                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Hunter, 2011 IL App (1st) 093023




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v.
Caption                    STANLEY HUNTER, Defendant-Appellant.



District & No.             First District, Third Division
                           Docket No. 1-09-3023


Filed                      August 31, 2011


Held                       The trial court properly dismissed defendant’s postconviction petition
(Note: This syllabus       alleging that when he entered his guilty plea to aggravated discharge of
constitutes no part of     a firearm, the trial court failed to properly admonish him that his prison
the opinion of the court   term would be followed by a term of mandatory supervised release, since
but has been prepared      the record showed that defendant was properly notified prior to his plea
by the Reporter of         that he would be sentenced to two years of MSR.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 06-CR-22521; the
Review                     Hon. Kenneth J. Wadas, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Patrick F. Cassidy, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Carol
                           L. Gaines, and Heather Fahrenkrog, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      PRESIDING JUSTICE QUINN delivered the judgment of the court, with
                           opinion.
                           Justices Murphy and Neville concurred in the judgment and opinion.



                                              OPINION

¶1          Defendant, Stanley Hunter, filed a pro se petition for postconviction relief under the Post-
        Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)), contending that when
        he entered a negotiated plea of guilty to aggravated discharge of a firearm in exchange for
        a sentence of 6½ years’ incarceration, the trial judge failed to adequately inform him that he
        would be required to serve a two-year term of mandatory supervised release (MSR) in
        addition to his prison sentence. Defendant also argued that the Illinois Department of
        Corrections (IDOC) increased his sentence by adding a term of MSR, in violation of the
        separation of powers clause of the Illinois Constitution. Ill. Const. 1970, art. II, § 1.
        Therefore, defendant contended that he was deprived of the benefit of his plea agreement and
        his right to due process. The trial judge dismissed defendant’s petition, noting that he had
        informed the defendant of the MSR term and that defendant acknowledged his understanding
        of the MSR requirement. For the reasons set forth below, we affirm that dismissal.

¶2                                       BACKGROUND
¶3          Pursuant to a negotiated plea agreement, defendant was convicted of aggravated
        discharge of a firearm (720 ILS 5/24-1.2 (West 2008)) and sentenced to 6½ years’
        incarceration. The State’s evidence demonstrated that on September 8, 2006, at
        approximately 5:30 p.m. defendant was in Franklin Park at 4312 West 15th Street in
        Chicago, Illinois. Defendant got into an argument with another man, pulled out a gun, and
        fired two shots. An 11-year-old boy who had been playing on a swing nearby was injured
        when one of the bullets ricocheted and struck him in the back of the head. Defendant was
        subsequently arrested and charged by indictment with numerous offenses and opted to plead
        guilty to aggravated discharge of a firearm rather than proceed to trial.
¶4          At the plea hearing, the State informed the judge that defendant had been offered a
        sentence of 6½ years on the charge of aggravated discharge of a firearm. The judge advised
        defendant that this was a Class 1 felony and asked him if he understood that he “could be

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     sentenced for a fixed period of time between four years minimum to 15 years maximum.”
     Defendant responded, “Yes, your Honor.” The judge then asked defendant if he understood
     that “Any period of incarceration would be followed by a period of mandatory supervised
     release of two years following your discharge from the Department of Corrections.”
     Defendant again responded, “Yes, your Honor.” The judge also asked defendant if he
     understood that “[t]he maximum fine could be $25,000. And if a person was to receive
     probation, the maximum period of probation could be four years.” Defendant said that he
     understood. Lastly, the judge asked defendant, “Knowing the nature of the charges and the
     possible penalties, do you want to plead guilty to this case at this time.” Defendant
     responded, “yes.”
¶5       The judge confirmed that defendant was aware of the rights he would be giving up by
     entering a guilty plea and asked defendant, “[o]ther than the promise that your sentence
     would be six and a half years in the Illinois Department of Corrections, have there been any
     other promises made to you to get you to plead guilty other than that?” Defendant said no.
     The court then entered judgment on defendant’s guilty plea to aggravated discharge of a
     firearm. Defendant waived his right to a presentence investigation and the court sentenced
     him, stating, “Your sentence will be six years plus six months in the Illinois Department of
     Corrections, credit for 311 days, time considered served, time actually served.” The trial
     judge made no mention of the MSR term after imposing the sentence.
¶6       Defendant did not file a motion to withdraw his guilty plea or appeal his conviction, but
     on August 5, 2009, defendant did file a pro se petition for postconviction relief. In his
     petition, defendant asserted that the trial court failed to properly admonish him that his prison
     sentence would be followed by a two-year term of MSR. Defendant requested that the trial
     court reduce his prison term in accordance with the holding of People v. Whitfield, 217 Ill.
     2d 177 (2005). On September 25, 2009, the trial court dismissed defendant’s pro se petition,
     stating, “We ordered the transcript and it turns out that I did admonish him of the two year
     term of mandatory supervised release upon completion of his sentence and accordingly, this
     petition is frivolous and patently without merit. Petition for PC relief is denied.” The court
     issued a written order explaining his dismissal. Defendant now appeals.

