Appeal from Circuit Court of McLean County No. 10CF531 Honorable Robert L. Freitag, Judge Presiding.
Justices Knecht and Turner concurred in the judgment and opinion.
¶ 1 In June 2010, a McLean County grand jury indicted defendant, Albert Isreal Chavez, on two counts of unlawful delivery of more than 1 gram but less than 15 grams of a controlled substance (720 ILCS 570/401(c)(2) (West 2010)) (counts I and II), and three counts of unlawful delivery of more than 15 grams but less than 100 grams of a controlled substance (720 ILCS 570/401(a)(2)(A) (West 2010)) (counts III, IV, and V). In May 2011, defendant pleaded guilty to counts III and V. In August 2011, the trial court sentenced defendant to consecutive sentences of 20 years' imprisonment on count III and 30 years' imprisonment on count V. In September 2011, defendant filed a motion to withdraw guilty plea and reconsider sentence. The court denied those motions.
¶ 2 Defendant appeals, arguing the trial court erred in denying his motion to withdraw guilty plea as his plea was not voluntarily and knowingly made. He contends the court failed to properly admonish him of the possible maximum sentence as required by Illinois Supreme Court Rule 402(a) (eff. July 1, 1997). We disagree and affirm.
¶ 3 I. BACKGROUND
¶ 4 On June 9, 2010, a McLean County grand jury indicted defendant on two counts of unlawful delivery of more than 1 gram but less than 15 grams of a controlled substance (720 ILCS 570/401(c)(2) (West 2010)) (counts I and II), and three counts unlawful delivery of more than 15 grams but less than 100 grams of a controlled substance (720 ILCS 570/401(a)(2)(A) (West 2010)) (counts III, IV, and V).
¶ 5 On May 2, 2011, defendant appeared before the trial court to enter an open guilty plea on counts III and V. The court admonished defendant as follows:
"Sir, each one of those charges are Class X [f]elonies. What that means is they each carry penalties of incarceration in the Illinois Department of Corrections. Probation is not available as a sentence on either one of those charges. So if you plead guilty, the court must sentence you to a term in the Department of Corrections. The mandatory minimum term for those offenses is six years in the Department of Corrections. The maximum penalty that could be imposed is up to 30 years in the Department of Corrections or any term between six and 30 years can be imposed. Any sentence to the Department of Corrections on this charge will also be followed by a three-year term of mandatory supervised release, what some people still call parole."
Defendant affirmatively told the court he understood the sentencing range.
¶ 6 The State informed the trial court it would request discretionary consecutive sentences (see 730 ILCS 5/5-8-4(c) (West 2010)) at sentencing, stating:
"[Prosecutor]: Your Honor, before I do that, I do want to make the—make one note on the record and counsel is aware of this and I believe he's informed his client. The State intends to request discretionary consecutive sentences at sentencing under 730 ILCS 5/5-8-4(b)."
The court explained to defendant:
"[Defendant], I want to make sure you understand what the State just said. Under the law since you are pleading guilty to two charges the law said in this case these are sentences which can be either consecutive or concurrent. There are some situations where consecutive sentences are mandatory. This is not one of those cases. What that means is the court, when it sentences you on these two charges, it's going to be up to the court. The court could sentence you to concurrent terms, that means for instance, if I were to sentence you to six years on each charge, they would run at the same time. It would be one six-year sentence. Or, if the court makes certain factual findings, the court could sentence you to ...