People v. Welch , 376 Ill. App. 3d 705 ( 2007 )

JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Robert Welch, appeals from the trial court’s dismissal of his second postconviction petition. We vacate and remand.

On August 26, 1998, defendant was charged with solicitation of murder for hire (720 ILCS 5/8 — 1.2(a) (West 1998)). On April 9, 1999, defendant entered a negotiated plea of guilty under which he was sentenced to a term of 28 years’ imprisonment. During the guilty plea hearing, the trial court failed to admonish defendant that he would be required to serve a three-year period of mandatory supervised release (MSR) pursuant to section 5 — 8—1(d)(1) of the Unified Code of Corrections (730 ILCS 5/5 — 8—1(d)(1) (West 1998)).

On April 27, 1999, defendant filed a timely pro se motion to withdraw his guilty plea and a separate motion for reconsideration of his sentence. Neither motion raised any claim regarding the omitted MSR admonishment. On September 22, 1999, defendant abandoned his motion to withdraw his guilty plea.

On March 23, 2000, defendant filed a “resubmitted” pro se petition to withdraw his guilty plea and vacate his sentence. The resubmitted petition did not raise an improper-admonishment claim. The trial court determined that it did not have jurisdiction to consider the resubmitted petition. On direct review, this court granted the Office of the State Appellate Defender (OSAD) leave to withdraw as appellate counsel under Anders v. California, 368 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and affirmed the trial court. See People v. Welch, No. 2 — 00—0363 (2001) (unpublished order under Supreme Court Rule 23).

On May 3, 2001, defendant filed a pro se petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1 et seq. (West 2004)), which he later supplemented. The petition was later amended by appointed counsel. Neither the original nor the amended petition raised the issue of the omitted MSR admonishment. On October 18, 2002, following an evidentiary hearing, the trial court denied the amended petition. On review, this court, agreeing that no meritorious issues were presented, allowed OSAD to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), and affirmed the trial court. See People v. Welch, No. 2 — 02—1230 (2003) (unpublished order under Supreme Court Rule 23).

On February 19, 2004, defendant filed a petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2— 1401 (West 2002)), in which he complained for the first time that he had not been properly admonished about the three-year MSR term at his guilty plea hearing. Defendant alleged that he had “just recently learned from his place of confinement” that he would be required to serve a 3-year term of MSR following the completion of his 28-year prison sentence. He requested that his prison sentence be reduced in order to incorporate the MSR term into his 28-year sentence.

On May 12, 2004, the trial court again appointed counsel to represent defendant. Attorney Clark appeared on July 7 and August 4, 2004, and expressed concern about having to argue his own unreasonableness for not having raised the MSR issue in the original postconviction proceeding. Nonetheless, the question was not broached again and Clark continued to represent defendant.

On December 22, 2004, the trial court allowed defendant leave to amend and transform his section 2 — 1401 petition to a successive postconviction petition. On January 7, 2005, Clark filed a successive postconviction petition for defendant. On May 5, 2005, Clark filed an amended petition. The amended petition contended, in relevant part, that defendant’s guilty plea should be set aside because defendant was not admonished at the guilty plea hearing that he would have to serve a three-year term of MSR following his release from the Department of Corrections. There was no allegation that defendant’s attorneys may have been ineffective or unreasonable for failing to previously raise the MSR issue.

The State filed a motion to dismiss the successive postconviction petition, which the trial court granted after a hearing. The trial court concluded that defendant had waived the issue by failing to raise it on direct appeal or in his first postconviction petition. Additionally, the trial court concluded that defendant was not sentenced to a term greater than he bargained for because, due to his eligibility for day-for-day credit, he would serve only approximately 14 years of his 28-year sentence. Therefore, the trial court reasoned, the 3-year MSR term following 14 years in the Department of Corrections did not extend defendant’s sentence beyond the agreed-upon 28-year sentence. Finally, the trial court concluded that defendant failed to establish that he would not have pleaded guilty had he known of the MSR term. This appeal followed.

