                            NO. 4-06-0607        Filed 4/5/07

                        IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Macon County
FELIPE R. JARRETT,                     )    No. 03CF1185
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Scott B. Diamond,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE MYERSCOUGH delivered the opinion of the court:

          Defendant, Felipe R. Jarrett, pleaded guilty to one

count of unlawful possession of a controlled substance with

intent to deliver in exchange for the State's agreement to "a cap

of 10 [years]" on his sentence and to dismiss other charges.       The

trial court sentenced defendant to eight years' imprisonment and

three years of mandatory supervised release (MSR).     Defendant

filed no direct appeal.    In May 2006, defendant filed a

postconviction petition alleging (1) his constitutional rights

were violated because he pleaded guilty in exchange for a

specific sentence but received a different, more onerous sentence

than that to which he agreed, i.e., the 8-year prison term and

the 3 years' MSR added up to more than the agreed-upon 10-year

cap; and (2) his trial counsel was ineffective because he did not

adhere to defendant's request to file a timely motion to reduce

defendant's sentence.    In July 2006, the trial court summarily
dismissed defendant's petition as frivolous and patently without

merit.    Defendant appeals.    We affirm.

                               I. BACKGROUND

            On July 22, 2004, defendant entered a partially

negotiated guilty plea to unlawful possession of a controlled

substance with intent to deliver (720 ILCS 570/401(a)(1)(A) (West

2002)).    In return for defendant's guilty plea, the State agreed

to drop other charges pending against defendant and "offer[ed] to

cap at 10 years."    On September 9, 2004, the trial court

sentenced defendant to eight years' imprisonment and three years'

MSR.    Defendant filed no direct appeal.

            The transcript of the plea hearing reveals the

following.    The prosecutor stated defendant would be pleading

guilty and "the State will offer to cap at 10 years.     We'll

dismiss the remaining counts as well as the counts in" another

case.    The following exchange then took place:

                 "THE COURT: And he's going to plead

            guilty and apply for probation, and you're

            going to recommend a cap of no more than--

                 [PROSECUTOR]: 10

                 THE COURT: --10, and all the other

            charges against this defendant in both files

            are going to be dismissed.

                 [PROSECUTOR]: Yes."


                                   - 2 -
The court then stated it understood the agreement but had to

admonish defendant pursuant to Supreme Court Rule 402 (177 Ill.

2d R. 402) to make sure defendant also understood the agreement.

The court explained defendant was charged with a Class X felony

that "has a possible sentence of from 6 to 30."   The court

further noted the following:

                "There's a possible fine up to

          $500,000.00.   There's what's called mandatory

          supervisory release, what we used to call

          parole, up to 3 years.    You're not eligible

          for probation for this offense.

                Do you think you understand the

          penalties you could get, not what you're

          going to get[?]" (Emphasis added.)

Defendant responded "Yes."   Defendant then waived his right to a

jury trial and his right to be confronted by the witnesses

against him.   The trial court then reiterated that defendant was

agreeing to plead guilty to the one count, and in exchange, all

other charges would be dismissed.   Defendant acknowledged that

was his understanding of the agreement.   When asked if "anybody

used any force, made any threats, or made any promises to [him]

other than the promises in the plea agreement to get [him] to"

plead guilty, defendant answered no.   The prosecutor recited the

factual basis for defendant's guilty plea, and the court accepted


                               - 3 -
it.   The court then stated the following:

                 "So that means, sir, at this time, you

            know that you cannot receive more than 10

            years although your counsel is free to argue

            for less than 10 years.

                 So, at this point, I'm going to accept

            your pleas of guilty, enter [j]udgment of

            [c]onviction, order a [p]resentence

            [i]nvestation [r]eport, and allot it for a

            sentence hearing."

            At sentencing on September 9, 2004, the trial court

stated it wanted to hear sentencing alternatives and asked

whether there was a plea agreement.       The prosecutor stated "[t]he

People agreed to a cap of 10."     After arguments, the court

sentenced defendant as stated.     Defendant filed no direct appeal.

