People v. Johnson

• Decision Date: 12 June 2009
• Docket Number: No. 1-07-3325.,1-07-3325.
• Citation: People v. Johnson, 910 N.E.2d 677, 331 Ill. Dec. 268 (Ill. App. 2009)
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

910 N.E.2d 677

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald JOHNSON, Defendant-Appellant.

No. 1-07-3325.

Appellate Court of Illinois, First District, Sixth Division.

June 12, 2009.

Rehearing Denied July 23, 2009.

Anita Alvarez, Cook County State's Atty. (James E. Fitzgerald, Kathleen Warnick and Amanda L. Warmington, Asst. State's Attorneys, of counsel), Chicago, IL, for Plaintiff-Appellee.

Patricia Unsinn, Deputy Defender of Cook County (David T. Harris, Asst. Appellate Defender), Chicago, IL, for Defendant-Appellant.

Justice McBRIDE delivered the opinion of the court:

Defendant, Donald Johnson, appeals from an order of the circuit court of Cook County granting the State's motion to dismiss his successive petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)). He contends that the circuit court erred in dismissing his petition where he made a substantial showing that he did not receive the benefit of the bargain he made with the State when he pled guilty to possession of a controlled substance and aggravated kidnapping because the court did not advise him that his sentence would include a three-year period of mandatory supervised release (MSR). For the reasons that follow, we affirm.

Defendant was charged by indictment with possession of a controlled substance and aggravated kidnapping.¹ After initially pleading not guilty to these charges, defendant appeared in court on February 28, 2002, where the following colloquy took place:

"THE COURT: We did a [Rule] 402 conference, but basically there has now been an offer?

MR. BUFFARDI [Defense Counsel]: That is correct, your honor. And pursuant to the conference and the discussions had in the conference, at this time, on —

THE COURT: But I mean this plea is pursuant to a negotiated offer now?

MR. BUFFARDI: That is correct.

THE COURT: Right, State?

MR. STAKE [Assistant State's Attorney]: Yes, sir.

THE COURT: Although we started a conference, and we are within the boundaries of my conference, but you fine tuned it now on your own.

MR. BUFFARDI: That is correct, your Honor.

* * *

THE COURT: While you're attempting to find it, here's what I understand the resolution is today.

* * *

On case number 00 CR 19149, he plead[s] guilty to count 2, that count being aggravated kidnapping, he would be sentenced to 14 years Illinois Department of Corrections. That is an 85 percent sentence. If you plead guilty to Count 2 as amended, in Case Number 00-13857, you'd be sentenced to four years. It's not an 85 percent. That is not an 85 percent.

MR. BUFFARDI: That is not an 85 percent.

THE COURT: But it would be consecutive with the first one.

MR. BUFFARDI: That's correct. Is that your understanding?

DEFENDANT: Yes, sir.

MR. BUFFARDI: Judge, with that understanding, the defendant would withdraw his heretofore entered pleas of not guilty and enter a plea of guilty as to each count that your Honor just recited."

The court advised defendant of the minimum and maximum penalties for the charge of aggravated kidnapping as follows:

"THE COURT: That is a Class X felony. That is punishable from 6 to 30 years in the penitentiary, a fine up to $25,000, and a period of mandatory, supervised release.

Do you understand what the possible penalties are?

DEFENDANT: Yes, sir.

THE COURT: Knowing what you're charged with in that case, and knowing what the possible penalties are, do you still wish to plead guilty to that case?

DEFENDANT: Yes, sir."

The court further advised defendant as to the range of penalties for the charge of possession of a controlled substance:

"THE COURT: As charged, a Class 1 felony, you'd be sentenced in that case from 4 to 15 years in the penitentiary, a fine up to $25,000, and a period of mandatory, supervised release.

Do you understand what the possible penalties are in that case?

DEFENDANT: Yes, sir.

THE COURT: Knowing what you're charged with and knowing what the possible penalties are, do you still wish to plead guilty to those two charges?

DEFENDANT: Yes, sir."

The trial court then advised defendant as follows:

THE COURT: Now, that first case I told you, aggravated kidnapping, whatever sentence I give you must be served 85 percent.

Do you understand that?

DEFENDANT: Yes, sir.

THE COURT: And if I did sentence you to 14 years in the penitentiary as suggested by the State and your attorney, you would have to serve 11.9 of those years.

Do you understand that?

