                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                            People v. Lee, 2012 IL App (4th) 110403




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    GABRIEL LEE, Defendant-Appellant.



District & No.             Fourth District
                           Docket Nos. 4-11-0403, 4-11-1097 cons.


Filed                      November 27, 2012


Held                       The motion to withdraw filed by the State Appellate Defender’s office
(Note: This syllabus       was granted and defendant’s conviction for first degree murder pursuant
constitutes no part of     to his guilty plea was affirmed on the ground that no meritorious issues
the opinion of the court   could be raised in his case, regardless of his claims that he was not
but has been prepared      properly admonished about mandatory supervised release and that
by the Reporter of         mandatory supervised release was unconstitutional.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Champaign County, No. 98-CF-396; the
Review                     Hon. Thomas J. Difanis, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Susan M. Wilham, all of State
Appeal                     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.


Panel                      JUSTICE COOK delivered the judgment of the court, with opinion.
                           Justice Knecht concurred in the judgment and opinion.
                           Presiding Justice Turner specially concurred, with opinion.




                                             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.


                                                 -2-
¶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, 691 N.E.2d
     1174, 1177-80 (1998) (holding Public Act 89-404 (Pub. Act 89-404, § 40 (eff. Aug. 20,
     1995)) 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

                                               -3-
       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, 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, 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, 806 N.E.2d 1251, 1255 (2004)
       (quoting In re Estate of Barth, 339 Ill. App. 3d 651, 662, 792 N.E.2d 315, 324 (2003)); In
       re Marriage of Goldsmith, 2011 IL App (1st) 093448, ¶ 15, 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, 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

                                                 -4-
       of constitutional claims not presented at trial.” People v. Harris, 224 Ill. 2d 115, 124, 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 same. 725 ILCS 5/122-2.1(a)(2) (West 2010). To survive
       dismissal, a pro se postconviction petition’s allegations, taken as true, must present the “gist”
       of a constitutional claim, and must set forth some facts which can be corroborated and are
       objective in nature or explain their absence. People v. Hodges, 234 Ill. 2d 1, 9, 912 N.E.2d
       1204, 1208 (2009); People v. Jones, 211 Ill. 2d 140, 144, 809 N.E.2d 1233, 1236 (2004).
       Otherwise, a petition is considered frivolous or patently without merit. People v. Delton, 227
       Ill. 2d 247, 254, 882 N.E.2d 516, 519 (2008) (quoting People v. Gaultney, 174 Ill. 2d 410,
       418, 675 N.E.2d 102, 106 (1996)). A petition is frivolous or patently without merit if it has
       no “arguable basis either in law or in fact,” which is defined as being “based on an
       indisputably meritless legal theory or a fanciful factual allegation.” Hodges, 234 Ill. 2d at 16,
       912 N.E.2d at 1212. “An example of an indisputably meritless legal theory is one which is
       completely contradicted by the record.” Id. This court reviews a circuit court’s dismissal of
       a defendant’s postconviction petition de novo. Id. at 9, 912 N.E.2d at 1208.

¶ 17           B. Defendant’s Admonishment and “Benefit of the Bargain” Claims
¶ 18       Defendant’s section 2-1401 petition for relief from judgment and postconviction petition
       both allege he was not properly admonished about MSR at his plea hearing. Defendant
       asserts the trial court’s statement “the only agreements that make any difference at all in your
       case are those which are described out loud here in open court” before the plea agreement
       was recited “nullified his MSR admonishment.” Defendant’s petition for relief from
       judgment requests this court immediately release defendant from prison to begin MSR.
       Defendant’s postconviction petition further alleges he did not receive the “benefit of his
       bargain” with the State when the MSR was imposed, and it requests this court modify
       defendant’s sentence to “27 Years Imprisonment inclusive of the 3-Year MSR Term.”

