                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Hildenstein, 2012 IL App (5th) 100056




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      ROBERT J. HILDENSTEIN, SR., Defendant-Appellant.



District & No.               Fifth District
                             Docket No. 5-10-0056


Filed                        May 31, 2012
Rehearing denied             July 12, 2012


Held                         The appellate court upheld the second-stage dismissal of defendant’s
(Note: This syllabus         successive postconviction petition alleging that his guilty plea was not
constitutes no part of       knowing and voluntary due to the fact that he was not advised of the
the opinion of the court     mandatory supervised release term that applied upon the completion of
but has been prepared        his term of imprisonment, regardless of whether the decision in Morris
by the Reporter of           dealing with the appropriate remedy for failing to provide advice about
Decisions for the            MSR applied to defendant, since the record showed the Prisoner Review
convenience of the           Board issued an order discharging defendant from MSR and defendant
reader.)
                             was only required to serve his 20-year term of imprisonment for the first-
                             degree murder of his wife.


Decision Under               Appeal from the Circuit Court of Madison County, No. 02-CF-1377; the
Review                       Hon. Charles V. Romani, Jr., Judge, presiding.


Judgment                     Affirmed.
Counsel on                 Michael J. Pelletier, Johannah B. Weber, and Edwin J. Anderson, all of
Appeal                     State Appellate Defender’s Office, of Mt. Vernon, for appellant.

                           David Rands, Special Prosecutor, of Olney (Patrick Delfino, Stephen E.
                           Norris, and Sharon Shanahan, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE GOLDENHERSH delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Donovan and Justice Spomer concurred in the judgment
                           and opinion.




                                              OPINION

¶ 1         Defendant, Robert J. Hildenstein, Sr., appeals from an order of the circuit court of
        Madison County denying his successive postconviction petition filed under the Post-
        Conviction Hearing Act (725 ILCS 5/122-1 to 122-8 (West 2006)). In the petition, defendant
        alleged that his January 20, 2004, guilty plea to first-degree murder was not knowing and
        voluntary because he was not advised when entering his guilty plea that he would be required
        to serve 3 years of mandatory supervised release upon completing his 20-year term of
        imprisonment. The circuit court dismissed the petition at the second stage. Defendant timely
        appealed. We affirm.

¶ 2                                         BACKGROUND
¶ 3         Defendant was charged with first-degree murder (720 ILCS 5/9-1(a)(2) (West 2000)) in
        the suffocation of his wife, which occurred on June 4, 2002. Ultimately, defendant pled
        guilty and was sentenced to 20 years in the Department of Corrections. During the plea
        hearing, the State presented the factual basis for the plea, showing that defendant strangled
        his wife to death. The trial court advised defendant of the charge and the range of possible
        prison sentences, but did not inform defendant he would be required to serve 3 years of
        mandatory supervised release upon completion of his 20 years in prison. Defendant did not
        make a motion to withdraw his guilty plea, nor did he pursue a direct appeal.
¶4          On July 13, 2004, defendant filed a petition for postconviction relief in which he claimed
        that defense counsel coerced him into pleading guilty and that his plea was not knowing and
        voluntary because he was taking Wellbutrin, a psychotropic medication, when he entered the
        plea, which rendered him incapable of understanding the proceedings. The trial court
        dismissed the petition at the first stage of the proceedings. This court entered a Rule 23 order


