People v. LeePeople v. Lee
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
The motion to withdraw filed by the State Appellate Defender‘s office was granted and defendant‘s conviction for first degree murder pursuant to his guilty plea was affirmed on the ground that no meritorious issues could be raised in his case, regardless of his claims that he was not properly admonished about mandatory supervised release and that mandatory supervised release was unconstitutional.
¶ 1 This appeal comes to us on the motion of the office of the State Appellate Defender (OSAD) to withdraw as counsel on appeal on the ground no meritorious issues can be raised in this case. For the following reasons, we agree and affirm.
I. BACKGROUND
¶ 3 In February 1998, the State charged defendant, Gabriel Lee, with two counts of aggravated arson (
¶ 4 On September 9, 1998, the trial court held a plea hearing where the parties informed the court that defendant sought to plead guilty to one count of first degree murder (
“If you are convicted, the law requires that you be sentenced to a term in prison. The term in prison would be for some definite period of time. It could not be less than twenty years, it could not be more than sixty years. Any term in prison would be followed by a period of mandatory, supervised release of at least three years.”
The court then requested the parties describe the plea agreement and told defendant:
“It is also necessary that you understand the only agreements that make any difference at all in your case are those which are described out loud here in open court now. Is that clear to you?”
Defendant answered in the affirmative.
¶ 6 According to the factual basis, on February 12, 1998, defendant and Chris Majors learned Majors would possibly be evicted from the home he shared with John Hankenson and another man. Defendant and Majors confronted Hankenson in the home. An argument broke out between the three men. Defendant and Majors constructed knives from broken shards of glass. Defendant assisted Majors in tying Hankenson to a chair. Defendant was present as Majors poured gasoline onto Hankenson and then set fire to the gasoline. Defendant and Majors removed items from the home, including Hankenson‘s wallet from his pant‘s pocket, and fled in Hankenson‘s vehicle. Hankenson died as a result of injuries sustained from the fire.
¶ 7 After defendant pleaded guilty to one count of first degree murder, the trial court sentenced defendant to 30 years’ imprisonment “subject to statutory conditions,” with 175 days’ credit, and dismissed all remaining counts. The court‘s oral pronouncement of sentence did not reference mandatory supervised release, but the written sentencing order provides defendant is to be delivered to the Illinois Department of Corrections (Department) “which shall confine said defendant until expiration of his sentence or until he is otherwise released by operation of law.” Defendant did not file any posttrial motions or a direct appeal.
¶ 8 On March 18, 2011, defendant filed a pro se petition pursuant to section 2-1401 of the Code of Civil Procedure (
¶ 9 On October 7, 2011, defendant filed a pro se petition for postconviction relief pursuant to section 122-1 of the Code of Criminal Procedure of 1963 (
¶ 10 On defendant‘s motion, we consolidated these two appeals.
¶ 11 On April 4, 2012, OSAD moved to withdraw as appellate counsel, including in its motion a brief in conformity with the requirements of Finley. The record shows service of the motion on defendant. On its own motion, this court granted defendant leave to file additional points and authorities. Defendant did so and the State filed a brief in response. After examining the record and executing our duties in accordance with Finley, we grant OSAD‘s motion and affirm the trial court‘s judgment.
II. ANALYSIS
¶ 13 OSAD argues defendant‘s petitions present no meritorious issues. Specifically, OSAD asserts the following contentions by defendant fail to present a meritorious basis for a section 2-1401 petition for relief from judgment or a postconviction petition: (1) he was not properly admonished about MSR; (2) he is entitled to the “benefit of the bargain” as in People v. Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005); (3) imposition of MSR violates the United States and Illinois Constitutions; (4) application of MSR is an unlawful constraint upon defendant‘s liberty; and (5) the MSR system violates the doctrine of separation of powers. After review of the record consistent with our responsibilities under Finley, we agree.
A. Review of Petition for Relief From Judgment and Postconviction Petitions
¶ 15 Section 2-1401 of the Code of Civil Procedure allows for relief from final judgments more than 30 days after their entry.
¶ 16 The Post-Conviction Hearing Act provides a method by which criminal defendants can assert their convictions were the result of a substantial denial of their rights under the United States or Illinois Constitution.
