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People v. Serrano

July 14, 2009

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE.
v.
ORENCIO SERRANO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 01 CR 24803 Honorable Thomas R. Sumner, Judge Presiding.

The opinion of the court was delivered by: Justice Hoffman

The defendant, Orencio Serrano, appeals from the dismissal of his pro se petition for post-judgment relief filed pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2006)). On appeal, he contends that he did not receive the benefit of his negotiated plea bargain as a result of the trial court's failure to specifically admonish him that his concurrent 14-year sentences for attempted first degree murder included a three-year period of mandatory supervised release (MSR). Consequently, the defendant requests that those sentences be reduced by three years.

On March 31, 2009, this court entered an order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23) in which we held that the defendant was entitled to post-judgment relief and reduced his sentences as he requested. The State thereafter filed a petition for rehearing pursuant to Supreme Court Rule 367 (210 Ill.2d R. 367). We granted the petition and ordered additional briefing.

After reconsidering the matter in light of the arguments on rehearing, we reach the same conclusion and again reduce the defendant's sentences for attempted first degree murder by three years.

The record established the following relevant facts. In separate prosecutions, the defendant was charged with two counts of attempted first degree murder (No. 01 CR 24803) and one count of possession of a controlled substance with intent to deliver (No. 01 CR 19046). On June 4, 2002, the defendant entered negotiated guilty pleas on all three charges. At the plea hearing, the trial court admonished the defendant as to the possible penalties that could be imposed upon him. With regard to the charges of attempted first degree murder, the court stated as follows:

"You understand that this is a Class X felony and it is subject to a possible penalty of incarceration in the penitentiary for a determina[te] period of time between 6 and 30 years, a fine up to $25,000 or both, and it's also subject to what's called mandatory supervised release for a period after your release from the penitentiary."

The court did not specify the exact number of years (three) that the defendant would have to serve on MSR for the attempted first degree murder convictions.

With regard to the charge of possession of a controlled substance with intent to deliver, the court stated as follows:

"the [controlled substance] charge as amended [is] a Class IV felony * * * subject to a possible penalty of incarceration for a period from one to three years, a fine of up to $25,000 or both, and mandatory supervised released [sic] for a period of one year."

The court also informed the defendant that any sentences imposed in the two cases would have to be served consecutively because he had committed the attempted first degree murder offenses while on pretrial release for the controlled substance charge (730 ILCS 5/5-8-4(h) (West 2002)).

The trial court further advised the defendant of the constitutional rights he would waive by pleading guilty, and the State presented a factual basis for the pleas. The trial court then accepted the defendant's pleas, ratified the plea agreement, and, in accordance with its terms, sentenced the defendant to two concurrent terms of 14 years' imprisonment for attempted first degree murder and a consecutive term of one year imprisonment for possession of a controlled substance with intent to deliver. The court then admonished the defendant of his right to appeal and of the necessary procedure for bringing an appeal. The defendant did not attempt to perfect an appeal from these convictions, but filed an untimely pro se motion to withdraw his guilty pleas on the attempted first degree murder charges and to vacate the sentences imposed thereon. There is no indication in the record that this motion was ever ruled on by the court.

On November 2, 2006, the defendant, relying on People v. Whitfield, 217 Ill. 2d 177 (2005), filed a pro se petition pursuant to section 2-1401 of the Code, asserting that he had been denied the benefit of his plea bargain, based on the imperfect MSR admonishment. The record reflects that an Assistant State's Attorney (ASA) was present on several dates when the defendant's petition was continued and also at the time the petition was heard by the court. However, the State did not file a timely answer or motion to dismiss and did not request an extension of time to file a responsive pleading.

At one of the early court dates, the defendant appeared pro se, argued that the court had not informed him of the three-year term of MSR prior to accepting his guilty pleas, and said that he would not have pled guilty had he been aware of the mandatory MSR. He asked the court to reduce his sentences by three years. The court acknowledged that "according to the transcript you're right; I didn't tell you [about MSR]. I can't prove that I told you because the transcript says that I didn't." The court then took the matter under advisement and deferred ruling on the petition. Subsequently, after reviewing the transcript of the plea proceedings, the court dismissed the petition based on its finding that "[the defendant] was adequately advised regarding his [MSR]." This appeal followed.

On appeal, the defendant contends that the trial court erred in dismissing his section 2-1401 petition where the record showed that he was not admonished that he would have to serve three years of MSR in addition to his negotiated 14-year prison term for attempted first degree murder. The State responds that ...


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