¶7                                         ANALYSIS
¶8            The Illinois Post-Conviction Hearing Act provides a mechanism for criminal
     defendants to challenge their convictions or sentences based on a substantial violation of
     their rights under the federal or state constitution. People v. Beaman, 229 Ill. 2d 56, 71
     (2008). Under the Act, the trial court is directed to summarily dismiss a petition at the first
     stage if the court determines “the petition is frivolous or is patently without merit.” 725 ILCS
     5/122-2.1(a) (West 2008). Our supreme court has held that a petition can be dismissed at the
     first stage as frivolous or patently without merit “only if the petition has no arguable basis
     either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 12 (2009). “A petition which lacks
     an arguable basis in law or in fact is one which is based on an indisputably meritless legal
     theory or a fanciful factual allegation. An example of an indisputably meritless legal theory
     is one which is completely contradicted by the record.” Hodges, 234 Ill. 2d at 16 (citing


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       People v. Robinson, 217 Ill. 2d 43 (2005)). In assessing the merits of a postconviction
       petition at this stage, the court is to “take all well-pleaded facts in the petition and affidavits
       as true.” People v. Coleman, 183 Ill. 2d 366, 378 (1998). We review a trial court’s first-stage
       summary dismissal of a postconviction petition de novo, which means we “are free to
       substitute our own judgment for that of the circuit court in order to formulate the legally
       correct answer.” People v. Newbolds, 364 Ill. App. 3d 672, 675 (2006).
¶9          In his main brief, defendant contends that he is entitled to a reduction in his sentence
       because the trial court failed to adequately advise him that he must serve an MSR term when
       he was sentenced to prison. Defendant argues that the trial court failed to meet the
       requirements of Supreme Court Rule 402 (Ill. S. Ct. R. 402(a) (eff. July 1, 1997)) and
       standards set out by our supreme court in People v. Whitfield, 217 Ill. 2d 177 (2005), and
       People v. Morris, 236 Ill. 2d 345 (2010), because, though the court mentioned the two-year
       MSR when admonishing defendant about the possible range of sentences defendant could
       receive, it failed to “link” the admonishment about the MSR to his actual 6½-year sentence.
¶ 10        Before accepting a guilty plea, the trial court must substantially comply with Rule 402.
       Our supreme court has held that a court fails to substantially comply with Rule 402 and
       violates the defendant’s due process rights “when a defendant pleads guilty in exchange for
       a specific sentence and the trial court fails to advise the defendant, prior to accepting his plea,
       that a mandatory supervised release term will be added to the sentence.” Whitfield, 217 Ill.
       2d at 195.
¶ 11        In Whitfield, the defendant pled guilty to charges of first degree murder and armed
       robbery pursuant to a negotiated plea agreement which provided that the defendant would
       receive concurrent sentences totaling 25 years in exchange for his guilty plea. Whitfield, 217
       Ill. 2d at 179. Although a three-year term of MSR was statutorily required to be served in
       addition to this sentence, MSR was never discussed by the State during plea negotiations and
       the defendant was never admonished of his MSR obligation by the trial court during the plea
       hearing. Whitfield, 217 Ill. 2d at 180. The defendant sought postconviction relief, arguing that
       his due process rights were violated because the MSR term added to his negotiated sentence
       resulted in a more onerous sentence than the one he had bargained before in exchange for his
       guilty plea. Whitfield, 217 Ill. 2d at 180.
¶ 12        After the trial court dismissed defendant’s petition at the second stage of postconviction
       review and this court affirmed, our supreme court reversed and found that “the court’s failure
       to advise the defendant, on the record, concerning the MSR term [is] reversible error and a
       violation of due process.” Whitfield, 217 Ill. 2d at 194. In reaching its conclusion, the court
       stated that “there is no substantial compliance with Rule 402 and due process is violated
       when a defendant pleads guilty in exchange for a specific sentence and the trial court fails
       to advise the defendant, prior to accepting his plea, that a mandatory supervised release term
       will be added to that sentence. In these circumstances, addition of the MSR term to the
       agreed-upon sentence violates due process because the sentence imposed is more onerous
       than the one defendant agreed to at the time of the plea hearing” and “constitutes an unfair
       breach of the plea agreement.” (Emphasis added.) Whitfield, 217 Ill. 2d at 195.
¶ 13        In Whitfield, there was no mention of the MSR term during the entirety of the