B. Defendant‘s Admonishment and “Benefit of the Bargain” Claims
¶ 18 Defendant‘s section 2-1401 petition for relief from judgment and postconviction petition both allege he was not properly admonished about MSR at his plea hearing. Defendant asserts the trial court‘s statement “the only agreements that make any difference at all in your case are those which are described out loud here in open court” before the plea agreement was recited “nullified his MSR admonishment.” Defendant‘s petition for relief from judgment requests this court immediately release defendant from prison to begin MSR. Defendant‘s postconviction petition further alleges he did not receive the “benefit of his bargain” with the State when the MSR was imposed, and it requests this court modify defendant‘s sentence to “27 Years Imprisonment inclusive of the 3-Year MSR Term.”
1. Rule 402 and Admonishments Here
¶ 20
¶ 21 In People v. Andrews, 403 Ill. App. 3d 654, 665, 936 N.E.2d 648, 657 (2010), this court stated the
¶ 22 This court addressed a similar factual situation in People v. Dorsey, 404 Ill. App. 3d 829, 831, 942 N.E.2d 535, 537 (2010), where the trial court did not admonish the defendant his plea agreement included a three-year MSR term. There we stated Whitfield, 217 Ill. 2d 177, 849 N.E.2d 658, and People v. Morris, 236 Ill. 2d 345, 925 N.E.2d 1069 (2010), “demand[ ] a clearer and closer link between MSR and the agreed-upon sentence or sentencing range to inform the defendant of the consequences of his guilty plea.” Dorsey, 404 Ill. App. 3d at 837, 942 N.E.2d at 542-43. However, in Dorsey we concluded under Andrews the trial court‘s admonishments sufficiently complied with
¶ 23 Here, defendant‘s claims must fail. First, Whitfield should be applied only to cases where the conviction was not final prior to December 20, 2005. Morris, 236 Ill. 2d at 366, 925 N.E.2d at 1081. As defendant did not appeal his September 1998 conviction, his conviction was finalized before the December 2005 Whitfield decision. Second, the record shows defendant was admonished that any prison term would be followed by three years’ MSR before his guilty plea in compliance with
2. Defendant‘s “Benefit of the Bargain” Claim
¶ 25 In his postconviction petition, defendant contends he was denied the benefit of his bargain as
¶ 26 First, the trial court found defendant‘s postconviction petition contained the same allegations of improper admonishment as contained in his section 2-1401 petition for relief from judgment. This court has been unwilling to expand Whitfield to cases where MSR was mentioned in the admonishments prior to the guilty plea. Andrews, 403 Ill. App. 3d at 666, 936 N.E.2d at 659. While the best practice may be for the trial court or counsel to expressly link the MSR term to the agreed-upon sentence (Dorsey, 404 Ill. App. 3d at 836-38, 942 N.E.2d at 541-43), failure to make that link does not violate
¶ 27 Second, defendant‘s “benefit of the bargain” argument fails on its face as defendant and the State could not have agreed to waive MSR. Defendant acknowledged this in his postconviction petition when he states he “does not assert that the [P]eople or the [trial] court affirmatively promised him that he would not have to serve a period of MSR.” As such, defendant cannot contend he was denied the benefit of the bargain when no promises were made about MSR. See People v. Holt, 372 Ill. App. 3d 650, 653-54, 867 N.E.2d 1192, 1195-96 (2007) (rejecting “benefit of the bargain” claim where State plea is ” ‘open’ ” to certain sentencing provisions). Last, defendant‘s plea agreement was between the State and him, not the trial court. People v. Collier, 376 Ill. App. 3d 1107, 1113, 879 N.E.2d 982, 988 (2007) (“The trial court is not a party to the plea agreement ***.“). The court‘s sentencing judgment did not breach the plea agreement by imposing MSR as mandatorily required.
¶ 29 In his section 2-1401 petition for relief from judgment, defendant contends requiring him to serve an MSR term “after he has served the entire sentence imposed within the confines of prison” is unconstitutional. Defendant cites People v. Montana, 380 Ill. 596, 44 N.E.2d 569 (1942), to support his claim he cannot be held beyond the term affixed by the trial court and asserts MSR subjects him “to a second term of imprisonment for the same crime without any semblance of due process.”
¶ 30 First, defendant‘s reliance on Montana is misplaced as that case concerned a markedly different parole system than the modern system. Montana concerned a statute where the trial court in imposing sentence made an advisory recommendation of the minimum and maximum limits or duration of the imprisonment and the Department could increase or diminish the trial court‘s recommenced sentence. Montana, 380 Ill. at 601-02, 44 N.E.2d at 572. The supreme court held the statute invalid as it vested an administrative board with the power to amend a judicial judgment. Id. at 609, 44 N.E.2d at 575. Montana does support defendant‘s position his sentence cannot be extended beyond the trial court‘s order, but it does not support his assertion parole is a separate sentence.
