THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RONALD WHITFIELD, Appellant.
No. 98136
Supreme Court of Illinois
October 6, 2005
Modified on denial of rehearing December 20, 2005.
177
Michael J. Pelletier, Deputy Defender, and Deborah Israel, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Springfield, and Richard A. Devine, State‘s Attorney, of Chicago (Linda D. Woloshin, Assistant Attorney General, of Chicago, and Renee G. Goldfarb, Michele Grimaldi Stein, James D.
JUSTICE MCMORROW delivered the opinion of the court:
Defendant, Ronald Whitfield, appeals the dismissal of his postconviction petition. He contends that his constitutional rights were substantially violated because he entered a plea of guilty in exchange for a specific sentence, but, with the addition of a statutorily required term of mandatory supervised release (MSR), about which the trial court never admonished him, he was given a more onerous sentence and, as a result, denied the benefit of his negotiated plea bargain. As a remedy, he asks that his sentence of imprisonment be decreased by the length of the statutorily required MSR term.
For reasons that follow, we now hold that, under the circumstances of this case, defendant has established that his constitutional rights were substantially violated. We remand for further proceedings consistent with this opinion.
BACKGROUND
On September 16, 1998, in the circuit court of Cook County, defendant Ronald Whitfield entered a plea of guilty to charges of first degree murder (No. 95-CR-3219) and armed robbery (No. 95-CR-21921) pursuant to a negotiated plea agreement. At the hearing, the prosecutor set forth the terms of the agreement, stating that defendant “will receive 25 years IDOC” for his plea of guilty to felony murder and a concurrent sentence of “six years IDOC” for his plea of guilty to armed robbery. After hearing a factual basis, the circuit court accepted defendant‘s plea, ratified the agreement, and in accordance with its terms, sentenced defendant to concurrent terms of imprisonment, 25 years and 6 years, respec-
Defendant did not file a postjudgment motion to withdraw his plea and never directly appealed his conviction or sentence. However, sometime while defendant was in prison, he learned that a three-year MSR term had been added to his 25-year sentence by operation of law. He then filed a pro se motion, on June 8, 2001, entitled “Motion for Relief From Judgment.” In this motion, defendant contended that his fourteenth amendment due process rights were violated because an MSR term, about which he was never advised, had been added to his negotiated sentence and resulted in a “more onerous” sentence than the one he had agreed to when he pled guilty. Defendant did not ask to have his plea
On October 1, 2001, the circuit court appointed the public defender to represent defendant on his due process claim. On October 16, 2001, the State moved to dismiss defendant‘s section 2-1401 motion for relief from judgment, arguing that it was not timely filed. The State acknowledged that defendant‘s motion could be treated as a postconviction petition, but argued that the circuit court was not obligated to do so. Furthermore, the State argued that, even if the court treated defendant‘s motion as a postconviction petition, the petition should be denied because defendant did not make a substantial showing that his constitutional rights had been violated.
Responding to the State‘s motion, defendant, represented by counsel, asked the court to treat his motion for relief from judgment as a postconviction petition. Defendant also supplemented his petition with references to case law. He cited Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), in support of his claim that he was denied the “benefit of the bargain that he made in pleading guilty.” Defendant also cited People v. Moore, 214 Ill. App. 3d 938 (1991), and United States ex rel. Baker v. Finkbeiner, 551 F.2d 180, 184 (7th Cir. 1977), for the proposition that the court‘s failure to admonish him regarding the MSR term constituted a due process violation which required the court to strike the MSR term.
After a brief hearing on December 20, 2001, the circuit court granted the State‘s motion to dismiss defendant‘s petition. The circuit court did not indicate whether or not it found that defendant had established a due process violation, but simply refused to grant defendant the relief he requested. Defendant appealed.
