                              No. 2--06--1077    Filed: 6-13-08
______________________________________________________________________________

                                            IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       ) Nos. 98--CF--1712
v.                                     )       98--CF--2961
                                       )
LOUIS E. GULLEY,                       ) Honorable
                                       ) Rosemary Collins,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BOWMAN delivered the opinion of the court:

       Defendant, Louis E. Gulley, pleaded guilty to armed robbery (720 ILCS 5/18--2(a) (West

1998)) and robbery (720 ILCS 5/18--1(a) (West 1998)) pursuant to an agreement with the State that

he would not receive a sentence longer than 30 years. The trial court subsequently sentenced

defendant to 30 years' imprisonment. Defendant was not advised that he was subject to a three-year

term of mandatory supervised release (MSR) in addition to his prison sentence. Defendant filed a

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

2006)), arguing that the trial court's failure to advise him of the MSR term deprived him of the

benefit of his plea bargain, in violation of his due process rights. The trial court summarily

dismissed the petition, and defendant timely appealed. For the reasons that follow, we reverse and

modify defendant's sentence.
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       On November 9, 1998, defendant pleaded guilty to armed robbery and robbery. In exchange

for defendant's guilty pleas, the State agreed to dismiss three additional counts of armed robbery.

The State also agreed to a sentencing cap of 30 years and to recommend that the sentences on the

remaining two counts run concurrently. The court advised defendant as follows:

               "THE COURT: [Defendant], you heard what your counsel has stated are the terms

       of this plea agreement. It's what we refer to as an open plea, but the Court would have to

       agree to be capped at the sentencing range of 6 to 30 years as opposed to the extended term,

       which would be available without the plea agreement."

The court further stated:

               "THE COURT: [Defendant], do you understand that an open plea means there is no

       agreement as to what the appropriate sentence should be, other than I can tell you that this

       is a nonprobationable offense, so the minimum sentence that the Court can give would be 6

       years; and if I accept the terms of this agreement, the maximum sentence that I could give

       would be 30 years."

Later, the following colloquy took place:

               "THE COURT: ***

               [Defendant], just so that it's clear on the record that you understand, can you tell me

       is there any agreement as to what the appropriate sentence should be in this case?

               THE DEFENDANT: Appropriate sentence?

               THE COURT: The appropriate sentence, yeah. Is there any agreement between you

       and the State about what the sentence will be?

               THE DEFENDANT: No. They just said open plea to 30.



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               THE COURT: Right. Well, open plea, and the sentencing range is 6 to 30 years.

               THE DEFENDANT: 6 to 30.

               THE COURT: You can ask for 6 years, they can ask for 30 years, and I'll make my

       decision based upon the evidence and the presentence report that I hear.

               THE DEFENDANT: Okay."

       The trial court accepted defendant's pleas, and a sentencing hearing took place on December

15-16, 1998. After presenting testimony from several witnesses, the State argued that defendant

should receive the maximum sentence under the sentencing cap, 30 years' imprisonment. The court

acknowledged that it had agreed to the cap of 30 years' imprisonment. It sentenced defendant to 30

years on the armed robbery charge and 15 years on the robbery charge, to be served concurrently.

       Defendant filed a motion for reconsideration of his sentence, which the trial court denied.

Defendant timely appealed, arguing that he was not properly admonished under Supreme Court Rule

605(b) (145 Ill. 2d R. 605(b)). We agreed, and we remanded the cause for proper admonishments.

See People v. Gulley, No. 2--99--0305 (unpublished order under Supreme Court Rule 23).

       On remand, following proper admonishments, defendant filed a motion to withdraw his pleas

and vacate the judgment under Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). Defendant

argued that he "did not knowingly, intelligently, and voluntarily waive his rights to a jury trial, nor

did [he] fully understand or comprehend the admonishments of the Court pursuant to Supreme Court

Rule 402 [(177 Ill. 2d R. 402)]." He stated that he "believed that the negotiated plea agreement

involved a sentence of seventeen (17) years." He also argued that his attorney failed to adequately

cross-examine the witnesses at his sentencing hearing. The trial court denied the motion, and, on

May 28, 2002, defendant filed a timely appeal. According to an affidavit from the attorney who was



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assigned to represent defendant in the 2002 appeal (which affidavit was attached to defendant's

postconviction petition), "[i]n the course of reading the record on appeal, [she] discovered that ***

the judge who presided at [defendant's] plea and sentencing proceedings, failed to admonish him that

the 30 year sentence cap to which he agreed in exchange for his plea to the armed robbery included

a three year period of [MSR]." Counsel further averred that she raised the issue in the appellate

brief, arguing that defendant should be permitted to withdraw his pleas. However, upon learning that

defendant did not want to withdraw his pleas but instead wanted his sentence reduced, she told him

"that the law would not support a request for such relief." She advised defendant to dismiss the

appeal, and, on April 1, 2003, the appeal was dismissed on his motion.

