People v. Holborow

NO. 4-07-0395 Filed 5/1/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
JESSE G. HOLBOROW, ) No. 04CF141
Defendant-Appellant. )
) Honorable
) Harold J. Frobish,
) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In January 2005, defendant, Jesse G. Holborow, entered
into a negotiated plea to home invasion with great bodily harm to
the victim (720 ILCS 5/12-11(a)(2) (West 2004)) (count I), theft
(subsequent offense) (720 ILCS 5/16-1(a)(1), (a)(2) (West 2004))
(count VI), and criminal trespass to a vehicle (720 ILCS 5/21-2
(West 2004)) (count VII). In exchange for the plea, the State
dismissed four other charges and the trial court sentenced
defendant to concurrent sentences of 16 years in the Department
of Corrections (DOC) for home invasion, 3 years for theft, and
364 days for criminal trespass to a vehicle. Defendant filed a
motion to reduce sentence, which the court denied. He did not
file a direct appeal.
In April 2007, defendant filed a pro se postconviction
petition under the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 through 122-8 (West 2006)), wherein he alleged violation
of the terms of his plea agreement because he had not been
admonished that he would be required to serve a three-year term
of mandatory supervised release (MSR) upon his release from
prison. Several days later, the court summarily dismissed the
postconviction petition as frivolous and patently without merit.
Defendant appeals. We affirm.
I. BACKGROUND
In July 2004, defendant was charged by information with
seven crimes. Count I charged defendant with the Class X felony
of home invasion in that defendant "knowingly and without author-
ity entered the dwelling place of another, [Bernard H.], ***
having reason to know [Bernard H.] to be present within that
dwelling, and intentionally caused injury to [Bernard H.] by
beating [Bernard H.] about the head and body[] within said
dwelling place" (720 ILCS 5/12-11(a)(2) (West 2004)). Count II
charged defendant with the Class 2 felony of aggravated battery
of a senior citizen in that defendant "knowingly caused great
bodily harm to [Bernard H.], an individual sixty (60) years of
age or older[,] being seventy (70) years of age, in that said
defendant knowingly beat [Bernard H.] about the head and body,
causing swelling of the brain and other injuries" (720 ILCS 5/12-
4.6(a) (West 2004)). Count III charged defendant with the Class
3 felony of aggravated battery in that he "knowingly caused great
bodily harm to [Bernard H.], in that said defendant knowingly
beat [Bernard H.] about the head and body, causing swelling of
the brain and other injuries" (720 ILCS 5/12-4(a) (West 2004)).
Count IV charged defendant with the Class 3 felony of aggravated
battery in that defendant "knowingly caused bodily harm to
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[Bernard H.], an individual sixty (60) years of age or older[,]
being seventy (70) years of age, by beating [Bernard H.] about
the head and body" (720 ILCS 5/12-4(b)(10) (West 2004)). Count V
charged defendant with the Class 3 felony of aggravated battery
in that defendant "used a deadly weapon, in that said defendant
knowingly caused bodily harm to [Bernard H.] by stabbing [Bernard
H.] with a knife" (720 ILCS 5/12-4(b)(1) (West 2004)). Count VI
charged defendant with the Class 4 felony of theft (subsequent
offense) in that defendant, "a person previously convicted of the
offense of [b]urglary ***, knowingly exerted unauthorized control
over certain property of [Bernard H.], being beer, intending to
deprive [Bernard H.] permanently of the use of the property" (720
ILCS 5/16-1(a)(1), (a)(2) (West 2004)). Count VII charged
defendant with the Class A misdemeanor of criminal trespass to a
vehicle in that defendant "knowingly and without authority
entered a vehicle of another, a 1986 Ford van of [Bernard H.]"
(720 ILCS 5/21-2 (West 2004)).
In January 2005, the State and defendant entered into a
written, fully negotiated plea of guilty to all charges. In
exchange therefor, defendant was sentenced only on count I (home
invasion with great bodily harm to the victim), count VI (theft--
subsequent offense), and count VII (criminal trespass to a
vehicle) and sentenced to concurrent prison terms of 16 years on
the home-invasion count (noting it would be served at 85% under
truth in sentencing), 3 years on the theft count, and 364 days on
the criminal-trespass-to-a-vehicle count. In addition to the DOC
- 3 -
sentences, defendant was ordered to pay a $200 deoxyribonucleic
acid (DNA) fee and $5,643.59 restitution and to make himself
available and provide truthful testimony in the case against a
codefendant. Defendant waived his presentence investigation.