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       affirming the dismissal of the petition. People v. Hildenstein, No. 5-04-0514 (2005)
       (unpublished order under Supreme Court Rule 23).
¶ 5         On August 14, 2006, defendant filed a pro se motion for leave to file a successive
       postconviction petition in which he asserted he was never advised that he would be required
       to serve a three-year term of mandatory supervised release upon his release from prison. As
       a remedy, defendant sought a modification of his prison sentence to 17 years, plus 3 years
       of mandatory supervised release or any other fair and just relief. On August 29, 2006, the
       trial court entered an order finding the pro se petition presented the gist of a constitutional
       claim and ordered the petition docketed for further proceedings.
¶ 6         On September 22, 2006, defendant filed another pro se motion for leave to file a
       successive postconviction petition in which he again raised the mandatory-supervised-release
       issue, but also alleged different grounds for not presenting the claim earlier. Defendant also
       filed a request for the appointment of counsel. The trial court ultimately entered an order
       denying the September 22, 2006, motion because it raised the same issue presented in the
       pending postconviction petition. On October 4, 2006, the trial court appointed the public
       defender for defendant.
¶ 7         On October 12, 2006, the State filed a motion to dismiss in which it argued that
       defendant’s claims were waived. A hearing was held on the motion to dismiss on July 9,
       2008, during which defense counsel argued that the petition presented a valid claim under
       People v. Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005), and that the imposed sentence
       was illegal. On September 23, 2008, the trial court entered an order denying the State’s
       motion to dismiss.
¶8          On September 30, 2008, the State filed an answer to the postconviction petition in which
       it again asked that the petition be dismissed. On May 1, 2009, the State filed an amended
       motion to dismiss in which it explained that it had obtained an order discharging defendant
       from mandatory supervised release at the time of his release from prison. A copy of the order
       signed by Jorge Montes, chairman of the Prisoner Review Board, was attached. The State
       argued that because of the order, defendant’s arguments concerning lack of admonishments
       were moot.
¶9          On May 5, 2009, defense counsel filed an amended petition for postconviction relief once
       again raising the mandatory-supervised-release claim, but also raising a new allegation that
       defendant had a valid defense of involuntary intoxication under the authority of the recently
       decided People v. Hari, 218 Ill. 2d 275, 843 N.E.2d 349 (2006). Defendant asked the trial
       court to vacate his guilty plea and set the matter for trial. The State moved to dismiss the
       amended petition on the basis that the new claim raised in the amended petition was waived.
¶ 10        A hearing was held on the State’s motion to dismiss, after which the trial court entered
       an order finding that while defendant was not advised about mandatory supervised release
       when he pled guilty, because the Prisoner Review Board discharged defendant from
       mandatory supervised release, defendant would not serve more time in custody than he
       bargained for and, thus, defendant suffered no due process violation. The trial court also
       found that the issue raised in the amended petition was waived by defendant’s guilty plea.
       Based on these findings, the trial court denied defendant’s postconviction petition and denied


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       defendant’s motion to amend the petition. Defendant filed a timely notice of appeal.

¶ 11                                           ANALYSIS
¶ 12       The issue we address is whether the trial court properly dismissed defendant’s successive
       petition. There is some disagreement about whether the petition was dismissed at the first or
       second stage. After reviewing the record, we find that the petition was dismissed at the
       second stage.
¶ 13       At the first stage, the trial court must independently determine within 90 days of its filing
       whether the petition is frivolous or patently without merit. People v. Gaultney, 174 Ill. 2d
       410, 418, 675 N.E.2d 102, 106 (1996); 725 ILCS 5/122-2.1(a)(2) (West 2008). At the second
       stage, the State must either answer or move to dismiss the petition. 725 ILCS 5/122-5 (West
       2008). The question for the court at this stage is “whether the petition and any accompanying
       documentation make a substantial showing of a constitutional violation.” People v. Edwards,
       197 Ill. 2d 239, 246, 757 N.E.2d 442, 446 (2001). If the petition makes such a showing, then
       the petition advances to stage three, at which time the circuit court holds an evidentiary
       hearing on the claims raised in the petition. 725 ILCS 5/122-6 (West 2008). In the instant
       case, the trial court found that the successive petition presented the gist of a constitutional
       claim, ordered the petition docketed, and appointed postconviction counsel. Thereafter, the
       petition was dismissed upon motions of the State, making this a second-stage proceeding.
       The dismissal of a postconviction petition at the second stage is reviewed de novo. People
       v. Hall, 217 Ill. 2d 324, 334, 841 N.E.2d 913, 920 (2005).
¶ 14       Defendant argues that his plea bargain was not knowingly and voluntarily entered into
       because he was never advised of the requirement that he serve three years of mandatory
       supervised release upon completion of his term of imprisonment and that the remedy offered
       by the State, an order discharging defendant from mandatory supervised release, is not
       enforceable and is subject to change. Defendant asks that we reverse the dismissal of the
       petition and remand for an evidentiary hearing or, in the interest of judicial economy, order
       the guilty plea vacated and the cause remanded for a new trial. The State replies that the trial
       court properly denied defendant’s successive postconviction petition at the first stage because
       Whitfield claims cannot be raised in postconviction petitions in which a defendant’s
       conviction was final before Whitfield was decided and that, in any event, the order obtained
       from the Prisoner Review Board corrects any harm defendant suffered from failure to
       admonish him about mandatory supervised release. We agree with the State.
¶ 15       Defendant insists he is entitled to relief under People v. Whitfield, 217 Ill. 2d 177, 840
       N.E.2d 658 (2005). In Whitfield, our Illinois Supreme Court held that the remedy for a
       defendant who was not advised of the mandatory-supervised-release obligation before
       entering his guilty plea was to modify the sentence to incorporate the mandatory supervised
       release in the number of years for which he was sentenced. Defendant seeks to go further,
       arguing that because his due process rights have been violated by not receiving the benefit
       of the bargain, he is afforded his choice of remedies, either withdrawal of the plea or
       fulfillment of the bargained-for promise. See Santobello v. New York, 404 U.S. 257, 262-63
       (1971). Defendant’s chosen remedy is withdrawal of his guilty plea. However, we find that


