People v. Derris Company

SUPREME COURT CASES

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State: Illinois

Court: 5th District Appellate

Docket No: 5-06-0327 NRel

Case Date: 07/25/2007

Preview:NO. 5-06-0327
NOTICE Decision filed 07/25/07. The text of this decision may be changed or corrected prior to the filing of a Peti tion for Rehearing or th e

IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT _________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 02-CF-394 ) DERRIS COMPANY, ) Honorable ) John Baricevic, Defendant-Appellant. ) Judge, presiding. _________________________________________________________________________ JUSTICE STEWART delivered the opinion of the court: On January 23, 2006, pursuant to a fully negotiated plea, the defendant pled guilty to a home invasion charge (720 ILCS 5/12-11(a)(1) (West 2002)) in exchange for the dismissal of a first-degree murder charge (720 ILCS 5/9-1(a)(1) (West 2002)). The State and the defendant jointly recommended a sentence of 15 years' incarceration in the Illinois Department of Corrections. The court dismissed the murder charge, entered a judgment on the defendant's plea to home invasion, sentenced him to 15 years in the Illinois Department of Corrections with credit for the time he had already served in the St. Clair County jail, assessed court costs, and required him to submit to DNA testing. In the written judgment entered on the day of the defendant's guilty plea, the trial court made no reference to a term of mandatory supervised release (MSR). The defendant filed a pro se motion to withdraw his guilty plea and to vacate his sentence, which was mailed from prison on February 9, 2006, and filed of record on March 3, 2006. The defendant also filed a motion for the appointment of counsel, which was granted on April 24, 2006. On May 12, 2006, the State filed a motion to dismiss the

disposition of the same.

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defendant's motion to withdraw his guilty plea, alleging that it was untimely, in that it was filed more than 30 days after the entry of the judgment. On June 6, 2006, defense counsel filed a supplemental motion to withdraw the defendant's guilty plea "or in the alternative to modify or reduce the sentence imposed." In the motion, the defendant alleged that he did not "fully understand or comprehend the admonishments of the court pursuant to Illinois Supreme Court Rule 402 at the time of the entry of the plea of guilty." The defendant did not specifically allege that the court had failed to advise him that he would be required to serve a three-year M SR term at the conclusion of his prison term. On June 13, 2006, the court denied the State's motion to dismiss and the defendant's motions. The court found that the defendant's certificate of service stating that the motion was mailed from prison within 30 days of the entry of judgment was sufficient to show that the motion was timely filed. The court proceeded to the merits of the defendant's motion and found, among other things, that the defendant had been properly admonished at the time of his guilty plea. The defendant filed a timely notice of appeal. We reverse and remand. The defendant's sole argument on appeal is that, pursuant to People v. Whitfield , 217 Ill. 2d 177, 840 N.E.2d 658 (2005), the trial court's failure to admonish him that a 3-year MSR term attaches to his fully negotiated 15-year prison sentence requires that his sentence be reduced to 12 years, followed by 3 years of MSR, in order to comply with the plea agreement. The State argues that the defendant waived this argument because he failed to raise it in his motion to withdraw his guilty plea. Although the defendant did raise a general improper-admonishment claim by alleging that he did not "fully understand or comprehend" the court's admonishments when he entered his guilty plea, he did not specifically allege or argue in the trial court that the court failed to adequately advise him of the MSR term that attached to his sentence. "Generally, under Illinois Supreme Court Rule 604(d) [(145 Ill. 2d R. 604(d))], any issue not raised by the

