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07/07/88 the People of the State of v. Steven Michael Kull

July 7, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

STEVEN MICHAEL KULL, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

525 N.E.2d 1223, 171 Ill. App. 3d 496, 121 Ill. Dec. 916 1988.IL.1068

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On September 14, 1987, in the circuit court of Macon County, defendant Steven Michael Kull entered a plea of guilty to the offense of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1) and received a negotiated sentence of 22 years' imprisonment in the Illinois Department of Corrections. On October 13, defendant filed a motion to withdraw his guilty plea, which was denied. Defendant now appeals alleging that he should be allowed to withdraw his guilty plea because he was not admonished, prior to his plea, concerning the period of mandatory supervised release, and his plea was not voluntary.

In People v. Wills (1975), 61 Ill. 2d 105, 330 N.E.2d 505, cert. denied (1975), 423 U.S. 999, 46 L. Ed. 2d 374, 96 S. Ct. 430, our supreme court determined that compliance with Supreme Court Rule 402(a) (107 Ill. 2d R. 402(a)), which sets forth the admonishments required to be given to a defendant when he enters a guilty plea, required that a defendant be admonished that the mandatory period of parole (now mandatory supervised release) is part of the sentence that will be imposed. The court further held that failure to so admonish is a factor to be considered in determining whether a plea of guilty was voluntarily and intelligently made. Wills, 61 Ill. 2d at 111, 330 N.E.2d at 508.

Defendant correctly notes that at no time did he receive this admonishment. He, therefore, asserts his guilty plea was involuntary, and he should be allowed to withdraw it. We addressed this identical question in People v. Louderback (1985), 137 Ill. App. 3d 432, 484 N.E.2d 503. There we stated:

"An accused cannot be said to have intelligently and voluntarily entered his plea of guilty, where no mention was made, at the time he entered his plea, that he would also be subject to a term of mandatory supervised release.

The supreme court has held that substantial compliance existed where the record clearly showed that defendant understood that the indeterminate sentence imposed, together with the mandatory parole period, were substantially less than the maximum to which defendant knew he could be sentenced. (People v. McCoy (1979), 74 Ill. 2d 398, 385 N.E.2d 696.) Here, under the terms of the plea agreement, defendant was informed that he could not be sentenced to 'any more than four years' imprisonment. Defendant subsequently received the four-year term of imprisonment plus the two-year term of mandatory supervised release. Thus, defendant cannot be said to have been informed of his entire sentence in substantial compliance with Rule 402." (Louderback, 137 Ill. App. 3d at 436, 484 N.E.2d at 505.)

In the present case, defendant agreed to the 22-year sentence, but, in fact, received a 22-year imprisonment plus the 3-year mandatory supervised release he was not admonished about. It is evident that Louderback is controlling, and error has occurred.

The State concurs in this analysis and concedes that error occurred. However, the State notes defendant did not include this argument in his motion to withdraw his plea. It points out that Rule 604(d) (107 Ill. 2d R. 604(d)) provides that any issue not contained in the motion to withdraw the plea is deemed waived. Accordingly, the State asserts this issue should be considered waived. Thus, the Disposition of this matter turns upon application of the waiver doctrine. If the issue is waived, then there is no reversible error, but if it is not, then we must reverse.

In People v. Evans (1967), 37 Ill. 2d 27, 224 N.E.2d 778, defendant filed a petition for post-conviction relief alleging he was not properly admonished prior to entering his guilty plea. The State argued any error on the admonishment was waived by defendant's voluntary plea of guilty. While the ...


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