People v. Smith

• Decision Date: 27 November 1996
• Docket Number: Nos. 1-94-1955,1-95-1888,s. 1-94-1955
• Citation: 285 Ill.App.3d 666,676 N.E.2d 224
• Parties: , 221 Ill.Dec. 703 The PEOPLE of the State of Illinois Respondent-Appellee, v. Sidney SMITH, Petitioner-Appellant.
• Court: United States Appellate Court of Illinois

Page 224

676 N.E.2d 224

285 Ill.App.3d 666, 221 Ill.Dec. 703

The PEOPLE of the State of Illinois Respondent-Appellee, v. Sidney SMITH, Petitioner-Appellant.

Nos. 1-94-1955, 1-95-1888.

Appellate Court of Illinois First District, Sixth Division.

Nov. 27, 1996.

Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, Chicago, for Sidney Smith.

John M. O'Malley, State's Attorney, Chicago, for the People.

Presiding Justice ZWICK delivered the opinion of the court:

Petitioner, Sidney Smith, appeals from an order of the circuit court of Cook County dismissing his petition for postconviction relief. Petitioner raises several issues, but we need address only whether due process was violated by the trial court's failure to admonish petitioner, prior to accepting his guilty plea, that petitioner would be required to serve a three-year period of supervised release in addition to his negotiated 11-year prison term.

The record reveals that petitioner and the State entered into a conference on May 3, 1993, pursuant to Supreme Court Rule 402 (134 Ill.2d R. 402). At the conference, the trial court indicated that upon a plea of guilty by petitioner, the court would impose a prison sentence of 11 years. Subsequently, on May 10, 1993, the trial court admonished the petitioner of the consequences of pleading guilty. In so doing, the court stated that the parties had agreed upon a term of 11 years as an appropriate sentence. While admonishing the defendant prior to accepting the plea of guilty, the court never mentioned mandatory supervised release. Petitioner then indicated that he was sorry for his crime, that he had learned his lesson, and stated he believed the 11-year sentence was lengthy in relation to the specific crime he had committed. He indicated, however, that he would accept the sentence. The trial court determined that petitioner's plea was voluntary. The court thereafter imposed the a term of 11 years imprisonment in the Illinois Department of Corrections, plus two years mandatory supervised release. ¹ The trial court then informed the petitioner of his right to vacate his plea and to appeal.

On April 8, 1994, petitioner filed a pro se post-conviction petition which the trial court summarily dismissed on May 6, 1994. On February 2, 1995, petitioner filed a second post-conviction petition which the trial court again dismissed. It is from the dismissal these petitions that petitioner now appeals.

In each of the petitioner's post-conviction petitions, he states that he was promised by his attorney and by the trial court that he would receive a term of imprisonment of 11 years in exchange for his guilty plea, and that he did not agree to a period of mandatory supervised release. In seeking to set aside his plea, petitioner asserts his plea was made "for specific sentencing" and that he did not understand at the time of sentencing that he would have to serve "an additional sentence" after his release.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court stated that if a guilty plea is to withstand appellate or post-conviction review, the record must affirmatively disclose that the defendant who pleads guilty entered his plea understandingly and voluntarily. See People v. Wills, 61 Ill.2d 105, 110, 330 N.E.2d 505 (1975), quoting People v. Reeves, 50 Ill.2d 28, 29, 276 N.E.2d 318 (1971) and Brady v. United States, 397 U.S. 742, 747 fn. 4, 90 S.Ct. 1463, 1468 fn. 4, 25 L.Ed.2d 747, 756 fn. 4 (1970). In order to implement this constitutional requirement, our supreme court adopted Rule 402(a), which provides:

"In hearings on pleas of guilty, there must be substantial compliance with the following:

(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;

(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and

(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him." 134 Ill.2d R. 402(a).