       On September 6, 2006, defendant filed his postconviction petition, alleging that "at no time

during plea agreement negotiations nor at sentencing did the Court, States Attorney [sic], or Defense

Counsel ever appraise [sic] [defendant] of a three (3) year MSR term, nor does the passing judgment

order of 12-16-98 reflect a term of MSR ***. [Defendant] was only admonished that the sentence

he would receive would fall between six (6) and thirty (30) years." In an affidavit attached to his

petition, defendant averred that he "just recently learned from [his] place of confinement that [he]

would have to serve a three (3) year term of [MSR] [after completing] his negotiated 30 year

sentence." Relying on People v. Whitfield, 217 Ill. 2d 177 (2005), defendant asked the court to

"enter an order correcting his mittimus in this matter to reflect the actual, negotiated sentence agreed

upon by the parties."

       Defendant also argued in his petition that he received ineffective assistance of appellate

counsel. He stated that his appellate counsel "fatally ill-advised [him] to abandon his appeal ***

although he felt that his issues was [sic] in fact meritorious." Defendant's petition included the



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affidavit from appellate counsel. Defendant stated that, "[h]ad it not been for the ill-advice of

counsel, [he] would have prevailed on appeal."

       The trial court summarily dismissed defendant's petition, stating as follows:

               "In his post-conviction petition [defendant] indicates that as a factual statement, that

       there was a fully negotiated plea for two sentences that would run concurrent. That's

       factually incorrect.

               The case that [defendant] is referring to [, robbery], [defendant] did enter an open

       plea on that case on November 9. He pled guilty.

               The case was set over for sentencing on December 16. The defendant was sentenced

       at that time, and the sentence was ordered to be concurrent with the sentence on [armed

       robbery].

               The defendant's factually incorrect in his allegations in his petition.

               He also indicates that he wasn't notified of the terms of [MSR] as part of the plea

       agreement. There was no plea agreement. It was a sentencing hearing.

               The Court finds that this petition is frivolous and without merit, patently frivolous

       and wholly without merit. Therefore, the post-conviction petition will be dismissed."

       Defendant filed a motion for reconsideration, which the trial court denied. Defendant timely

appealed. Defendant argues that the trial court erred in summarily dismissing his petition. We agree.

       The Act provides a remedy to defendants who have suffered substantial violations of their

constitutional rights. See 725 ILCS 5/122--1 (West 2004); People v. Edwards, 197 Ill. 2d 239, 243-

44 (2001); People v. Wilson, 307 Ill. App. 3d 140, 144-45 (1999). When the death penalty is not

involved, there are three stages to proceedings under the Act. Edwards, 197 Ill. 2d at 244. At the



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first stage, the trial court independently reviews the petition within 90 days of its filing and

determines whether the petition is frivolous or patently without merit. 725 ILCS 5/122--2.1(a)(2)

(West 2004); Edwards, 197 Ill. 2d at 244. If the petition is not dismissed at this stage, it advances

to the second stage for the appointment of counsel. People v. Mauro, 362 Ill. App. 3d 440, 441

(2005). At the second stage, counsel may amend the petition and the State may file a motion to

dismiss or answer. Mauro, 362 Ill. App. 3d at 441. If the trial court does not dismiss or deny the

petition at the second stage, the proceeding advances to the final stage, where the trial court conducts

an evidentiary hearing. Mauro, 362 Ill. App. 3d at 441-42.

       Because this petition was dismissed at the first stage of the postconviction process, we must

determine whether the petition is frivolous or patently without merit. 725 ILCS 5/122--2.1(a)(2)

(West 2004). A petition is considered frivolous or patently without merit when the allegations in

the petition fail to present the gist of a constitutional claim. People v. Harris, 224 Ill. 2d 115, 126

(2007); People v. Little, 335 Ill. App. 3d 1046, 1050 (2003). "The 'gist' standard is 'a low

threshold.' " Edwards, 197 Ill. 2d at 244, quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996).