¶ 31 Defendant‘s attempts to assert MSR is a form of imprisonment is unpersuasive. In People v. Williams, 66 Ill. 2d 179, 187, 361 N.E.2d 1110, 1114 (1977), the supreme court stated, “Parole alters only the method and degree of confinement during the period of commitment [to the Department].” See also Vlahon, 2012 IL App (4th) 110229, ¶ 26, 977 N.E.2d 327 (An MSR term increases “the length of time defendant is subject to the custody of the Department of Corrections.“). In other words, “[y]ears of MSR and years in prison are not interchangeable.” People v. Jarrett, 372 Ill. App. 3d 344, 351, 867 N.E.2d 1173, 1179 (2007).
¶ 32 Since People ex rel. Scott v. Israel, 66 Ill. 2d 190, 194, 361 N.E.2d 1108, 1109 (1977), it has been axiomatic that a “sentence to a mandatory parole is part of the original sentence by operation of law.” MSR is a mandatory part of a criminal sentence.
¶ 33 Defendant‘s assertion his sentence expires before he is placed on MSR is without merit. Defendant will not begin his MSR term until he has completed his prison term (
D. Defendant‘s Claim MSR Is an “Unlawful Constraint” Upon His Liberty
¶ 35 Defendant‘s next argument in his section 2-1401 petition for relief from judgment is that “requiring offenders to serve a term of MSR after the successful completion of their judicially imposed sentence of the determinate nature is constitutionally unsound resulting in an unlawful constraint upon the offender‘s liberty.” Specifically, defendant asserts that the trial court‘s sentence has expired “according to law before placing the offender upon MSR.”
¶ 36 Defendant‘s contention that MSR is an unlawful constraint is fundamentally flawed. First, defendant‘s argument is built on the single premise “that MSR is a separate term than that of the judicial sentence.” As previously discussed, MSR is a mandatory term of criminal sentences, and release from prison is not tantamount to discharge from the Department. MSR is not a form of imprisonment but a release from the physical custody of the Department (
E. Defendant‘s Separation of Powers Claim
¶ 38 Defendant asserts the Department imposed the MSR in violation of separation of powers as sentencing is a judicial function. As previously addressed, when the trial court sentenced defendant to 30 years’ imprisonment, his sentence included a 3-year MSR term. Defendant‘s claim the Department imposed the MSR term has no legal merit. See Hunter, 2011 IL App (1st) 093023, ¶ 23, 957 N.E.2d 523 (addressing similar separation of powers argument). Mandatory supervised release, formerly parole, is within the power of the Illinois General Assembly, and “this enactment does not violate the separation of powers clause of the Illinois Constitution of 1970.” Israel, 66 Ill. 2d at 194, 361 N.E.2d at 1110.
F. Defendant‘s Additional Claim
¶ 40 We note defendant, in his additional points and authorities, contends that his trial counsel
III. CONCLUSION
¶ 42 For the reasons stated, we grant OSAD‘s motion to withdraw and affirm the trial court‘s judgment. As part of our judgment, we award the State its $50 statutory assessment as costs of this appeal.
¶ 43 Affirmed.
¶ 44 PRESIDING JUSTICE TURNER, specially concurring.
¶ 45 While I agree with the result reached by the majority‘s opinion, I write separately to clarify a few matters. Here, in his section 2-1401 motion, defendant challenged his MSR admonishment under Whitfield. However, defendant cannot obtain relief under Whitfield because his conviction was final before December 20, 2005, the date of the Whitfield decision. See Morris, 236 Ill. 2d at 366, 925 N.E.2d at 1081 (holding Whitfield only applied prospectively to cases where the defendant‘s conviction was finalized after the date Whitfield was announced). In his postconviction petition, defendant chose to raise his MSR admonishment claim under Santobello v. New York, 404 U.S. 257 (1971). However, the First District has held a defendant cannot avoid the effect of Whitfield and its limitation to prospective application under Morris by citing Santobello. People v. Demitro, 406 Ill. App. 3d 954, 957, 942 N.E.2d 20, 23 (2010). Since defendant cannot challenge his MSR admonishment under Whitfield and Santobello, the concerns raised in Dorsey about MSR admonishments are not at issue in this case.