¶ 19                           1. Rule 402 and Admonishments Here
¶ 20       Illinois Supreme Court Rule 402(a)(2) (eff. July 1, 1997) requires the trial court to inform
       defendant personally in open court of “the minimum and maximum sentence prescribed by
       law.” Pursuant to section 5-8-1(d) of the Unified Code (730 ILCS 5/5-8-1(d) (West 1998)),
       every sentence imposed “shall include as though written therein a term” of MSR. Rule
       402(a)(2) requires that a defendant be admonished on the MSR term, a requirement applying
       prospectively to pleas taken after May 19, 1975, to comply with the voluntariness
       requirements of Boykin v. Alabama, 395 U.S. 238 (1969). People v. Wills, 61 Ill. 2d 105,
       111, 330 N.E.2d 505, 508-09 (1975) (supplemental opinion on denial of petition for
       rehearing).
¶ 21       In People v. Andrews, 403 Ill. App. 3d 654, 665, 936 N.E.2d 648, 657 (2010), this court
       stated the Rule 402 requirement that defendant be informed of his MSR term “has nothing
       whatsoever to do with plea bargaining or plea agreements.” See also Whitfield, 217 Ill. 2d

                                                 -5-
       at 200-01, 840 N.E.2d at 672 (“We recognize that MSR terms are statutorily required and
       that ‘the State has no right to offer the withholding of such a period as a part of the plea
       negotiations and *** the court has no power to withhold such period in imposing sentence.’ ”
       (quoting People v. Brown, 296 Ill. App. 3d 1041, 1043, 695 N.E.2d 1374, 1376 (1998) (Fifth
       District))); People v. Miller, 36 Ill. App. 3d 943, 945-46, 344 N.E.2d 760, 762 (1976) (First
       District observing parole “is not a matter of negotiation upon plea bargaining”); People v.
       Reese, 66 Ill. App. 3d 199, 203, 383 N.E.2d 759, 762 (1978) (Fifth District) (“[T]he
       mandatory parole term is a constant which cannot be affected by the defendant, the State or
       the trial court.”); People v. Morgan, 128 Ill. App. 3d 298, 300, 470 N.E.2d 1118, 1120
       (1984) (this court observing MSR is not a matter affected by negotiations). Because MSR
       cannot be affected by the State or trial court, “as long as the trial court informs a defendant
       at the time of his guilty plea that an MSR term must follow any prison sentence that is
       imposed upon him, he has received all the notice and all the due process to which he is
       entitled regarding MSR.” Andrews, 403 Ill. App. 3d at 665, 936 N.E.2d at 657. See also
       People v. Hunter, 2011 IL App (1st) 093023, ¶ 18, 957 N.E.2d 523 (due process satisfied if
       defendant informed of MSR before entering guilty plea). Further, in Andrews this court
       emphasized the State and defendants “have nothing to negotiate regarding an MSR term
       because even if they agreed to reduce or waive the statutorily required MSR term, the trial
       court would lack the authority to act in accordance with their agreement.” Andrews, 403 Ill.
       App. 3d at 664, 936 N.E.2d at 657; accord People v. McCurry, 2011 IL App (1st) 093411,
       ¶ 16, 961 N.E.2d 900 (“Terms of MSR are mandated by statute and courts have no authority
       to withhold the MSR term when imposing a sentence.”); People v. Didley, 213 Ill. App. 3d
       910, 912, 572 N.E.2d 423, 424 (1991) (Third District holding trial court does not have
       authority to abrogate MSR term).
¶ 22       This court addressed a similar factual situation in People v. Dorsey, 404 Ill. App. 3d 829,
       831, 942 N.E.2d 535, 537 (2010), where the trial court did not admonish the defendant his
       plea agreement included a three-year MSR term. There we stated Whitfield, 217 Ill. 2d 177,
       849 N.E.2d 658, and People v. Morris, 236 Ill. 2d 345, 925 N.E.2d 1069 (2010), “demand[ ]
       a clearer and closer link between MSR and the agreed-upon sentence or sentencing range to
       inform the defendant of the consequences of his guilty plea.” Dorsey, 404 Ill. App. 3d at 837,
       942 N.E.2d at 542-43. However, in Dorsey we concluded under Andrews the trial court’s
       admonishments sufficiently complied with Rule 402(a) as defendant was informed of MSR
       before the plea and thus he failed to state the gist of a constitutional claim. Id. at 838, 942
       N.E.2d at 543. Cf. People v. Vlahon, 2012 IL App (4th) 110229, ¶ 26, 977 N.E.2d 327 (ex
       post facto violation where trial court failed to inform defendant of his right to be sentenced
       under either the law in effect at the time of the offense, a two-year MSR term, or the law in
       effect at the time of sentencing, a four-year MSR term).
¶ 23       Here, defendant’s claims must fail. First, Whitfield should be applied only to cases where
       the conviction was not final prior to December 20, 2005. Morris, 236 Ill. 2d at 366, 925
       N.E.2d at 1081. As defendant did not appeal his September 1998 conviction, his conviction
       was finalized before the December 2005 Whitfield decision. Second, the record shows
       defendant was admonished that any prison term would be followed by three years’ MSR
       before his guilty plea in compliance with Rule 402(a). In sum, defendant’s claims he was not

