THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. ROBERT D. WELCH, Defendant-Appellant.
Second District No. 2-05-0688
Second District
October 9, 2007
376 Ill. App. 3d 705
Reversed and remanded.
MCBRIDE, P.J., and JOSEPH GORDON, J., concur.
GILLERAN JOHNSON, J., dissenting.
Robert J. Agostinelli and Santiago A. Durango, both of State Appellate Defender‘s Office, of Ottawa, for appellant.
Paul A. Logli, State‘s Attorney, of Rockford (Martin P. Moltz and David A.
JUSTICE MCLAREN delivered the opinion of the court:
Defendant, Robert Welch, appeals from the trial court‘s dismissal of his second postconviction petition. We vacate and remand.
On August 26, 1998, defendant was charged with solicitation of murder for hire (
On April 27, 1999, defendant filed a timely pro se motion to withdraw his guilty plea and a separate motion for reconsideration of his sentence. Neither motion raised any claim regarding the omitted MSR admonishment. On September 22, 1999, defendant abandoned his motion to withdraw his guilty plea.
On March 23, 2000, defendant filed a “resubmitted” pro se petition to withdraw his guilty plea and vacate his sentence. The resubmitted petition did not raise an improper-admonishment claim. The trial court determined that it did not have jurisdiction to consider the resubmitted petition. On direct review, this court granted the Office of the State Appellate Defender (OSAD) leave to withdraw as appellate counsel under Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and affirmed the trial court. See People v. Welch, No. 2-00-0363 (2001) (unpublished order under Supreme Court Rule 23).
On May 3, 2001, defendant filed a pro se petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (
On February 19, 2004, defendant filed a petition pursuant to section 2-1401 of the Code of Civil Procedure (Code) (
On May 12, 2004, the trial court again appointed counsel to represent defendant. Attоrney Clark appeared on July 7 and August 4, 2004, and expressed concern about having to argue his own unreasonableness for not having raised the MSR issue in the original postconviction proceeding. Nonetheless, the question was not broached again and Clark continued to represent defendant.
On December 22, 2004, the trial court allowed defendant leave to amend and transform his seсtion 2-1401 petition to a successive postconviction petition. On January 7, 2005, Clark filed a successive postconviction petition for defendant. On May 5, 2005, Clark filed an amended petition. The amended petition contended, in relevant part, that defendant‘s guilty plea should be set aside because defendant was not admonished at the guilty plea hearing that he would have to serve a three-year term of MSR following his release from the Department of Corrections. There was no allegation that defendant‘s attorneys may have been ineffective or unreasonable for failing to previously raise the MSR issue.
The State filed a motion to dismiss the successive postconviction petition, which the trial court granted after a hearing. The trial court concluded that defendant had waived the issue by failing to raise it on direct appeal or in his first postconviction petition. Additionally, the trial court concluded that defendant was not sentenced to a term greater than he bargained for because, due to his eligibility for day-for-day credit, he would serve only approximately 14 years of his 28-year sentence. Therefore, the trial court reasoned, the 3-year MSR term following 14 years in the Department of Corrections did not extend defendant‘s sentence beyond the agreed-upon 28-year sentence. Finally, the trial court concluded that defendant failed to establish that he would not have pleaded guilty had he known of the MSR term. This appeal followed.
Defendant contends that the trial court erred in dismissing his successive postconviction petition. The Act “provides an avenue by which a defendant may challenge his conviction or sentence for violations of federal or state constitutional rights.” People v. Whitfield, 217 Ill. 2d 177, 183 (2005). A defendant is entitled to relief under the Act only if he can prove that he suffered a substantial deprivation of his
In the present case, it is undisputed that the trial court failed to admonish defendant in accordance with Supreme Court Rule 402 (
It is undisputed that the trial court herein did not admonish defendant, pursuant to Rule 402(a)(2), that a term of MSR would be added to the agreed-upon sentence of 28 years. In light of the clear holding of Whitfield, defendant has established a substantial violation of his due process rights. The State argues that, regardless of due process considerations, dismissal of defendant‘s sucсessive postconviction petition should be affirmed based on principles of waiver.1 In general, issues that could have been raised on direct appeal, but were not, are not amenable to postconviction review. See Whitfield, 217 Ill. 2d at 187; People v. Collins, 153 Ill. 2d 130, 135 (1992). The State asserts, without any reference to the facts of Whitfield, that People v. Newman, 365 Ill. App. 3d 285 (2006), is more “procedurally similar” to this case than is Whitfield and should lead this court to find that defendant has procedurally defaulted. The State appears to base this assertion on the fact that, while the defendant in Newman and defendant herein both filed motions to withdraw their guilty pleas and direct appeals that failed to raise the MSR issue, the defendant in Whitfield filed neither.