In People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559 (1974), our supreme court emphasized that Rule 402(a) requires only "substantial compliance," specifically stating that the rule is not violated by the trial court's failure to admonish a defendant that a supervised release term will be part of his sentence should he elect to plead guilty. Subsequently, however, in People v. Wills, 61 Ill.2d 105, 330 N.E.2d 505 (1975), the court "reconsidered the position taken in People v. Krantz " (Wills, 61 Ill.2d at 109, 330 N.E.2d 505) and stated that compliance with Rule 402(a)(2) requires that a defendant be told prior to sentencing that he must additionally serve a period of supervised release. Wills, 61 Ill.2d at 109, 330 N.E.2d 505.

Although Wills modified the court's earlier holding in Krantz, it did not create an inflexible rule. Failure to properly admonish a defendant does not necessarily indicate that defendant's plea was improperly accepted. Rather, the failure of the trial court to properly admonish a defendant prior to his pleading guilty is but "a factor" to be considered in determining whether a plea of guilty was "voluntarily and intelligently made." Wills, 61 Ill.2d at 111, 330 N.E.2d 505. See also People v. McCoy, 74 Ill.2d 398, 24 Ill.Dec. 555, 385 N.E.2d 696 (1979)("While there appears to be no reason for failure to comply strictly with the explicitly stated requirements of Rule 402, every deviation therefrom does not require reversal").

The State cites a number of cases indicating that a petitioner cannot make out a constitutional violation by simply establishing that the trial court failed to inform him of the release period. See People v. James, 233 Ill.App.3d 963, 174 Ill.Dec. 876, 599 N.E.2d 960 (1992); People v. McCollum, 71 Ill.App.3d 531, 28 Ill.Dec. 34, 390 N.E.2d 16 (1979); People v. Ruiz, 24 Ill.App.3d 449, 321 N.E.2d 746 (1974). Defendant counters by relying on opinions in which the appellate court has closely associated the failure to inform the defendant of his supervised release period with a violation of due process. See People v. Didley, 213 Ill.App.3d 910, 157 Ill.Dec. 354, 572 N.E.2d 423 (1991); People v. Kull, 171 Ill.App.3d 496, 121 Ill.Dec. 916, 525 N.E.2d 1223 (1988); People v. O'Toole, 174 Ill.App.3d 800, 124 Ill.Dec. 337, 529 N.E.2d 54 (1988); People v. Louderback, 137 Ill.App.3d 432, 91 Ill.Dec. 944, 484 N.E.2d 503 (1985).

Despite petitioner's arguments, and language in some appellate court cases to the contrary, our supreme court made clear in Wills that the mere failure of the trial court to explain the mandatory supervised release term prior to accepting a guilty plea does not, per se, render the plea agreement constitutionally infirm. Due process requires only that the defendant not be prejudiced by the court's failure to fully and correctly explain his potential sentence, and, in some cases, when the record indicates that no unfairness has resulted, the court's omission does not require reversal. See e.g., James, 233 Ill.App.3d at 970-71, 174 Ill.Dec. 876, 599 N.E.2d 960. Thus, "where the trial court understates the possible maximum penalty but sentences within the limits it had stated, no prejudice results, and defendant is not entitled to withdraw his guilty plea." People v. Hoyer, 100 Ill.App.3d 418, 420, 55 Ill.Dec. 814, 426 N.E.2d 1139 (1981), citing People v. Hrebenar, 131 Ill.App.2d 877, 266 N.E.2d 733. Of course, when the defendant pleads guilty based upon an agreement that he will receive a specific sentence, simple fairness requires that the negotiated sentence not be enhanced. See Santobello v. New York, 404 U.S. 257, 261-63, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427, 432-34 (1971).

The United States Court of Appeals, Seventh Circuit, has held that due process is violated when the trial court admonishes a defendant he will receive a shorter sentence than he actually receives, provided defendant asserts he would not have accepted the deal if the true sentence had been fully explained. United States ex rel. Baker v. Finkbeiner (7th Cir.1977), 551 F.2d 180; United States ex rel. Williams v. Morris, 633 F.2d 71 (7th Cir.1980),vacated as moot sub nom. Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982). Although intermediate Federal holdings are not binding upon us (McCollum, 71 Ill.App.3d at 533, fn. 1, 28 Ill.Dec. 34, 390 N.E.2d 16, ; People v. Cosey, 66...