The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Petitioner Fernando Garcia, an inmate incarcerated at the Menard Correctional Center, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that his guilty plea was not knowing and voluntary, and therefore violated his Fifth and Fourteenth Amendment rights to due process, because the trial court failed to ensure that he understood the nature and elements of the charges to which he was pleading guilty, and failed to admonish him of the appellate consequences of his plea. For the following reasons, the petition is denied, and the court declines to issue a certificate of appealability.
Petitioner was charged by indictment in DuPage County, Illinois, with: (1) seven counts of home invasion; (2) five counts of criminal sexual assault; and (3) two counts of criminal sexual abuse. At the arraignment, petitioner's counsel received a copy of the indictment and waived formal reading. The court asked petitioner whether he understood the charges against him; he answered, "Yes." Petitioner entered a plea of not guilty to each of the charges.
On March 24, 2003, petitioner withdrew his not guilty pleas and pleaded guilty to one count of home invasion and five counts of criminal sexual assault, and the prosecution moved to nolle prosequi the remaining charges. The court asked petitioner whether he understood the nature of the charges against him, and the elements of those charges; petitioner responded that he did. The prosecution read the factual basis for the plea, and the court "made a finding that there [was] a factual basis to support the pleas" and that they were "both made knowingly and voluntarily."
Before petitioner was sentenced, the parties became aware that the trial court had incorrectly admonished petitioner about the sentencing range he faced: the court had stated that petitioner faced a sentencing range of twenty-six to sixty years, but the proper sentencing range was twenty-two to ninety years. Recognizing that this entitled petitioner to withdraw his guilty plea, the prosecution proposed a plea agreement under which, as "additional consideration for" petitioner's decision to not withdraw his plea, the prosecution would recommend a sixty-year sentence and the sentence would be capped at seventy years.
At the second change of plea hearing, the court explained to petitioner that he was charged with one count of home invasion and five counts of criminal sexual assault. Petitioner responded "yes" when the court asked whether he understood the nature of each of those charges and what the State would have to prove to convict him. The prosecutor then read the factual basis of the plea. Petitioner agreed to the prosecution's terms and entered a new plea of guilty. The parties agree that this was a "negotiated" plea under the terms of Illinois Supreme Court Rule 604(d), which includes in its definition of a negotiated guilty plea one "where the prosecution has made concessions relating to the sentence to be imposed . . . ." 188 Ill. 2d R. 604(d).*fn2
At sentencing, the parties stipulated that when petitioner entered his plea, he had not been correctly advised of the maximum sentence he faced. The court sentenced him to a total of fifty-two years' imprisonment, well under the seventy-year cap.*fn3 The court advised petitioner that to appeal from his sentence, he needed to first file either a motion to vacate his guilty plea or a motion to reconsider his sentence. The second half of that admonishment was incorrect; because his plea was "negotiated," the court should have instructed petitioner that before appealing, he needed to move to vacate the judgment and withdraw his plea.*fn4
After filing a motion to reconsider his sentence, which was denied, petitioner appealed. The State conceded the trial court's admonishments had not complied with Illinois Supreme Court Rule 605(c). The Illinois Appellate Court agreed, and remanded to the trial court to properly admonish petitioner. People v. Garcia, No. 2-04-0810 (Ill. App. Ct. 2006) (unpublished order pursuant to Illinois Supreme Court Rule 23). On remand, the trial court properly admonished petitioner that he could appeal only after timely moving to withdraw his plea.
Petitioner subsequently filed a motion to withdraw his guilty plea, arguing that:
(1) he "did not knowingly, intelligently, or voluntarily waive his right to a trial";
(2) he "did not fully understand or comprehend the admonishments"; and
(3) he believed that he could "appeal the severity" of any sentence he received, and his counsel had not told him otherwise.*fn5
At the trial court's hearing on the motion to withdraw the guilty plea, petitioner reiterated this argument, stating that he thought he would have "the right to appeal after the sentence, no matter what the sentence was."*fn6 Petitioner also argued that Illinois Supreme Court Rule 402(a) was flawed because it did not require the trial court to inform the defendant of every direct consequence of a guilty plea, including whether the sentence is appealable. The trial court denied petitioner's motion, finding that petitioner knew exactly what the bargain was and what he was accepting. I don't find anything in the review of these two transcripts that would indicate that he did not knowingly, freely, voluntarily intelligently [sic] enter his plea of guilty to the charges pursuant to the caps and, in fact, received a sentence of 52 years after getting the assurance from the judge that she would not go above the 60, even though she could go to 70.
If there is-if this isn't a bargain that the defendant knowingly entered into, I have never read one, in this Court's opinion. I think Mr. Garcia received the benefit of the bargain and is now attempting to withdraw that plea.
I don't believe that the Court was in any way required to admonish Mr. Garcia prior to taking the plea as ...