People v. Berrios ( 2009 )

No. 3-07-0548
_________________________________________________________________
Filed January 20, 2009
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2009
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10st Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 02-CF-1007
)
RALPH L. BERRIOS, ) Honorable
) Stuart P. Borden,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________
Defendant, Ralph Berrios, plead guilty to two counts of
aggravated battery with a firearm (720 ILCS 5/12-3(A)(1) and 5/12-
4.2(a)(1) (West 2002)). Four years later, he filed a pro se motion
for relief from judgment, alleging that his sentence was void and
his constitutional right to due process and fundamental fairness
was violated because he had not been informed that a 3-year
mandatory supervised release (MSR) term would apply to his 22-year
sentence. The trial court denied the motion. We affirm.
On December 5, 2003, defendant entered a fully negotiated
guilty plea. The parties informed the trial court that the
agreement called for defendant to serve consecutive sentences of
eleven years’ imprisonment and that he would be entitled to day-
for-day credit for the time he served in presentencing custody.
The trial judge admonished defendant regarding the nature of the
charges and the possible penalties. The judge informed defendant
that each charge was a Class X felony and that the sentencing range
would be from 6 to 30 years in the Department of Corrections, "and
any sentence to the Department of Corrections [would be] followed
by three years mandatory supervised release." He also noted that
the sentences could run concurrently or consecutively.
The trial judge then admonished defendant regarding the
charges in his case:
"THE COURT: In this particular case, the charges,
if convicted to both, are mandatory consecutive
sentences. So, the one must be served and then the other
must be served. Also it’s a truth in sentencing case,
which day-for-day goodtime does not apply, but 85 percent
goodtime would apply. Do you understand the usual
penalties available then for these Class X felonies?
DEFENDANT: Yes, sir.
THE COURT: And as mentioned there is mandatory
supervised release of three years. You do not have to
plead guilty in this case."
The State presented evidence in support of the plea and the
trial court found that a factual basis existed. Pursuant to the
plea, the judge sentenced defendant to eleven years in prison on
both counts, to be served consecutively to each other, with credit
for time served. The sentencing order did not mention MSR.
Defendant did not file a motion to withdraw his guilty plea or a
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direct appeal.
On June 25, 2007, defendant filed a petition for relief from
judgment under section 2-1401 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-1401 (West 2006)). In the petition, defendant
alleged that he was unaware of the three-year term of MSR until he
spoke with counsel in prison. He requested that his prison
sentence be reduced by the three years that he was required to
spend on MSR to comply with the terms of his negotiated plea.
The trial court examined defendant’s petition and supporting
documents and denied the petition. The court concluded that the 2-
1401 petition was not timely filed and that the petition failed to
allege a meritorious defense because defendant was admonished
regarding MSR.
ANALYSIS
Defendant argues that the trial court erred in dismissing, sua
sponte, his section 2-1401 petition on timeliness grounds because
the petition alleged a valid legal claim for relief. We review the
dismissal of a 2-1401 petition de novo. People v. Vincent, 226
Ill. 2d 1 (2007).
A trial court may, sua sponte, dismiss a section 2-1401
petition when the petitioner’s claim is without merit. Vincent,
226 Ill. 2d 1. However, the two-year period contained in section
2-1401 is a statute of limitation and not a jurisdiction
prerequisite. People v. Malloy, 374 Ill. App. 3d 820 (2007). As
such, the State must assert the time limitation as an affirmative
defense; the trial court may not, sua sponte, dismiss the petition
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on the basis of timeliness. Malloy, 374 Ill. App. 3d at 823. The
defendant filed his section 2-1401 petition a year and a half after
the two-year time limit. In dismissing defendant’s petition sua
sponte, the trial court stated that the petition was not timely
filed and that defendant had not alleged any reason for the late
filing. The trial court erred in dismissing defendant’s section 2-
1401 petition on the basis of timeliness.
Defendant also claims that the trial court erred in finding
that his petition did not plead a meritorious basis upon which
relief could be granted.
Defendant’s substantive argument is governed by People v.
Whitfield, 217 Ill. 2d 177 (2005). In Whitfield, the defendant
argued that the court erred in dismissing his postconviction claim
that the trial court’s failure to admonish him that a three-year
MSR term would be added to his negotiated 25-year prison sentence
violated his fundamental rights. Whitfield, 217 Ill. 2d at 180.
Our supreme court determined that the defendant had not received
the benefit of the bargain to plead guilty because he agreed to a
25-year sentence but was never told of the three-year period of MSR
which attached to his sentence as an operation of law. Whitfield,
217 Ill. 2d at 188. The court concluded that the appropriate
remedy was to modify defendant’s 25-year sentence to a term of 22
years, to be followed by the mandatory 3-year term of supervised
release. Whitfield, 217 Ill. 2d at 205. Defendant here claims the
same error and requests a similar remedy.
Subsequent cases have distinguished Whitfield. In People v.
