People v. Borello

• Decision Date: 28 April 2009
• Docket Number: No. 4-08-0504.,4-08-0504.
• Citation: 906 N.E.2d 1250
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald T. BORELLO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

906 N.E.2d 1250

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald T. BORELLO, Defendant-Appellant.

No. 4-08-0504.

Appellate Court of Illinois, Fourth District.

April 28, 2009.

Justice MYERSCOUGH delivered the opinion of the court:

In June 1996, defendant, Ronald T. Borello, entered into a fully negotiated plea of guilty to four counts of predatory criminal sexual assault of a child. 720 ILCS 5/12-14.1(a)(1) (West 1996). In exchange therefor, defendant agreed to consecutive sentences of six years in the Illinois Department of Corrections (DOC) on each of the four charges for a total of 24 years in DOC to be served at 85% pursuant to the truth-in-sentencing statute. 730 ILCS 5/3-6-3 (a)(2)(ii) (West 1996). Defendant also received 105 days of sentence credit for time served. Defendant did not file a direct appeal. In September 2007, defendant filed a pro se postconviction petition. In June 2008, the trial court dismissed the petition. Defendant appeals. We affirm.

I. BACKGROUND

In June 1996, defendant was charged with four counts of predatory criminal sexual assault of a child. 720 ILCS 5/12-14.1(a)(1) (West 1996). The victim was defendant's eight-year-old stepdaughter. When interviewed by the police, defendant admitted having sexually abused the child on at least five other occasions over the previous year. In June 1996, defendant and the State entered into a written plea agreement whereby defendant agreed to plead guilty to all four counts and the court would impose an agreed sentence of six years in DOC on each count to be served consecutively, for a total of 24 years in DOC. The State agreed not to file additional charges against defendant for the previous incidents of sexual abuse against the same victim. Defendant understood that, pursuant to the truth-in-sentencing statute (730 ILCS 5/3-6-3(a)(2)(ii) (West 1996)), he would serve 85% of his sentence for a minimum of 20 years and 4 months in DOC. Defendant was given 105 days of sentence credit for time served. At no time did the trial court admonish defendant about the three years he would be required to serve on mandatory supervised release (MSR) upon his release from DOC. Neither did any of the sentencing documents mention MSR. Nor did defendant file any postplea motions or a direct appeal.

In 1999, the Illinois Supreme Court found Public Act 89-404 (Pub. Act 89-404, eff. August 20, 1995 (1995 Ill. Laws 4306)), which limited the amount of good-conduct credit for certain offenses, unconstitutional because it violated the single-subject clause of the Illinois Constitution (Ill. Const.1970, art. IV, § 8(d)). People v. Reedy, 186 Ill.2d 1, 11-12, 237 Ill.Dec. 74, 708 N.E.2d 1114, 1119 (1999). Defendant was then entitled to day-for-day good-conduct credit.

In September 2007, 11 years after being sentenced, defendant filed a pro se post-conviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2006)). In November 2007, defendant was allowed to file an amended pro se postconviction petition to clarify the correct case number in which defendant was filing the petition. Defendant alleged in the amended petition that (1) at no time during the negotiations did the State mention the three years of MSR defendant would have to serve at the end of his DOC sentence; (2) during the plea hearing, the trial court never admonished defendant he would be required to serve three years on MSR following his term in DOC; (3) at the sentencing hearing, the court never mentioned MSR; (4) therefore, his constitutional rights to due process, equal protection, and fundamental fairness were violated because he pleaded guilty in exchange for a specific sentence but received a sentence more onerous than the one to which he agreed and, consequently, he did not receive the benefit of the bargain; (5) he was entitled to receive 105 days of sentence credit for each of his four sentences rather than the single credit of 105 days he was awarded; and (6) in March 2006 he was awarded 90 days of meritorious good-time credit by DOC and, therefore, with the above-stated reductions in his sentence, he should have been released on MSR on March 12, 2004, and discharged from MSR on March 12, 2007. Defendant requested that (1) his sentences be modified by reducing each 6-year sentence to 4 1/2 years to run consecutively to each other, followed by the 3 years on MSR, for a total of 24 years, (2) each of his 4 sentences also be reduced by 105 days of sentence credit, and (3) he be immediately released from DOC without any restrictions, including service of any time on MSR.

In November, 2007, the trial court appointed counsel to assist defendant with the postconviction proceedings.