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       proceedings, and as a result, the court found that the defendant was not aware of the
       consequences of his plea. Here, in contrast, the trial court in advising defendant of the nature
       of the charge to which he was pleading guilty expressly admonished him that the offense
       carried a two-year period of mandatory supervised release. Specifically, the court stated that
       defendant “could be sentenced for a fixed period of time between four years minimum to 15
       years maximum” and that “[a]ny period of incarceration would be followed by a period of
       mandatory supervised release of two years following your discharge from the Department
       of Corrections.” Therefore, it is clear that pursuant to the holding in Whitfield, the trial court,
       by advising defendant of the MSR term prior to accepting defendant’s plea, substantially
       complied with the requirements of Rule 402 and did not violate defendant’s due process
       rights.
¶ 14        Defendant contends, however, that pursuant to our supreme court’s holding in People v.
       Morris, 236 Ill. 2d 345 (2010), even if a trial judge advises a defendant of his MSR term
       during the sentencing hearing, if the judge fails to reiterate the MSR term at the time the
       specific sentence is announced, the admonishment fails to comply with Rule 402 and the
       requirements of due process. While we acknowledge that the Morris court said that the
       “better practice” would be to incorporate the MSR admonition with the announcement of the
       sentence, we do not agree with defendant’s assertion that such a practice is mandatory in
       order to satisfy the requirements of due process.
¶ 15        In Morris, our supreme court took the opportunity to clarify its decision in Whitfield. In
       so doing, the court stated that Whitfield requires trial courts to advise defendants an MSR
       term “will be added to the actual sentence agreed upon in exchange for a guilty plea to the
       offense charged.” Morris, 236 Ill. 2d at 366-68. It explained that, in addition to ensuring a
       defendant enters a plea “ ‘intelligently and with full knowledge of its consequences,’ ”
       admonishments must also inform the defendant of the actual terms of the bargain made with
       the State. Morris, 236 Ill. 2d at 366 (quoting Whitfield, 217 Ill. 2d at 184). “An admonition
       that uses the term ‘MSR’ without putting it in some relevant context cannot serve to advise
       the defendant of the consequences of his guilty plea and cannot aid the defendant in making
       an informed decision about his case.” Morris, 236 Ill. 2d at 366. Additionally, the supreme
       court declared that, while a trial court’s MSR admonishments need not be perfect, the
       admonishments “must substantially comply with the requirements of [Supreme Court] Rule
       402 and the precedent of this court.” Morris, 236 Ill. 2d at 367.
¶ 16        Despite the supreme court’s efforts to clarify Whitfield, there is a disagreement among
       the appellate courts on the issue of whether a trial court’s mentioning that mandatory
       supervised release will be attached to any prison sentence when informing the defendant of
       the minimum and maximum penalties of the crimes charged satisfies due process, Rule 402
       and Whitfield. For instance, in People v. Burns, 405 Ill. App. 3d 40 (2010), the Second
       District held that a statement was insufficient because it did not link the MSR term to the
       actual sentences the defendant would receive under his plea agreement and did not convey
       unconditionally that the MSR term would be added to the agreed-upon sentences. Burns, 405
       Ill. App. 3d at 43-45. In that case, prior to accepting the defendant’s plea, the trial court
       admonished the defendant as follows:
                   “ ‘Mr. Burns, on both cases, the armed robbery, a Class X felony, and the home

