                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                               People v. Guerrero, 2012 IL 112020




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROLANDO
Court:                     GUERRERO, Appellee.



Docket No.                 112020
Filed                      February 17, 2012


Held                       Leave to file a successive postconviction petition was properly denied
(Note: This syllabus       despite claimed reliance on a recent decision where the circuit court’s
constitutes no part of     factual finding of lack of cause for not raising the claim earlier was not
the opinion of the court   manifestly erroneous—sentencing challenge based on pleading guilty
but has been prepared      without advice as to mandatory supervised release.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the Third District; heard in that
Review                     court on appeal from the Circuit Court of Will County, the Hon. Amy
                           Bertani-Tomczak, Judge, presiding.



Judgment                   Appellate court judgment reversed; circuit court judgment affirmed.
Counsel on               Lisa Madigan, Attorney General, of Springfield, and James W. Glasgow,
Appeal                   State’s Attorney, of Joliet (Michael A. Scodro, Solicitor General, and
                         Michael M. Glick and Erica Seyburn, Assistant Attorneys General, of
                         Chicago, and Patrick Delfino, Terry A. Mertel and Gary F. Gnidovec, of
                         the Office of the State’s Attorneys Appellate Prosecutor, of Ottawa, of
                         counsel), for the People.

                         Michael J. Pelletier, State Appellate Defender, Peter A. Carusona, Deputy
                         Defender, and Kerry J. Bryson, Assistant Appellate Defender, of the
                         Office of the State Appellate Defender, of Ottawa, for appellee.


Justices                 JUSTICE KARMEIER delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke,
                         and Theis concurred in the judgment and opinion.



                                           OPINION

¶1        The issue presented in this appeal is whether the defendant, Rolando Guerrero,
      demonstrated cause and prejudice under section 122-1(f) of the Post-Conviction Hearing Act
      (Act) (725 ILCS 5/122-1(f) (West 2006)) sufficient to grant him leave to file a successive
      postconviction petition. That petition claimed that his due process rights were violated
      because the trial court failed to admonish him regarding his term of mandatory supervised
      release (MSR) after the parties negotiated a 50-year prison sentence in exchange for his
      guilty plea to first degree murder, the trial court informed him that it was not bound by this
      agreement, and he was ultimately sentenced to a 50-year term. The circuit court of Will
      County denied defendant leave to file his successive postconviction petition. A majority of
      the appellate court reversed, concluding that, because defendant established cause for his
      failure to raise the MSR issue at an earlier date and prejudice in that his plea was not
      knowingly and voluntarily made, his sentence should be reduced to 47 years’ imprisonment
      to be followed by a term of 3 years’ MSR. No. 3-07-0856 (unpublished order under Supreme
      Court Rule 23). We granted the State leave to appeal (Ill. S. Ct. R. 315(a) (eff. Feb. 26,
      2010)), and for the reasons that follow, we reverse the judgment of the appellate court and
      affirm the circuit court’s judgment.

¶2                                      BACKGROUND
¶3        Defendant was charged by criminal complaint with first degree murder, which occurred
      on or about September 22, 1991. The grand jury of Will County thereafter returned a bill of
      indictment on October 16, 1991. On December 2, 1991, the parties appeared before the trial
      court and the State indicated that defendant would be pleading guilty to first degree murder