Defendant's prior criminal record included burglary, two convic-
tions for theft from a person, and criminal damage to property.
At the January 2005 plea hearing, the trial court went
over the details of the written plea agreement with defendant in
open court. Defendant indicated his intention to plead guilty.
The trial court admonished defendant as to each charge against
him, and defendant expressed his understanding of the charges.
The court further admonished defendant as follows:
"THE COURT:
* * *
Now it is important that you understand
with respect to [c]ount [I], the home inva-
sion, that is a Class X felony. And the law
says that if this were handled by other than
a plea agreement, you could get anywhere from
six to 30 years in prison, plus three years
[of MSR]. You are not eligible for proba-
tion, periodic imprisonment[,] or conditional
discharge. If you were found guilty, you
would have to get a minimum six years, and
you could get as much as 30. And with great
bodily harm, you have to serve 85[%] of your
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time. So do you understand what the possi-
bilities there are, if this were handled by
other than a plea agreement?
THE DEFENDANT: Yes.
THE COURT: Okay. Now, [c]ount [II],
aggravated battery of a senior citizen *** is
a Class 2 felony. *** That is the one where
you are charged with knowingly causing great
bodily harm to [Bernard H.], in that he was a
senior citizen, an individual 60 years of age
or older. And he was 70 years of age. Know-
ingly beating him about the head and body
causing swelling and other injuries. And you
are eligible there for an extended term.
Since that is a Class 2, an extended term is
seven to fourteen years. So if this were
handled by other than a plea agreement, the
law provides you could get anywhere from
three to 14 years in prison, plus two years
[of MSR]. Other possibilities include proba-
tion or conditional discharge not to exceed
four years, periodic imprisonment of 18 to 30
months. And you could be fined up to
$25,000. So those are the possibilities
there.
Do you have any questions about that,
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Mr. Holborow?
THE DEFENDANT: No.
THE COURT: Now, [c]ount [III],
[c]ount[s] [III], [IV], [c]ount [V] are
aggravated-battery counts. Those are Class 3
felonies. You are eligible for an extended
prison term of up to ten years there. So if
this were handled by other than a plea agree-
ment as to those three counts, you could get
anywhere from two to ten years in prison,
plus two years [of MSR]. Other possibilities
include probation or conditional discharge
not to exceed 30 months, periodic imprison-
ment not to exceed 18 months. And you could
be fined up to $25,000 and ordered to make
restitution.
Any questions about that?
THE DEFENDANT: No.
THE COURT: *** Count [VI] is a theft
count as a subsequent offense. This is a
Class 4 felony. And there, you could get
prison of anywhere from one to three years,
plus one year of [MSR]. Other possibilities
include probation or conditional discharge
not to exceed 30 months, periodic imprison-
ment not to exceed 18 months. You could be
- 6 -
fined up to $25,000 and ordered to pay resti-
tution. So those are the possibilities
there.
Any questions about that?
THE DEFENDANT: No.
THE COURT: And [c]ount [VII] is criminal
trespass to a vehicle. That is a Class A
misdemeanor for which you could get jail of
up to a year.
Now, once again, you are going to plead
guilty, as I understand it, to all seven
counts. You are going to get a conviction on
[c]ount [I], home invasion. You are going to
get the 16 years there. You are going to get
a conviction then also as to [c]ount [VI].
And there, you are going to get a three-year
concurrent prison sentence. That is a theft
as a subsequent offense. And then at [c]ount
[VII], that is criminal trespass to a vehi-
cle. You are going to get 364 days there.
Now, that sentence in [c]ount[s] [VI and
VII], that is going to be concurrent with
your 16 years, so you are going to get 16 as
a maximum. And these other two periods of
imprisonment are going to be served concur-
rently. There is going to be a finding of
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guilty of [c]ount[s] [II, III, IV, and V].
But there is going to be no conviction there.
THE DEFENDANT: So everything is run
concurrent with the case I am in on now?
THE COURT: You are going to get three
convictions. Home invasion. You are not
going to get a conviction on the other
aggravated[-]battery counts because it is the
same conduct. You can only be convicted once
for the same act. So the act that has the
conviction is the home[-]invasion count. You
are going to get sentenced on that one to 16
years. You are going to be found guilty of
[c]ounts of [II, III, IV, and V]. And then
you are going to get a second conviction for
theft and a third conviction for criminal
trespass to [a] vehicle. And the jail sen-
tence in [c]ounts [VI and VII], the theft and
criminal trespass are going to run concur-
rently to the 16 years.
