People v. Lee

• Decision Date: 27 November 2012
• Docket Number: Docket Nos. 4–11–0403,4–11–1097.
• Citation: People v. Lee, 979 N.E.2d 992 (Ill. App. 2012)
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Gabriel LEE, Defendant–Appellant.
• Court: Appellate Court of Illinois

979 N.E.2d 992

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Gabriel LEE, Defendant–Appellant.

Docket Nos. 4–11–0403

4–11–1097.

Appellate Court of Illinois, Fourth District.

Nov. 27, 2012.

Michael J. Pelletier, Karen Munoz, and Susan M. Wilham, all of State Appellate Defender's Office, of Springfield, for appellant.

Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, Robert J. Biderman, and Perry L. Miller, all of State's Attorneys Appellate Prosecutor's Office, of counsel) for the People.

Justice COOK delivered the judgment of the court, with opinion.

¶ 1 This appeal comes to us on the motion of the office of the State Appellate Defender (OSAD) to withdraw as counsel on appeal on the ground no meritorious issues can be raised in this case. For the following reasons, we agree and affirm.

¶ 2 I. BACKGROUND

¶ 3 In February 1998, the State charged defendant, Gabriel Lee, with two counts of aggravated arson ( 720 ILCS 5/20–1.1(a)(1), (a)(2) (West 1996)) (counts I and II), and seven counts of first degree murder ( 720 ILCS 5/9–1(a)(1), (a)(2), (a)(3) (West 1996)) (counts III, IV, and V under section (a)(1); count VI under section (a)(2); and counts VII, VIII, and IX under section (a)(3)), all counts being Class X felonies.

¶ 4 On September 9, 1998, the trial court held a plea hearing where the parties informed the court that defendant sought to plead guilty to one count of first degree murder ( 720 ILCS 5/9–1(a)(1) (West 1996)) (count III). The court explained the rights defendant waived by pleading guilty. As relevant to this appeal, the court admonished defendant as follows:

"If you are convicted, the law requires that you be sentenced to a term in prison. The term in prison would be for some definite period of time. It could not be less than twenty years, it could not be more than sixty years. Any term in prison would be followed by a period of mandatory, supervised release of at least three years."

The court then requested the parties describe the plea agreement and told defendant:

"It is also necessary that you understand the only agreements that make any difference at all in your case are those which are described out loud here in open court now. Is that clear to you?"

Defendant answered in the affirmative.

¶ 5 The assistant State's Attorney described the plea agreement as follows: In exchange for defendant's plea to first degree murder (count III), all other counts would be dismissed. Defendant would be sentenced to 30 years' imprisonment, with credit for 175 days served, and he would be eligible for day-to-day credit. The State asserted defendant was eligible for day-to-day credit because this court previously held the "truth-in-sentencing" provision of section 3–6–3 of the Unified Code of Corrections (Unified Code) ( 730 ILCS 5/3–6–3(a)(2) (West 1994)) unconstitutional. See People v. Pitts, 295 Ill.App.3d 182, 187–91, 229 Ill.Dec. 451, 691 N.E.2d 1174, 1177–80 (1998) (holding Public Act 89–404 (Pub. Act 89–404, § 40 (eff. Aug. 20, 1995) (1995 Ill. Laws 4306, 4323–27)) violated the single-subject rule of article IV, section 8(d), of the Illinois Constitution of 1970 ( Ill. Const. 1970, art. IV, § 8(d)) ). Defendant acknowledged the State's description was correct and no other promises were made.

¶ 6 According to the factual basis, on February 12, 1998, defendant and Chris Majors learned Majors would possibly be evicted from the home he shared with John Hankenson and another man. Defendant and Majors confronted Hankenson in the home. An argument broke out between the three men. Defendant and Majors constructed knives from broken shards of glass. Defendant assisted Majors in tying Hankenson to a chair. Defendant was present as Majors poured gasoline onto Hankenson and then set fire to the gasoline. Defendant and Majors removed items from the home, including Hankenson's wallet from his pant's pocket, and fled in Hankenson's vehicle. Hankenson died as a result of injuries sustained from the fire.

¶ 7 After defendant pleaded guilty to one count of first degree murder, the trial court sentenced defendant to 30 years' imprisonment "subject to statutory conditions," with 175 days' credit, and dismissed all remaining counts. The court's oral pronouncement of sentence did not reference mandatory supervised release, but the written sentencing order provides defendant is to be delivered to the Illinois Department of Corrections (Department) "which shall confine said defendant until expiration of his sentence or until he is otherwise released by operation of law." Defendant did not file any posttrial motions or a direct appeal.