The appellate court, in an unpublished order (No. 1-02-0314 (unpublished order under Supreme Court Rule 23)), upheld the dismissal of defendant‘s petition. The appellate court held that the circuit court had informed defendant he would receive a specific sentence (25 years), but that defendant was, in fact, sentenced to a term greater than the agreed term, taking into consideration the period of MSR, about which defendant had not been admonished. Nevertheless, the appellate court concluded that defendant‘s due process claim failed because he had not made a “good-faith argument” that he would not have pled guilty had he known about the MSR term. Without any discussion or analysis, the court held that decisions cited by defendant which held to the contrary, People v. Moore, 214 Ill. App. 3d 938 (1991), and United States ex rel. Miller v. McGinnis, 774 F.2d 819 (7th Cir. 1985), were “factually distinguishable.”
Defendant petitioned this court for leave to appeal, which we allowed.
ANALYSIS
The appeal in the case at bar arises from the dismissal of defendant‘s second-stage postconviction petition. The standard by which second-stage dismissals of postconviction petitions are reviewed is de novo. People v. Munson, 206 Ill. 2d 104, 115 (2002). We begin our review by recalling the familiar principles concerning postconviction proceedings.
The Post-Conviction Hearing Act (
The State asks us to affirm the appellate court‘s dismissal of defendant‘s petition, arguing that defendant has not demonstrated that his constitutional rights were substantially violated at the plea hearing which produced his conviction and sentence.
Nature of Defendant‘s Claim
We believe it appropriate, at the outset, to identify the exact nature of defendant‘s claim. When seeking relief from a guilty plea, either directly or collaterally, there are two separate, though closely related, constitutional challenges that may be made: (1) that the plea of guilty was not made voluntarily and with full knowledge of the consequences, and (2) that defendant did not receive the benefit of the bargain he made with the State
In light of the arguments raised, we examine the two types of constitutional claims. The first constitutional claim derives from Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). In Boykin, the defendant entered pleas of guilty to five counts of robbery and was subsequently sentenced to death. The record of defendant‘s plea hearing, however, showed that the trial court asked defendant no questions concerning his plea and that defendant did not address the court. On review, the Supreme Court held that, for a guilty plea to be valid under the due process clause, the record must affirmatively show that the plea was entered intelligently and with full knowledge of its consequences. Because, in that case, it could not be determined from the record of defendant‘s plea hearing that his plea had been entered voluntarily or that he was aware of the consequences of his plea, the Court reversed defendant‘s convictions and sentence.
The “benefit of the bargain” claim finds its roots in
The cause was remanded to state court to determine whether specific enforcement of the plea agreement was the appropriate remedy or whether fundamental fairness required that defendant be given the opportunity to withdraw his plea.“This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Emphasis added.) 404 U.S. at 262, 30 L. Ed. 2d at 433, 92 S. Ct. at 499.
Boykin and Santobello deal with two different aspects of a plea—its acceptance and its implementation. As these decisions make clear, principles of due process apply to both aspects—to the procedure of accepting the plea, as well as to the process of implementing the bargain itself. Mabry v. Johnson, 467 U.S. 504, 509, 81 L. Ed. 2d 437, 443-44, 104 S. Ct. 2543, 2547 (1984) (both
In the case at bar, defendant raises a “benefit of the bargain” claim. We note that he does not assert that the prosecutor or the court affirmatively promised him that he would not have to serve a period of MSR. Instead, defendant‘s premise is that principles of due process, embodied in Illinois Supreme Court Rule 402, made it incumbent upon the circuit court to admonish him, on the record, regarding the statutorily required MSR. Further, because no admonishment was given, his plea agreement, as evinced by the record, was that he would receive a maximum sentence of 25 years’ imprisonment. Based on this premise, defendant then argues that the State, by adding the MSR term, has breached the plea agreement, in violation of due process, and that he is prejudiced because he received a more onerous sentence—25 years plus 3 years MSR.
Defendant does not challenge the validity of the plea and, accordingly, does not seek the withdrawal of his plea of guilty. Instead, defendant contends that his plea of guilty, given in exchange for the promise of a 25-year sentence, was voluntarily and knowingly made. He requests specific enforcement of the negotiated plea agreement as he understood it. He now concedes, however, that a term of supervised release is statutorily mandated and, therefore, cannot be legally struck from his sentence. For this reason, he asks that his sentence be modified to 22 years’ imprisonment plus 3 years of mandatory supervised release to “approximate” the bargain that was struck between the parties.