            On May 30, 2006, defendant filed a pro se petition for

postconviction relief.    Defendant's petition alleged his trial

counsel disregarded his request to file a motion to reduce

sentence.    The petition further alleged defendant's

constitutional due-process and fundamental-fairness rights were

violated because he pleaded guilty "in exchange for a specific

sentence, but received a different, more onerous sentence than"

that to which he agreed to.      Defendant characterized the nature

of his claim as a "benefit[-]of[-]the[-]bargain" claim and stated


                                  - 4 -
he sought specific performance of the plea agreement.      Defendant

emphasized he did not seek to vacate his guilty plea.      Defendant

further alleged the following:

                 "The specific terms of my plea were that

          I would plead guilty in exchange for

          dismissal of other charges (a different case)

          and a sentence cap of 10 years.    Initially

          the State offered dismissal of the other case

          and a sentence of 10 years (see attached

          memo); however, after further negotiations,

          the offer was amended to a 10[-]year cap on

          the sentence rather than the original offer

          of a 10[-]year sentence.

                 [MSR] was not discussed during the plea

          negotiations. [T]he plea offer made no

          mention of a 3[-]year MSR term in addition to

          any term of imprisonment within the [10-]year

          cap.    I was not informed during the plea

          negotiations that any parole or MSR term

          would be in addition to, rather than within,

          the agreed term of the sentence.    I did not

          agree to a sentence cap of 13 years (10 years

          plus 3 years['] MSR).    I was not advised, nor

          was it a part of my agreement that the total


                                 - 5 -
           sentence, including MSR, could exceed the

           agreed cap on the sentence.   The [c]ourt

           imposed [an eight-]year term of imprisonment,

           and because my offense is a Class X, I am

           subjected to an additional [three-]year MSR

           term (which is included on the judgment and

           sentencing order entered in this case).

           Thus, the total sentence imposed in this case

           is 11 years (8 years plus 3 years['] MSR),

           and said sentence exceeds the agreed sentence

           cap by 1 year."   (Emphasis added.)

Defendant's petition further alleges the addition of the

statutorily mandated three-year MSR term exceeds the agreed-upon

sentence cap of his plea agreement and that failure to enforce

the terms of his plea agreement would violate his constitutional

due-process rights.

           Defendant also claimed he instructed his attorney to

file a motion to reduce sentence.    Defendant alleged his attorney

disregarded this request after telling him he needed to withdraw

his guilty plea first.

           On July 19, 2006, the trial court dismissed defendant's

postconviction petition as frivolous and without merit.    The

court attached a copy of the transcript of the guilty plea

hearing.   The court found defendant's contention that the trial


                                - 6 -
court failed to admonish him of a period of three years' MSR at

the guilty-plea hearing was in error and noted that at the bottom

of page four of the transcript of the hearing the trial court had

said the following: "There's what is called a mandatory

supervisory release, what we used to call parole, up to 3 years."

The court then dismissed the instant petition.

            Defendant filed a "motion to reconsider and vacate

dismissal order."    The motion contained the same allegations

contained in defendant's petition for postconviction relief.

Defendant acknowledged the trial court mentioned a three-year

period of MSR when reciting the range of possible penalties.

However, defendant noted that "the court clearly specified that

these were only possible penalties that could be imposed in

absence of the plea agreement; the court stated: 'Do you think

you understand the penalties you could get, not what you're going

to get?'"    The court denied the motion.

            This appeal followed.

                            II. ANALYSIS

            On appeal, defendant argues the trial court erred in

dismissing his postconviction petition because the sentence he

received was greater than that to which he agreed during his

guilty-plea hearing.    Specifically, he argues he was not informed

the 3-year term of MSR would be added to his term of imprisonment

and that the MSR period would not be included in his agreed-upon


                                - 7 -
cap of 10 years.   In the alternative, defendant argues his trial

counsel was ineffective because counsel did not file a motion to

reduce sentence as instructed by defendant.   We affirm.

