The opinion of the court was delivered by: Justice Theis
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Thomas, Garman, and Karmeier concurred in the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justice Burke.
¶ 1 Defendant, Jackie Hughes, pleaded guilty to one count of aggravated criminal sexual abuse (720 ILCS 5/12-16 (West 2006)) and was sentenced to 14 years in prison. Defendant appealed from the denial of his motion to withdraw his plea, contending that the circuit court of Lake County lacked subject matter jurisdiction to entertain a plea to a previously nol-prossed charge, and that his plea was not knowingly and voluntarily made because the court and counsel failed to advise him of the possibility that the State would file a petition for involuntary commitment under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 2006)). The appellate court affirmed. 2011 IL App (2d) 090992. For the following reasons, we affirm the judgment of the appellate court.
¶ 3 On August 11, 1999, a Lake County grand jury indicted defendant and charged him with five counts of predatory criminal sexual assault of a child (counts I, II, III, IV and X) (720 ILCS 5/12-14.1(a)(1) (West 1998)) and five counts of aggravated criminal sexual abuse (counts V through IX) (720 ILCS 5/12-16(c)(1)(i) (West 1998)). The allegations involved sexual contact with several minor victims arising at various times between 1995 and 1998. At the time of the indictment, defendant was also on probation for aggravated criminal sexual abuse involving a minor, which term was set to expire on August 24, 1999. As a result, the State also filed a petition to revoke defendant's probation in a separate proceeding.
¶ 4 On December 28, 1999, the circuit court granted the State leave to enter a nolle prosequi on counts I through IV and count VI of the indictment. The criminal charges remained pending on count V and counts VII through X of the indictment. Two days later, on December 30, 1999, the State instituted civil commitment proceedings, seeking to have defendant declared a sexually dangerous person under the Sexually Dangerous Persons Act (725 ILCS 205/0.01 et seq. (West 1998)). The remaining criminal charges in the indictment formed the basis for that petition.
¶ 5 On August 17, 2000, a jury found defendant to be a sexually dangerous person. The circuit court entered a judgment on the jury's finding and ordered defendant committed to the care and custody of the Director of Corrections pursuant to the Act. At that time, there was a discussion on the record regarding the status of the remaining pending criminal charges. The State informed the court that under the Act, upon discharge from the civil commitment, the pending charges in the indictment would be dismissed.
¶ 6 Thereafter, defendant timely appealed from his involuntary civil commitment. During the pendency of the appeal, on January 4, 2001, the circuit court entered an administrative order directing the clerk of the court to classify the criminal matter under the disposition code "administrative dismissal," due to defendant's civil commitment as a sexually dangerous person. Subsequently, the appellate court reversed the judgment and remanded the cause to the circuit court for a new commitment proceeding consistent with the evidentiary standards announced by this court in People v. Masterson, 207 Ill. 2d 305 (2003). In re Detention of Hughes, 346 Ill. App. 3d 637 (2004). On remand, the State chose not to proceed with a new civil commitment proceeding and, instead, chose to proceed with the criminal prosecution, entering into plea negotiations with defendant on the criminal charges. On September 26, 2006, at the plea conference, the State informed the court that "[p]art of our agreed disposition today here is that we're vacating that administrative order with whatever effect it had, so the indictment is back before the Court." As a result, the circuit court entered an "agreed" order vacating its prior order of January 4, 2001, "administratively" dismissing the pending criminal matter.
¶ 7 Under the terms of the fully negotiated plea agreement, defendant agreed to plead guilty to the offense of aggravated criminal sexual abuse of M.A., a minor, as charged in count VI of the indictment. In exchange, the State agreed to dismiss the remaining criminal charges, withdraw its petition to have defendant committed as a sexually dangerous person, and recommend an extended-term sentence of 14 years in prison. Presumably unaware of the previous 1999 dismissal of count VI, the State did not refile new charges or seek to have defendant reindicted on the previously nol-prossed count. Nor did the State file a motion to vacate the order of December 28, 1999, previously granting it leave to nol-pros count VI. Notably, count VI of the indictment was the only count alleging any sexual offense involving M.A.