Defendant contends that the trial court erred in dismissing his successive postconviction petition. The Act “provides an avenue by which a defendant may challenge his conviction or sentence for violations of federal or state constitutional rights.” People v. Whitfield, 217 Ill. 2d 177, 183 (2005). A defendant is entitled to relief under the Act only if he can prove that he suffered a substantial deprivation of his constitutional rights in the proceedings that produced his conviction or sentence. Whitfield, 217 Ill. 2d at 183. This appeal arises from the second-stage dismissal of defendant’s postconviction petition; such a dismissal is subject to de novo review. Whitfield, 217 Ill. 2d at 182.

In the present case, it is undisputed that the trial court failed to admonish defendant in accordance with Supreme Court Rule 402 (177 Ill. 2d R. 402). Pursuant to Rule 402, every defendant who enters a plea of guilty has a due process right to be properly and fully admonished. Whitfield, 217 Ill. 2d at 188. Compliance with Rule 402(a)(2) requires that a defendant be admonished that the period of MSR pertaining to an offense is part of the sentence that will be imposed. Whitfield, 217 Ill. 2d at 188. 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 the plea, that an MSR term will be added to that sentence. Whitfield, 217 Ill. 2d at 195.

It is undisputed that the trial court herein did not admonish defendant, pursuant to Rule 402(a)(2), that a term of MSR would be added to the agreed-upon sentence of 28 years. In light of the clear holding of Whitfield, defendant has established a substantial violation of his due process rights. The State argues that, regardless of due process considerations, dismissal of defendant’s successive postconviction petition should be affirmed based on principles of waiver.¹ In general, issues that could have been raised on direct appeal, but were not, are not amenable to postconviction review. See Whitfield, 217 Ill. 2d at 187; People v. Collins, 153 Ill. 2d 130, 135 (1992). The State asserts, without any reference to the facts of Whitfield, that People v. Newman, 365 Ill. App. 3d 285 (2006), is more “procedurally similar” to this case than is Whitfield and should lead this court to find that defendant has procedurally defaulted. The State appears to base this assertion on the fact that, while the defendant in Newman and defendant herein both filed motions to withdraw their guilty pleas and direct appeals that failed to raise the MSR issue, the defendant in Whitfield filed neither.

We do not find that the issue of the defendant’s prior filings is central to the supreme court’s analysis in Whitfield. In concluding that there was no procedural default, the Whitfield court emphasized two facts: (1) the trial court did not admonish the defendant about MSR; and (2) the defendant did not learn about the imposition of MSR until he was in prison, sometime after the time to directly appeal had expired. See Whitfield, 217 Ill. 2d at 188. Because of these facts, the defendant “could not have raised the error in a motion to withdraw his plea or a direct appeal.” Whitfield, 217 Ill. 2d at 188. These same facts are present in the case before us and lead us to conclude that Whitfield, more so than Newman, is applicable to this case. It is undisputed that defendant was not admonished about MSR and that he learned about it later, while in prison. There is no evidence that he could have raised the issue in a prior filing, because there is no indication that he had knowledge of the issue. Defendant had no such knowledge because the trial court failed to apprise him, as required, of the MSR term that gives rise to his claim. Accordingly, we find no procedural default.

The remedy to be granted, then, remains as the only question. In Whitfield, the supreme court modified the defendant’s 25-year prison sentence, which was to be followed by 3 years of MSR, to a 22-year prison sentence followed by 3 years of MSR, thereby giving the defendant the benefit of his bargain for a 25-year sentence. See Whitfield, 217 Ill. 2d at 205. We find such a remedy appropriate here as well. Therefore, we vacate the sentence imposed by the circuit court and remand with directions that it impose a sentence of 25 years’ imprisonment to be followed by a term of 3 years’ mandatory supervised release.

Vacated and remanded with directions.

CALLUM, J., concurs.

1 Our supreme court has recently concluded that the phrase “procedural default” is the more precise terminology where, as here, the claim is made that a party failed to adequately preserve an issue for later appellate review. See Whitfield, 217 Ill. 2d at 187.