THE DEFENDANT: [Nods affirmatively.]
THE COURT: Any questions.
THE DEFENDANT: No." (Emphasis added.)
The trial court then admonished defendant regarding the
rights he was waiving by pleading guilty. The court questioned
defendant about any coercion or additional promises, to which
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defendant responded in the negative, whether defendant had had
adequate opportunity to discuss the decision to plead guilty with
his attorney, to which defendant responded in the affirmative,
and whether he needed any additional time to think about his
decision, to which defendant responded in the negative. Defen-
dant persisted in his desire to plead guilty.
The trial court went through the details of each count,
including the fact that on some counts defendant was eligible for
extended-term sentencing. As to each count, defendant indicated
his plea of guilty. The State presented the following factual
basis for the plea:
"Your Honor, the evidence would show,
had the case gone to trial, that on the night
of Sunday, Monday, June 27-28, 2004, in the
City of Fairbury, in Livingston County, there
was a gentleman by the name of [Bernard H.],
who was born in 1934, who was at his home at
[address]. The defendant and those with whom
he acted in concert that night, Nathon Hogan,
who has already pled guilty to this
offense[,] and a Robert Collett. Some or all
of them had been to [Bernard H.'s] home
prior, but on one occasion that night they
entered the home without authority, ostensi-
bly, to get beer. They wanted beer. Ulti-
mately, they got beer. Taking that from the
- 9 -
home, taking [Bernard H.'s] beer and depart-
ing with it and [Bernard H.206 Ill. 2d 261, 277, 794 N.E.2d
275, 286 (2002). A postconviction proceeding is not an appeal
per se; rather, it is a collateral proceeding inquiring into
constitutional issues that were not, and could not have been,
previously adjudicated. People v. Eddmonds, 143 Ill. 2d 501,
510, 578 N.E.2d 952, 955-56 (1991).
In the first stage of a postconviction proceeding not
involving the death penalty, the trial court determines whether
defendant's petition, standing alone, is frivolous and patently
without merit. People v. Gaultney, 174 Ill. 2d 410, 418, 675
N.E.2d 102, 106 (1996). If the petition does not present "the
gist of a constitutional claim," it will be dismissed. 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. Accord-
ingly, we must determine only whether defendant's petition set
forth the gist of a constitutional claim. We review the trial
court's summary dismissal of a defendant's petition de novo.
People v. Williams, 209 Ill. 2d 227, 234, 807 N.E.2d 448, 453
(2004).
On appeal, defendant argues that the trial court erred
in dismissing his postconviction petition because his plea
agreement did not include any mention of the requirement that he
serve a three-year term of MSR following his release from DOC.
Therefore, defendant argues, the sentence he received was greater
than that to which he agreed during his guilty-plea negotiations
and hearing. Defendant does not challenge the validity of the
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plea and, accordingly, does not seek the withdrawal of his guilty
plea. Instead, defendant seeks reversal of the trial court's
judgment and remand with directions that his sentence be reduced
to a term of 13 years in DOC followed by 3 years on MSR. The
State maintains that defendant was admonished about MSR and that
he is not entitled to reduction in his sentence simply because
the trial court did not explicitly clarify that MSR would apply
in addition to his negotiated prison terms.
Defendant cites People v. Whitfield, 217 Ill. 2d 177,
840 N.E.2d 658 (2005), and People v. Company, 376 Ill. App. 3d
846, 876 N.E.2d 1055 (2007), as authority to support his argument
that the addition of the term of MSR constitutes an unfair breach
of the plea agreement and violates his due-process rights.
In Whitfield, the defendant entered a fully negotiated
guilty plea in exchange for concurrent 25-year and 6-year prison
terms. Whitfield, 217 Ill. 2d at 179, 840 N.E.2d at 661. At no
time during the plea proceedings did the prosecutor or the court
advise the defendant that he would be subject to a three-year
period of MSR following his release from prison. 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 did
not file a direct appeal. Whitfield, 217 Ill. 2d at 180, 840
N.E.2d at 661. 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.
- 15 -
2d at 180, 840 N.E.2d at 661. The defendant filed a motion for
relief from judgment that the court treated as a postconviction
petition. The defendant contended that his fourteenth amendment
(U.S. Const., amend. XIV) due-process rights were violated
because he was never advised of the MSR 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
request that his plea be withdrawn but sought to enforce the
terms of the plea agreement by reducing his 25-year prison term
by the length of the MSR term. Whitfield, 217 Ill. 2d at 180-81,
840 N.E.2d at 661. The trial court denied the petition and the
appellate court affirmed. Whitfield, 217 Ill. 2d at 181-82, 840
N.E.2d at 662.