                                                -6-
       admonished about MSR are contradicted by the record and legally without merit under our
       precedent and within the meaning of Hodges. See Hodges, 234 Ill. 2d at 16, 912 N.E.2d at
       1212. See also People v. Coultas, 75 Ill. App. 3d 137, 138, 394 N.E.2d 26, 27 (1979) (Fifth
       District observing “the mandatory supervised release term is part of the original sentence by
       operation of law”); United States v. Timmreck, 441 U.S. 780, 784 (1979) (rejecting collateral
       attack on parole sentence where defendant did not argue he was actually unaware of parole
       term or would not have pleaded guilty if properly advised by trial judge); People v. Marshall,
       381 Ill. App. 3d 724, 732, 886 N.E.2d 1106, 1113 (2008) (Rule 402 satisfied where trial
       court admonished defendant sentence for Class X felony included three-year MSR term).

¶ 24                       2. Defendant’s “Benefit of the Bargain” Claim
¶ 25       In his postconviction petition, defendant contends he was denied the benefit of his
       bargain as Rule 402 required the trial court to admonish him the MSR term would be added
       to his negotiated sentence. Defendant appears to argue that because the trial court stated “the
       only agreement that makes any difference at all” are the plea terms described in open court,
       defendant was not admonished MSR would be in addition to the terms of the plea agreement.
       In his brief filed with this court, defendant further argues he “had a fully negotiated a plea
       of 30 years, and the [t]rial [c]ourt/[S]tate had breached that contract for which was fully
       [n]egotiated to be 30 years, NOT 30 years and then 3 years of MSR.” (Emphasis in original.)
       Defendant requests this court to reduce his sentence to 27 years with the mandatory 3 years’
       MSR or allow him to withdraw his guilty plea. Defendant’s contention is without merit.
¶ 26       First, the trial court found defendant’s postconviction petition contained the same
       allegations of improper admonishment as contained in his section 2-1401 petition for relief
       from judgment. This court has been unwilling to expand Whitfield to cases where MSR was
       mentioned in the admonishments prior to the guilty plea. Andrews, 403 Ill. App. 3d at 666,
       936 N.E.2d at 659. While the best practice may be for the trial court or counsel to expressly
       link the MSR term to the agreed-upon sentence (Dorsey, 404 Ill. App. 3d at 836-38, 942
       N.E.2d at 541-43), failure to make that link does not violate Rule 402 or the parties’ plea
       agreement. Andrews, 403 Ill. App. 3d at 665, 936 N.E.2d at 657-58. For the same reasons
       previously stated, defendant received proper admonishments prior to his guilty plea.
¶ 27       Second, defendant’s “benefit of the bargain” argument fails on its face as defendant and
       the State could not have agreed to waive MSR. Defendant acknowledged this in his
       postconviction petition when he states he “does not assert that the [P]eople or the [trial] court
       affirmatively promised him that he would not have to serve a period of MSR.” As such,
       defendant cannot contend he was denied the benefit of the bargain when no promises were
       made about MSR. See People v. Holt, 372 Ill. App. 3d 650, 653-54, 867 N.E.2d 1192, 1195-
       96 (2007) (rejecting “benefit of the bargain” claim where State plea is “ ‘open’ ” to certain
       sentencing provisions). Last, defendant’s plea agreement was between the State and him, not
       the trial court. People v. Collier, 376 Ill. App. 3d 1107, 1113, 879 N.E.2d 982, 988 (2007)
       (“The trial court is not a party to the plea agreement ***.”). The court’s sentencing judgment
       did not breach the plea agreement by imposing MSR as mandatorily required.