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       defendant’s claim was properly denied because he cannot make a substantial showing of a
       violation of his constitutional rights.
¶ 16       In People v. Morris, 236 Ill. 2d 345, 366, 925 N.E.2d 1069, 1081 (2010), our Illinois
       Supreme Court held that Whitfield announced a new rule that may not be applied
       retroactively to cases on collateral review. Morris specifically holds that Whitfield may only
       be applied prospectively to cases where the defendant’s conviction was finalized after
       December 20, 2005, the date Whitfield was announced. Morris, 236 Ill. 2d at 366, 925
       N.E.2d at 1081. Morris found that Whitfield announced a new rule because it was the first
       time the supreme court held that a faulty mandatory-supervised-release admonishment
       deprived a defendant of due process. Morris, 236 Ill. 2d at 361, 925 N.E.2d at 1079. Morris
       also found that Whitfield created a new rule because it fashioned a novel remedy, not based
       upon earlier precedent. Morris, 236 Ill. 2d at 361, 925 N.E.2d at 1079.
¶ 17       In the instant case, defendant pled guilty to murder on January 20, 2004. He did not file
       a motion to withdraw his guilty plea, nor did he file a direct appeal. On July 13, 2004,
       defendant filed a postconviction petition, which was dismissed at the first stage and affirmed
       on appeal by this court on July 14, 2005. People v. Hildenstein, No. 5-04-0514 (2005)
       (unpublished order under Supreme Court Rule 23). Relying upon our Illinois Supreme
       Court’s holding in Morris, we find that defendant is not entitled to retroactive application of
       Whitfield because his conviction was final prior to the Whitfield decision.
¶ 18       Nevertheless, defendant contends that the State waived the defense of nonretroactive
       application by not raising the defense below. We disagree. It is well settled that waiver is a
       limitation on the parties, not on the court. People v. Carter, 208 Ill. 2d 309, 318-19, 802
       N.E.2d 1185, 1190 (2003). A supreme court opinion cannot be waived by a party, but must
       be applied as a matter of law; because the holding in Morris is clearly applicable here, this
       court lacks the authority to overrule it. People v. Demitro, 406 Ill. App. 3d 954, 957, 942
       N.E.2d 20, 22 (2010).
¶ 19       Defendant further contends that independent of Whitfield, he made a substantial showing
       that his due process rights were violated under Santobello v. New York, 404 U.S. 257, 262
       (1971), which held that a defendant’s right to due process may be violated where the State
       fails to honor its promises as part of a plea agreement. Our colleagues in the First District
       recently addressed the same issue in Demitro, and specifically stated as follows:
           “In Morris [citation], the supreme court explained that its decision in Whitfield expressly
           relied on Santobello. The court also explained that the opinion in Whitfield was in
           conformity with precedent recognizing that the defendant was entitled to the bargained-
           for benefit in his negotiated plea. [Citation.] Where Whitfield was the first time the
           supreme court relied on Santobello in the context of [mandatory supervised release],
           defendant cannot maintain a claim for that remedy without relying on the holding in
           Whitfield. By citing Santobello, defendant cannot avoid the effect of its progeny Whitfield
           and its limitation to prospective application under Morris.” Demitro, 406 Ill. App. 3d at
           957, 942 N.E.2d at 22-23.
       We agree with the First District’s analysis and adopt it.
¶ 20       Even assuming arguendo that Morris is somehow not applicable, we find the trial court

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       did not err in dismissing defendant’s successive petition because defendant is still on track
       to receive the benefit of his plea bargain. The Prisoner Review Board has issued an order that
       discharges defendant from his three years of mandatory supervised release. The order has
       been filed with the circuit clerk. Defendant is now only required to serve his 20-year term of
       imprisonment, which is exactly what he agreed to during his plea. We also point out that
       while defendant has herein requested that his guilty plea be withdrawn, in his “Motion to
       Supplement” his pro se successive petition filed on September 22, 2006, defendant
       specifically stated, “[D]efendant does not wish to withdraw his plea as he accepts his
       responsibility for his actions and is remorseful about them, all he asks is that the proper
       remedy be applied.” Under these circumstances, we find that the trial court did not err in
       dismissing defendant’s successive postconviction petition.
¶ 21       For the foregoing reasons, the judgment of the circuit court of Madison County is
       affirmed.

¶ 22      Affirmed.




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