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               invasion is also a Class X felony, you should be advised that a conviction on these
               offenses could result in you being sentenced to the Illinois Department of Corrections
               for a period of time from 6 to 30 years; the extended term is 30 to 60 years. There’s
               a potential fine of up to $25,000, with a period of three years mandatory supervised
               release.’ ” Burns, 405 Ill. App. 3d at 42.
¶ 17        The appellate court concluded that this admonition was not consistent with Whitfield and
       Morris, because “an ordinary person in the defendant’s place might have reasonably believed
       that he would not have to serve any MSR as a result of his plea agreement.” Burns, 405 Ill.
       App. 3d at 44. The Second District further noted it had previously found the type of
       admonishment at issue insufficient because it linked MSR to the maximum sentences rather
       than to the sentences specified in the plea agreement. Burns, 405 Ill. App. 3d at 44 (citing
       People v. Daniels, 388 Ill. App. 3d 952, 959 (2009)).
¶ 18        Defendant urges this court to follow the holding in Burns and find that unless a trial court
       links the MSR term to the specific prison sentence, due process is not satisfied. However,
       we find this court’s holding in People v. Davis, 403 Ill. App. 3d 461 (2010), to be more
       persuasive. In Davis, this court held that “under Whitfield, a constitutional violation occurs
       only when there is absolutely no mention to a defendant, before he actually pleads guilty, that
       he must serve an MSR term in addition to the agreed-upon sentence that he will receive in
       exchange for his plea of guilty. If, prior to the guilty plea admonishments, the defendant
       knows he will be sentenced to the penitentiary in exchange for his plea of guilty, and
       knowing this, he is told during the guilty plea hearing that he must serve an MSR term upon
       being sentenced to the penitentiary, then the defendant is placed on notice that his debt to
       society for the crime he admits to having committed extends beyond fulfilling his sentence
       to the penitentiary.” Davis, 403 Ill. App. 3d at 466. The court referred to this as the
       “Whitfield rule” as delineated in People v. Marshall, 381 Ill. App. 3d 724 (2008), wherein
       the court held that an admonishment to a defendant before he pled guilty that he “ ‘could get
       a penitentiary sentence and have to serve a period of three years[’] mandatory supervised
       release, which is like parole, when you get out of the penitentiary’ ” satisfied the
       constitutional standard that defendant have full knowledge of the consequences before
       entering his guilty plea. (Internal quotation marks omitted.) Davis, 403 Ill. App. 3d at 466
       (citing Marshall, 381 Ill. App. 3d at 727).
¶ 19        The Davis court noted that in Morris, our supreme court cited the Marshall decision with
       approval. Morris, 236 Ill. 2d at 367. Further the Davis court stated that “[u]ntil the supreme
       court tells us differently, we believe Marshall settles the issue of whether the Whitfield rule
       extends to the ‘sole mention’ of the MSR term in the circuit court’s preplea admonishments
       in the First District.” Davis, 403 Ill. App. 3d at 467. We concur. Although, as explained by
       the supreme court in Morris, the “better practice would incorporate the mandatory supervised
       release admonition when the specific sentencing is announced” (internal quotation marks
       omitted) (Morris, 236 Ill. 2d at 367), the trial court complied with Rule 402 and satisfied the
       requirements of due process by advising defendant prior to imposing the sentencing that he
       would have to serve two years of MSR.
¶ 20        Defendant filed a supplemental brief on December 3, 2010, raising an additional
       argument that a penal institution has no authority to increase a defendant’s sentence beyond