Although a "gist" is something more than a bare allegation of a deprivation of a constitutional right

(People v. Prier, 245 Ill. App. 3d 1037, 1040 (1993)), it is something less than a completely pleaded

or fully stated claim (Edwards, 197 Ill. 2d at 245). Thus, to set forth the gist of a constitutional

claim, the petition need present only a limited amount of detail and need not set forth the claim in

its entirety. Edwards, 197 Ill. 2d at 244. In resolving whether the petition is frivolous or patently

without merit, the trial court must accept as true all well-pleaded allegations, unless the allegations

are positively rebutted by the record. Little, 335 Ill. App. 3d at 1050. We review the summary

dismissal of a petition de novo. Little, 335 Ill. App. 3d at 1051.



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       Initially, the State argues that defendant waived the issue for his failure to raise it in his

original 1998 postplea motion or in his 2002 postplea motion. See 210 Ill. 2d R. 604(d) ("Upon

appeal any issue not raised by the defendant in the motion to *** withdraw the plea of guilty and

vacate the judgment shall be deemed waived"). We reject the State's waiver argument. As the State

acknowledges, a similar argument was rejected in Whitfield:

       "It is undisputed that the circuit court failed to admonish defendant [regarding MSR]. Under

       the circumstances, it would be incongruous to hold that defendant forfeited the right to bring

       a postconviction claim because he did not object to the circuit court's failure to admonish

       him. To so hold would place the onus on defendant to ensure his own admonishment in

       accord with due process. Moreover, defendant alleges that it was not until he was in prison

       that he learned that his sentence had been increased by a three-year period of MSR.

       Therefore, he could not have raised the error in a motion to withdraw his plea or a direct

       appeal." Whitfield, 217 Ill. 2d at 188.

In the present case, defendant similarly alleged that he had just recently learned from his place of

confinement that he would have to serve a three-year term of MSR. Accordingly, defendant could

not have raised the admonishment error in his motion for reconsideration or in his motion to

withdraw his pleas.

       The State additionally asserts that "[it] would normally rely on the waiver of the issue" on

direct appeal, but it notes that defendant alleges that he received ineffective assistance of appellate

counsel. We agree with the State that the admonishment error is technically waived for failure to

raise it on direct appeal. The record affirmatively establishes that defendant was aware of the

admonishment error while his direct appeal was pending but dismissed the appeal on his own



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motion. Nonetheless, in his postconviction petition, defendant alleged that his appellate counsel

rendered ineffective assistance of counsel in advising him to abandon his appeal. In postconviction

proceedings, the doctrine of waiver will be relaxed where the waiver allegedly stems from the

incompetence of appellate counsel. See People v. Mahaffey, 194 Ill. 2d 154, 171 (2000).

Accordingly, we address the merits of defendant's claim.

       Under the circumstances in this case, we agree with defendant that Whitfield is controlling.

In Whitfield, the defendant pleaded guilty pursuant to a negotiated plea agreement that provided he

would receive a 25-year sentence for a conviction of first degree murder and a concurrent 6-year

sentence for a conviction of armed robbery. Whitfield, 217 Ill. 2d at 179. The defendant had not

been advised either in plea negotiations or by the trial court that he would be subject to a period of

MSR following his murder sentence. Whitfield, 217 Ill. 2d at 180. The defendant did not file a

motion to withdraw his plea or a direct appeal. Whitfield, 217 Ill. 2d at 180. However, "sometime

while [he] was in prison," he learned of the MSR term that had been added to his prison sentence,

and he sought postconviction relief. Whitfield, 217 Ill. 2d at 180.

       The supreme court agreed with the defendant's argument that "his constitutional right to due

process and fundamental fairness was violated because he pled guilty in exchange for a specific

sentence, but received a different, more onerous sentence than the one he agreed to." Whitfield, 217

Ill. 21d at 188-89. The supreme court reasoned that a defendant who shows that his guilty plea was

entered in reliance on a plea agreement has a due process right to enforce the terms of the agreement.

Whitfield, 217 Ill. 2d at 189. Because the defendant had not been admonished of it, adding the term

of MSR to the negotiated sentence was a "unilateral modification and breach" of the plea agreement.

Whitfield, 217 Ill. 2d at 190.