                                                 -7-
¶ 28                    C. Defendant’s Claim Imposition of MSR After Prison
                                       Term Is Unconstitutional
¶ 29        In his section 2-1401 petition for relief from judgment, defendant contends requiring him
       to serve an MSR term “after he has served the entire sentence imposed within the confines
       of prison” is unconstitutional. Defendant cites People v. Montana, 380 Ill. 596, 44 N.E.2d
       569 (1942), to support his claim he cannot be held beyond the term affixed by the trial court
       and asserts MSR subjects him “to a second term of imprisonment for the same crime without
       any semblance of due process.”
¶ 30        First, defendant’s reliance on Montana is misplaced as that case concerned a markedly
       different parole system than the modern system. Montana concerned a statute where the trial
       court in imposing sentence made an advisory recommendation of the minimum and
       maximum limits or duration of the imprisonment and the Department could increase or
       diminish the trial court’s recommenced sentence. Montana, 380 Ill. at 601-02, 44 N.E.2d at
       572. The supreme court held the statute invalid as it vested an administrative board with the
       power to amend a judicial judgment. Id. at 609, 44 N.E.2d at 575. Montana does support
       defendant’s position his sentence cannot be extended beyond the trial court’s order, but it
       does not support his assertion parole is a separate sentence.
¶ 31        Defendant’s attempts to assert MSR is a form of imprisonment is unpersuasive. In People
       v. Williams, 66 Ill. 2d 179, 187, 361 N.E.2d 1110, 1114 (1977), the supreme court stated,
       “Parole alters only the method and degree of confinement during the period of commitment
       [to the Department].” See also Vlahon, 2012 IL App (4th) 110229, ¶ 26, 977 N.E.2d 327 (An
       MSR term increases “the length of time defendant is subject to the custody of the Department
       of Corrections.”). In other words, “[y]ears of MSR and years in prison are not
       interchangeable.” People v. Jarrett, 372 Ill. App. 3d 344, 351, 867 N.E.2d 1173, 1179
       (2007).
¶ 32        Since People ex rel. Scott v. Israel, 66 Ill. 2d 190, 194, 361 N.E.2d 1108, 1109 (1977),
       it has been axiomatic that a “sentence to a mandatory parole is part of the original sentence
       by operation of law.” MSR is a mandatory part of a criminal sentence. 730 ILCS 5/5-8-1(d)
       (West 1998). Defendant’s contentions an MSR violation may result in a second term of
       imprisonment were rejected in Israel. There, the supreme court stated this is not a second
       sentence and what causes a defendant’s recommitment to prison is the defendant’s violation
       of his parole conditions. Israel, 66 Ill. 2d at 194, 361 N.E.2d at 1109. Defendant’s prison
       term and MSR are a part of the same sentence, not two different sentences.
¶ 33        Defendant’s assertion his sentence expires before he is placed on MSR is without merit.
       Defendant will not begin his MSR term until he has completed his prison term (730 ILCS
       5/3-3-8 (West 1998)), whenever that occurs. Defendant’s sentence is not discharged until he
       has completed his MSR term (730 ILCS 5/3-3-3 (West 1998)). See also Faheem-El v.
       Klincar, 123 Ill. 2d 291, 299, 527 N.E.2d 307, 310-11 (1988) (holding prisoner is subject to
       custody of the Department for the remainder of maximum term of imprisonment and three-
       year MSR term). Defendant’s argument that credit for good behavior reduces an offender’s
       trial court sentence is a flawed reading of the statute. Section 3-6-3(a)(2.1) of the Unified
       Code expressly states, “Each day of good conduct credit shall reduce by one day the


                                                -8-
       prisoner’s period of imprisonment ***.” 730 ILCS 5/3-6-3(a)(2.1) (West 1998). A “period
       of imprisonment” is different from defendant’s sentence. Defendant ignores the fact his good
       conduct credit can be revoked. See 730 ILCS 5/3-6-3(c) (West 1998). Defendant’s good
       behavior argument confuses the parts (prison term and MSR term) for the whole (sentence)
       and has no merit.