Waiver
Initially, the State argues that the dismissal of defendant‘s petition should be affirmed based on principles of waiver. Noting the well-established rule that “issues that could have been raised on direct appeal, but were not, are not amenable to post-conviction review” (see People v. Collins, 153 Ill. 2d 130, 135 (1992)), the State contends that defendant should be denied collateral review of his claim because he “was aware from the date of his guilty plea that the judge had not included an admonition regarding the period of MSR” and never sought to withdraw his guilty plea or directly appeal his conviction.
The State‘s “waiver” argument is, to be more precise, a claim of procedural default. “[W]aiver implies a knowing relinquishment of a right, whereas procedural default refers to the failure to adequately preserve an issue for later appellate review.” People v. Blair, 215 Ill. 2d 427, 457 n.3 (2005) (Freeman, J., dissenting, joined by McMorrow, C.J., and Kilbride, J.). See also People v. Jung, 192 Ill. 2d 1, 11 (2000) (Freeman, J., specially concurring, joined by Miller and McMorrow, JJ.); People v. Terrell, 185 Ill. 2d 467, 522 (1998) (Freeman, C.J., specially
We find, however, that there was no procedural default under the facts of this case. Pursuant to Illinois Supreme Court Rule 402, every defendant who enters a plea of guilty has a due process right to be properly and fully admonished.3 Moreover, in People v. Wills, 61 Ill. 2d 105, 109 (1975), this court held that “compliance with Rule 402(a)(2) requires that a defendant be admonished that the mandatory period of parole [now called mandatory supervised release] pertaining to the offense is a part of the sentence that will be imposed.” See also People v. McCoy, 74 Ill. 2d 398 (1979). It is undisputed that the circuit court failed to admonish defendant in accord with the rule. Under the circumstances, it would be incongruous to hold that defendant forfeited the right to bring a postconviction claim because he did not object 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. 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. Accordingly, we address the merits of defendant‘s claim.
Due Process and Benefit of the Bargain
In the case at bar, defendant contends that his
As discussed earlier, the Court held in Santobello that, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello, 404 U.S. at 262, 30 L. Ed. 2d at 433, 92 S. Ct. at 499. By this holding, the Court recognized that plea agreements may be enforceable on constitutional grounds. In other words, if a defendant shows that his plea of guilty was entered in reliance on a plea agreement, he may have a due process right to enforce the terms of the agreement. See Mabry v. Johnson, 467 U.S. 504, 509, 81 L. Ed. 2d 437, 443-44, 104 S. Ct. 2543, 2547 (1984); People v. Navarroli, 121 Ill. 2d 516, 522 (1988) (“defendant who enters a guilty plea in reliance upon the promise of the prosecutor is entitled to a remedy when the prosecutor breaches that promise“). This is because a plea bargain, once embodied in the judgment of a court, deprives a defendant of liberty and other constitutionally protected interests. Mabry v. Johnson, 467 U.S. at 507-08, 81 L. Ed. 2d at 442, 104 S. Ct. at 2546.
This court recognized the constitutional underpinnings of plea agreements in People v. Evans, 174 Ill. 2d 320, 326-27 (1996), when we held:
In Evans, we consolidated the appeals of two defendants who had entered negotiated pleas of guilty in“Courts must keep in mind that the defendant‘s ‘underlying “contract” right is constitutionally based and therefore reflects concerns that differ fundamentally from and run wider than those of commercial contract law.’ [Citation.] As a result, the application of contract law principles to plea agreements may require tempering in some instances.”
