People of The State of Ill. v. DAVIS
| Decision Date | 26 August 2010 |
| Docket Number | No. 1-08-3498.,1-08-3498. |
| Citation | 934 N.E.2d 550,343 Ill.Dec. 226,403 Ill.App.3d 461 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darnell DAVIS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
403 Ill.App.3d 461
934 N.E.2d 550
343 Ill.Dec. 226
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Darnell DAVIS, Defendant-Appellant.
No. 1-08-3498.
Appellate Court of Illinois,First District, First Division.
Aug. 9, 2010.
Rehearing Denied Aug. 26, 2010.
COPYRIGHT MATERIAL OMITTED.
Anita Alvarez, State's Attorney, County of Cook, Alan J. Spellberg, Tasha-Marie Kelly, Jacqueline James, Assistant State's Attorneys, Chicago, IL, for Plaintiff-Appellee.
Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Manuel S. Serritos, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL, for Defendant-Appellant.
Justice GARCIA delivered the opinion of the court:
The defendant, Darnell Davis, filed a pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/ 122-1 et seq. (West 2008)), contending the trial judge failed to follow the rule established by the Illinois Supreme Court in People v. Whitfield, 217 Ill.2d 177, 298 Ill.Dec. 545, 840 N.E.2d 658 (2005). In his postconviction petition, the defendant alleged the trial court failed to inform him at the time he was sentenced on his negotiated guilty plea that he would serve a three-year term of mandatory supervised release (MSR) following the 16-year sentence he accepted and, thus, breached the terms of his plea agreement and violated his constitutional right to due process. In his first-stage review of the postconviction petition, the trial judge recalled he informed the defendant of the MSR term and summarily dismissed the petition. The defendant argues that on the record before us he has demonstrated that his sentence should be reduced by the MSR term. The transcript reveals that the trial judge informed the defendant
that “[he] would have to serve at least three years mandatory supervised release, which is like parole,” before he entered his guilty plea. This admonishment is indistinguishable from the admonishment found sufficient by this court in People v. Marshall, 381 Ill.App.3d 724, 320 Ill.Dec. 37, 886 N.E.2d 1106 (2008). Accordingly, we find the defendant's postconviction theory of relief has no arguable basis in law or fact, and affirm.
On February 24, 2006, the defendant appeared before the trial judge on two cases: No. 04 CR 27095 and No. 05 CR 17363. The '04 case was on the call for a sentencing hearing following a bench trial guilty verdict on September 15, 2005, to the charge of aggravated battery; the '05 case came to be heard on a negotiated guilty plea hearing. Because the defendant was on pretrial release on the '04 case when he was arrested on the '05 case, he faced mandatory consecutive sentences. 730 ILCS 5/5-8-4(8) (West 2006). The guilty plea hearing on the '05 case was heard first, followed by the imposition of sentences on each case.
The '05 case involved a multicount indictment charging the defendant with two counts of attempted first-degree murder, two counts of aggravated battery with a firearm, one count of aggravated unlawful use of a weapon, one count of unlawful use of a weapon by a felon, two counts of aggravated battery and one count of felony unlawful use of a weapon. The indictment stemmed from a street altercation following a party in which the defendant pulled a short shotgun from his pants, that he fired twice at two individuals, seriously injuring one. The parties stipulated that the defendant would be positively identified as the shooter by six individuals, including the seriously injured victim. Prior to the guilty plea hearing, the State had agreed to proceed on a single count of aggravated
battery with a firearm, count III of the indictment. In exchange for his plea of guilty, the defendant would be sentenced on the Class X felony to a prison term of 16 years. At the guilty plea hearing, the following exchange occurred.
“THE COURT: Sir, as to this offense of aggravated battery with a firearm, a Class X felony, as to Count 3, do you understand if you plead guilty to this, I have to sentence you to the penitentiary between 6 and 30 years. You could be fined up to $25,000. You would have to serve at least three years mandatory supervised release, which is like parole. And furthermore, the sentence would have to be served at least 85 percent of the sentence and it would run consecutive to any jail term you receive on the other case, where you were already found guilty. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Your lawyer says you want to plead guilty. Is that correct?
THE DEFENDANT: Yes, sir.” (Emphasis added.)
The trial judge proceeded to admonish the defendant pursuant to Supreme Court Rule 605(c), following which defense counsel stipulated to the State's proffer of a factual basis for a finding of guilty. 210 Ill.2d R. 605(c). The trial judge found the factual basis supported a plea of guilty, accepted the defendant's plea of guilty, and entered judgment on the finding. A hearing on aggravation and mitigation regarding both cases was then conducted. At its conclusion, the trial judge imposed the sentences: “I will sentence the defendant as I promised him I would. As to the aggravated battery case, it did go to trial[,] [t]wo years in the penitentiary. That will run consecutive to 16 years in the penitentiary on the '05 case.”
The defendant was assessed certain costs and given credit for time in custody. The trial judge made no mention of the MSR term in either case after imposing the sentences. The defendant was advised of the steps he would have to take to appeal from his guilty plea. When asked if he had any questions, the defendant stated his desire to appeal from the guilty verdict, which the trial judge replied was his absolute right. The State nol-prossed the remaining counts of the 05 CR 17363 indictment. No timely motion to vacate the guilty plea was filed.
Regarding his bench trial, the defendant was convicted of two counts of aggravated battery of a police officer. The defendant appealed, contending his convictions, which arose from the same physical act-spitting in a police officer's face-violated the one-act, one-crime rule. The State agreed and, in a summary order, we affirmed the judgment, but vacated one of his convictions. People v. Davis, No. 1-06-0639 (2008) (unpublished order under Supreme Court Rule 23). Because certain proceedings in the two cases occurred simultaneously, the records in the two cases were combined on the instant appeal. The combined record reveals that prior to the defendant's bench trial on July 26, 2005, the trial court informed the defendant of the possible consequences flowing from a conviction. “If you go to the penitentiary, you have to serve one year of mandatory supervised released, which is like parole.”
On October 20, 2008, the defendant filed a pro se postconviction petition alleging he was deprived of due process because the trial court violated the Whitfield rule regarding the sentence on his negotiated plea. The trial court found the defendant's petition frivolous.
“[The defendant is] talking about he didn't get admonished about his mandatory supervised release. I believe he did. He doesn't show a transcript of the plea proceedings. I find his pro se petition
without merit. Accordingly, dismissed without merit.”
The defendant timely appeals.
The Illinois Post-Conviction Hearing Act provides a process by which a defendant can challenge his conviction if it results in a substantial denial of his rights under the United States or Illinois Constitution. People v. Coleman, 183 Ill.2d 366, 378-79, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998); 725 ILCS 5/122-2.1 (West 2008). Under the Act, the trial court is directed to summarily dismiss a petition at the first stage if the court determines “the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2008). Explaining this standard, our supreme court held that “a pro se petition...
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