                   A. Post-Conviction Hearing Act

           The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1

through 122-8 (West 2002)) allows a defendant to collaterally

challenge his or her conviction or sentence for violations of

federal or state constitutional rights.   People v. Tenner, 175

Ill. 2d 372, 377, 677 N.E.2d 859, 862 (1997).     A petition for

postconviction relief must "clearly set forth the respects in

which petitioner's constitutional rights were violated" and

"shall have attached thereto affidavits, records, or other

evidence supporting its allegations or shall state why the same

are not attached."   725 ILCS 5/122-2 (West 2002).    "Any claim of

substantial denial of constitutional rights not raised in the

original or an amended petition is waived."   725 ILCS 5/122-3

(West 2002).

           The Act provides a three-step process for adjudicating

petitions for postconviction relief in non-death-penalty cases.

People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106

(1996).   The first stage requires the trial court to review the

petition to determine if it is "frivolous or is patently without

merit."   725 ILCS 5/122-2.1(a)(2) (West 2002).     The court shall

dismiss the petition in a written order if it determines the


                               - 8 -
petition is frivolous or patently without merit.   725 ILCS 5/122-

2.1(a)(2) (West 2002).    The allegations in the petition, taken as

true and liberally construed, need only present the gist of a

constitutional claim to survive first-stage dismissal.      People v.

Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001).     "This

is a low threshold and a defendant need only present a limited

amount of detail in the petition.   At this stage, a defendant

need not make legal arguments or cite to legal authority."

Gaultney, 174 Ill. 2d at 418, 675 N.E.2d at 106.

           In the instant case, the trial court dismissed the

petition at the first stage.   Accordingly, we must only determine

whether defendant's petition set forth "the 'gist of a

constitutional claim.'"    Edwards 197 Ill. 2d at 244, 757 N.E.2d

at 445, quoting Gaultney, 174 Ill. 2d at 418, 675 N.E.2d at 106.

We review a trial court's dismissal of a postconviction petition

without an evidentiary hearing de novo.    People v. Simms, 192

Ill. 2d 348, 360, 736 N.E.2d 1092, 1105-06 (2000).

          B. Illinois Supreme Court's Ruling in Whitfield

           Defendant relies primarily on People v. Whitfield, 217

Ill. 2d 177, 840 N.E.2d 658 (2005), as support for his argument

that this court should vacate his sentence and remand to the

circuit court with directions that it impose a sentence of seven

years' imprisonment, to be followed by a term of three years'

MSR.   In Whitfield, the prosecutor set forth the terms of the


                                - 9 -
agreement by stating the defendant "'will receive 25 years IDOC'"

for his guilty plea to felony murder and a concurrent "'six years

IDOC'" for his guilty plea to armed robbery.    Whitfield, 217 Ill.

2d at 179, 840 N.E.2d at 661.    Neither the trial court nor the

prosecutor advised the defendant he would be subject to a 3-year

period of MSR following his 25-year sentence for felony murder.

Whitfield, 217 Ill. 2d at 180, 840 N.E.2d at 661.    The sentencing

order did not reference the three-year MSR term required by law.

Whitfield, 217 Ill. 2d at 180 n.1, 840 N.E.2d at 661 n.1.    The

defendant took no direct appeal.    Whitfield, 217 Ill.2d at 180,

840 N.E.2d at 661.

           Sometime later, while serving his prison sentence, the

defendant became aware that a 3-year term of MSR had been added

to his 25-year sentence by operation of law.    Whitfield, 217 Ill.

2d at 180, 840 N.E.2d at 661.    Defendant filed a pro se motion

contending his fourteenth-amendment due-process rights were

violated because he was never advised of the MSR term that "had

been added to his negotiated sentence and resulted in a 'more

onerous' sentence than the one he had agreed to when he pled

guilty."   Whitfield, 217 Ill. 2d at 180, 840 N.E.2d at 661.    The

defendant did not seek to withdraw his guilty plea; instead he

sought to hold the State to the terms of the plea agreement.