The Whitfield court stated that a defendant's due-
process rights may be violated where the defendant did not
receive the "benefit of the bargain" of his plea agreement with
the State. Whitfield, 217 Ill. 2d at 186, 840 N.E.2d at 664.
The defendant in Whitfield argued that the trial court was
required under Rule 402 (177 Ill. 2d R. 402) to admonish him on
the record of the statutorily required MSR term. Whitfield, 217
Ill. 2d at 186, 840 N.E.2d at 664-65. The defendant argued that
because the court failed to admonish the defendant of the statu-
torily required MSR term, the defendant's plea agreement included
only the prison sentence and not the additional MSR term.
Whitfield, 217 Ill. 2d at 186, 840 N.E.2d at 665.
- 16 -
The Whitfield court concluded:
"[A]lthough substantial compliance with
Rule 402 is sufficient to establish due pro-
cess [citations], and an imperfect admonish-
ment is not reversible error unless real
justice has been denied or the defendant has
been prejudiced by the inadequate admonish-
ment [citation], 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 [an MSR]
term will be added to that sentence."
Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at
669.
The Whitfield court held that the petitioner established a
substantial violation of his constitutional rights because he
pleaded guilty in exchange for a specific sentence, and the
addition of the MSR term resulted in a sentence "more onerous
than the one defendant agreed to at the time of the plea hear-
ing." Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at 669.
However, this case is distinguishable from Whitfield in
one significant respect. In Whitfield, the trial court did not
mention MSR at all to the defendant before he entered into his
negotiated guilty plea for a specific term of years. Whitfield,
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217 Ill. 2d at 179-80, 840 N.E.2d at 661. Here, during the
guilty-plea hearing and prior to defendant’s guilty plea, the
trial court mentioned MSR on at least four occasions as the court
admonished defendant regarding the potential penalties for each
of the charged offenses.
Further, this court has previously addressed the
admonishment issues presented in Whitfield, noting its unwilling-
ness to expand Whitfield’s ruling to cases where MSR was men-
tioned in the admonishments prior to a plea.
In People v. Borst, 372 Ill. App. 3d 331, 867 N.E.2d
1181 (2007), the defendant entered into a negotiated guilty plea
to attempt (aggravated criminal sexual assault) and home invasion
in exchange for concurrent 15-year sentences and dismissal of a
residential-burglary charge. Borst, 372 Ill. App. 3d at 332, 867
N.E.2d at 1182. At the plea hearing, the trial court gave the
following admonishments:
"'[TRIAL COURT]: Count [I], attempted
aggravated criminal sexual assault, is a
Class [1] [f]elony punishable by one to three
years, I'm sorry, four to 15 years in the
penitentiary. If there are aggravating fac-
tors present[,] could be 15 to 30 years. Two
years['] [MSR]. Up to four years on proba-
tion. Up to $25,000 fine.
Count [II], home invasion, is a Class X
[f]elony as charged. It's six to 30 years in
- 18 -
the penitentiary. Could be 30 to 60 years if
there are aggravating factors present. Three
years['] [MSR]. Is not probationable. And up
to $25,000 fine.'" (Emphases in original.)
Borst, 372 Ill. App. 3d at 332, 867 N.E.2d at
1182.
When declaring the sentence, the court did not mention MSR again,
and the sentencing judgment did not mention MSR. Borst, 372 Ill.
App. 3d at 333, 867 N.E.2d at 1183. This court determined that,
while the trial judge was not perfectly clear, he did mention
terms of MSR while admonishing the defendant. This court,
therefore, refused to apply Whitfield to a situation in which MSR
was mentioned. Borst, 372 Ill. App. 3d at 334, 867 N.E.2d at
1184.
In People v. Holt, 372 Ill. App. 3d 650, 867 N.E.2d
1192 (2007), the defendant entered into an open guilty plea to
burglary in exchange for the State recommending a DOC sentence of
13 years and dismissal of other charges. Holt, 372 Ill. App. 3d
at 650-51, 867 N.E.2d at 1193-94. The trial court told the
defendant that "'[i]f you are sent to prison, there [is] a period
of [MSR] of one [to] three years.'" (Emphasis omitted.) Holt,
372 Ill. App. 3d at 651, 867 N.E.2d at 1193. Defendant was
sentenced to 13 years in DOC. Holt, 372 Ill. App. 3d at 651, 867
N.E.2d at 1194. Because the defendant was admonished about MSR,
this court found that the defendant had received the benefit of
his bargain with the State, and defendant's due-process rights
- 19 -
had not been violated. Holt, 372 Ill. App. 3d at 653, 867 N.E.2d
at 1195.
