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People v. Smith

Court of Appeals of Illinois, Third District

August 2, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MICKEY D. SMITH, Defendant-Appellant.

Held [*]

Defendant’s conviction and sentence for first degree murder pursuant to a plea agreement were reversed and the cause was remanded to allow defendant to withdraw his plea and proceed to trial, if he chooses, since his plea agreement and sentence were void due to the lack of an admonishment about the mandatory firearm enhancement and the failure to include the enhancement in his sentence, even though the indictment and factual basis for the plea established that defendant used a firearm in killing the victim.

Appeal from the Circuit Court of Will County, No. 10-CF-1345; the Hon. Amy M. Bertani-Tomczak, Judge, presiding.

Kerry J. Bryson, of State Appellate Defender's Office, of Ottawa, for appellant.

James Glasgow, State's Attorney, of Joliet (Terry A. Mertel and Nadia L. Chaudhry, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Justice Carter specially concurred, with opinion, joined by Presiding Justice Wright.

OPINION

SCHMIDT JUSTICE

¶ 1 Pursuant to a fully negotiated plea agreement, defendant, Mickey D. Smith, pled guilty to first degree murder (720 ILCS 5/9-1(a)(2) (West 2010)) and was sentenced to 30 years' imprisonment. Defendant appeals from the summary dismissal of his postconviction petition, arguing that he presented the gist of a constitutional claim that his sentence is void. We reverse and remand.

¶ 2 FACTS

¶ 3 On May 4, 2011, defendant entered into a fully negotiated plea agreement, in which he pled guilty to one count of first degree murder. 720 ILCS 5/9-1(a)(2) (West 2010). The indictment and factual basis for the plea established that on June 29, 2010, defendant shot and killed Douglas White with a handgun. During the admonitions, the trial court advised defendant that the State was withdrawing its notice of intent to seek a firearm enhancement of 25 years. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010). Defendant was then advised that he was eligible for a sentence of 20 to 60 years' imprisonment. Defendant's plea was accepted, and the court sentenced defendant to the agreed 30 years' imprisonment. Defendant did not pursue a direct appeal.

¶ 4 On August 16, 2011, defendant filed a pro se postconviction petition, alleging that his guilty plea should be vacated under People v. White, 2011 IL 109616. Defendant alleged that his plea agreement and sentence were void because he was neither admonished of, nor did his sentence include, the mandatory firearm enhancement, which was statutorily required based on the factual basis for his plea. The trial court summarily dismissed defendant's petition as frivolous and patently without merit, noting that defendant received the benefit of his plea agreement when the State withdrew its intent to seek the firearm enhancement. Defendant filed a motion to reconsider, which the trial court denied. Defendant appeals.

¶ 5 ANALYSIS

¶ 6 On appeal, defendant contends that his plea agreement and 30-year sentence are void because they do not conform to statutory requirements. Specifically, defendant argues that because the indictment and factual basis for his plea assert that he personally discharged a firearm during the commission of the offense, the trial court was required to impose a 25-year firearm enhancement, thereby requiring him to serve a minimum of 45 years' imprisonment.

¶ 7 The Post-Conviction Hearing Act provides for a three-stage review process for the adjudication of postconviction petitions. 725 ILCS 5/122-1 et seq. (West 2010); People v. Hodges, 234 Ill.2d 1 (2009). At the first stage, the trial court must independently determine whether the petition is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2010). The petition's allegations, liberally construed and taken as true, need only present the gist of a constitutional claim. People v. Harris, 224 Ill.2d ...


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