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People ex rel. Berlin v. Bakalis

Supreme Court of Illinois

March 22, 2018

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. ROBERT B. BERLIN, Petitioner,
v.
HONORABLE GEORGE J. BAKALIS, Respondent.

          JUSTICE KILBRIDE delivered the judgment of the court, with opinion.Chief Justice Karmeier and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.

          OPINION

          KILBRIDE JUSTICE

         ¶ 1 Petitioner Robert B. Berlin, State's Attorney of Du Page County, seeks mandamus pursuant to Illinois Supreme Court Rule 381 (eff. July 1, 2017) against respondent, the Honorable George J. Bakalis, judge of the circuit court of Du Page County. Petitioner asks this court to direct the circuit court to vacate defendant's one-year term of mandatory supervised release (MSR) and impose the mandatory four-year MSR term required under section 5-8-1(d)(6) of the Unified Code of Corrections (730 ILCS 5/5-8-1(d)(6) (West 2014)). For the following reasons, we award mandamus.

         ¶ 2 BACKGROUND

         ¶ 3 On September 22, 2015, defendant, Frank Gilio, entered a partially negotiated guilty plea to one count of violating an order of protection, a Class 4 felony based on his prior conviction for violation of an order of protection (720 ILCS 5/12-3.4(d) (West 2014)). The parties did not agree to a sentence in exchange for the plea, but the State agreed not to prosecute two counts of aggravated battery of a peace officer and a second count of violating an order of protection.

         ¶ 4 Prior to entry of the plea, the trial court explained that the charged offense was a Class 4 felony carrying a sentencing range of one to six years' imprisonment. In relevant part, the court misstated that the offense required a one-year term of MSR. The court also admonished defendant on his rights to a trial and the consequences of waiving those rights and confirmed that he was pleading guilty voluntarily.

         ¶ 5 In presenting the factual basis for the plea, the State noted that an order of protection had been entered and served on defendant. The order of protection prohibited defendant from contacting or being on the residential property of the victim, Susan Foutch. It was effective from June 2013 through June 2015. The victim would testify that on April 26, 2015, while she was home, she observed defendant knock on her window. Defendant stipulated that the State's witnesses would testify substantially in that manner.

         ¶ 6 The trial court accepted the plea agreement and found defendant guilty of violation of an order of protection. The court then ordered a presentence investigation and scheduled sentencing. After the sentencing hearing, the court sentenced defendant to three years' imprisonment and one year of MSR.

         ¶ 7 At the State's request approximately a year later, the trial court held a hearing on defendant's MSR term. Defendant was present but not represented by counsel. At the hearing, the following colloquy, in its entirety, occurred:

"MS. KING [(ASSISTANT STATE'S ATTORNEY)]: *** Judge, I writ the defendant in. IDOC sent a letter indicating that on the sentence order it had the incorrect term for MSR on the defendant's sentence. He was sentenced to one year of mandatory supervised release, but statutorily it should be four years. So it was an incorrect sentence.
THE COURT: Okay. And it's four years because of the-
MS. KING: By statute because of the violation order.
THE COURT: Okay. [Defendant], do you understand what they're telling you [that] you have?
DEFENDANT: Not really.
THE COURT: Apparently by statute I have no control ...

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