                           No. 3-07-0548

_________________________________________________________________
Filed January 20, 2009
                              IN THE

                    APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                            A.D., 2009

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 10st Judicial Circuit,
                                ) Peoria County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 02-CF-1007
                                )
RALPH L. BERRIOS,               ) Honorable
                                ) Stuart P. Borden,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

       JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________


     Defendant, Ralph Berrios, plead guilty to two counts of

aggravated battery with a firearm (720 ILCS 5/12-3(A)(1) and 5/12-

4.2(a)(1) (West 2002)).   Four years later, he filed a pro se motion

for relief from judgment, alleging that his sentence was void and

his constitutional right to due process and fundamental fairness
was violated because he had not been informed that a 3-year

mandatory supervised release (MSR) term would apply to his 22-year

sentence.   The trial court denied the motion.    We affirm.

     On December 5, 2003, defendant entered a fully negotiated

guilty plea.    The parties informed the trial court that the

agreement called for defendant to serve consecutive sentences of

eleven years’ imprisonment and that he would be entitled to day-

for-day credit for the time he served in presentencing custody.
The trial judge admonished defendant regarding the nature of the

charges and the possible penalties.          The judge informed defendant

that each charge was a Class X felony and that the sentencing range

would be from 6 to 30 years in the Department of Corrections, "and

any sentence to the Department of Corrections [would be] followed

by three years mandatory supervised release."            He also noted that

the sentences could run concurrently or consecutively.

     The   trial   judge    then   admonished   defendant    regarding   the

charges in his case:

           "THE COURT:      In this particular case, the charges,

     if    convicted   to     both,    are   mandatory     consecutive

     sentences. So, the one must be served and then the other

     must be served.       Also it’s a truth in sentencing case,

     which day-for-day goodtime does not apply, but 85 percent

     goodtime would apply.            Do you understand the usual

     penalties available then for these Class X felonies?

           DEFENDANT: Yes, sir.

           THE COURT: And as mentioned there is mandatory

     supervised release of three years.          You do not have to
     plead guilty in this case."

     The State presented evidence in support of the plea and the

trial court found that a factual basis existed.             Pursuant to the

plea, the judge sentenced defendant to eleven years in prison on

both counts, to be served consecutively to each other, with credit

for time served.       The sentencing order did not mention MSR.

Defendant did not file a motion to withdraw his guilty plea or a


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direct appeal.

     On June 25, 2007, defendant filed a petition for relief from

judgment under section 2-1401 of the Code of Civil Procedure (Code)

(735 ILCS 5/2-1401 (West 2006)).            In the petition, defendant

alleged that he was unaware of the three-year term of MSR until he

spoke with counsel in prison.            He requested that his prison

sentence be reduced by the three years that he was required to

spend on MSR to comply with the terms of his negotiated plea.

     The trial court examined defendant’s petition and supporting

documents and denied the petition. The court concluded that the 2-

1401 petition was not timely filed and that the petition failed to

allege a meritorious defense because defendant was admonished

regarding MSR.

                                 ANALYSIS

     Defendant argues that the trial court erred in dismissing, sua

sponte, his section 2-1401 petition on timeliness grounds because

the petition alleged a valid legal claim for relief.          We review the

dismissal of a 2-1401 petition de novo.         People v. Vincent, 226

Ill. 2d 1 (2007).
     A trial court may, sua sponte, dismiss a section 2-1401

petition when the petitioner’s claim is without merit.            Vincent,

226 Ill. 2d 1.    However, the two-year period contained in section

2-1401   is   a   statute   of   limitation   and   not   a   jurisdiction

prerequisite.     People v. Malloy, 374 Ill. App. 3d 820 (2007).        As

such, the State must assert the time limitation as an affirmative

defense; the trial court may not, sua sponte, dismiss the petition


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on the basis of timeliness.   Malloy, 374 Ill. App. 3d at 823.   The

defendant filed his section 2-1401 petition a year and a half after

the two-year time limit.   In dismissing defendant’s petition sua

sponte, the trial court stated that the petition was not timely

filed and that defendant had not alleged any reason for the late

filing. The trial court erred in dismissing defendant’s section 2-

1401 petition on the basis of timeliness.

     Defendant also claims that the trial court erred in finding

that his petition did not plead a meritorious basis upon which

relief could be granted.

     Defendant’s substantive argument is governed by People v.

Whitfield, 217 Ill. 2d 177 (2005).     In Whitfield, the defendant

argued that the court erred in dismissing his postconviction claim

that the trial court’s failure to admonish him that a three-year

MSR term would be added to his negotiated 25-year prison sentence

violated his fundamental rights.     Whitfield, 217 Ill. 2d at 180.

Our supreme court determined that the defendant had not received

the benefit of the bargain to plead guilty because he agreed to a

25-year sentence but was never told of the three-year period of MSR
which attached to his sentence as an operation of law.   Whitfield,

217 Ill. 2d at 188.    The court concluded that the appropriate

remedy was to modify defendant’s 25-year sentence to a term of 22

years, to be followed by the mandatory 3-year term of supervised

release. Whitfield, 217 Ill. 2d at 205.   Defendant here claims the

same error and requests a similar remedy.

     Subsequent cases have distinguished Whitfield.    In People v.