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     in exchange for a recommendation of 50 years in the Department of Corrections. Defense
     counsel concurred with that representation to the court. The trial court then confirmed with
     the State that this was the extent of the negotiations.
¶4        The State presented an agreed factual basis to the trial court, after which the court advised
     defendant that first degree murder carried a minimum sentence of 20 years and a maximum
     sentence of 60 years in the Department of Corrections and up to a $10,000 fine. On the
     record, defendant verbally indicated that he understood these penalties, whereafter the court
     verified that defendant understood that the court was not bound by the plea agreement. After
     further admonitions, defendant stated that he was pleading “Guilty” to the charge, which the
     court accepted. Prior to proceeding to sentencing, the trial court raised the necessity for a
     presentence investigation (PSI) report with counsel. The attorneys for the State and defense
     agreed to waive the preparation of a PSI report.
¶5        Defense counsel then stated as follows regarding defendant’s criminal history:
              “He is approximately sixteen and a half, at this time. He was previously adjudicated
              delinquent and sentenced to the Department of Corrections as a juvenile. That
              occurred shortly before this occurred. The mittimus was stayed. So he has a mittimus
              to juvenile D.O.C. for that offense. The mittimus should reflect that he will be sent
              to the Illinois Department of Corrections, Juvenile Division.”
     Thereafter, the court approved the plea negotiations and sentenced defendant to 50 years in
     the Department of Corrections. The parties agree that the trial court did not advise defendant
     regarding the statutorily required three years of MSR that would follow the period of
     imprisonment. Nor did the trial court’s signed written judgment, entered on December 4,
     1991, order or reference any term of MSR which defendant would have to serve.
¶6        Defendant filed a pro se motion for postconviction relief on October 27, 1994. The trial
     court dismissed that petition, and the dismissal was affirmed on appeal. People v. Guerrero,
     No. 3-95-0423 (1996) (unpublished order under Supreme Court Rule 23). On December 21,
     2006, defendant filed a pro se successive postconviction petition which claimed, for the first
     time, that the trial court failed to properly admonish defendant at the time of his guilty plea
     that his sentence included a term of three years MSR and that, under People v. Whitfield, 217
     Ill. 2d 177 (2005), he was therefore entitled to a three-year reduction in his prison sentence.
     Defendant averred in his petition that he learned that the trial court had erred and that MSR
     would be applied to his sentence after speaking to Ronald Whitfield, the subject of the
     Whitfield decision, while in prison.
¶7        Counsel was appointed and filed an amended postconviction petition and a motion for
     leave to file the successive petition on May16, 2007. On October 22, 2007, the trial court
     held a hearing at which it heard testimony from defendant, including the following:
                  “MR. STRZELECKI [defense counsel]: When did you first learn of the
              mandatory supervised release period?
                  DEFENDANT: Last year with the Whitfield case.
                  MR. STRZELECKI: And specifically, what led you to becoming aware of the
              mandatory supervised release period?


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                    DEFENDANT: I was actually incarcerated with Mr. Whitfield, and he told me
                about his case that they were actually going through at that time, and I thought it had
                similar things in my case.”
       Defendant further stated that it was at this time, in 2005 or 2006, that he learned that he,
       personally, would have to serve an MSR period.
¶8          However, defendant also testified that, prior to 2005, he knew that he would have to
       serve parole once he finished his prison sentence. Defendant further testified that he “knew
       DOC was going to implement something on [his] sentence,” and acknowledged that he
       would have to “serve a term of what [he] considered to be parole.” He first gained an
       understanding of what parole meant, “when [he] got to the adult division,” which he recalled
       was “[m]aybe ’95 or ’96,” but he “wasn’t really actually thinking about parole” because he
       “had a lot of time [in prison] anyway.”
¶9          After hearing argument from counsel, the trial court made its findings, first stating that
       it could not find cause for allowing defendant to file a successive postconviction petition
       because, on cross-examination, defendant testified that he “knew” about MSR or parole. The
       court next stated as follows:
                    “Under the prejudice argument, what I’ll say is that there’s [sic] pleas that are
                Supreme Court Rule 402 conference pleas, there is [sic] pleas where the judge
                admonishes defendants as to the minimum and maximum, I’m not bound by these
                plea agreements, do you still wish to plead guilty. That’s the kind of plea that Mr.
                Guerero [sic] and the process that he entered into, and this 50 year sentence is below
                that with the mandatory supervised release.
                    I’m going to deny your client leave to file a successive petition for post-
                conviction relief.”
¶ 10        On appeal, the appellate court reversed the trial court’s order and reduced defendant’s
       sentence by three years pursuant to Whitfield. People v. Guerrero, No. 3-07-0856 (2008)
       (unpublished order under Supreme Court Rule 23). This court, in response to the State’s
       petition for leave to appeal, directed the appellate court to vacate its judgment and reconsider
       its decision in light of People v. Morris, 236 Ill. 2d 345 (2010), which held that Whitfield
       established a new rule of law that would apply only prospectively to cases where a
       defendant’s conviction was finalized after December 20, 2005, the date on which Whitfield
       was announced.
¶ 11        On remand, the appellate court again reversed. No. 3-07-0856 (unpublished order under
       Supreme Court Rule 23). The majority initially acknowledged that the Whitfield decision did
       not apply to this case, stating: “Based on the holding in Morris, we now understand this
       defendant’s claim of a due process violation must be decided by this court based on the case
       law, as it existed, prior to the Whitfield decision.” No. 3-07-0856 (unpublished order under
       Supreme Court Rule 23). The court thereafter held that defendant had established cause
       where he was not admonished of MSR by the trial court, he did not learn of the MSR
       requirements until he talked to Ronald Whitfield, Whitfield was decided after defendant’s
       initial 1994 postconviction petition, and it was “this new rule of law which defendant relied
       upon in making his claim in his successive postconviction petition.” Id. Where the court also