Whitfield, 217 Ill. 2d at 180-81, 840 N.E.2d at 661.

Accordingly, the defendant sought to eliminate the MSR term or to


                                - 10 -
reduce his prison term by the length of the MSR term.     Whitfield,

217 Ill. 2d at 181, 840 N.E.2d at 661.   The circuit court

dismissed the postconviction petition at the second stage.

Whitfield, 217 Ill. 2d at 181, 840 N.E.2d at 662.   The appellate

court affirmed.   Whitfield, 217 Ill. 2d at 182, 840 N.E.2d at

662.

          On appeal to the supreme court, the defendant

maintained the due-process clauses of the Illinois and United

States Constitutions and Illinois Supreme Court Rule 402(a) (177

Ill. 2d R. 402(a)) required the circuit court to admonish him

that a three-year MSR term would be added to his sentence before

accepting his negotiated plea for the offense of murder.

Whitfield, 217 Ill. 2d at 182, 840 N.E.2d at 662.   Further, the

defendant argued that because the circuit court failed to

admonish him, adding the MSR term to his sentence violated due

process, fundamental fairness, and principles of contract law.

Whitfield, 217 Ill. 2d at 182, 840 N.E.2d at 662.   The defendant

asked the court to afford him the benefit of his plea bargain

with the State by modifying his sentence to a term of 25 years,

inclusive of the 3-year MSR term.   Whitfield, 217 Ill. 2d at 182,

840 N.E.2d at 662.   The State argued the defendant did not

demonstrate his constitutional rights were substantially violated

at the plea hearing that produced his conviction and sentence.

Whitfield, 217 Ill.2d at 183, 840 N.E.2d at 663.


                              - 11 -
          In its opinion, the supreme court sided with the

defendant and stated the following:

                "In the case at bar, defendant pled

          guilty pursuant to a negotiated plea

          agreement.   The terms of the plea agreement,

          as set forth by the prosecutor at the plea

          hearing, included a specific sentence of 25

          years.   The trial court ratified this

          agreement and failed to admonish defendant,

          as required by Supreme Court Rule 402, that a

          mandatory supervised release term would be

          added to the sentence defendant had agreed

          to.   Under these circumstances, we conclude

          that adding the statutorily required three-

          year MSR term to defendant's negotiated 25-

          year sentence amounts to a unilateral

          modification and breach of the plea agreement

          by the State, inconsistent with

          constitutional concerns of fundamental

          fairness.    We believe this conclusion is in

          conformity with earlier decisions of this

          court and with decisions reached by other

          jurisdictions."    Whitfield, 217 Ill. 2d at

          190-91, 840 N.E.2d at 667.


                               - 12 -
The court further stated:

          "[W]e conclude that, although substantial

          compliance with Rule 402 is sufficient to

          establish due process (People v. Fuller, 205

          Ill.2d 308, 323[, 793 N.E.2d 526, 537]

          (2002); People v. Burt, 168 Ill.2d 49, 64[,

          658 N.E.2d 375, 382] (1995)), and an

          imperfect admonishment is not reversible

          error unless real justice has been denied or

          the defendant has been prejudiced by the

          inadequate admonishment (People v. Davis, 145

          Ill.2d 240, 250[, 582 N.E.2d 714, 719]

          (1991)), 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


                             - 13 -
          hearing.    Under these circumstances, the

          addition of the MSR constitutes an unfair

          breach of the plea agreement."      (Emphasis

          added.)     Whitfield, 217 Ill. 2d at 195, 840

          N.E.2d at 669.