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Borst, 372 Ill. App. 3d 331 (2007), the defendant argued that his

postconviction petition should have been granted based on Whitfield

because the trial court’s general admonishments only referred to

MSR in connection with any extended-term sentence which could be

imposed.    The court upheld the denial of the petition, noting that

in Whitfield the trial judge failed to make any mention of MSR

before he accepted defendant’s guilty plea.                The court concluded

that, unlike the judge in Whitfield, the trial judge did mention

MSR prior    to    accepting   the   defendant      guilty   plea;    thus,   the

admonishments were sufficient.          Borst, 372 Ill. App. 3d at 334.

       Likewise, in People v. Marshall, 381 Ill. App. 3d 724 (2008),

the defendant relied on Whitfield to reduce his prison term by

three years to offset the three-year term of supervised release.

The Marshall court acknowledged that the trial judge did not

mention MSR when he entered defendant’s sentence or in the written

judgment,    but    emphasized   that       judge   did    admonish   defendant

regarding MSR prior to accepting his plea.                The court found that

the admonishments given by the court were accurate and complied

with the statutory requirements.             Marshall, 381 Ill. App. 3d at
736.

       As in Borst and Marshall, the trial judge here properly

admonished defendant of the mandatory application of supervised

release.    Although the judge did not mention mandatory supervised

release at sentencing or in the written sentencing judgment, he did

advise defendant of the MSR requirement before accepting his plea.

The trial judge informed defendant that the three-year term was


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mandatory     and     would    apply   to       any   sentence   of    imprisonment

regardless of his plea.          The judge also mentioned MSR in relation

to the specific charges in this case.                   Defendant stated in open

court that he understood the penalties and possible sentences. The

trial court’s admonishments met the statutory requirements.                    See

Borst, 372 Ill. App. 3d at 334; Marshall, 381 Ill. App. 3d at 736;

see also 177 Ill. 2d R. 402.

     We     recognize     that    trial     courts      should   incorporate   the

mandatory supervised release admonitions into the pronouncement of

the specific sentence and the written judgment.                  We simply find in

this case that there was substantial compliance with Supreme Court

Rule 402 and that defendant was sufficiently admonished under the

Rule.     See People v. Dennis, 354 Ill. App. 3d 491 (2004) (judge

substantially complies with Rule 402 despite failure to admonish

defendant of all of his rights if the record affirmatively shows

defendant understood those rights.)

     Alternatively, defendant argues that the trial court erred in

failing to recharacterize his pro se pleading as a postconviction

petition filed under the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2006)).

     When     a     pro   se   defendant        files   a   pleading    alleging   a

deprivation of constitutional rights cognizable under the Act, the

trial court may recharacterize it as a postconviction petition.

People v. Shellstrom, 216 Ill. 2d 45 (2005).                However, the court is

under no obligation to do so.                   Shellstrom, 216 Ill. 2d at 53.

Section 122-1(d) of the Act provides that a trial court reviewing


                                            6
a petition which does not state that it is filed under the Act

"need not evaluate the petition to determine whether it could

otherwise have stated some grounds for relief under [the Act]".

725   ILCS   5/122-1(d)     (West   2006).    Although     courts   have    the

authority to consider a defendant’s pleading as a postconviction

petition, "trial courts should be hesitant to use this authority

and do so only in unusual and compelling circumstances." People v.

Holliday, 369 Ill. App. 3d 678, 681 (2007).

      In determining whether a recharacterization is appropriate,

the court should consider whether the filing was also cognizable in

the form in which the defendant filed it.            People v. Pearson, 345

Ill. App. 3d 191 (2003).            A trial court’s decision regarding

recharacterization is addressed to its sound discretion and will be

reviewed under an abuse of discretion standard. Holliday, 369 Ill.

App. 3d at 682.        Accordingly, we will not reverse the court’s

decision unless it is unreasonable.           People v. Johnson, 368 Ill.

App. 3d 1146 (2006).

      The circumstances of this case are not unusual or compelling.

The defendant entitled his pleading as a 2-1401 petition.             In the
petition, he argued that the admonishments he received concerning

mandatory supervised release were not sufficient to inform him that

he would be subject to mandatory supervised release.           His claim was

a cognizable 2-1401 pleading, but it was untimely.

      In     this   case,      recharacterizing      the   petition    as    a

postconviction      petition    would   not   have    cured   the   issue   of

timeliness.     The Act provides that, if a defendant did not file a


                                        7
direct appeal, he may file a postconviction petition no later than

three years from the date of the conviction.               725 ILCS 5/122-1(c)

(West 2006). Defendant filed his petition for relief from judgment

three years and six months after his date of conviction.                      The

petition would not have been timely filed even if the court had

considered it as a postconviction petition.

     Moreover, renaming defendant’s 2-1401 petition would not have

altered    its   substance.       As   we   determined,     the   admonishments

defendant received regarding MSR were sufficient.              Thus, the trial

court did not abuse its discretion in failing to recharacterize

defendant’s pleading as a postconviction petition.

                                  CONCLUSION

     The    judgment   of   the    circuit    court   of    Peoria   County   is

affirmed.

     Affirmed.

     CARTER and WRIGHT, JJ., concurring.




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