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       found defendant had established prejudice, it concluded that his plea was not knowingly and
       voluntarily made and he was entitled to relief. Thus, the court again modified the trial court’s
       sentencing order to reduce defendant’s sentence to 47 years’ imprisonment followed by a 3-
       year term of MSR. Id. Justice Holdridge, in dissent, argued that defendant had not shown
       “the requisite good cause for failing to raise his claim of lack of proper admonishment
       regarding MSR in his initial postconviction petition.” Id. (Holdridge, J., dissenting). The
       State now appeals.

¶ 12                                         ANALYSIS
¶ 13        As stated, the issue presented is whether the trial court properly denied defendant’s
       motion for leave to file a successive postconviction petition under section 122-1(f) of the
       Act. The State argues that our review of this issue should be de novo, citing People v.
       LaPointe, 365 Ill. App. 3d 914, 923 (2006) (aff’d on other grounds, 227 Ill. 2d 39 (2007)).
       However, in LaPointe, the panel noted that the trial court had not “found facts,” but had
       decided only that the section 122-1(f) motion itself was legally insufficient. Id. Here, the trial
       court actually held a hearing on the motion for leave to file a successive petition, wherein
       defendant elicited testimony purporting to establish cause and prejudice within the meaning
       of section 122-1(f), and the State elicited testimony purporting to show that the statutory
       requirements had not been met. Thus, the trial court necessarily had to base its ruling on the
       specific circumstances of this case and not on a broadly applicable rule of law. See People
       v. Taylor, 237 Ill. 2d 356, 373 (2010) (citing People v. Hall, 195 Ill. 2d 1, 21 (2000)).
       Therefore, the decision here will not be disturbed on review unless it is manifestly erroneous.
       Id.; People v. Rissley, 206 Ill. 2d 403, 412 (2003); People v. Pitsonbarger, 205 Ill. 2d 444,
       456 (2002). “Manifest error” has been defined as error which is clearly plain, evident and
       indisputable. Taylor, 237 Ill. 2d at 373; People v. Morgan, 212 Ill. 2d 148, 155 (2004).
¶ 14        The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2006)) provides a
       means whereby criminal defendants can assert that their convictions were the result of a
       substantial denial of their rights under the United States Constitution, the Illinois
       Constitution, or both. 725 ILCS 5/122-1(a) (West 2006); People v. Harris, 206 Ill. 2d 293,
       299 (2002). Postconviction relief is limited to constitutional deprivations that occurred at the
       original trial. People v. Coleman, 183 Ill. 2d 366, 380 (1998).
¶ 15        The Act generally limits a defendant to the filing of one postconviction petition (People
       v. Holman, 191 Ill. 2d 204, 210 (2000)) and expressly provides that any claim of substantial
       denial of constitutional rights not raised in the original or amended petition is waived. 725
       ILCS 5/122-3 (West 2006). Notwithstanding this procedural bar, claims in successive
       petitions may be reviewed when the proceedings on the original petitions are deficient in
       some fundamental way. People v. Britt-El, 206 Ill. 2d 331, 339 (2002). Section 122-1(f) of
       the Act provides the legislature’s limited grant of authority for successive petitions:
                    “Only one petition may be filed by a petitioner under this Article without leave
               of the court. Leave of court may be granted only if a petitioner demonstrates cause
               for his or her failure to bring the claim in his or her initial post-conviction
               proceedings and prejudice results from that failure. For purposes of this subsection


