People v. Serrano
| Decision Date | 14 July 2009 |
| Docket Number | No. 1-07-2486.,1-07-2486. |
| Citation | 912 N.E.2d 325 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee. v. Orencio SERRANO, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender & Patrick F. Cassidy, Assistant Appellate Defender, of counsel, Chicago, IL, for Appellate.
Richard A. Devine, State's Attorney, County of Cook, James E. Fitzgerald, Amy Watroba Kern & Grace A. Zaya, Assistant State's Attorneys, of counsel, Chicago, IL, for Appellee.
The defendant, Orencio Serrano, appeals from the dismissal of his pro se petition for post-judgment relief filed pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2006)). On appeal, he contends that he did not receive the benefit of his negotiated plea bargain as a result of the trial court's failure to specifically admonish him that his concurrent 14-year sentences for attempted first degree murder included a three-year period of mandatory supervised release (MSR). Consequently, the defendant requests that those sentences be reduced by three years.
On March 31, 2009, this court entered an order pursuant to Supreme Court Rule 23 (166 Ill.2d R. 23) in which we held that the defendant was entitled to post-judgment relief and reduced his sentences as he requested. The State thereafter filed a petition for rehearing pursuant to Supreme Court Rule 367 (210 Ill.2d R. 367). We granted the petition and ordered additional briefing. After reconsidering the matter in light of the arguments on rehearing, we reach the same conclusion and again reduce the defendant's sentences for attempted first degree murder by three years.
The record established the following relevant facts. In separate prosecutions, the defendant was charged with two counts of attempted first degree murder (No. 01 CR 24803) and one count of possession of a controlled substance with intent to deliver (No. 01 CR 19046). On June 4, 2002, the defendant entered negotiated guilty pleas on all three charges. At the plea hearing, the trial court admonished the defendant as to the possible penalties that could be imposed upon him. With regard to the charges of attempted first degree murder, the court stated as follows:
"You understand that this is a Class X felony and it is subject to a possible penalty of incarceration in the penitentiary for a determina[te] period of time between 6 and 30 years, a fine up to $25,000 or both, and it's also subject to what's called mandatory supervised release for a period after your release from the penitentiary."
The court did not specify the exact number of years (three) that the defendant would have to serve on MSR for the attempted first degree murder convictions.
With regard to the charge of possession of a controlled substance with intent to deliver, the court stated as follows:
"the [controlled substance] charge as amended [is] a Class IV felony * * * subject to a possible penalty of incarceration for a period from one to three years, a fine of up to $25,000 or both, and mandatory supervised released [sic] for a period of one year."
The court also informed the defendant that any sentences imposed in the two cases would have to be served consecutively because he had committed the attempted first degree murder offenses while on pretrial release for the controlled substance charge (730 ILCS 5/5-8-4 (h) (West 2002)).
The trial court further advised the defendant of the constitutional rights he would waive by pleading guilty, and the State presented a factual basis for the pleas. The trial court then accepted the defendant's pleas, ratified the plea agreement, and, in accordance with its terms, sentenced the defendant to two concurrent terms of 14 years' imprisonment for attempted first degree murder and a consecutive term of one year imprisonment for possession of a controlled substance with intent to deliver. The court then admonished the defendant of his right to appeal and of the necessary procedure for bringing an appeal. The defendant did not attempt to perfect an appeal from these convictions, but filed an untimely pro se motion to withdraw his guilty pleas on the attempted first degree murder charges and to vacate the sentences imposed thereon. There is no indication in the record that this motion was ever ruled on by the court.
On November 2, 2006, the defendant, relying on People v. Whitfield, 217 Ill.2d 177, 298 Ill.Dec. 545, 840 N.E.2d 658 (2005), filed a pro se petition pursuant to section 2-1401 of the Code, asserting that he had been denied the benefit of his plea bargain, based on the imperfect MSR admonishment. The record reflects that an Assistant State's Attorney (ASA) was present on several dates when the defendant's petition was continued and also at the time the petition was heard by the court. However, the State did not file a timely answer or motion to dismiss and did not request an extension of time to file a responsive pleading.
