Appeal from the Circuit Court of Jo Daviess County. Honorable William A. Kelly, Judge, Presiding. No. 05-CF-84
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Hutchinson concurred in the judgment and opinion.
¶ 1 Defendant, Roy E. Hubbard, appeals from the dismissal of two petitions under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) in which he sought to vacate his 2006 conviction of aggravated criminal sexual assault (bodily harm) (720 ILCS 5/12-14(a)(2) (West 2004)). That conviction was entered under a plea agreement by which defendant received a sentence of 471/2 years' imprisonment. During a conference pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997) before the court's acceptance of the agreement, the parties advised the court of defendant's prior conviction of predatory criminal sexual assault of a child, but the parties did not formally stipulate to the conviction's existence and the court did not take judicial notice of it. In his petitions, defendant asserted that, under the recidivist sentencing provision of section 12-14(d)(2) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-14(d)(2) (West 2004) (now 720 ILCS 5/11-1.30(d)(2) (West 2010))), the existence of the earlier conviction meant that the only statutorily authorized sentence was a life sentence. He argued that, as a consequence, the sentence, the plea agreement, and the conviction all were void.
¶ 2 We hold that the prior conviction was not placed before the court as part of defendant's guilty plea and that the mandate of section 12-14(d)(2) for a life sentence therefore did not apply. Thus, defendant's sentence is not void, and no fatal flaw existed in the plea agreement or conviction. Consequently, no relief was available to defendant. We affirm both dismissals.
¶ 4 On June 6, 2005, the State charged defendant with three counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)). The charges were based on three acts of sexual penetration with one victim, defendant's stepdaughter, T.G. Each count alleged that, on February 3, 1998, defendant had been convicted of predatory criminal sexual assault of a child. An amended information added a fourth count, described as "aggravated criminal sexual assault":
"[I]n violation of Section 12-14(a) (2) of Act 5 of Chapter 720 of the Illinois Compiled Statutes of said State, in that said defendant, who 17 years of age or older, committed an act of sexual penetration causing bodily harm to T.G., who was under 9 years of age when the act was committed, in that said defendant placed his penis in the vagina of T.G."
¶ 5 On January 12, 2006, defendant entered a negotiated guilty plea to the fourth count, by which he received a sentence of 471/2 years' imprisonment. At the plea hearing, the State explained the sentencing law and the agreement as follows:
"Judge, the statute requires that when a defendant is previously convicted of predatory criminal sexual assault and then afterwards has another predatory criminal sexual assault conviction or even aggravated criminal sexual assault conviction that the term of his imprisonment will be natural life. Based on the fact that we have discussed this case in great length; attorneys for the defendant and our office and with discussion from the victim who is five years old, her mother who is the wife of the defendant, as well as a number of other parties and also given the fact that we believe it would be best if the child does not have to testify in court just because of her young age and all those factors, we have entered an agreed plea amount of time [sic] that we believe would be necessary for a punishment for this defendant and that agreed time would be 47.5 years."
¶ 6 The court recited the charged offense to defendant. The language it used was similar, but not identical, to that of count IV. The recitation specified that the act took place "between July 1st, 2004 and April 30th, 2005." As the State did in the information, the court described the offense as aggravated criminal sexual assault and cited section 12-14(a)(2) of the Criminal Code. The court asked defendant if he "underst[oo]d the charge to which [he would be pleading] guilty," and defendant said that he did.
¶ 7 The court then asked the State, "Now this is a charge *** that carries with it a statutory disposition here of life imprisonment but in this case the sentence is going to be 47 and a half years, is that right?" The State agreed that it was. The State presented a factual basis consistent with the information: the victim would testify that the charged act occurred, and the State would introduce a videotape, "made very close to when it happened," in which the victim described the same act. The evidence would also show bodily harm. The State did not mention defendant's age. Defendant and the State then formally stipulated that the evidence would be as the State described. After admonishing defendant, the court accepted the plea and imposed the agreed sentence.
¶ 8 On May 7, 2007, defendant filed a post-conviction petition. As amended, the petition asserted primarily that the court should vacate the conviction because trial counsel had been ineffective, but alternatively that the court had not properly admonished defendant concerning the inclusion of a term of mandatory supervised release in his sentence, so that, under the rule in People v. Whitfield, 217
Ill. 2d 177 (2005), the court should reduce his sentence by three years to conform to the admonitions. The parties agreed that the court should reduce defendant's sentence of imprisonment to 441/2 years based on the rule in Whitfield. During the post-conviction proceedings, the trial court told defense counsel, "I just wanted to make sure that I understand that in the event the relief you're seeking is granted, that your client appreciates *** the exposure to natural life." In response, defense counsel stated, "[w]ell, they have to prove the second offense and that wasn't proven, I don't think; I wasn't the lawyer then." In explaining to counsel that the court understood counsel's point, the court again reminded him that defendant could be "exposed to natural life" if the post-conviction relief he ...