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11/27/96 PEOPLE STATE ILLINOIS v. SIDNEY SMITH

November 27, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE,
v.
SIDNEY SMITH, PETITIONER-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Michael Getty, and John Brady, Judges Presiding.

Released for Publication January 15, 1997.

Presiding Justice Zwick delivered the opinion of the court. Rakowski, J. and Leavitt, J., concur.

The opinion of the court was delivered by: Zwick

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

Petitioner, Sidney Smith, appeals from an order of the circuit court of Cook County dismissing his petition for post-conviction relief. Petitioner raises several issues, but we need address only whether due process was violated by the trial court's failure to admonish petitioner, prior to accepting his guilty plea, that petitioner would be required to serve a three-year period of supervised release in addition to his negotiated 11-year prison term.

The record reveals that petitioner and the State entered into a conference on May 3, 1993, pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402). At the conference, the trial court indicated that upon a plea of guilty by petitioner, the court would impose a prison sentence of 11 years. Subsequently, on May 10, 1993, the trial court admonished the petitioner of the consequences of pleading guilty. In so doing, the court stated that the parties had agreed upon a term of 11 years as an appropriate sentence. While admonishing the defendant prior to accepting the plea of guilty, the court never mentioned mandatory supervised release. Petitioner then indicated that he was sorry for his crime, that he had learned his lesson, and stated he believed the 11-year sentence was lengthy in relation to the specific crime he had committed. He indicated, however, that he would accept the sentence. The trial court determined that petitioner's plea was voluntary. The court thereafter imposed the a term of 11 years imprisonment in the Illinois Department of Corrections, plus two years mandatory supervised release. *fn1 The trial court then informed the petitioner of his right to vacate his plea and to appeal.

On April 8, 1994, petitioner filed a pro se post-conviction petition which the trial court summarily dismissed on May 6, 1994. On February 2, 1995, petitioner filed a second post-conviction petition which the trial court again dismissed. It is from the dismissal these petitions that petitioner now appeals.

In each of the petitioner's post-conviction petitions, he states that he was promised by his attorney and by the trial court that he would receive a term of imprisonment of 11 years in exchange for his guilty plea, and that he did not agree to a period of mandatory supervised release. In seeking to set aside his plea, petitioner asserts his plea was made "for specific sentencing" and that he did not understand at the time of sentencing that he would have to serve "an additional sentence" after his release.

In Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), the United States Supreme Court stated that if a guilty plea is to withstand appellate or post-conviction review, the record must affirmatively disclose that the defendant who pleads guilty entered his plea understandingly and voluntarily. See People v. Wills, 61 Ill. 2d 105, 110, 330 N.E.2d 505 (1975), quoting People v. Reeves, 50 Ill. 2d 28, 29, 276 N.E.2d 318 (1971) and Brady v. United States, 397 U.S. 742, 747, 25 L. Ed. 2d 747, 90 S. Ct. 1463 footnote (4), 397 U.S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970). In order to implement this constitutional requirement, our supreme court adopted Rule 402(a), which provides:

"In hearings on pleas of guilty, there must be substantial compliance with the following:

(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;

(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been ...


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