People v. Holborow

• Decision Date: 01 May 2008
• Docket Number: No. 4-07-0395.,4-07-0395.
• Citation: 892 N.E.2d 1,382 Ill. App.3d 852
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jesse G. HOLBOROW, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

892 N.E.2d 1

382 Ill. App.3d 852

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jesse G. HOLBOROW, Defendant-Appellant.

No. 4-07-0395.

Appellate Court of Illinois, Fourth District.

May 1, 2008.

Justice MYERSCOUGH delivered the opinion of the court:

In January 2005, defendant, Jesse G. Holborow, entered into a negotiated plea to home invasion with great bodily harm to the victim (720 ILCS 5/12-11(a)(2) (West 2004)) (count I), theft (subsequent offense) (720 ILCS 5/16-1(a)(1), (a)(2) (West 2004)) (count VI), and criminal trespass to a vehicle (720 ILCS 5/21-2 (West 2004)) (count VII). In exchange for the plea, the State dismissed four other charges and the trial court sentenced defendant to concurrent sentences of 16 years in the Department of Corrections (DOC) for home invasion, 3 years for theft, and 364 days for criminal trespass to a vehicle. Defendant filed a motion to reduce sentence, which the court denied. He did not file a direct appeal.

In April 2007, defendant filed a pro se postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2006)), wherein he alleged violation of the terms of his plea agreement because he had not been admonished that he would be required to serve a three-year term of mandatory supervised release (MSR) upon his release from prison. Several days later, the court summarily dismissed the postconviction petition as frivolous and patently without merit. Defendant appeals. We affirm.

I. BACKGROUND

In July 2004, defendant was charged by information with seven crimes. Count I charged defendant with the Class X felony of home invasion in that defendant "knowingly and without authority entered the dwelling place of another, [Bernard H.], * * * having reason to know [Bernard H.] to be present within that dwelling, and intentionally caused injury to [Bernard H.] by beating [Bernard H.] about the head and body[] within said dwelling place" (720 ILCS 5/12-11(a)(2) (West 2004)). Count II charged defendant with the Class 2 felony of aggravated battery of a senior citizen in that defendant "knowingly caused great bodily harm to [Bernard H.], an individual sixty (60) years of age or older[,] being seventy (70) years of age, in that said defendant knowingly beat [Bernard H.] about the head and body, causing swelling of the brain and other injuries" (720 ILCS 5/12-4.6(a) (West 2004)). Count III charged defendant with the Class 3 felony of aggravated battery in that he "knowingly caused great bodily harm to [Bernard H.], in that said defendant knowingly beat [Bernard H.] about the head and body, causing swelling of the brain and other injuries" (720 ILCS 5/12-4(a) (West 2004)). Count IV charged defendant with the Class 3 felony of aggravated battery in that defendant "knowingly caused bodily harm to [Bernard H.], an individual sixty (60) years of age or older[,] being seventy (70) years of age, by beating [Bernard H.] about the head and body" (720 ILCS 5/12-4(b)(10) (West 2004)). Count V charged defendant with the Class 3 felony of aggravated battery in that defendant "used a deadly weapon, in that said defendant knowingly caused bodily harm to [Bernard H.] by stabbing [Bernard H.] with a knife" (720 ILCS 5/12-4(b)(1) (West 2004)). Count VI charged defendant with the Class 4 felony of theft (subsequent offense) in that defendant, "a person previously convicted of the offense of [b]urglary * * *, knowingly exerted unauthorized control over certain property of [Bernard H.], being beer, intending to deprive [Bernard H.] permanently of the use of the property" (720 ILCS 5/16-1(a)(1), (a)(2) (West 2004)). Count VII charged defendant with the Class A misdemeanor of criminal trespass to a vehicle in that defendant "knowingly and without authority entered a vehicle of another, a 1986 Ford van of [Bernard H.]" (720 ILCS 5/21-2 (West 2004)).

In January 2005, the State and defendant entered into a written, fully negotiated plea of guilty to all charges. In exchange therefor, defendant was sentenced only on count I (home invasion with great bodily harm to the victim), count VI (theft—subsequent offense), and count VII (criminal trespass to a vehicle) and sentenced to concurrent prison terms of 16 years on the home-invasion count (noting it would be served at 85% under truth in sentencing), 3 years on the theft count, and 364 days on the criminal-trespass-to-a-vehicle count. In addition to the DOC sentences, defendant was ordered to pay a $200 deoxyribonucleic acid (DNA) fee and $5,643.59 restitution and to make himself available and provide truthful testimony in the case against a codefendant. Defendant waived his presentence investigation. Defendant's prior criminal record included burglary, two convictions for theft from a person, and criminal damage to property.