          The supreme court then turned to the issue of the

appropriate remedy.     The court recognized two possible remedies

when a defendant does not receive the benefit for which he

bargained: defendant must be given the opportunity to withdraw

his guilty plea or the promise must be fulfilled.         Whitfield, 217

Ill. 2d at 202, 840 N.E.2d at 673.       In Whitfield, the defendant

requested enforcement of the negotiated plea agreement as he

understood it but recognized that the term of MSR was mandated by

statute and thus legally could not be struck from his sentence.

Whitfield, 217 Ill. 2d at 202, 840 N.E.2d at 673.      Thus, the

defendant asked that his sentence be modified to 22 years'

imprisonment plus 3 years of MSR "to approximate the bargain that

was struck between the parties."     Whitfield, 217 Ill. 2d at 203,

840 N.E.2d at 673-74.    After reviewing case law from both

Illinois and other jurisdictions, the court concluded "the

appropriate remedy is to modify defendant's sentence to a term of

22 years of imprisonment, to be followed by the mandatory 3-year

term of supervised release."     Whitfield, 217 Ill. 2d at 205, 840

N.E.2d at 675.


                                - 14 -
        C. Application of Whitfield to Facts of This Case

          We have serious concerns about both the analysis and

remedy in Whitfield.   Under Whitfield defendant's remedy is

either to entirely vacate his plea or reduce his sentence by the

statutorily required term of MSR.   Years of MSR and years in

prison are not interchangeable.   Although decreasing a prison

sentence by years of MSR was sanctioned by the supreme court in

Whitfield, Whitfield should not be construed as a wholesale

approval of this practice.   For one, MSR is not a static period

of supervision.   Sections 3-3-8(a) and 3-3-8(b) of the Code of

Criminal Procedure state that the Prisoner Review Board has

discretion to release a prisoner from MSR before his term of MSR

has expired.   730 ILCS 5/3-3-8(a), (b) (West 2004).   Further,

although MSR is a hindrance on a defendant's liberty interest, so

long as the trial court informs defendant of MSR, a defendant

cannot reasonably believe that the term of MSR is included in the

possible sentence cap announced by the court.   The court in

Whitfield did not choose to reduce defendant's sentence by three

years because it found that three years of MSR were included in

the maximum sentence, but rather fashioned that remedy in an

attempt to "approximate" the original deal between the State and

defendant.

          If the facts were the same in the case sub judice as

they were in Whitfield, i.e., if the case before this court


                              - 15 -
involved a fully negotiated plea, the trial court never mentioned

MSR, and the written judgment did not reflect MSR, we would be

constrained to follow Whitfield.   See People v. Flatt, 82 Ill. 2d

250, 261, 412 N.E.2d 509, 515 (1980) ("the precedential scope of

a decision is limited to the facts before the court").    However,

in the case before us, the plea was a partially negotiated plea

(or a "'negotiated as to charge and/or sentence'" plea (see

People v. Linder, 186 Ill. 2d 67, 77-78, 708 N.E.2d 1169, 1174

(1999) (Freeman, J., specially concurring))).

          The record shows that in this case the trial court

admonished defendant he could receive a sentence in the range of

6 to 30 years' imprisonment, a possible fine of up to $500,000,

and further that "[t]here's what's called mandatory supervisory

release, what we used to call parole, up to 3 years."    The court

did not admonish defendant that the period of MSR would be in

addition to the sentence he received and would not be included in

the 10-year cap.   The court's statement that the period of MSR is

"up to 3 years" correctly requires the statutory requirement.

See 730 ILCS 5/5-8-1(d)(1) (West 2002) (every sentence on a

conviction of a Class X felony shall include, as though written

therein, a term of three years' MSR in addition to the term of

imprisonment subject to early termination).     Sections 3-3-8(a)

and 3-3-8(b) of the Code of Criminal Procedure explicitly permits

the Prisoner Review Board has discretion to release a prisoner


                              - 16 -
from MSR before his term of MSR has expired.   730 ILCS

5/3-3-8(a), (b) (West 2004).   Therefore, although it is

statutorily required to add a three-year term of MSR to

defendant's sentence, the trial court's language "up to 3 years"

is accurate considering the possibility that the Prison Review

Board has discretion to release defendant from MSR early.