In the case at bar, defendant pled guilty pursuant to a negotiated plea agreement. The terms of the plea agreement, as set forth by the prosecutor at the plea hearing, included a specific sentence of 25 years. The trial court ratified this agreement and failed to admonish defendant, as required by Supreme Court Rule 402, that a mandatory supervised release term would be added to the sentence defendant had agreed to. Under these circumstances, we conclude that adding the statutorily required three-year MSR term to defendant‘s negotiated 25-year sentence amounts to a unilateral modification and breach of the plea agreement by the State, inconsistent with constitutional concerns of fundamental fairness. We
In People v. McCoy, 74 Ill. 2d 398 (1979), the defendant filed a postconviction petition alleging that the court‘s “failure to admonish him at the time of his plea of guilty that the mandatory parole term was a part of the sentence was per se a constitutional violation entitling him to post-conviction relief.” McCoy, 74 Ill. 2d at 401. We rejected this claim, holding that “the quid pro quo for the plea of guilty was the [prosecutor‘s] recommendation that there be concurrent sentences of 1 to 3 years [and] defendant knew that the court was not bound to accept the recommendation and could sentence defendant to a term of not less than 1 nor more than 20 years.” (Emphasis added.) McCoy, 74 Ill. 2d at 403. We concluded that, although it was error for the court to have omitted the admonishment, the error was not of constitutional dimension because defendant was not prejudiced—the “indeterminate sentence imposed, together with the mandatory parole period, [was] substantially less than the maximum of 20 years to which defendant knew he could be sentenced.” Under the facts of that case, then, there were no grounds for granting the defendant relief on his postconviction petition. Defendant received a sentence that was less than the maximum sentence he was told he could receive and, as a result, the omitted admonition did not affect the voluntariness of the plea. McCoy, 74 Ill. 2d at 403. Moreover, because the State promised only to recommend a sentence, defendant received the benefit of the bargain he made with the State.
Significantly, in McCoy, we considered decisions issued by the United States Court of Appeals for the Seventh Circuit, United States ex rel. Baker v. Finkbeiner, 551 F.2d 180 (7th Cir. 1977), and United States ex rel.
The Baker court ruled that the defendant‘s due process rights had been violated, holding:
Citing Santobello v. New York, 404 U.S. 257, 262-63, 30 L. Ed. 2d 427, 432-33, 92 S. Ct. 495, 498-99 (1971), the Baker court held that the addition of the mandatory parole term made defendant‘s sentence “more onerous” than what he had been promised and, as a result, he did not receive the benefit of the bargain he had made with the State. The Baker court concluded that, because the defendant had entered his plea in exchange for a specific sentence, the failure of the prosecutor and the trial court to advise Baker of the mandatory parole term “created a defect of constitutional dimension in his guilty plea” in that the guilty plea was “unfairly induced in violation of the Due Process Clause.” Baker, 551 F.2d at 181, 184.“The correct test to be used in determining whether the circumstances surrounding Baker‘s negotiated guilty plea violated the Due Process Clause is that the plea must withstand collateral attack unless the sentence actually imposed upon Baker significantly differed from the sentence which the prosecutor and the trial court promised him.” Baker, 551 F.2d at 183.
In Ferris, the court relied on its decision in Baker
Distinguishing Baker and Ferris from the situation in McCoy, we held that Baker and Ferris differed in that the defendants’ negotiated plea agreements in those cases had been, not just for a sentencing recommendation, but for the promise of a particular prison sentence. Thus, in McCoy, we suggested that the result might have been different had McCoy‘s negotiated plea been for the promise of a specific sentence.
Since McCoy, our appellate court has had several opportunities to consider, both in the context of direct appeals and postconviction proceedings, whether a defendant‘s due process rights are violated by a trial court‘s failure to admonish the defendant that a mandatory supervised release term will be added to the term of incarceration. Generally, our appellate court has drawn a distinction, as suggested in McCoy, between “open” guilty pleas and negotiated pleas for a specific sentence.5 In situations where a defendant has entered an open plea and the trial court has admonished the defendant regarding the maximum sentence to which he would be exposed by his plea, the failure to admonish a defendant concerning the MSR is not a constitutional violation, as long as the sentence plus the term of MSR is less than the maximum sentence which defendant was told he could receive. See People v. Fish, 316 Ill. App. 3d 795
On the other hand, if the defendant negotiated a plea agreement for a specified sentence, the court‘s failure to advise the defendant, on the record, concerning the MSR term has been held to be reversible error and a violation of due process. As explained in People v. Didley, 213 Ill. App. 3d 910, 915 (1991):
See also People v. Smith, 285 Ill. App. 3d 666 (1996) (where defendant agreed to plead guilty in exchange for an 11-year sentence, the failure to advise defendant that a 3-year MSR term would be added to his sentence made his plea unknowing); People v. Moore, 214 Ill. App. 3d 938, 944 (1991) (because defendant negotiated for a predetermined sentence, the failure to admonish him regarding the MSR was error); People v. O‘Toole, 174 Ill. App. 3d 800, 801 (1988) (defendant entitled to postconviction relief because due process was violated when the court advised defendant that he would be sentenced to “a flat ten years” and did not tell him that a term of mandatory supervised release would be added); People v. Kull, 171 Ill. App. 3d 496 (1988) (plain error occurred“When a defendant has pled guilty in contemplation of receiving a specific sentence, imposing additional and unbargained-for terms or conditions is not permissible.”