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       Having determined that the defendant's constitutional rights were violated, the supreme court

considered the proper remedy. Generally, when a defendant does not receive the benefit of his plea

bargain, he may elect between two remedies: he may be given the opportunity to withdraw his plea,

or he may enforce the State's promise. Whitfield, 217 Ill. 2d at 202. The defendant in Whitfield

asked that the plea agreement be enforced. Whitfield, 217 Ill. 2d at 202. However, he also conceded

that "a term of [MSR] is mandated by statute and legally cannot be struck from his sentence."

Whitfield, 217 Ill. 2d at 202. Therefore, the defendant asked that his 25-year prison sentence plus

3 years of MSR be modified to 22 years' imprisonment plus 3 years of MSR, in order to approximate

the 25-year sentence for which he had bargained. Whitfield, 217 Ill. 2d at 203. The supreme court

found this remedy to be appropriate. Whitfield, 217 Ill. 2d at 203.

       Here, as in Whitfield, defendant's constitutional right to due process was violated, because

it is undisputed that defendant was not admonished that a three-year term of MSR would be added

to his prison sentence. Defendant bargained for a maximum sentence of 30 years yet received a more

onerous punishment once statutorily mandated MSR was added to the sentence. Defendant therefore

seeks the same remedy provided in Whitfield: he asks that his 30-year prison sentence plus 3 years

of MSR be reduced to 27 years' imprisonment plus 3 years of MSR, to approximate the 30-year

maximum sentence for which he bargained.

       We reject the State's argument that Whitfield does not apply to this case because Whitfield

involved a "fully negotiated" plea, whereas defendant here negotiated only a sentencing cap.

Whatever the distinction between a fully negotiated plea and a sentencing cap, it has no relevance

here, where the sentencing cap for which defendant bargained was the very term that was violated.

Defendant negotiated a cap of 30 years' imprisonment, and the court imposed a 30-year sentence.



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Indeed, the State acknowledges that "the trial court imposed a 30-year term for armed robbery, the

maximum allowed under the agreement." The MSR term therefore effectively extended the sentence

beyond the negotiated maximum just as it would if the prison term had been specifically negotiated.

Like the defendant in Whitfield, defendant here did not receive the benefit of his plea bargain.

       Further, this case is not like People v. Jarrett, 372 Ill. App. 3d 344 (2007), upon which the

State relies. There, in exchange for the defendant's guilty plea, the State agreed to drop certain

pending charges and it offered a sentencing cap of 10 years. In admonishing the defendant at

sentencing, the trial court stated, " '[t]here's what's called mandatory supervised release, what we

used to call parole, up to 3 years.' " (Emphasis omitted.) Jarrett, 372 Ill. App. 3d at 345-46. The

trial court asked the defendant if he understood the penalties, and the defendant said yes. Thereafter,

the trial court sentenced the defendant to eight years' imprisonment plus three years of MSR. In his

postconviction petition, the defendant argued that, because MSR was not discussed during plea

negotiations, the addition of the 3-year MSR term to his 8-year prison sentence exceeded the agreed-

upon sentencing cap of 10 years, and, thus, it violated his due process rights. The trial court

summarily dismissed his petition. The reviewing court affirmed on appeal. The court rejected the

defendant's Whitfield argument because, unlike in Whitfield (and unlike in this case), the Jarrett

defendant was advised of the possibility of three years' MSR, and the written sentencing judgment

reflected the terms of the MSR. Jarrett, 372 Ill. App. 3d at 352.

       We also reject the State's argument that, because "the record affirmatively shows that this

defendant had been on MSR twice before he committed the offense, and that he was on parole when

he committed this series of robberies," defendant should not be permitted to argue that the court's

failure to admonish him about MSR denied him his right to due process. In Whitfield, the State


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argued that the defendant should have been required to prove that he was not actually aware that a

period of MSR had been added to his sentence, and the State "speculate[d] [that] defendant had some

level of general knowledge about MSR terms as a result of his criminal history." Whitfield, 217 Ill.

2d at 200. The supreme court rejected this argument and concluded that, "[w]here *** the record

contains no evidence which affirmatively shows that defendant knew that he would be subject to an

MSR term, defendant's alleged unawareness must be taken as true." Whitfield, 217 Ill. 2d at 200.

Here, defendant alleged that he did not know about the MSR until after he was informed by "his

place of confinement."

       For the reasons given, we reverse the judgment of the circuit court dismissing defendant's

petition and, pursuant to Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), we modify defendant's

sentence to a 27-year term of imprisonment followed by 3 years of MSR.

       Reversed; sentence modified.

       GILLERAN JOHNSON, P.J., and HUTCHINSON, J., concur.




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