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defendant in his motion to withdraw the plea of guilty shall be deemed waived upon appeal." People v. Davis , 145 Ill. 2d 240, 250, 582 N.E.2d 714, 719 (1991) (citing People v. Tannenbaum , 82 Ill. 2d 177, 415 N.E.2d 1027 (1980)). The failure to give the defendant the admonishments required by Illinois Supreme Court Rule 402 (177 Ill. 2d R. 402), however, has been determined to be "plain error," an exception to the waiver rule. People v. Davis , 145 Ill. 2d 240, 250, 582 N.E.2d 714, 719 (1991). This court has held that "because of the substantial constitutional rights at stake," the plain error doctrine should be applied to a defendant's claim that he was not properly admonished of the minimum and maximum sentences prescribed for his offense as required by Illinois Supreme Court Rule 402(a)(2) (177 Ill. 2d R. 402(a)(2)). People v. Blankley, 319 Ill. App. 3d 996, 1007, 747 N.E.2d 16, 24-25 (2001). Accordingly, we apply the plain error doctrine to the defendant's claim that he was not properly advised of the M SR term that attaches to his sentence, and we proceed to the merits of this appeal. A plea bargain deprives a defendant of liberty and other constitutionally protected interests; therefore, a defendant who demonstrates that he entered his guilty plea in reliance on such a plea bargain may have a due process right to enforce the terms of the agreement. Whitfield , 217 Ill. 2d at 189, 840 N.E.2d at 666. In Whitfield , the defendant pled guilty pursuant to a negotiated plea agreement, which provided a specific sentence of 25 years in the Illinois Department of Corrections. Whitfield , 217 Ill. 2d at 190, 840 N.E.2d at 667. The trial court ratified the agreement and failed to admonish the defendant that an MSR term would be added to the negotiated 25-year sentence. Whitfield , 217 Ill. 2d at 190, 840 N.E.2d at 667. Additionally, in the written order of sentence and commitment, the trial court made no reference to the three-year MSR term. Whitfield , 217 Ill. 2d at 180 n.1, 840 N.E.2d at 661 n.1. The supreme court held that, under these circumstances, "adding the statutorily required three-year MSR term to defendant's negotiated 25-year sentence amounts to a unilateral

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modification and breach of the plea agreement by the State, inconsistent with constitutional concerns of fundamental fairness." Whitfield , 217 Ill. 2d at 190, 840 N.E.2d at 667. The court went on to state: "[T]here 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." Whitfield , 217 Ill. 2d at 195, 840 N.E.2d at 669. A defendant's guilty plea must be made with full knowledge of the consequences, and this must be evident from the record. Whitfield , 217 Ill. 2d at 200, 840 N.E.2d at 672. General knowledge of MSR terms resulting from a defendant's criminal history or evidence that MSR was discussed during plea negotiations is insufficient to establish what a "defendant reasonably understood the terms of his plea agreement to be at the time he pled guilty." Whitfield , 217 Ill. 2d at 200, 840 N.E.2d at 672. Where no evidence exists in the record that affirmatively shows that the defendant knew he would be subject to an MSR term, the court must accept the defendant's allegations that he was unaware. Whitfield , 217 Ill. 2d at 200, 840 N.E.2d at 672. When a defendant is not advised that the sentence he bargained for would include an MSR term, he does not need to establish a reasonable probability that, but for the lack of specific admonishment, he would not have pled guilty. Whitfield , 217 Ill. 2d at 201, 840 N.E.2d at 673. The promise of a specific sentence induces the guilty plea, and when the defendant does not receive the sentence for which he bargained, his constitutional right to due process and fundamental fairness has been violated. Whitfield ,

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217 Ill. 2d at 201-02, 840 N.E.2d at 673. The facts in this case are similar to those in Whitfield . The defendant entered into a fully negotiated plea agreement whereby he was to receive a specific sentence of 15 years' incarceration in the Illinois Department of Corrections. The court ratified this agreement and failed to admonish the defendant, prior to accepting his plea, that an MSR term would be added to that sentence, and it did not include an MSR term in the written sentencing judgment. While Whitfield involved no MSR admonishment, in this case the trial court did mention mandatory supervised release. Arguably, however, the defendant in this case has a stronger argument than the defendant in Whitfield . Here, the trial court admonished the defendant that he would be subject to a term of MSR if convicted at a trial but that, under the plea agreement, instead of the possible sentences available upon conviction, he would receive the agreed sentence of 15 years, with no mention of MSR. At the guilty plea hearing, the trial court gave the defendant the following admonishments: "THE COURT: As Mr. Roustio indicated, Mr. Company, if you were convicted at trial of the Murder , I could have sentenced you to a determinate period of time in the Illinois [D]epartment of [C]orrections between 20 and 60 years, and you would have to do 100 percent of that sentence. If convicted on the Home Invasion, I could sentence you to a determinate period of time in the Illinois [D]epartment of [C]orrections between 6 and 30 years. You would have to do 85 percent of that sentence. It is not probationable. Probation is not an option, and at the conclusion of that sentence you either

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