On the second case which would be consecutive it would be four years, the consecutive meaning the four years would start accumulating time after 11.9 years.

DEFENDANT: Yes, sir.

THE COURT: And that is not an 85 percent on the four years. And based on good time, that may be two years, but that is up to the Department of Corrections.

Do you understand that?

DEFENDANT: Yes, sir.

MR. STAKE: Your honor, in terms of which occurred first, the drug charge is first. So he would do the —

THE COURT: Do the four years first.

MR. STAKE: — time on the drug charge first.

THE COURT: If I sentence you this way, the four years would be first. You'd get good time, and then you'd serve 85 percent of the 14 years which would be 11.9.

Do you understand that?

DEFENDANT: Yes, sir.

THE COURT: Knowing what you are charged with, knowing what the possible penalties are, knowing what your rights are under the law, do you still wish to plead guilty to that charge?

DEFENDANT: Yes, sir."

The trial court then ascertained defendant's understanding of his trial rights and waiver of those rights. Defendant also confirmed that no one had made any threats or promises in order for him to plead guilty and that he was pleading guilty freely and voluntarily. Finally, the trial court posed the following question to defendant:

"THE COURT: Apart from the recommended plea agreement, has anyone made any promises to you about what I would or would not do if you plead guilty?

DEFENDANT: No, sir."

The State then offered a factual basis for the plea. With respect to the charge of possession of a controlled substance, the evidence the State would have presented at trial established that on February 26, 2000, two police officers stopped defendant after he was observed speeding and placed him into custody after discovering that his driver's license was suspended. During a search of defendant's vehicle, the police discovered two canisters that contained a white powder which was subsequently analyzed and found to be 23 grams of cocaine. With respect to the charge of aggravated kidnapping, the evidence that would have been presented at trial established that on July 10, 2000, defendant and three other individuals, all armed with handguns, entered a garage and "duct taped" four other individuals who were in the garage at the time. One of these victims was also handcuffed and driven by defendant and the other men to another location in Chicago, where defendant ultimately fled the vehicle and was captured by police.

Defense counsel stipulated to this evidence and the trial court found it sufficient to support the plea. The court accepted defendant's plea of guilty, finding that it was entered knowingly and voluntarily and that defendant understood the charges against him, the possible range of penalties, and his rights according to the law.

With respect to sentencing, the State pointed out that, in aggravation, defendant had at least three prior felony convictions for which he had been sentenced to the penitentiary. Defense counsel stood on the mitigating evidence presented in the conference. Before imposing sentence, the court stated:

"Mr. Johnson, based on matters brought out in the conference, based on the fact that the plea I am taking here today is based on discussions between your attorney and the State on negotiated plea recommendation — recommended disposition to the Court, I find it to be a reasonable recommendation. And I am going to go along with the recommendation."

The court sentenced defendant to 4 years' imprisonment for possession of a controlled substance and to a consecutive term of 14 years' imprisonment for aggravated kidnapping. The court also admonished defendant of his appeal rights and defendant confirmed that he understood. The State filed a motion to nol pros the remaining 17 counts that were filed along with the aggravated kidnapping charge and the remaining 3 counts filed along with the possession charge.

Defendant filed a pro se postconviction petition on June 24, 2004, which was dismissed by the circuit court as frivolous and patently without merit. He did not challenge his term of mandatory supervise release in that petition.

Defendant filed a successive pro se postconviction petition on February 7, 2005. He alleged, among other things, that a three-year period of mandatory supervised release violated the terms of his guilty plea. On October 26, 2007, the trial court appointed counsel to represent defendant on his postconviction petition. Defendant, through counsel, filed a supplemental postconviction petition on March 30, 2007. He alleged that the trial court failed to advise him that his consecutive sentences of 4 and 14 years' imprisonment included a 3-year period of mandatory supervised release, and asked the court to reduce his term of imprisonment by 3 years in order to reflect the sentence he agreed to serve. Defendant also alleged that he had good "cause" for failing to raise the issue in his initial postconviction petition and that he was prejudiced by the alleged error. Specifically, defendant argued that his claim regarding the period of mandatory supervised release was based on the decision in People v. Whitfield, 217 Ill.2d 177, 298 Ill.Dec. 545, 840 N.E.2d 658 (2005), which was issued after his initial postconviction petition was filed and summarily dismissed and that, prior to that decision, the case law regarding mandatory supervised release was unfavorable to his cause. Defendant further claimed...