Appeal from the Circuit Court of Cook County. 06 CR 22521 Honorable Kenneth J. Wadas, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Quinn
PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Murphy and Neville concurred in the judgment and opinion.
¶ 1 Defendant, Stanley Hunter, filed a pro se petition for post-conviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2008)), contending that when he entered a negotiated plea of guilty to aggravated discharge of a firearm in exchange for a sentence of 6 1/2 years' incarceration, the trial judge failed to adequately inform him that he would be required to serve a two-year term of mandatory supervised release (MSR) in addition to his prison sentence. Defendant also argued that the Illinois Department of Corrections (IDOC) increased his sentence by adding a term of MSR, in violation of the separation of powers clause of the Illinois Constitution. Ill. Const. 1970, art. II, § 1. Therefore, defendant contended that he was deprived of the benefit of his plea agreement and his right to due process. The trial judge dismissed defendant's petition, noting that he had informed the defendant of the MSR term and that defendant acknowledged his understanding of the MSR requirement. For the reasons set forth below, we affirm that dismissal.
¶ 3 Pursuant to a negotiated plea agreement, defendant was convicted of aggravated discharge of a firearm (720 ILS 5/24--1.2 (West 2008)) and sentenced to 6 1/2 years' incarceration. The State's evidence demonstrated that on September 8, 2006, at approximately 5:30 p.m. defendant was in Franklin Park at 4312 West 15th Street in Chicago, Illinois. Defendant got into an argument with another man, pulled out a gun, and fired two shots. An 11-year-old boy who had been playing on a swing nearby was injured when one of the bullets ricocheted and struck him in the back of the head. Defendant was subsequently arrested and charged by indictment with numerous offenses and opted to plead guilty to aggravated discharge of a firearm rather than proceed to trial.
¶ 4 At the plea hearing, the State informed the judge that defendant had been offered a sentence of 6 1/2 years on the charge of aggravated discharge of a firearm. The judge advised defendant that this was a Class 1 felony and asked him if he understood that he "could be sentenced for a fixed period of time between four years minimum to 15 years maximum." Defendant responded, "Yes, your Honor." The judge then asked defendant if he understood that "Any period of incarceration would be followed by a period of mandatory supervised release of two years following your discharge from the Department of Corrections." Defendant again responded, "Yes, your Honor." The judge also asked defendant if he understood that "[t]he maximum fine could be $25,000. And if a person was to receive probation, the maximum period of probation could be four years." Defendant said that he understood. Lastly, the judge asked defendant, "Knowing the nature of the charges and the possible penalties, do you want to plead guilty to this case at this time." Defendant responded, "yes."
¶ 5 The judge confirmed that defendant was aware of the rights he would be giving up by entering a guilty plea and asked defendant, "[o]ther than the promise that your sentence would be six and a half years in the Illinois Department of Corrections, have there been any other promises made to you to get you to plead guilty other than that?" Defendant said no. The court then entered judgment on defendant's guilty plea to aggravated discharge of a firearm. Defendant waived his right to a presentence investigation and the court sentenced him, stating, "Your sentence will be six years plus six months in the Illinois Department of Corrections, credit for 311 days, time considered served, time actually served." The trial judge made no mention of the MSR term after imposing the sentence.
¶ 6 Defendant did not file a motion to withdraw his guilty plea or appeal his conviction, but on August 5, 2009, defendant did file a pro se petition for post-conviction relief. In his petition, defendant asserted that the trial court failed to properly admonish him that his prison sentence would be followed by a two-year term of MSR. Defendant requested that the trial court reduce his prison term in accordance with the holding of People v. Whitfield, 217 Ill. 2d 177 (2005). On September 25, 2009, the trial court dismissed defendant's pro se petition, stating, "We ordered the transcript and it turns out that I did admonish him of the two year term of mandatory supervised release upon completion of his sentence and accordingly, this petition is frivolous and patently without merit. Petition for PC relief is denied." The court issued a written order explaining his dismissal. Defendant now appeals.
¶ 8 The Illinois Post-Conviction Hearing Act provides a mechanism for criminal defendants to challenge their convictions or sentences based on a substantial violation of their rights under the federal or state constitution. People v. Beaman, 229 Ill. 2d 56, 71 (2008). Under the Act, the trial court is directed to summarily dismiss a petition at the first stage if the court determines "the petition is frivolous or is patently without merit." 725 ILCS 5/122--2.1(a) (West 2008). Our supreme court has held that a petition can be dismissed at the first stage as frivolous or patently without merit "only if the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill. 2d 1, 12 (2009). "A petition which lacks an arguable basis in law or in fact is one which is based on an indisputably meritless legal theory or a fanciful factual allegation. An example of an indisputably meritless legal theory is one which is completely contradicted by the record." Hodges, 234 Ill. 2d at 16 (citing People v. Robinson, 217 Ill. 2d 43 (2005)). In assessing the merits of a post-conviction petition at this stage, the court is to "take all well-pleaded facts in the petition and affidavits as true." People v. Coleman, 183 Ill. 2d 366, 378 (1998). We review a trial court's first-stage summary dismissal of a post-conviction petition de novo, which means we "are free to substitute our own judgment for that of the circuit court in order to formulate the legally correct answer." People v. Newbolds, 364 Ill. App. 3d 672, 675 (2006).
¶ 9 In his main brief, defendant contends that he is entitled to a reduction in his sentence because the trial court failed to adequately advise him that he must serve an MSR term when he was sentenced to prison. Defendant argues that the trial court failed to meet the requirements of Supreme Court Rule 402 (Ill. S. Ct. R. 402(a) (eff. July 1, 1997)) and standards set out by our supreme court in People v. Whitfield, 217 Ill. 2d 177 (2005),and People v. Morris, 236 Ill. 2d 345 (2010), because, though the court mentioned the two-year MSR when admonishing defendant about the possible range of sentences defendant could receive, it failed to "link" the admonishment about the MSR to his actual 6 1/2 -year sentence.
¶ 10 Before accepting a guilty plea, the trial court must substantially comply with Rule 402. Our supreme court has held that a court fails to substantially comply with Rule 402 and violates the defendant's due process rights "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 a mandatory supervised release term will be added to the sentence." Whitfield, 217 Ill. 2d at 195.
¶ 11 In Whitfield, the defendant pled guilty to charges of first degree murder and armed robbery pursuant to a negotiated plea agreement which provided that the defendant would receive concurrent sentences totaling 25 years in exchange for his guilty plea. Whitfield, 217 Ill. 2d at 179. Although a three-year term of MSR was statutorily required to be served in addition to this sentence, MSR was never discussed by the State during plea negotiations and the defendant was never admonished of his MSR obligation by the trial court during the plea hearing. Whitfield, 217 Ill. 2d at 180. The defendant sought post-conviction relief, arguing that his due process rights were violated because the ...