People v. Gulley

• Decision Date: 13 June 2008
• Docket Number: No. 2-06-1077.,2-06-1077.
• Citation: 383 Ill.App.3d 727,891 N.E.2d 441
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Louis E. GULLEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

891 N.E.2d 441

383 Ill.App.3d 727

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Louis E. GULLEY, Defendant-Appellant.

No. 2-06-1077.

Appellate Court of Illinois, Second District.

June 13, 2008.

Robert J. Agostinelli and Bryon Kohut (Court-appointed), Office of the State Appellate Defender, Ottawa, for Louis E. Gulley.

Philip J. Nicolosi, Winnebago County State's Attorney, Rockford, Lawrence M. Bauer, Deputy Director, Mary Beth Burns, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice BOWMAN delivered the opinion of the court:

Defendant, Louis E. Gulley, pleaded guilty to armed robbery (720 ILCS 5/18-2(a) (West 1998)) and robbery (720 ILCS 5/18-1(a) (West 1998)) pursuant to an agreement with the State that he would not receive a sentence longer than 30 years. The trial court subsequently sentenced defendant to 30 years' imprisonment. Defendant was not advised that he was subject to a three-year term of mandatory supervised release (MSR) in addition to his prison sentence. Defendant filed a pro se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)), arguing that the trial court's failure to advise him of the MSR term deprived him of the benefit of his plea bargain, in violation of his due process rights. The trial court summarily dismissed the petition, and defendant timely appealed. For the reasons that follow, we reverse and modify defendant's sentence.

On November 9, 1998, defendant pleaded guilty to armed robbery and robbery. In exchange for defendant's guilty pleas, the State agreed to dismiss three additional counts of armed robbery. The State also agreed to a sentencing cap of 30 years and to recommend that the sentences on the remaining two counts run concurrently. The court advised defendant as follows:

"THE COURT: [Defendant], you heard what your counsel has stated are the terms of this plea agreement. It's what we refer to as an open plea, but the Court would have to agree to be capped at the sentencing range of 6 to 30 years as opposed to the extended term, which would be available without the plea agreement."

The court further stated:

"THE COURT: [Defendant], do you understand that an open plea means there is no agreement as to what the appropriate sentence should be, other than I can tell you that this is a nonprobationable offense, so the minimum sentence that the Court can give would be 6 years; and if I accept the terms of this agreement, the maximum sentence that I could give would be 30 years."

Later, the following colloquy took place:

"THE COURT: * * *

[Defendant], just so that it's clear on the record that you understand, can you tell me is there any agreement as to what the appropriate sentence should be in this case?

THE DEFENDANT: Appropriate sentence?

THE COURT: The appropriate sentence, yeah. Is there any agreement between you and the State about what the sentence will be?

THE DEFENDANT: No. They just said open plea to 30.

THE COURT: Right. Well, open plea, and the sentencing range is 6 to 30 years.

THE DEFENDANT: 6 to 30.

THE COURT: You can ask for 6 years, they can ask for 30 years, and I'll make my decision based upon the evidence and the presentence report that I hear.

THE DEFENDANT: Okay."

The trial court accepted defendant's pleas, and a sentencing hearing took place on December 15-16, 1998. After presenting testimony from several witnesses, the State argued that defendant should receive the maximum sentence under the sentencing cap, 30 years' imprisonment. The court acknowledged that it had agreed to the cap of 30 years' imprisonment. It sentenced defendant to 30 years on the armed robbery charge and 15 years on the robbery charge, to be served concurrently.

Defendant filed a motion for reconsideration of his sentence, which the trial court denied. Defendant timely appealed, arguing that he was not properly admonished under Supreme Court Rule 605(b) (145 Ill.2d R. 605(b)). We agreed, and we remanded the cause for proper admonishments. See People v. Gulley, No. 2-99-0305, 317 Ill.App.3d 1166, 270 Ill.Dec. 667, 783 N.E.2d 242 (unpublished order under Supreme Court Rule 23).