Having reviewed the above cases, we conclude that, although substantial compliance with Rule 402 is sufficient to establish due process (People v. Fuller, 205 Ill. 2d 308, 323 (2002); People v. Burt, 168 Ill. 2d 49, 64 (1995)), and an imperfect admonishment is not reversible error unless real justice has been denied or the defendant has been prejudiced by the inadequate admonishment (People v. Davis, 145 Ill. 2d 240, 250 (1991)), there is no substantial compliance with Rule 402 and due process is violated when a defendant pleads guilty in exchange for a specific sentence and the trial court fails to advise the defendant, prior to accepting his plea, that a mandatory supervised release term will be added to that sentence. In these circumstances, addition of the MSR term to the agreed-upon sentence violates due process because the sentence imposed is more onerous than the one defendant agreed to at the time of the plea hearing. Under these circumstances, the addition of the MSR constitutes an unfair breach of the plea agreement.
In reaching this conclusion, we reject the appellate court‘s holding that a due process violation was not established in the case at bar because defendant “never raised a good-faith argument” that he would not have pled guilty had he been made aware of the MSR term. The appellate court relied on People v. Smith, 285 Ill. App. 3d 666 (1996), wherein the court held that a due process violation is shown only if (1) the record discloses the court informed the petitioner he would receive a specific sentence of incarceration upon a guilty plea; (2) the trial court sentenced petitioner to a term greater than the agreed term, taking into account and including any period of MSR; and (3) petitioner raises a good-faith argument that he would not have pled guilty if he had
Upon examination, the Baker decision reveals that the court explicitly rejected the argument that “Baker cannot now attack the validity of his guilty plea unless he can affirmatively demonstrate that he would not have entered the pleas if he had known of the mandatory parole term.” Baker, 551 F.2d at 183. The Baker court reasoned that, when a defendant enters a plea in exchange for a specific sentence, rather than an open plea as in Bachner v. United States, 517 F.2d 589 (7th Cir. 1975), no additional showing is necessary because prejudice has already been shown. The court stated:
In United States ex rel. Williams the habeas petitions of three defendants were consolidated for consideration. Analyzing the facts of each defendant‘s plea in comparison to Baker (negotiated plea) and Bachner (open plea), the court found that, in all cases but one, relief should be granted because the plea of guilty had been entered, as in Baker, in exchange for a specified sentence and the total sentence, with the addition of the parole term, exceeded the sentence that was promised.“In contrast [to Bachner], Baker did suffer a detriment. He agreed to plead guilty in exchange for the promise of a specific sentence by the prosecutor, which was then ratified by the trial judge. Yet he was given a more onerous sentence than he had been promised.” Baker, 551 F.2d at 183.