In People v. Jarrett, 372 Ill. App. 3d 344, 345, 867
N.E.2d 1173, 1174-75 (2007), the defendant entered into a par-
tially negotiated plea of guilty to unlawful possession of a
controlled substance with intent to deliver in exchange for the
State dismissing other charges and offering a "'cap at 10
years.'" Jarrett, 372 Ill. App. 3d at 345, 867 N.E.2d at 1175.
The trial court admonished the defendant of the potential penal-
ties absent a plea agreement and then stated, "'There's what's
called [MSR], what we used to call parole, up to [three] years.'"
(Emphasis in original.) Jarrett, 372 Ill. App. 3d at 345-46, 867
N.E.2d at 1175. The defendant was sentenced to eight years in
DOC. Jarrett, 372 Ill. App. 3d at 345, 867 N.E.2d at 1174.
After noting its "serious concerns about both the analysis and
remedy in Whitfield" (Jarrett, 372 Ill. App. 3d at 351, 867
N.E.2d at 1179), this court held that it was not constrained to
follow the Whitfield decision because, unlike Whitfield, Jarrett
involved only a partially negotiated plea instead of a fully
negotiated plea, and the trial court did mention MSR during the
guilty-plea hearing. Jarrett, 372 Ill. App. 3d at 351-52, 867
N.E.2d at 1179-80.
Defendant maintains that, "at first blush," this line
of cases seems to control the issue at bar because this was a
fully negotiated plea, the trial court did mention MSR during the
plea hearing, and the sentencing order made no mention of MSR.
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However, defendant argues that in the case sub judice the court
stated specifically that MSR was only a penalty defendant could
receive if the matter were resolved by "other than a plea agree-
ment." For that reason, defendant relies on Company, 376 Ill.
App. 3d 846, 876 N.E.2d 1055, which he maintains is directly on
point and which he argues should control the resolution of this
issue.
In Company, the defendant entered into a fully negoti-
ated plea of guilty to home invasion in exchange for dismissal of
a murder charge and a 15-year sentence to DOC. Company, 376 Ill.
App. 3d at 847, 876 N.E.2d at 1056. The trial court admonished
the defendant as follows:
"'THE COURT: As Mr. Roustio indicated,
Mr. Company, if you were convicted at trial
of the [m]urder, I could have sentenced you
to a determinate period of time in [DOC]
between 20 and 60 years, and you would have
to do 100[%] of that sentence. If convicted
on the [h]ome [i]nvasion, I could sentence
you to a determinate period of time in [DOC]
between 6 and 30 years. You would have to do
85[%] of that sentence. It is not
probationable. Probation is not an option,
and at the conclusion of that sentence you
either--either--the sentence on either count,
you would do two years of [MSR], and on each
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one I could fine you $25,000. There's a
possibility, Mr. Company, that I could sen-
tence you consecutively so that theoretically
you could do as many as 90 years in prison.
Do you have any questions about the punish-
ments that you could have faced?
THE DEFENDANT: No, [s]ir.'" (Emphases
in original.) Company, 376 Ill. App. 3d at
850, 876 N.E.2d at 1058-59.
The written order of judgment made no mention of MSR. The
defendant filed a motion to withdraw his guilty plea or, in the
alternative, to modify or reduce the sentence imposed. In his
motion, the defendant alleged that he did not "'fully understand
or comprehend the admonishments of the court pursuant to Illinois
Supreme Court Rule 402 at the time of the entry of the plea of
guilty.'" Company, 376 Ill. App. 3d at 847-48, 876 N.E.2d at
1056. The court denied the defendant’s motion to withdraw his
guilty plea. Company, 376 Ill. App. 3d at 848, 876 N.E.2d at
1056-57.