On remand, following proper admonishments, defendant filed a motion to withdraw his pleas and vacate the judgment under Supreme Court Rule 604(d) (188 Ill.2d R. 604(d)). Defendant argued that he "did not knowingly, intelligently, and voluntarily waive his rights to a jury trial, nor did [he] fully understand or comprehend the admonishments of the Court pursuant to Supreme Court Rule 402 [(177 Ill.2d R. 402)]." He stated that he "believed that the negotiated plea agreement involved a sentence of seventeen (17) years." He also argued that his attorney failed to adequately cross-examine the witnesses at his sentencing hearing. The trial court denied the motion, and, on May 28, 2002, defendant filed a timely appeal. According to an affidavit from the attorney who was assigned to represent defendant in the 2002 appeal (which affidavit was attached to defendant's postconviction petition), "[i]n the course of reading the record on appeal, [she] discovered that * * * the judge who presided at [defendant's] plea and sentencing proceedings, failed to admonish him that the 30 year sentence cap to which he agreed in exchange for his plea to the armed robbery included a three year period of [MSR]." Counsel further averred that she raised the issue in the appellate brief, arguing that defendant should be permitted to withdraw his pleas. However, upon learning that defendant did not want to withdraw his pleas but instead wanted his sentence reduced, she told him "that the law would not support a request for such relief." She advised defendant to dismiss the appeal, and, on April 1, 2003, the appeal was dismissed on his motion.

On September 6, 2006, defendant filed his postconviction petition, alleging that "at no time during plea agreement negotiations nor at sentencing did the Court, States Attorney [sic], or Defense Counsel ever appraise [sic] [defendant] of a three (3) year MSR term, nor does the passing judgment order of 12-16-98 reflect a term of MSR * * *. [Defendant] was only admonished that the sentence he would receive would fall between six (6) and thirty (30) years." In an affidavit attached to his petition, defendant averred that he "just recently learned from [his] place of confinement that [he] would have to serve a three (3) year term of [MSR] [after completing] his negotiated 30 year sentence." Relying on People v. Whitfield, 217 Ill.2d 177, 298 Ill.Dec. 545, 840 N.E.2d 658 (2005), defendant asked the court to "enter an order correcting his mittimus in this matter to reflect the actual, negotiated sentence agreed upon by the parties."

Defendant also argued in his petition that he received ineffective assistance of appellate counsel. He stated that his appellate counsel "fatally ill-advised [him] to abandon his appeal * * * although he felt that his issues was [sic] in fact meritorious." Defendant's petition included the affidavit from appellate counsel. Defendant stated that, "[h]ad it not been for the ill-advice of counsel, [he] would have prevailed on appeal."

The trial court summarily dismissed defendant's petition, stating as follows:

"In his post-conviction petition [defendant] indicates that as a factual statement, that there was a fully negotiated plea for two sentences that would run concurrent. That's factually incorrect.

The case that [defendant] is referring to [, robbery], [defendant] did enter an open plea on that case on November 9. He pled guilty.

The case was set over for sentencing on December 16. The defendant was sentenced at that time, and the sentence was ordered to be concurrent with the sentence on [armed robbery].

The defendant's factually incorrect in his allegations in his petition.

He also indicates that he wasn't notified of the terms of [MSR] as part of the plea agreement. There was no plea agreement. It was a sentencing hearing.

The Court finds that this petition is frivolous and without merit, patently frivolous and wholly without merit. Therefore, the post-conviction petition will be dismissed."

Defendant filed a motion for reconsideration, which the trial court denied. Defendant timely appealed. Defendant argues that the trial court erred in summarily dismissing his petition. We agree.

The Act provides a remedy to defendants who have suffered substantial violations of their constitutional rights. See 725 ILCS 5/122-1 (West 2004); People v. Edwards, 197 Ill.2d 239, 243-44, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001); People v. Wilson, 307 Ill.App.3d 140, 144-45, 240 Ill.Dec. 486, 717 N.E.2d 835 (1999). When the death penalty is not involved, there are three stages to proceedings under the Act. Edwards, 197 Ill.2d at 244, 258 Ill.Dec. 753, 757 N.E.2d 442. At the first stage, the trial court independently reviews the petition within 90 days of its filing and determines whether the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2004); Edwards, 197 Ill.2d at 244, 258 Ill.Dec. 753, 757 N.E.2d 442. If the petition is not dismissed at this stage, it advances to the second stage for the appointment of counsel. People v. Mauro, 362 Ill.App.3d 440, 441, 298 Ill. Dec. 644, 840 N.E.2d 757 (2005). At the second stage, counsel may amend the petition and the State may file a motion to dismiss or answer. Mauro, 362 Ill.App.3d at 441, 298 Ill.Dec. 644, 840 N.E.2d 757. If the trial court does not dismiss or deny the petition at the second stage, the proceeding advances to the final stage, where the trial court conducts an evidentiary hearing. Mauro, 362 Ill.App.3d at 441-42, 298 Ill. Dec. 644, 840 N.E.2d 757.

Because this petition was dismissed at the first stage of the postconviction process, we must determine whether the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2004). A petition is considered frivolous or patently...