Clearly, neither Baker nor Williams supports the holding in Smith that, where a defendant enters a negotiated plea for a specific sentence, a finding that due process has been violated is contingent on the defendant‘s
Moreover, contrary to the State‘s argument, we find that the recent Supreme Court decision United States v. Dominguez Benitez, 542 U.S. 74, 159 L. Ed. 2d 157, 124 S. Ct. 2333 (2004), does not support a finding that a defendant, such as the one in the case at bar, must plead and prove that he would not have pled guilty had he known about the MSR. In Dominguez Benitez, the defendant (who spoke only Spanish) was arrested after he sold drugs to a confidential informant. He was charged with conspiracy to possess more than 500 grams of methamphetamine and possession of 1,391 grams of methamphetamine, both with the intent to distribute. As a result of plea negotiations, the government agreed, in writing, to drop the possession charge and to stipulate to a “safety-valve” reduction of two levels if defendant pled guilty to the conspiracy charge, which carried a mandatory minimum sentence of 10 years. The “safety-valve” reduction would have allowed the district court to give defendant a sentence below the 10-year minimum. Eligibility for the safety-valve reduction was contingent on satisfying five conditions, one going to defendant‘s criminal history. The contingencies, however, were not listed in the written agreement.
At the plea hearing, defendant was admonished in accord with
At the subsequent sentencing hearing, the district court imposed a sentence of 10 years, the mandatory minimum without the safety-valve reduction. Defendant was told that at this time that he was ineligible for the safety-valve reduction because the probation report revealed that he had a more extensive criminal history than was previously known. Defendant did not object to the sentence at the time of the hearing, but later appealed, claiming that the court‘s failure to advise him properly at the plea hearing pursuant to
” ‘[w]hether, in order to show that a violation of
Federal Rule of Criminal Procedure 11 constitutes reversible plain error, a defendant must demonstrate that he would not have pleaded guilty if the violation had not occurred.’ ” Dominguez Benitez, 542 U.S. at 80, 159 L. Ed. 2d at 166, 124 S. Ct. at 2338.
In deciding the issue before it, the Court noted that
Dominguez Benitez is inapposite to the case at bar. Similar to Bachner and Timmereck, the defendant in Dominguez Benitez entered an open plea and was advised by the court, prior to the time that he entered his plea, that the court was free to impose any sentence available under the law and that the court was not obligated to follow the sentencing recommendations proffered by the government. Thus, the district court‘s failure to advise defendant that he could not withdraw his plea if the government‘s recommendation was not followed had no direct effect on the validity of the plea or the sentence imposed. Simply stated, Dominguez Benitez could not establish that he suffered any prejudice as a result of the faulty admonishment. Unlike the defendant in the case at bar, Dominguez Benitez was never promised by the government and the court that he would receive a particular sentence, only to learn later that the actual sentence imposed was more lengthy. The Court‘s decision
Finally, we reject the State‘s argument that we must remand defendant‘s postconviction petition for a third-stage evidentiary hearing. The State argues that, although defendant alleged that he did not know that a mandatory supervised release term would be added to his sentence and although “it is uncontested that MSR was not mentioned” at defendant‘s plea hearing, defendant should be required to prove, at an evidentiary hearing, that he was not actually aware that a period of MSR would be added to his sentence. We disagree.
First, it is unclear what sort of additional showing defendant could provide which would establish his lack of knowledge. Secondly, even if, as the State speculates, defendant had some level of general knowledge about MSR terms as a result of his criminal history or evidence could be mustered which would show that MSR was discussed during plea negotiations, it would not establish what defendant reasonably understood the terms of his plea agreement to be at the time he pled guilty. Finally, and most importantly, due process requires that it be evident from the record that a defendant‘s plea of guilty is entered with full knowledge of the consequences. See People v. Day, 311 Ill. App. 3d 271, 274 (2000) (“Due process is violated where a court admonishes a defendant that he will receive a shorter sentence than he actually receives; this includes the failure to advise a defendant of the three-year MSR attached to his sentence“). Where, as here, the record contains no evidence which affirmatively shows that defendant knew that he would be subject to an MSR term, defendant‘s alleged unawareness must be taken as true.