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Borst, 372 Ill. App. 3d 331 (2007), the defendant argued that his
postconviction petition should have been granted based on Whitfield
because the trial court’s general admonishments only referred to
MSR in connection with any extended-term sentence which could be
imposed. The court upheld the denial of the petition, noting that
in Whitfield the trial judge failed to make any mention of MSR
before he accepted defendant’s guilty plea. The court concluded
that, unlike the judge in Whitfield, the trial judge did mention
MSR prior to accepting the defendant guilty plea; thus, the
admonishments were sufficient. Borst, 372 Ill. App. 3d at 334.
Likewise, in People v. Marshall, 381 Ill. App. 3d 724 (2008),
the defendant relied on Whitfield to reduce his prison term by
three years to offset the three-year term of supervised release.
The Marshall court acknowledged that the trial judge did not
mention MSR when he entered defendant’s sentence or in the written
judgment, but emphasized that judge did admonish defendant
regarding MSR prior to accepting his plea. The court found that
the admonishments given by the court were accurate and complied
with the statutory requirements. Marshall, 381 Ill. App. 3d at
736.
As in Borst and Marshall, the trial judge here properly
admonished defendant of the mandatory application of supervised
release. Although the judge did not mention mandatory supervised
release at sentencing or in the written sentencing judgment, he did
advise defendant of the MSR requirement before accepting his plea.
The trial judge informed defendant that the three-year term was
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mandatory and would apply to any sentence of imprisonment
regardless of his plea. The judge also mentioned MSR in relation
to the specific charges in this case. Defendant stated in open
court that he understood the penalties and possible sentences. The
trial court’s admonishments met the statutory requirements. See
Borst, 372 Ill. App. 3d at 334; Marshall, 381 Ill. App. 3d at 736;
see also 177 Ill. 2d R. 402.
We recognize that trial courts should incorporate the
mandatory supervised release admonitions into the pronouncement of
the specific sentence and the written judgment. We simply find in
this case that there was substantial compliance with Supreme Court
Rule 402 and that defendant was sufficiently admonished under the
Rule. See People v. Dennis, 354 Ill. App. 3d 491 (2004) (judge
substantially complies with Rule 402 despite failure to admonish
defendant of all of his rights if the record affirmatively shows
defendant understood those rights.)
Alternatively, defendant argues that the trial court erred in
failing to recharacterize his pro se pleading as a postconviction
petition filed under the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2006)).
When a pro se defendant files a pleading alleging a
deprivation of constitutional rights cognizable under the Act, the
trial court may recharacterize it as a postconviction petition.
People v. Shellstrom, 216 Ill. 2d 45 (2005). However, the court is
under no obligation to do so. Shellstrom, 216 Ill. 2d at 53.
Section 122-1(d) of the Act provides that a trial court reviewing
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a petition which does not state that it is filed under the Act
"need not evaluate the petition to determine whether it could
otherwise have stated some grounds for relief under [the Act]".
725 ILCS 5/122-1(d) (West 2006). Although courts have the
authority to consider a defendant’s pleading as a postconviction
petition, "trial courts should be hesitant to use this authority
and do so only in unusual and compelling circumstances." People v.
Holliday, 369 Ill. App. 3d 678, 681 (2007).
In determining whether a recharacterization is appropriate,
the court should consider whether the filing was also cognizable in
the form in which the defendant filed it. People v. Pearson, 345
Ill. App. 3d 191 (2003). A trial court’s decision regarding
recharacterization is addressed to its sound discretion and will be
reviewed under an abuse of discretion standard. Holliday, 369 Ill.
App. 3d at 682. Accordingly, we will not reverse the court’s
decision unless it is unreasonable. People v. Johnson, 368 Ill.
App. 3d 1146 (2006).
The circumstances of this case are not unusual or compelling.
The defendant entitled his pleading as a 2-1401 petition. In the
petition, he argued that the admonishments he received concerning
mandatory supervised release were not sufficient to inform him that
he would be subject to mandatory supervised release. His claim was
a cognizable 2-1401 pleading, but it was untimely.
In this case, recharacterizing the petition as a
postconviction petition would not have cured the issue of
timeliness. The Act provides that, if a defendant did not file a
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direct appeal, he may file a postconviction petition no later than
three years from the date of the conviction. 725 ILCS 5/122-1(c)
(West 2006). Defendant filed his petition for relief from judgment
three years and six months after his date of conviction. The
petition would not have been timely filed even if the court had
considered it as a postconviction petition.
Moreover, renaming defendant’s 2-1401 petition would not have
altered its substance. As we determined, the admonishments
defendant received regarding MSR were sufficient. Thus, the trial
court did not abuse its discretion in failing to recharacterize
defendant’s pleading as a postconviction petition.
CONCLUSION
The judgment of the circuit court of Peoria County is
affirmed.
Affirmed.
CARTER and WRIGHT, JJ., concurring.
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