We do not find that the issue of the defendant‘s prior filings is central to the supreme court‘s analysis in Whitfield. In concluding that there was no procedural default, the Whitfield court emphasized two facts: (1) the trial court did not admonish the defendant about
The remedy to be granted, then, remains as the only question. In Whitfield, the supreme court modified the defendant‘s 25-year prison sentence, which was to be followed by 3 years of MSR, to a 22-year prison sentence followed by 3 years of MSR, thereby giving the defendant the benefit of his bargain for a 25-year sentence. See Whitfield, 217 Ill. 2d at 205. We find such a remedy appropriate here as well. Therefore, we vacate the sentence imposed by the circuit court and remand with directions that it impose a sentence of 25 years’ imprisonment to be followed by a term of 3 years’ mandatory supervised release.
Vacated and remanded with directions.
CALLUM, J., concurs.
JUSTICE GILLERAN JOHNSON, dissenting:
Contrary to what the majority believes, Whitfield is not controlling in this case. Whitfield is distinguishable both substantively and procedurally. Substantively, the facts are different. Procedurally, Whitfield involves a first postconviction petition while the present case involves a successive postconviction petition. Accordingly, the dismissal of the defendant‘s petition should be affirmed.
Substantively, in Whitfield, the court determined that the defendant‘s improper-admonishment claim was not waived for two reasons. First, there was no waiver because the defendant could not have been expected to object at trial to his lack of admonishment. Specifically, the Whitfield court stated:
“[I]t would be incongruous to hold that defendant forfeited the right to bring a postconviction claim because he did not object [at
trial] to the circuit court‘s failure to admonish him. To so hold would place the onus on defendant to ensure his own admonishment in accord with due process.” Whitfield, 217 Ill. 2d at 188.
Second, the court determined there was no waiver because the defendant‘s claim could not have been prеsented any earlier, i.e., in a motion to withdraw his plea or in a direct appeal. Specifically, the Whitfield court stated:
“Moreover, defendant alleges that it was not until he was in prison that he learned that his sentence had been increased by a three-year period of MSR. Therefore, he could not have raised the error in a motion to withdraw his plea or a direct appeal.” Whitfield, 217 Ill. 2d at 188.
Applying Whitfield in the рresent case, the defendant‘s argument cannot be considered waived for his failure to object at trial to his improper admonishment. See Whitfield, 217 Ill. 2d at 188. However, the defendant‘s argument is waived here because, in contrast to Whitfield, there is no indication in the present case that the defendant could not have presented the improper-admonishment claim in either his direct appеal or his first postconviction petition. The defendant‘s amended successive postconviction petition states only that the defendant was never properly admonished and that this violated his constitutional right to due process. The defendant‘s affidavit indicates only that he would not have accepted the guilty plea agreement offered to him had he known of the obligation to serve a three-year term of MSR. There is no indication in either the successive postconviction petition or the defendant‘s affidavit that he did not learn of the required three-year term of MSR until after he had filed his direct appeal and his first postconviction petition. The defendant‘s improper-admonishment claim is waived because he has failed to show that he could not have raised his claim earlier. Whitfield is, therefore, distinguishable. See Newman, 365 Ill. App. 3d at 290 (distinguishing Whitfield on the basis that the Newman defendant made no allegation as to when he learned about his improper admonishment). For this reason, the dismissal of the defendant‘s successive postconviction petition should be affirmed.