In Company, the Fifth District found the facts were
similar to Whitfield. However, unlike Whitfield, "the trial
court did mention [MSR]" when admonishing the defendant. Com-
pany, 376 Ill. App. 3d at 850, 876 N.E.2d at 1058-59. But when
mentioning MSR, the court stated that the defendant would be
subject to a term of MSR "'if *** convicted at trial of the
[m]urder'" and "'if convicted on the [h]ome [i]nvasion.'" The
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court explained that "'[i]nstead of'" those penalties, the
defendant was "'agreeing on a sentence of 15 years.'" (Emphasis
omitted.) Company, 376 Ill. App. 3d at 850-51, 876 N.E.2d at
1058-59. Accordingly, the court stated that the defendant could
reasonably have understood that an MSR term applied only if he
were to be found guilty at a trial and that nothing in the record
showed that the defendant knew he would be subject to an MSR term
as a result of his guilty plea. Company, 376 Ill. App. 3d at
851, 876 N.E.2d at 1059.
The Company court then distinguished its holding from
both Holt and Borst. Holt was distinguishable because, in that
case, the defendant was clearly admonished by the trial court
that an MSR term of one to three years attached to a prison term.
Borst was distinguishable because, in that case, when the court
admonished the defendant about the minimum and maximum sentences
each offense carried, the court also mentioned the MSR term each
offense carried. Company, 376 Ill. App. 3d at 852, 876 N.E.2d at
1060. The court distinguished Borst by stating that in Borst the
trial court's admonishment had "related MSR to the defendant's
crime," while in Company, the trial court had "linked MSR to the
defendant's possible sentence if he were to be found guilty at a
trial and not to a sentence for his crime in general or to the
sentence that was being imposed as a result of his guilty plea."
Company, 376 Ill. App. 3d at 852, 876 N.E.2d at 1060. The court
reversed and remanded with directions that the trial court reduce
the defendant's prison sentence from a term of 15 to a term of 12
- 23 -
years. Company, 376 Ill. App. 3d at 853, 876 N.E.2d at 1061.
The case sub judice is similar to Company in many
respects. This case involved a fully negotiated plea for a set
term of years. When admonishing defendant at the plea hearing,
the trial court mentioned MSR four times as follows:
"Now it is important that you understand
with respect to [c]ount [I], the home inva-
sion, that is a Class X felony. And the law
says that if this were handled by other than
a plea agreement, you could get anywhere from
six to 30 years in prison, plus three years
[of MSR]. *** So do you understand what the
possibilities there are, if this were handled
by other than a plea agreement?
THE DEFENDANT: Yes.
THE COURT: Okay. Now, [c]ount [II],
aggravated battery of a senior citizen *** is
a Class 2 felony. *** And you are eligible
there for an extended term. Since that is a
Class 2, an extended term is seven to four-
teen years. So if this were handled by other
than a plea agreement, the law provides you
could get anywhere from three to 14 years in
prison, plus two years [of MSR]. *** So
those are the possibilities there.
Do you have any questions about that,
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Mr. Holborow?
THE DEFENDANT: No.
THE COURT: Now, [c]ount [III],
[c]ount[s] [III], [IV], [c]ount [V] are ag-
gravated battery counts. Those are Class 3
extended
felonies.
prison term
You are
of up
eligible
to ten for
years
an there. So if
this were handled by other than a plea agreement as to
those three counts, you could get anywhere from two to
ten years in prison, plus two years [of MSR]. ***
Any questions about that?
THE DEFENDANT: No.
THE COURT: *** Count [VI] is a theft
count as a subsequent offense. This is a
Class 4 felony. And there, you could get
prison of anywhere from one to three years,
plus one year of [MSR]. *** So those are
the possibilities there.
Any questions about that?
THE DEFENDANT: No." (Emphasis added.)
The written plea agreement, docket entry, and sentencing order,
however, made no mention of MSR. When the trial court sentenced
defendant, the court specifically mentioned the 16 years' impris-
onment, court costs, and DNA requirements but did not mention an
MSR term.
However, in accordance with our prior decisions in
Jarrett, Borst, and Holt, we disagree with the Fifth DistrictWhitfield, 217 Ill. 2d at 195, 840 N.E.2d at 669.
The trial court in the case sub judice certainly could have made
the admonitions clearer. Regardless, the court did substantially
comply with the requirements of Supreme Court Rule 402 when the
court mentioned MSR to defendant during the court's admonitions
prior to defendant's guilty plea. Defendant was made aware of
MSR, and he was not deprived of the benefit of the bargain he
made with the State. Therefore, defendant's due-process rights
were not violated. The court appropriately dismissed defendant's
postconviction petition.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's
judgment dismissing defendant's postconviction petition. As part
of our judgment, we grant the State's request that defendant be
assessed $50 as costs for this appeal.
Affirmed.
KNECHT and STEIGMANN, JJ., concur.
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