At an April 2008 hearing, the State was given 21 days within which to file a response to the petition. The State did not file any written response. At a June 2008 hearing, the State orally admitted the allegations of the petition but did not state a position on the appropriate remedy. Defendant requested his sentence be reduced by three years commensurate with the time he would be required to serve on MSR. The trial court stated on the record that the parties and the court agreed defendant had not at any time been admonished regarding MSR. The court took the matter under advisement. Later in June 2008, the court entered a written order denying defendant's petition for postconviction relief on the grounds that (1) the petition was not timely filed and (2) defendant received the benefit of the bargain in his plea agreement.

This appeal followed.

II. ANALYSIS

On appeal, defendant argues the trial court erred in denying his postconviction petition. More specifically, he argues that (1) the court erred in ruling the petition was not timely filed because the State did not raise the timeliness issue and (2) the court erroneously ruled that he had received the benefit of the bargain on the grounds that the sentence he received was not more onerous than the sentence he agreed to when he pleaded guilty. The State concedes that the court erred when it found that the petition was untimely. However, the State argues that the court was correct in denying the petition. We agree with the State.

The Act (725 ILCS 5/122-1 through 122-8 (West 2006)) provides a three-step process for adjudicating a post-conviction petition. During the first stage, the "trial court, without input from the State, examines the petition only to determine if [it alleges] a constitutional deprivation unrebutted by the record, rendering the petition neither frivolous nor patently without merit." (Emphasis in original.) People v. Phyfiher, 361 Ill.App.3d 881, 883, 297 Ill.Dec. 694, 838 N.E.2d 181, 184 (2005). If the trial court does not dismiss the petition at the first stage, the matter proceeds to the second stage where the court will appoint counsel to an indigent defendant who requests counsel and appointed counsel then has the opportunity to amend the claims in the postconviction petition. People v. Patton, 315 Ill.App.3d 968, 971-72, 248 Ill.Dec. 865, 735 N.E.2d 185, 188 (2000). The State must then file either an answer or a motion to dismiss. People v. Johnson, 377 Ill.App.3d 854, 858, 316 Ill.Dec. 589, 879 N.E.2d 977, 980 (2007). If the petition makes a showing of a constitutional violation, it then proceeds to the third stage, at which the court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2006). "An evidentiary hearing will be held only where the allegations of the postconviction petition make a substantial showing that the defendant's constitutional rights have been violated and the petition is supported by affidavits, records, or other evidence or explains why these items are not attached." People v. Waldrop, 353 Ill.App.3d 244, 249, 288 Ill. Dec. 953, 818 N.E.2d 888, 893 (2004). The standard of review for a first- or second-stage dismissal is de novo. People v. Coleman, 183 Ill.2d 366, 389, 233 Ill.Dec. 789, 701 N.E.2d 1063, 1075 (1998). In the present case, the court dismissed defendant's petition in the second stage of the postconviction proceedings.

A. The State Forfeited the Affirmative Defense of Untimeliness

Section 122-1 of the Act sets forth the time limitations in which a defendant must seek postconviction relief (725 ILCS 5/122-1(c) (West 2006)). The statute of limitations applicable to the filing of a defendant's petition is the version of that statute in effect when the petition was filed. People v. Harris, 224 Ill.2d 115, 125 n. 1, 308 Ill.Dec. 757, 862 N.E.2d 960, 967 n. 1 (2007), citing People v. Bates, 124 Ill.2d 81, 85-86, 124 Ill.Dec. 407, 529 N.E.2d 227, 228-29 (1988). When defendant filed his postconviction petition, section 122-1(c) of the Act provided in pertinent part as follows:

"If a defendant does not file a direct appeal, the post[]conviction petition shall be filed no later than [three] years from the date of conviction, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1(c) (West 2006).

However, the timing requirements of section 122-1(c) are "akin to a statute of limitations and can be waived or forfeited through procedural default." People v. Boclair, 202 Ill.2d 89, 98, 273 Ill.Dec. 560, 789 N.E.2d 734, 739 (2002).

"Further, time is not an inherent element of the right to bring a post[]conviction petition. [Citation.] For that reason, time limitations in the Act should be considered as an affirmative defense and can be raised, waived, or forfeited, by the State. [Citation.] If an untimely petition demonstrates that a defendant suffered a deprivation of constitutional magnitude, a dutiful prosecutor may waive that procedural defect during the second stage of the post-conviction proceedings." (Emphasis in original.) Boclair, 202 Ill.2d at 101-02, 273 Ill.Dec. 560, 789 N.E.2d at 742.

Here, defendant was sentenced on June 25, 1996. He did not pursue a direct...