence on a
conviction of a Class X felony shall include, as though written
therein, a term of three years' MSR in addition to the term of
imprisonment subject to early termination). Sections 3-3-8(a)
and 3-3-8(b) of the Code of Criminal Procedure explicitly permits
the Prisoner Review Board has discretion to release a prisoner
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from MSR before his term of MSR has expired. 730 ILCS
5/3-3-8(a), (b) (West 2004). Therefore, although it is
statutorily required to add a three-year term of MSR to
defendant's sentence, the trial court's language "up to 3 years"
is accurate considering the possibility that the Prison Review
Board has discretion to release defendant from MSR early.
"[T]he burden is on the defendant to establish that the
circumstances existing at the time of the plea, judged by
objective standards, justified the mistaken impression." Davis,
145 Ill. 2d at 244, 582 N.E.2d at 716. The court mentioned MSR
at the same time it addressed additional fines. If defendant
understood that the fines were in addition to his 10-year
sentence, it is unreasonable to conclude he did not know that MSR
would also be in addition to his sentence.
Unlike Whitfield, defendant was advised of the
possibility of three years' MSR, the court told him it was
parole, and when the court asked if he understood the penalties,
he said yes. Also, defendant was given the chance to withdraw
his plea after being so admonished but he persisted in his guilty
plea. While the trial court's admonishment could have been
improved by explicitly stating that MSR was in addition to any
sentence he received, imperfect admonishment is a violation of
due process where real justice has been denied or defendant has
shown prejudice. Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at
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669, citing Davis, 145 Ill. 2d at 250, 582 N.E.2d at 719.
Defendant's due-process rights have not been denied here, nor has
real justice been denied.
Further, unlike Whitfield, the written sentencing
judgment did reflect the term of MSR. Therefore, we decline the
invitation to expand Whitfield, which only applies where the
judge failed to entirely mention MSR before taking the plea and
failed to include it in the judgment of sentence.
D. Ineffective Assistance of Counsel
Next, defendant argues he was denied the effective
assistance of counsel because his attorney refused to file a
timely motion to reduce sentence. Defendant’s affidavit attached
to his petition stated the following:
"Subsequent to the time I was sentenced,
I asked my attorney to file a timely motion
for reduction of sentence on my behalf so
that I could appeal the sentence in this
case. My attorney informed me that I could
not seek a reduction in the sentence without
taking back the plea by a motion to vacate
the plea and proving that the plea was not
voluntary, and my attorney disregarded my
request to file a motion to reduce the
sentence."
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The trial court did not address defendant's ineffective-
assistance-of-counsel claim when summarily dismissing defendant’s
pro se petition. The fact the court did not address this claim
is of no moment because an appellate court can affirm based on
any ground warranted by the record. People v. Rivera, 346 Ill.
App. 3d 398, 405, 803 N.E.2d 882, 888 (2002).
As discussed earlier, defendant alleges his sentence to
prison and MSR exceeded the agreed-upon cap. Thus, defendant
claims that under Whitfield he was not required to withdraw his
guilty plea when seeking to hold the State to its bargain.
Because his trial counsel told him otherwise, counsel was
allegedly ineffective. We disagree.
We have already declined to extend Whitfield to the
circumstances of this case. Thus, the "normal" rules regarding
asking the trial court to reconsider a sentence after a guilty
plea apply. When a defendant agrees to plead guilty in exchange
for a recommended sentencing cap and the dismissal of certain
charges, the defendant must move to withdraw his guilty plea
before asking the trial court to reconsider his sentence when the
defendant has been sentenced within the agreed-upon cap. Linder,
186 Ill. 2d at 74, 708 N.E.2d at 1172-73. Defendant here was
sentenced within the cap. Thus, counsel was correct when telling
defendant he needed to withdraw his guilty plea before asking the
court to reconsider his sentence. Further, defendant has made it
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perfectly clear he does not want to withdraw his guilty plea.
Accordingly, defendant has not made the gist of a constitutional
claim that trial counsel was ineffective.
III. CONCLUSION
For the reasons stated, we affirm the trial court. As
part of our judgment, we grant the State's request that defendant
be assessed $75 as costs for this appeal.
Affirmed.
KNECHT and COOK, JJ., concur.
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