At the January 2005 plea hearing, the trial court went over the details of the written plea agreement with defendant in open court. Defendant indicated his intention to plead guilty. The trial court admonished defendant as to each charge against him, and defendant expressed his understanding of the charges. The court further admonished defendant as follows:

"THE COURT:

* * *

Now it is important that you understand with respect to [c]ount [I], the home invasion, that is a Class X felony. And the law says that if this were handled by other than a plea agreement, you could get anywhere from six to 30 years in prison, plus three years [of MSR]. You are not eligible for probation, periodic imprisonment[,] or conditional discharge. If you were found guilty, you would have to get a minimum six years, and you could get as much as 30. And with great bodily harm, you have to serve 85[%] of your time. So do you understand what the possibilities there are, if this were handled by other than a plea agreement?

THE DEFENDANT: Yes.

THE COURT: Okay. Now, [c]ount [II], aggravated battery of a senior citizen * * * is a Class 2 felony. * * * That is the one where you are charged with knowingly causing great bodily harm to [Bernard H.], in that he was a senior citizen, an individual 60 years of age or older. And he was 70 years of age. Knowingly beating him about the head and body causing swelling and other injuries. And you are eligible there for an extended term. Since that is a Class 2, an extended term is seven to fourteen years. So if this were handled by other than a plea agreement, the law provides you could get anywhere from three to 14 years in prison, plus two years [of MSR]. Other possibilities include probation or conditional discharge not to exceed four years, periodic imprisonment of 18 to 30 months. And you could be fined up to $25,000. So those are the possibilities there.

Do you have any questions about that, Mr. Holborow?

THE DEFENDANT: No.

THE COURT: Now, [c]ount [III], [c]ount[s][III], [IV], [c]ount [V] are aggravated-battery counts. Those are Class 3 felonies. You are eligible for an extended prison term of up to ten years there. So if this were handled by other than a plea agreement as to those three counts, you could get anywhere from two to ten years in prison, plus two years [of MSR]. Other possibilities include probation or conditional discharge not to exceed 30 months, periodic imprisonment not to exceed 18 months. And you could be fined up to $25,000 and ordered to make restitution.

Any questions about that?

THE DEFENDANT: No.

THE COURT: * * * Count [VI] is a theft count as a subsequent offense. This is a Class 4 felony. And there, you could get prison of anywhere from one to three years, plus one year of [MSR]. Other possibilities include probation or conditional discharge not to exceed 30 months, periodic imprisonment not to exceed 18 months. You could be fined up to $25,000 and ordered to pay restitution. So those are the possibilities there.

Any questions about that?

THE DEFENDANT: No.

THE COURT: And [c]ount [VII] is criminal trespass to a vehicle. That is a Class A misdemeanor for which you could get jail of up to a year.

Now, once again, you are going to plead guilty, as I understand it, to all seven counts. You are going to get a conviction on [c]ount [I], home invasion. You are going to get the 16 years there. You are going to get a conviction then also as to [c]ount [VI]. And there, you are going to get a three-year concurrent prison sentence. That is a theft as a subsequent offense. And then at [c]ount [VII], that is criminal trespass to a vehicle. You are going to get 364 days there. Now, that sentence in [c]ount[s] [VI and VII], that is going to be concurrent with your 16 years, so you are going to get 16 as a maximum. And these other two periods of imprisonment are going to be served concurrently. There is going to be a finding of guilty of [c]ount[s] [II, III, IV, and V]. But there is going to be no conviction there.

THE DEFENDANT: So everything is run concurrent with the case I am in on now?

THE COURT: You are going to get three convictions. Home invasion. You are not going to get a conviction on the other aggravated[-]battery counts because it is the same conduct. You can only be convicted once for the same act. So the act that has the conviction is the home[-]invasion count. You are going to get sentenced on that one to 16 years. You are going to be found guilty of [c]ounts of [II, III, IV, and V]. And then you are going to get a second conviction for theft and a third conviction for criminal trespass to [a] vehicle. And the jail sentence in [c]ounts [VI and VII], the theft and criminal trespass are going to run concurrently to the 16 years.

THE DEFENDANT: [Nods affirmatively.]

THE COURT: Any questions.

THE DEFENDANT: No." (Emphasis added.)

The trial court then admonished defendant regarding the rights he was waiving by pleading guilty. The court questioned defendant about any coercion or additional promises, to which defendant responded in the negative, whether defendant had had adequate opportunity to discuss the decision to plead...