¶ 8 On March 18, 2011, defendant filed a pro se petition pursuant to section 2–1401 of the Code of Civil Procedure ( 735 ILCS 5/2–1401 (West 2010) ). In his petition, we understand defendant to assert the following: (1) the trial court did not properly admonish defendant that, in addition to the sentence described in the plea agreement, three years' mandatory supervised release (MSR) attached to his prison sentence; (2) requiring defendant to serve an MSR term after completion of judicially imposed sentence is an unlawful constraint on defendant's liberty in that defendant's sentence, as imposed by the trial court, expires before MSR; and (3) permitting the Department to impose MSR is a violation of separation of powers. On April 26, 2011, the State filed a motion to dismiss defendant's petition and on May 2, 2011, the trial court dismissed the petition. On May 12, 2011, defendant filed a notice of appeal with the trial court and the court appointed OSAD to serve as his attorney. We docketed this appeal as No. 4–11–0403.

¶ 9 On October 7, 2011, defendant filed a pro se petition for postconviction relief pursuant to section 122–1 of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/122–1 (West 2010) ), the Post–Conviction Hearing Act. Specifically, defendant asserted he was denied the benefit of his negotiated plea bargain by imposition of a three-year MSR term. On October 14, 2011, the trial court found this to be the same allegation contained in defendant's section 2–1401 petition for relief from judgment filed in March 2011 and summarily dismissed the petition. On November 1, 2011, defendant filed a motion to reconsider, which the trial court denied. On December 12, 2011, defendant filed notice of appeal with the trial court and the court appointed OSAD to serve as his attorney. We docketed this appeal as No. 4–11–1097.

¶ 10 On defendant's motion, we consolidated these two appeals.

¶ 11 On April 4, 2012, OSAD moved to withdraw as appellate counsel, including in its motion a brief in conformity with the requirements of Finley. The record shows service of the motion on defendant. On its own motion, this court granted defendant leave to file additional points and authorities. Defendant did so and the State filed a brief in response. After examining the record and executing our duties in accordance with Finley, we grant OSAD's motion and affirm the trial court's judgment.

¶ 12 II. ANALYSIS

¶ 13 OSAD argues defendant's petitions present no meritorious issues. Specifically, OSAD asserts the following contentions by defendant fail to present a meritorious basis for a section 2–1401 petition for relief from judgment or a postconviction petition: (1) he was not properly admonished about MSR; (2) he is entitled to the "benefit of the bargain" as in People v. Whitfield, 217 Ill.2d 177, 298 Ill.Dec. 545, 840 N.E.2d 658 (2005) ; (3) imposition of MSR violates the United States and Illinois Constitutions; (4) application of MSR is an unlawful constraint upon defendant's liberty; and (5) the MSR system violates the doctrine of separation of powers. After review of the record consistent with our responsibilities under Finley, we agree.

¶ 14 A. Review of Petition for Relief From Judgment and Postconviction Petitions

¶ 15 Section 2–1401 of the Code of Civil Procedure allows for relief from final judgments more than 30 days after their entry. 735 ILCS 5/2–1401 (West 2010). "Relief under section 2–1401 is predicated upon proof, by a preponderance of [the] evidence, of a defense or claim that would have precluded entry of the judgment in the original action and diligence in discovering the defense or claim and presenting the petition." People v. Vincent, 226 Ill.2d 1, 7–8, 312 Ill.Dec. 617, 871 N.E.2d 17, 22 (2007). To be entitled to relief under section 2–1401, the petitioner must set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2–1401 petition. People v. Bramlett, 347 Ill.App.3d 468, 473, 282 Ill.Dec. 663, 806 N.E.2d 1251, 1255 (2004) (quoting In re Estate of Barth, 339 Ill.App.3d 651, 662, 275 Ill.Dec. 84, 792 N.E.2d 315, 324 (2003) ); In re Marriage of Goldsmith, 2011 IL App (1st) 093448, ¶ 15, 356 Ill.Dec. 832, 962 N.E.2d 517. This court reviews a circuit court's dismissal of a section 2–1401 petition for an abuse of discretion. People v. Davis, 2012 IL App (4th) 110305, ¶ 11, 359 Ill.Dec. 249, 966 N.E.2d 570.

¶ 16 The Post–Conviction Hearing Act provides a method by which criminal defendants can assert their convictions were the result of a substantial denial of their rights under the United States or Illinois Constitution. 725 ILCS 5/122–1 (West 2010). "[A] postconviction proceeding is a collateral attack upon the prior conviction and affords only limited review of constitutional claims not presented at trial." People v. Harris, 224 Ill.2d 115, 124, 308 Ill.Dec. 757, 862 N.E.2d 960, 966 (2007). Section 122–2.1(a)(2) of the Post–Conviction Hearing Act provides when a petitioner is sentenced to imprisonment, the trial court shall review the petition within 90 days of its filing and docketing and enter an order if it determines it is frivolous and without merit, dismissing the...