We recognize that MSR terms are statutorily required and that “the State has no right to offer the withholding of such a period as a part of the plea negotiations and
In sum, we find that, in the case at bar, defendant has established a substantial violation of his constitutional rights. The record shows, and the appellate court found, that defendant pled guilty to murder in exchange for the promise of a 25-year sentence. It is “uncontested” that the circuit court failed to admonish defendant, as required by
Remedy
Having established that his constitutional rights were substantially violated, defendant is entitled to postconviction relief. The Supreme Court, in Santobello, provided for two possible remedies when a defendant does not receive the “benefit of the bargain“: either the “promise must be fulfilled” or defendant must be given the opportunity to withdraw his plea. Santobello, 404 U.S. at 262-63, 30 L. Ed. 2d at 433, 92 S. Ct. at 499. In Lane v. Williams, 455 U.S. 624, 71 L. Ed. 2d 508, 102 S. Ct. 1322 (1982), the Court agreed that, under circumstances nearly identical to the those in the case at bar, two forms of relief were available, stating:
“[R]espondents could seek to remedy this error in two quite different ways. They might ask the District Court to set aside their convictions and give them an opportunity to plead anew; in that event, they might either plead not guilty and stand trial or they might try to negotiate a different plea bargain properly armed with the information that any sentence they received would include a special parole term. Alternatively, they could seek relief in the nature of ‘specific enforcement’ of the plea agreement as they understood it; in that event, the elimination of the mandatory parole term from their sentences would remove any possible harmful consequence from the trial court‘s incomplete advice.” Lane, 455 U.S. at 630, 71 L. Ed. 2d at 514, 102 S. Ct. at 1326.
The remedy defendant requests in the case at bar is enforcement of the negotiated plea agreement as he understood it. At the same time, however, defendant concedes that a term of supervised release is mandated by statute and legally cannot be struck from his sentence. See
After reviewing decisions by courts in other jurisdictions, we find the remedy sought by defendant to be appropriate. In James v. State, 699 N.W.2d 723 (Minn. 2005), the Minnesota Supreme Court considered a postconviction petition brought on grounds similar to those of the case at bar. In James, the petitioner entered a guilty plea and was not admonished that he would be subject to a statutorily mandated conditional release term. The court found that the addition of the 10-year conditional release term “resulted in a sentence that was in excess of the upper limit contemplated at the time [defendant] entered into the plea agreement.” The court concluded that defendant‘s plea was induced by an unfulfillable promise and that he was entitled to withdraw his plea or have his sentence “modified in a way that does not violate the agreement.” See also State v. Jumping Eagle, 620 N.W.2d 42 (Minn. 2000). We note that, in James, the court did not grant either remedy, but remanded for further proceedings, stating that, due to the petitioner‘s substantial delay in bringing his claim, the court should determine whether allowing petitioner to withdraw his plea would be unduly prejudicial to the State, in which case, defendant would be limited to the alternative remedy.
In Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976), the defendant pled guilty in exchange for various promises from the Commonwealth, including a promise that certain sentences would run concurrently—a promise which was unfulfillable because it was
“By so doing, appellant will then have received ‘the benefit of the bargain’ made with the Commonwealth and still serve a prison sentence commensurate with the term contemplated by all of the parties to the plea proceedings.” Zuber, 466 Pa. at 462, 353 A.2d at 446.
In United States ex rel. Ferris v. Finkbeiner, 551 F.2d 185, 187 (7th Cir. 1977), cited earlier, the Court of Appeals for the Seventh Circuit held:
“Since Ferris has substantially begun performing his side of the bargain, it would not be fair to vacate the plea and require him to go through the procedure anew. Fundamental fairness can be had by limiting his term of custody to that portion of the sentence which comports with the bargain made.”
Similarly, in United States v. Bowler, 585 F.2d 851, 856 (7th Cir. 1978), the court held that “the fashioning of an appropriate remedy is largely a matter of the exercise of the sound discretion of the court according to the circumstances of each case.” The Bowler court proffered three choices: “Appropriate relief can include allowing a defendant to withdraw a guilty plea, United States v. Hammerman, 528 F.2d 326 (4th Cir. 1975); directing the Government to provide specific performance of a promise, Geisser v. United States, 513 F.2d 862 (5th Cir. 1975); or ordering the imposition of a specific sentence where withdrawal of a guilty plea or specific performance by the Government would be either meaningless or infeasible. Correale v. United States, 479 F.2d 944 (1st Cir. 1973).”