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       that imposed by the trial court. Defendant contends that the trial court sentenced him to 6½
       years’ imprisonment and that by requiring him to serve an additional 2 years of mandatory
       supervised release after his prison term ends, IDOC has violated his due process rights and
       the separation of powers clause of the Illinois Constitution. Ill. Const. 1970, art. II, § 1. In
       making this argument, defendant relies upon Earley v. Murray, 451 F.3d 71 (2d Cir. 2006),
       reh’g denied, 462 F.3d 147 (2d Cir. 2006). In Earley, defendant pled guilty to burglary in the
       second degree and, pursuant to a plea agreement, was sentenced to six years in prison.
       Although the New York legislature had recently passed a statute imposing a mandatory term
       of postrelease supervision (PRS) that applied to the defendant’s sentence, no term of PRS
       was included in the sentence announced in court by the judge, the written judgment or the
       written order of commitment signed by the clerk of the court. Earley, 451 F.3d at 73. After
       learning that the New York Department of Correctional Services would impose a five-year
       term of PRS to his six-year prison sentence and exhausting his remedies in state court,
       defendant filed a writ of habeas corpus in federal district court arguing that the PRS term
       violated his due process rights. Earley, 451 F.3d at 73. The district court denied the petition
       but on appeal the Second Circuit held that the term of PRS could not be applied to the
       defendant because it increased his sentence beyond that imposed by the court. Earley, 451
       F.3d at 75. Defendant in this case argues that Earley is analogous and that IDOC has no
       authority to detain him beyond the prison term announced by the trial judge. However, this
       case is distinguishable from Earley in that the trial judge here advised defendant during the
       plea hearing that any prison sentence “would be followed by a period of mandatory
       supervised release of two years following your discharge from the Department of
       Corrections.”
¶ 21       Defendant argues that because his conviction for aggravated discharge of a firearm is one
       of the offenses enumerated in subsection 3-6-3(a)(2)(iv) of the Unified Code of Corrections,
       he must serve at least 85% of the 6½-year sentence, approximately 5½ years. 730 ILCS 5/3-
       6-3(a)(2.1) (West 2008). When the 2-year MSR term is added to this minimum possible
       sentence, defendant will serve a sentence of at least 7½ years.
¶ 22       Section 5-8-1(d)(3) of the Unified Code of Corrections (Code), which addresses MSR,
       provides:
               “Except where a term of natural life is imposed, every sentence shall include as
               though written therein[,] a term in addition to the term in addition to the term of
               imprisonment. For those sentenced under the law in effect prior to February 1, 1978,
               such term shall be identified as a parole term. For those sentenced on or after
               February 1, 1979, such term shall be identified as a mandatory supervised release
               term. Subject to earlier termination under Section 3-3-8, the parole or mandatory
               supervised release term shall be as follows:
                       (1) for first degree murder or a Class X felony ***, 3 years;
                       (2) for a Class 1 felony or a Class 2 felony ***, 2 years;
                       (3) for a Class 3 felony or a Class 4 felony, 1 year[.]” 730 ILCS 5/5-8-1(d)
                    (West 2006).
¶ 23       Therefore, as made evident by the plain language of section 5-8-1(d) of the Code, the

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       MSR term is a mandatory component of defendant’s sentence. Except where a natural life
       sentence has been imposed, “every sentence shall include as though written therein a term
       in addition to the term of imprisonment.” 730 ILCS 5/5-8-1(d) (West 2006). Consequently,
       even defendants who are convicted of first degree murder and therefore “shall receive no
       good conduct credit and shall serve the entire sentence imposed by the court,” must serve a
       three-year term of MSR after serving their “entire sentence.” 730 ILCS 5/3-6-3(a)(2)(i) (West
       2008). Accordingly, the MSR term is not a negotiated release or a privilege but, rather, a
       mandatory part of defendant’s sentence. People v. Wilson, 361 Ill. App. 3d 93 (2005) (appeal
       denied and judgment ordered vacated (217 Ill. 2d 624 (2006) (supervisory op.)); opinion on
       remand 364 Ill. App. 3d 762 (2006)). As such, when defendant was sentenced by the trial
       court to 6½ years’ imprisonment, his sentence included a two-year MSR term, which would
       be served only after his release, whenever that occurred. Since, as discussed above, defendant
       was properly notified prior to his negotiated guilty plea that he would be sentenced to two
       years of MSR there is no due process violation. Further, the sentence was imposed by the
       trial court and was not added to his sentence by IDOC. Therefore, defendant’s assertion that
       his sentence was “increased” by IDOC in violation of the separation of powers clause of the
       Illinois Constitution is without merit.

¶ 24                                     CONCLUSION
¶ 25      For the reasons stated herein, we affirm the order of the circuit court.

¶ 26      Affirmed.




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