The majority essentially interprets Whitfield to mean that a defendant can never know about an improper admonishment if he was never admonished and, therefore, there can never be а procedural default of this issue. However, this is not what the Whitfield court held and it is not the reality of the matter. Even if a defendant is not admonished by the trial court, generally the three-year term of MSR will be reflected on the mittimus or a defendant will be advised by the Illinois Department of Corrections of his release date. The majority
Moreover, it is inappropriate to so broadly interpret the Whitfield decision. Years of MSR and years in prison are not comparable. People v. Jarrett, 372 Ill. App. 3d 344, 351 (2007). MSR is not a static period of supervision, and the Prisoner Review Board has the discretion to release a prisoner from MSR before his term has expired (
Whitfield is also procedurally distinguishable from the present case. In Whitfield the defendant did not file a direct appeal and raised his omitted-MSR-admonishment claim for the first time in an original postconviction petition. Whitfield, 217 Ill. 2d at 180. In the present case, the defendant filed a direct appeal and an original postconviction petition. However, the defendant did not raise the present claim until he filed this successive postconviction petition. Successive postconviction petitions elicit unique policy considerations that are not implicated by the filing of an originаl postconviction petition. People v. McDonald, 364 Ill. App. 3d 390, 393 (2006). The majority fails to consider the procedural differences between Whitfield and the present case. See People v. Adams, 373 Ill. App. 3d 991, 995 (2007) (because the case involved a successive postconviction petition, the defendant‘s reliance on Whitfield was misplaced).
The purpose of a proceeding brought under the Post-Conviction Hearing Act (the Act) (
In the context of a successive postconviction petition, the procedural bar of waiver is not merely a principle of judicial administration; it is an express requirement of the statute.
Under the circumstances in this case, the cause-and-prejudice test is the analytical tool that is to be used to determine whether fundamental fairness requires that an exception be made to section 122-3 of the Act so that a claim raised for the first time in a successive postconviction petition may be considered on its merits. See Pitsonbarger, 205 Ill. 2d at 459 (different standard may be applied in a case involving a claim of actual innocence or the death penalty). It is the defendant‘s burden to demonstrate both cause and prejudice for each claim raised in his successive petition. McDonald, 364 Ill. App. 3d at 393. “For purposes of this test, ‘cause’ has been defined аs an objective factor external to the defense that impeded counsel‘s efforts to raise the claim in an earlier proceeding.” Morgan, 212 Ill. 2d at 148, 153 (2004). “‘Prejudice’ exists where the defendant can show that the claimed constitutional error so infected his trial that the resulting conviction violated due process.” Morgan, 212 Ill. 2d at 154. The cause-and-prejudice test is composed of two elements, both оf which must be established for the defendant to prevail. Pitsonbarger, 205 Ill. 2d at 464.
By enacting section 122-1(f) of the Act (
In the present case, the defendant did obtain leave to withdraw his section 2-1401 petition and file a successive postconviction petition. However, the defendant never obtained leave pursuant to section 122-1(f) of the Act. The defendant never set forth any argument as to why he passed the cause-and-prejudice test. At oral argument, for the first time, defense counsel argued that unreasonable assistance of postconviction counsel, in failing to raise the improper-admonishment issue in the defendant‘s first postconviction petition, was “cause.” However, the supreme court has held that “cause” “must flow from something other than the purported ineptitude or inadequacy of the prior post-conviction attorney.” People v. Szabo, 186 Ill. 2d 19, 42 (1998). Moreover, we cannot consider arguments raised for the first time on appeal. See People v. Jones, 213 Ill. 2d 498, 508-09 (2004). The defendant has essentially treated section 122-1(f) as if it did not exist. For this reason as well, the dismissal of the defendant‘s postconviction petition should be affirmed. See DeBerry, 372 Ill. App. 3d at 1060 (courts should not consider anything in a postconviction petition that violаtes section 122-1(f) of the Act); LaPointe, 365 Ill. App. 3d at 921 (“[U]ntil the trial court grants such leave [to a defendant under section 122-1(f) of the Act], a second or subsequent petition is not properly on file and may not be considered on its merits. To hold otherwise would be to treat section 122-1(f) as though it did not exist“); see also Jolly, 374 Ill. App. 3d at 506 (the Whitfield decision does not amount to a “‘Get-Out-Of-Jail-Free card,‘” which a defendant may use whenever and however he wishes; defendants who wish to vindicate their rights to proper MSR admonishments must do so in accordance with the requirements of the Act).