          "[T]he burden is on the defendant to establish that the

circumstances existing at the time of the plea, judged by

objective standards, justified the mistaken impression."     Davis,

145 Ill. 2d at 244, 582 N.E.2d at 716.   The court mentioned MSR

at the same time it addressed additional fines.   If defendant

understood that the fines were in addition to his 10-year

sentence, it is unreasonable to conclude he did not know that MSR

would also be in addition to his sentence.

           Unlike Whitfield, defendant was advised of the

possibility of three years' MSR, the court told him it was

parole, and when the court asked if he understood the penalties,

he said yes.   Also, defendant was given the chance to withdraw

his plea after being so admonished but he persisted in his guilty

plea.   While the trial court's admonishment could have been

improved by explicitly stating that MSR was in addition to any

sentence he received, imperfect admonishment is a violation of

due process where real justice has been denied or defendant has

shown prejudice.   Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at


                               - 17 -
669, citing Davis, 145 Ill. 2d at 250, 582 N.E.2d at 719.

Defendant's due-process rights have not been denied here, nor has

real justice been denied.

          Further, unlike Whitfield, the written sentencing

judgment did reflect the term of MSR.     Therefore, we decline the

invitation to expand Whitfield, which only applies where the

judge failed to entirely mention MSR before taking the plea and

failed to include it in the judgment of sentence.

              D. Ineffective Assistance of Counsel

          Next, defendant argues he was denied the effective

assistance of counsel because his attorney refused to file a

timely motion to reduce sentence.    Defendant’s affidavit attached

to his petition stated the following:

                  "Subsequent to the time I was sentenced,

          I asked my attorney to file a timely motion

          for reduction of sentence on my behalf so

          that I could appeal the sentence in this

          case.    My attorney informed me that I could

          not seek a reduction in the sentence without

          taking back the plea by a motion to vacate

          the plea and proving that the plea was not

          voluntary, and my attorney disregarded my

          request to file a motion to reduce the

          sentence."


                                - 18 -
The trial court did not address defendant's ineffective-

assistance-of-counsel claim when summarily dismissing defendant’s

pro se petition.   The fact the court did not address this claim

is of no moment because an appellate court can affirm based on

any ground warranted by the record.     People v. Rivera, 346 Ill.

App. 3d 398, 405, 803 N.E.2d 882, 888 (2002).

          As discussed earlier, defendant alleges his sentence to

prison and MSR exceeded the agreed-upon cap.    Thus, defendant

claims that under Whitfield he was not required to withdraw his

guilty plea when seeking to hold the State to its bargain.

Because his trial counsel told him otherwise, counsel was

allegedly ineffective.   We disagree.

          We have already declined to extend Whitfield to the

circumstances of this case.   Thus, the "normal" rules regarding

asking the trial court to reconsider a sentence after a guilty

plea apply.   When a defendant agrees to plead guilty in exchange

for a recommended sentencing cap and the dismissal of certain

charges, the defendant must move to withdraw his guilty plea

before asking the trial court to reconsider his sentence when the

defendant has been sentenced within the agreed-upon cap.     Linder,

186 Ill. 2d at 74, 708 N.E.2d at 1172-73. Defendant here was

sentenced within the cap.   Thus, counsel was correct when telling

defendant he needed to withdraw his guilty plea before asking the

court to reconsider his sentence.   Further, defendant has made it


                              - 19 -
perfectly clear he does not want to withdraw his guilty plea.

Accordingly, defendant has not made the gist of a constitutional

claim that trial counsel was ineffective.

                         III. CONCLUSION

          For the reasons stated, we affirm the trial court.    As

part of our judgment, we grant the State's request that defendant

be assessed $75 as costs for this appeal.

          Affirmed.

          KNECHT and COOK, JJ., concur.




                             - 20 -