¶ 34        D. Defendant’s Claim MSR Is an “Unlawful Constraint” Upon His Liberty
¶ 35        Defendant’s next argument in his section 2-1401 petition for relief from judgment is that
       “requiring offenders to serve a term of MSR after the successful completion of their
       judicially imposed sentence of the determinate nature is constitutionally unsound resulting
       in an unlawful constraint upon the offender’s liberty.” Specifically, defendant asserts that the
       trial court’s sentence has expired “according to law before placing the offender upon MSR.”
¶ 36        Defendant’s contention that MSR is an unlawful constraint is fundamentally flawed.
       First, defendant’s argument is built on the single premise “that MSR is a separate term than
       that of the judicial sentence.” As previously discussed, MSR is a mandatory term of criminal
       sentences, and release from prison is not tantamount to discharge from the Department. MSR
       is not a form of imprisonment but a release from the physical custody of the Department (730
       ILCS 5/3-3-7 (West 1998)) where parolees remain in the legal custody of the Department for
       the duration of MSR. 730 ILCS 5/3-14-2(a) (West 1998); People v. Wilson, 228 Ill. 2d 35,
       48, 885 N.E.2d 1033, 1041 (2008). Parolees are subject to conditions curtailing their liberty
       (730 ILCS 5/3-3-7 (West 1998)) as they present a risk to the public (People v. Moss, 217 Ill.
       2d 511, 531, 842 N.E.2d 699, 712 (2005)). Defendant’s argument confuses release from the
       physical custody of the Department with discharge from the Department; these are two
       different things. Here, as the trial court imposed 30 years’ imprisonment and 3 years’ MSR,
       defendant will not be discharged from the Department until he has completed his entire
       sentencing composed of 30 years’ imprisonment and 3 years’ MSR. There is no merit to
       defendant’s contention MSR is in addition to his sentence, as MSR is an included part of his
       sentence.

¶ 37                        E. Defendant’s Separation of Powers Claim
¶ 38       Defendant asserts the Department imposed the MSR in violation of separation of powers
       as sentencing is a judicial function. As previously addressed, when the trial court sentenced
       defendant to 30 years’ imprisonment, his sentence included a 3-year MSR term. Defendant’s
       claim the Department imposed the MSR term has no legal merit. See Hunter, 2011 IL App
       (1st) 093023, ¶ 23, 957 N.E.2d 523 (addressing similar separation of powers argument).
       Mandatory supervised release, formerly parole, is within the power of the Illinois General
       Assembly, and “this enactment does not violate the separation of powers clause of the Illinois
       Constitution of 1970.” Israel, 66 Ill. 2d at 194, 361 N.E.2d at 1110.

¶ 39                           F. Defendant’s Additional Claim
¶ 40      We note defendant, in his additional points and authorities, contends that his trial counsel


                                                 -9-
       provided ineffective assistance where trial counsel misapprehended “the law in regards to
       [t]he [a]ddition of the [s]tat[ut]or[ily] [m]andated [t]hree (3) years to [d]efendant’s sentence”
       of 30 years. Defendant provides no factual basis to support his claim. We will not reach this
       issue as it was not raised in his postconviction petition. See People v. Cathey, 2012 IL
       111746, ¶ 21, 965 N.E.2d 1109 (appellate court can only review issues presented in
       postconviction petition filed with circuit court).

¶ 41                                    III. CONCLUSION
¶ 42       For the reasons stated, we grant OSAD’s motion to withdraw and affirm the trial court’s
       judgment. As part of our judgment, we award the State its $50 statutory assessment as costs
       of this appeal.

¶ 43       Affirmed.

¶ 44       PRESIDING JUSTICE TURNER, specially concurring.
¶ 45       While I agree with the result reached by the majority’s opinion, I write separately to
       clarify a few matters. Here, in his section 2-1401 motion, defendant challenged his MSR
       admonishment under Whitfield. However, defendant cannot obtain relief under Whitfield
       because his conviction was final before December 20, 2005, the date of the Whitfield
       decision. See Morris, 236 Ill. 2d at 366, 925 N.E.2d at 1081 (holding Whitfield only applied
       prospectively to cases where the defendant’s conviction was finalized after the date Whitfield
       was announced). In his postconviction petition, defendant chose to raise his MSR
       admonishment claim under Santobello v. New York, 404 U.S. 257 (1971). However, the First
       District has held a defendant cannot avoid the effect of Whitfield and its limitation to
       prospective application under Morris by citing Santobello. People v. Demitro, 406 Ill. App.
       3d 954, 957, 942 N.E.2d 20, 23 (2010). Since defendant cannot challenge his MSR
       admonishment under Whitfield and Santobello, the concerns raised in Dorsey about MSR
       admonishments are not at issue in this case.




                                                 -10-