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                (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or
                her ability to raise a specific claim during his or her initial post-conviction
                proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not
                raised during his or her initial post-conviction proceedings so infected the trial that
                the resulting conviction or sentence violated due process.” 725 ILCS 5/122-1(f)
                (West 2006).
       It is clear that both elements or prongs of the cause-and-prejudice test must be satisfied in
       order for the defendant to prevail. Pitsonbarger, 205 Ill. 2d at 464; People v. Thompson, 383
       Ill. App. 3d 924, 929 (2008).
¶ 16        After examining the record in this case, we find that defendant cannot establish the cause
       prong of the cause-and-prejudice test. Before this court, defendant argues that even if he
       learned generally what parole meant at the time he was transferred to the adult division, the
       record fails to demonstrate that defendant knew that he, personally, would have to serve a
       term of MSR at the time of transfer. Rather, defendant contends that cause was established
       by the evidence that he met Whitfield in prison in 2005, and thereby learned about MSR and
       its application to his case. However, we agree with Justice Holdridge’s dissent below that
       “this claim is unavailing for a number of reasons.” No. 3-07-0856 (Holdridge, J., dissenting)
       (unpublished order under Supreme Court Rule 23).
¶ 17        As stated, cause is established by identifying an objective factor that impeded a
       defendant’s ability to raise a specific claim during his or her initial postconviction
       proceedings. See 725 ILCS 5/122-1(f) (West 2006). Indeed, a ruling on an initial
       postconviction petition has res judicata effect with regard to all claims that were raised or
       could have been raised in the initial petition. People v. Jones, 191 Ill. 2d 194, 198 (2000)
       (citing People v. Flores, 153 Ill. 2d 264, 274 (1992)). Thus, the question arising here is
       whether defendant’s claim that he was not admonished regarding MSR could have been
       raised in his original postconviction petition filed in 1994.
¶ 18        First, we believe it is clear from the record, as defendant acknowledges, that he
       understood the concept of parole, i.e., that he would be serving a term of parole or MSR
       following his imprisonment, when he “got to” the adult division. However, while defendant
       thought this event occurred in “[m]aybe ’95 or ’96,” his motion for extension of time to file
       his original postconviction petition states that he was, in September 1994, already an inmate
       at the Joliet Correctional Center, an adult facility. Thus, if defendant learned about parole
       upon transferring to Joliet, then he would have learned of it before he filed his original
       postconviction petition in late October 1994 and could have included his current claim in that
       petition. Additionally, the trial court, after hearing defendant testify about his knowledge of
       parole and MSR, determined that it could not find cause for allowing defendant to file a
       successive postconviction petition because, on cross-examination, defendant testified that
       he “knew” about MSR or parole prior to meeting Whitfield, thereby contradicting his
       allegation that he did not learn about MSR until 2005 or 2006.
¶ 19        As noted above, under the manifest weight standard of review, the appellate court was
       required to give great deference to the trial court’s finding of facts, and therefore should not
       have disregarded that court’s credibility determination. See People v. Deleon, 227 Ill. 2d 322,


