                                                     SIXTH DIVISION
                                                     May 4, 2007



No. 1-04-2021

THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
            Plaintiff-Appellee,           )    Cook County
                                          )
     v.                                   )
                                          )
JACKIE CHAMNESS,                          )    Honorable
                                          )    Thomas R. Sumner,
            Defendant-Appellant.          )    Judge Presiding

     JUSTICE McNULTY delivered the opinion of the court:

     Our supreme court has ordered us to reconsider our initial

resolution of this appeal from the dismissal of a postconviction

petition.    In our previous order we granted defendant, Jackie

Chamness, the relief he sought when we reduced the sentence

imposed following his guilty plea.    In his petition for leave to

appeal, defendant sought to withdraw his guilty plea.    We must

now determine the effect of defendant's new request on the

resolution of the postconviction petition.    We reverse the

dismissal of the petition and remand to the trial court for

further proceedings in accord with this opinion.

                             BACKGROUND

     In 1997 police arrested defendant for violating an order of

protection that directed him to stay away from his former

girlfriend.    Inmates in jail with defendant while he awaited

trial reported that he offered to pay them to kill his former

girlfriend.    Prosecutors charged defendant with solicitation of
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murder for hire.   In 1998 defendant negotiated a sentence

totaling 33 years in exchange for a plea of guilty to the charges

of aggravated stalking and solicitation of murder for hire.    The

court accepted the plea without informing defendant that statutes

required the addition of a term of mandatory supervised release

(MSR) following the completion of his sentence.   When defendant

entered his plea, he suggested that the inmates had encouraged

him to solicit the murder.

     In 2001 defendant filed his postconviction petition.    He

claimed that jailhouse informants entrapped him and that the

trial court violated his constitutional rights by failing to

inform him of the MSR.   The trial court dismissed the petition.

On appeal we found that the failure to inform defendant of the

MSR term violated his right to due process.   Because defendant,

in his briefs to this court, said he did not wish to withdraw his

guilty plea, we granted him relief by reducing his sentence by

the length of the MSR term.

     In light of defendant's request for leave to withdraw his

guilty plea, our supreme court directed us to appoint an attorney

to counsel defendant about the ramifications of his request.      We

have done so, and following the consultation, defendant has

reasserted his desire to withdraw his guilty plea.

     Our supreme court's supervisory order directed us to


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reconsider the case in light of People v. Whitfield, 217 Ill. 2d

177 (2005).   The defendant in Whitfield pled guilty to first

degree murder in exchange for a sentence of 25 years.    Whitfield,

217 Ill. 2d at 179.   The court did not advise the defendant that

a three-year period of MSR would follow completion of the

sentence.   In a postconviction petition the defendant claimed

that the imposition of a greater sentence than that to which he

agreed deprived him of due process.    Our supreme court agreed.

Whitfield, 217 Ill. 2d at 195.   The defendant did not seek a new

trial; instead, he sought to enforce the bargain he reached with

the prosecution and the court.   Because statutory law required

the three-year term of MSR, our supreme court reduced the

defendant's sentence to 22 years, with 3 following years of MSR.

Whitfield, 217 Ill. 2d at 205.

     Our supreme court in Whitfield discussed the options

available to defendants in cases involving lack of MSR

admonishment.   The prosecution argues that none of those options

apply here because defendant forfeited the issue by failing to

raise it on direct appeal.   In Whitfield the court noted the

incongruity of holding that the defendant forfeited the issue:

"To so hold would place the onus on defendant to ensure his own

admonishment in accord with due process."    Whitfield, 217 Ill. 2d

at 188.   The court addressed the MSR issue on the merits despite


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the defendant's failure to raise the issue on direct appeal.     We

find the reasoning of Whitfield applicable here.   Defendant has

not forfeited his claim that the trial court violated his right

to due process by accepting his guilty plea in exchange for a

negotiated sentence without informing him that he would also

serve a term of MSR.

     The prosecution concedes that the trial court did not

admonish defendant about MSR.    Thus, under Whitfield, defendant

has established a violation of his constitutional rights.    Our

supreme court stressed two possible remedies when a defendant has

not received the benefit of his bargain due to incomplete

admonishments.   Either the court must fulfill its promise, by

reducing the sentence to accommodate the MSR term, "or defendant

must be given the opportunity to withdraw his plea."

Whitfield, 217 Ill. 2d at 202.

     Our supreme court cited in support James v. State, 699

N.W.2d 723 (Minn. 2005).   The trial court in that case did not

inform the defendant of a mandated conditional release term that

would follow completion of his negotiated sentence.    The

Minnesota Supreme Court found a violation of the defendant's

constitutional rights, but the court neither reduced the sentence

nor granted the defendant a new trial.   Our supreme court noted

that the court in James "remanded for further proceedings,


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stating that, due to the petitioner's substantial delay in

bringing his claim, the court should determine whether allowing

petitioner to withdraw his plea would be unduly prejudicial to

the State, in which case, defendant would be limited to the

alternative remedy."   Whitfield, 217 Ill. 2d at 203.

     In this case, we have no evidence in the record from which

we can determine whether a retrial would unduly prejudice the

prosecution.   Accordingly, following the reasoning of James, we

remand to the trial court for a hearing concerning the prejudice

to the prosecution that might follow if the court grants

defendant leave to withdraw his guilty plea.

     Reversed and remanded.

     TULLY and O'MALLEY, JJ., concur.




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