¶ 8 Prior to accepting the plea, the court admonished defendant regarding his possible sentence, including that he was eligible for an extended-term sentence based on his prior conviction. Defendant was made aware that he would be subject to a four-year term of mandatory supervised release, which defendant indicated that he understood. The State presented a factual basis for the plea, stating that from about December 1998 through the summer of 1999, defendant was a house guest and babysitter in the Alvarez household. During the time he babysat for the Alvarez children, on at least one occasion, he fondled M.A.'s vagina for purposes of sexual gratification. M.A. was under 18 years old at that time. Defense counsel stipulated that there would be testimony to that effect from which a trier of fact could find defendant guilty.
¶ 9 Following the State's presentation of a factual basis, the circuit court accepted defendant's guilty plea, entered judgment against defendant, and sentenced him in accordance with the plea agreement to 14 years' imprisonment with credit for time served since July 21, 1999. The court advised the parties that the good-time credit would have to be calculated by the Department of Corrections. The State withdrew its petition to have defendant committed as a sexually dangerous person. The record also reflects that defense counsel informed the court during the plea hearing that the previous day he had received a report dated September 19, 2006, from his expert, Dr. Robert Chapman, finding that defendant was not a sexually dangerous person. The State acknowledged receipt of that information and acknowledged that it was part of the State's consideration in the plea negotiations.
¶ 10 Two weeks later, on October 10, 2006, presumably based upon an evaluation of defendant's mental health condition, the Attorney General filed a petition to commit defendant as a sexually violent person under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 2006)). The next day, defendant filed a motion to withdraw his guilty plea, alleging that he was never advised by the court or his counsel of the possibility that the State could file a sexually violent person petition as a result of the plea. Consequently, defendant maintained that he did not knowingly and voluntarily enter the plea.
¶ 11 At the hearing on the motion to withdraw the plea, defense counsel was granted leave to withdraw, and conflict counsel was appointed to represent defendant. Defense counsel testified that he conveyed to defendant his understanding of the plea agreement. Counsel understood that if defendant pled guilty to the one count, he would be sentenced to 14 years' imprisonment and the sexually dangerous person petition would be dismissed. Considering the amount of time he spent in custody, defendant would be sent to the penitentiary as a mere formality and would then be released, which would completely dispose of the whole matter. Counsel acknowledged that the court advised the parties that the good-time credit would have to be calculated by the Department of Corrections.
¶ 12 Defense counsel also testified that he previously worked for the Illinois Attorney General's office and was in charge of the Sexually Violent Persons Division for a year. As a result, he was aware that the Attorney General was responsible for initiating the proceedings under the Sexually Violent Persons Commitment Act and that the decision about whether a defendant qualified under the Act as a sexually violent person was determined by various experts' evaluations. During defense counsel's tenure, the State's Attorney would be notified and a joint decision was made whether to file the petition.
Defense counsel further testified that he never discussed with defendant and did not anticipate the possibility that the State would subsequently file a petition to have defendant declared a sexually violent person. The issue was never raised with the State or the court.
¶ 13 Defendant testified that it was his understanding that if he pleaded guilty he would be sent to the penitentiary. Once his good-time credit was calculated for time served, he believed he would be going home and his plea would dispose of the matter. He further testified, contrary to his counsel, that he brought up and discussed with counsel not only the sexually dangerous person petition, but also a sexually violent person petition. Defendant testified as follows:
"Q. And your attorney, *** didn't speak to you about any other [pending] cases, correct?
A. We had a discussion about an SVP as far as that goes.
A. An SVP. I was bringing it up with him and we discussed it.
Q. Do you know the difference between an SVP and an SDP?
Q. What was pending before the Court?
Q. SDP. And now you are saying you had a discussion with [your attorney] about an SVP?
A. Yes. Q. You just heard him testify, and he said there was no such discussion?
A. Well, outside the court, as far as I remember, we discussed something.
Q. And you are under oath, correct?
¶ 14 Defendant then stated that he would not have pleaded guilty to the one count of aggravated criminal sexual abuse if he had known that the plea would not have disposed of the matter completely.
¶ 15 The circuit court denied the motion to withdraw the plea, finding that the plea was knowingly and voluntarily made. The court specifically found that the petition was filed by the Attorney General two weeks after the plea was entered into, and that there was no evidence in this case that the State's Attorney's office filed or had input into the filing of the petition. The court noted that defendant was advised of the nature of the charges, the possible penalties, and the right to ...