Recently, in People ex rel. Ryan v. Roe, 201 Ill. 2d 552, 557 (2002), this court exercised its discretion and fashioned an appropriate remedy in a situation where a guilty plea had been induced by a legally unfulfillable promise. The circumstances were procedurally different
In light of Roe and Justice Douglas’ admonition that “a court ought to accord a defendant‘s preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor‘s breach of a plea bargain are those of the defendant, not of the State” (Santobello, 404 U.S. at 267, 30 L. Ed. 2d at 436, 92 S. Ct. at 501 (Douglas, J., concurring)), we conclude that, in the case at bar, the appropriate remedy is to modify defendant‘s sentence to a term of 22 years of imprisonment, to be followed by the mandatory 3-year term of supervised release.
CONCLUSION
We reverse the judgment of the appellate court, vacate the sentence imposed by the Cook County circuit court and remand to the circuit court with directions that it impose a sentence of 22 years’ imprisonment, to be followed by a term of 3 years’ mandatory supervised release.
Appellate court judgment reversed;
cause remanded with directions.
CHIEF JUSTICE THOMAS, specially concurring:
I agree with the majority that defendant made a substantial showing that his constitutional rights were violated because he did not receive the benefit of his bargain and further that the appropriate remedy for such
The purpose of a postconviction proceeding is to allow inquiry into constitutional issues involved in the original conviction and sentence that have not been, and could not have been adjudicated previously on direct appeal. People v. Morgan, 187 Ill. 2d 500, 528 (1999). The Post-Conviction Hearing Act provides the mechanism by which those under a criminal sentence can assert that their convictions were the result of a substantial denial of their constitutional rights. People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). The Act provides for various, distinct stages to conduct this inquiry. First, a defendant commences proceedings under the Act by the filing of a petition, which must clearly set forth the respects in which the defendant‘s rights were violated.
In the present case, the State‘s motion to dismiss was granted without comment, so it never actually had an opportunity to file an answer denying the factual allegations of defendant‘s petition. While it is true that all well-pleaded facts in a defendant‘s petition and in the accompanying affidavits are taken as true, this is only for the purpose of making a substantial showing that constitutional rights have been violated so that a defendant can proceed to an evidentiary hearing on his allegations. Morgan, 187 Ill. 2d at 528. This court has repeatedly stressed that an evidentiary hearing is required whenever a defendant makes a substantial showing of a violation of constitutional rights. Coleman, 183 Ill. 2d at 381. Thus, if the court finds a substantial showing of a constitutional violation, the inquiry is normally advanced to the third stage of the postconviction procedure where the trial court conducts an evidentiary hearing. People v. Edwards, 197 Ill. 2d 239, 246 (2001). When the petitioner‘s claims are based on matters outside the record, it is not the intent of the Act that such claims be adjudicated on the pleadings. People v. Simms, 192 Ill. 2d 348, 360 (2000); People v. Kitchen, 189 Ill. 2d 424, 433 (1999); Coleman, 183 Ill. 2d at 382.
In support of its ruling that no hearing is required,
The State‘s analysis would be sound if not for the requirement of
“The court shall not accept a plea of guilty without first determining that the plea is voluntary. If the tendered plea is the result of a plea agreement, the agreement shall be stated in open court. The court, by questioning the defendant personally in open court, shall confirm the terms of the plea agreement ***.” (Emphases added.) 177 Ill. 2d R. 402(b).
One of the purposes of an open-court statement and a personal confirmation of the terms of the plea agreement is to prevent a defendant from swearing falsely at a later
It would be incongruous to hold that the State is free to argue that the terms of the agreement differed from those stated in open court, while at the same time, preclude a defendant from challenging a plea stated in open court on the basis that it differed from an earlier oral understanding.
Notes
“Except where a term of natural life is imposed, every sentence shall include as though written therein a term in addition to the term of imprisonment. For those sentenced under the law in effect prior to February 1, 1978, such term shall be identified as a parole term. For those sentenced on or after February 1, 1978, such term shall be identified as a mandatory supervised release term. Subject to earlier termination under Section 3-3-8 [730 ILCS 5/3-3-8], the parole or mandatory supervised release term shall be as follows:
(1) for first degree murder or a Class X felony, 3 years.”