At one of the early court dates, the defendant appeared pro se, argued that the court had not informed him of the three-year term of MSR prior to accepting his guilty pleas, and said that he would not have pled guilty had he been aware of the mandatory MSR. He asked the court to reduce his sentences by three years. The court acknowledged that The court then took the matter under advisement and deferred ruling on the petition. Subsequently, after reviewing the transcript of the plea proceedings, the court dismissed the petition based on its finding that "[the defendant] was adequately advised regarding his [MSR]." This appeal followed.
On appeal, the defendant contends that the trial court erred in dismissing his section 2-1401 petition where the record showed that he was not admonished that he would have to serve three years of MSR in addition to his negotiated 14-year prison term for attempted first degree murder. The State responds that the court's admonishment concerning an unspecified term of MSR was sufficient.
The substance of the defendant's claim is based on our supreme court's decision in People v. Whitfield, 217 Ill.2d 177, 298 Ill.Dec. 545, 840 N.E.2d 658 (2005), which held that a violation of due process occurs when a defendant pleads guilty in exchange for a specific sentence, but receives "a different, more onerous sentence." Whitfield, 217 Ill.2d at 189, 298 Ill.Dec. 545, 840 N.E.2d 658. The court observed that, under Supreme Court Rule 402(a)(2) (177 Ill.2d R. 402(a)(2)), the defendant must be informed that a term of MSR will follow his or her sentence. Whitfield, 217 Ill.2d at 188, 298 Ill.Dec. 545, 840 N.E.2d 658, citing People v. Wills, 61 Ill.2d 105, 109, 330 N.E.2d 505 (1975). The court held that, in the absence of a proper admonition, adding MSR to the defendant's sentence "amounts to a unilateral modification and breach of the plea agreement by the State, inconsistent with constitutional concerns of fundamental fairness." Whitfield, 217 Ill.2d at 190, 298 Ill.Dec. 545, 840 N.E.2d 658. The court concluded that, because the MSR term is statutorily mandated, the appropriate remedy in such a circumstance is to reduce the defendant's prison term by a period equal to the length of the MSR term. Whitfield, 217 Ill.2d at 203-05, 298 Ill.Dec. 545, 840 N.E.2d 658.
In this case, the transcript of the plea proceeding demonstrates that the trial court informed the defendant that he would be required to serve a period of MSR following his sentence for attempted first degree murder, but the court did not specify the length of the MSR term. Although this case is distinguishable from Whitfield, where the court completely failed to mention MSR, we cannot accept the State's argument that the incomplete admonishment was sufficient to satisfy due process. To successfully serve MSR, the defendant is required to comply with an extensive number of conditions, the violation of which may result in re-incarceration. See 730 ILCS 5/3-3-7; 730 ILCS 5/3-3-9(a)(3) (West 2006). We believe that informing the defendant that he will have to serve MSR without specifying the length of the term does not fulfill the court's duty under Supreme Court Rule 402(a)(2) (177 Ill.2d R. 402(a)(2)) to admonish him concerning the sentence to be imposed. We conclude, therefore, that the defendant stated a meritorious claim for relief under Whitfield. In reaching this conclusion, we disagree with the reasoning expressed in People v. Johnson, 331 Ill. Dec. 268, 910 N.E.2d 677 (2009), where, in dicta, another panel of this court indicated that merely advising the defendant that a period of MSR would follow his prison sentence, without specifying the length of the MSR term, constitutes substantial compliance with the requirements of Rule 402(a)(2) and is adequate to establish due process.
The State also contends that the defendant's sentence should not be modified because he did not receive a penalty that was more onerous than the one he had agreed to at the time of the plea hearing. In support of this contention, the State relies on the fact that the trial court originally indicated that the defendant would receive a prison term of 17 years, which would have resulted in a total sentence of 20 years after the defendant served the mandatory three-year period of MSR. The State claims that, because the sentence actually imposed on the defendant was shorter than the 20-year sentence he was promised, he was not denied due process. As the defendant points out, however, the record reflects that the discussion pertaining to the imposition of a 17-year sentence took place prior to the finalization of the plea agreement, and he never agreed to serve a 17-year sentence followed by a three-year MSR term. Accor...
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People State Of Ill. v. Serrano
...Court's supervisory authority, the Appellate Court, First District, is directed to vacate its order in People v. Serrano, 392 Ill.App.3d 1011, 332 Ill.Dec. 139, 912 N.E.2d 325 (2009). The appellate court is instructed to reconsider its decision in light of People v. Morris, 236 Ill.2d 345, ......