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       332 (2008) (under the manifest weight standard, the reviewing court gives deference to the
       trial court as the finder of fact because it is in the best position to observe the conduct and
       demeanor of the witnesses, and a reviewing court will not substitute its judgment for that of
       the trial court regarding the credibility of the witnesses, the weight to be given to the
       evidence, or the inference to be drawn); In re D.F., 201 Ill. 2d 476, 498-99 (2002). Therefore,
       the appellate court erred in accepting as true defendant’s allegation that he could not have
       raised his claim earlier. See Murray v. Carrier, 477 U.S. 478, 486-87 (1986) (the mere fact
       that a defendant or his counsel failed to recognize the factual or legal basis for a claim, or
       failed to raise the claim despite recognizing it, does not constitute cause for a procedural
       default).
¶ 20        Second, defendant’s claim that he was not admonished regarding MSR was not new or
       novel. Over 30 years ago, this court decided People v. McCoy, 74 Ill. 2d 398 (1979), a case
       involving failure to admonish a defendant about mandatory parole at the time of a guilty plea.
       While McCoy, whose facts are strikingly similar to those herein, was decided against the
       defendant, the lack of precedent for a position differs from “cause” for failing to raise an
       issue, and a defendant must raise the issue, even when the law is against him, in order to
       preserve it for review. See People v. Leason, 352 Ill. App. 3d 450, 454-55 (2004); see also
       People v. Johnson, 392 Ill. App. 3d 897 (2009) (the mere possibility that defendant’s claim
       would have been unsuccessful does not equate to an objective factor external to the defense
       which precluded him from raising it in his initial postconviction petition). Moreover, there
       are several appellate court decisions which predate 1994, when defendant filed his original
       postconviction petition, and which decided the issue of failing to give an MSR
       admonishment favorably to the defendants. See People v. Didley, 213 Ill. App. 3d 910 (1991)
       (trial court’s failure to admonish defendant as to MSR rendered his guilty plea involuntary
       and, thus, defendant was entitled to plead anew); People v. O’Toole, 174 Ill. App. 3d 800
       (1988) (same); People v. Kull, 171 Ill. App. 3d 496 (1988) (same). Thus, it is clear that the
       claim of improper admonishment regarding MSR existed and could have been raised in
       defendant’s original postconviction petition.
¶ 21        Finally, we find that the appellate court majority, despite words to the contrary, erred in
       using Whitfield as the basis for its finding that defendant had established the cause prong of
       the cause-and-prejudice test. Defendant’s successive postconviction petition raised a
       Whitfield challenge, arguing that defendant had failed to receive the “benefit of the bargain”
       he made with the State when he pleaded guilty, and the appellate court granted a Whitfield
       remedy, by reducing defendant’s sentence from 50 to 47 years, to be followed by a 3-year
       term of MSR. People v. Guerrero, No. 3-07-0856 (2008) (unpublished order under Supreme
       Court Rule 23). Following this court’s remand for reconsideration in light of People v.
       Morris, 236 Ill. 2d 345 (2010), the appellate court initially acknowledged that Whitfield does
       not apply to defendant’s case. However, the majority went on to state that defendant was not
       at fault for failing to raise the MSR admonishment issue in his original postconviction
       petition because it must accept as true defendant’s claim “that he had cause for not raising
       this issue sooner because Whitfield was not decided until 2005,” and “[i]t was this new rule
       of law which defendant relied upon in making his claim in his successive postconviction
       petition.” No. 3-07-0856 (unpublished order under Supreme Court Rule 23). This finding is

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       clearly contradictory to the court’s claimed understanding that Whitfield does not apply here.
¶ 22       Using this erroneous finding of cause, the majority concluded that because defendant was
       not admonished of his MSR period at the time of his guilty plea, and “only learned of his
       right to admonishments when he met Whitfield in prison and was told of the new rule of law
       that was established in Whitfield’s case,” defendant was “entitled to relief because his plea
       was not knowingly and voluntarily made.” No. 3-07-0856 (unpublished order under Supreme
       Court Rule 23). Clearly, defendant cannot establish cause for failing to raise an involuntary
       plea claim in his initial postconviction petition by using the fact that a “benefit of the
       bargain” claim was not available at the time of that first petition. Accordingly, we hold that
       because defendant did not establish cause under section 122-1(f), his motion for leave to file
       a successive petition must be denied.
¶ 23       We believe it important to further note, for the clarification of all, that the appellate court
       also erred in holding that the proper remedy for defendant’s involuntary plea was a three-year
       reduction in his sentence. In a case such as Whitfield, where a defendant is entitled to
       postconviction relief because he did not receive the benefit of the bargain he made with the
       State when he pled guilty, he has the option of either having the promise fulfilled or of being
       given the opportunity to withdraw his plea. Whitfield, 217 Ill. 2d at 202 (citing Santobello
       v. New York, 404 U.S. 257, 262-63 (1971)). Here, however, the appellate court found that
       relief was warranted where defendant’s plea was not knowing and voluntary. The remedy
       under these circumstances, contrary to defendant’s claim herein and the appellate court’s
       finding, is not to grant defendant the “benefit of the bargain,” but is limited to allowing
       defendant leave to file a motion to withdraw his plea. See People v. Snyder, 2011 IL 111382,
       ¶¶ 24-33; Whitfield, 217 Ill. 2d at 183-87; see also Ill. S. Ct. R. 604(d) (eff. July 1, 2006).

¶ 24                                     CONCLUSION
¶ 25       Based upon the foregoing, the trial court’s finding that defendant did not establish the
       cause prong of the cause-and-prejudice test was not against the manifest weight of the
       evidence. We therefore reverse the judgment of the appellate court, and affirm the judgment
       of the circuit court denying defendant leave to file a successive postconviction petition.

¶ 26       Appellate court judgment reversed;
¶ 27       circuit court judgment affirmed.




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