                                               FIRST DIVISION
                                               November 24, 2008




No. 1-07-1385

THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
     Plaintiff-Appellant,                 )    Cook County.
                                          )
            v.                            )
                                          )
CARLOS MUNIZ,                             )    Honorable
                                          )    James M. Schreier,
     Defendant-Appellee.                  )    Judge Presiding.

     JUSTICE WOLFSON delivered the opinion of the court:

     In 1982, defendant Carlos Muniz pleaded guilty to murder and

armed robbery in exchange for concurrent prison terms of 60 and

30 years.    In 2007, after several previous challenges to his

conviction, defendant filed a petition for post-judgment relief

asking that his prison sentences be reduced by three years

because the trial court did not admonish him of the mandatory

supervised release (MSR) period he would have to serve after he

completed his prison sentence.    The circuit court agreed and

reduced defendant's prison terms to 57 and 27 years.    The State

appeals, contending that defendant's claim was procedurally

defaulted and that the trial court erred in granting relief over

the State's objection that defendant's petition was untimely.

Defendant responds that the MSR claim at issue here is not

subject to procedural default.    For the following reasons, we

agree with the State.

     On September 27, 1982, defendant entered a negotiated plea

of guilty to murder, felony murder and armed robbery in the death
1-07-1385



of Michael Schmidt.   The court imposed the agreed upon sentence,

which consisted of two concurrent terms of 60 years for the

murder convictions and a concurrent 30-year term for armed

robbery.    Prior to accepting the plea, the trial court failed to

admonish defendant regarding the three-year MSR period he would

serve in addition to his sentence.      Defendant filed a motion to

vacate his plea, which the trial court denied following a
hearing.

     On direct appeal, we vacated defendant's conviction and

sentence for felony murder (Count III) under the one-act, one-

crime rule and affirmed the judgment in all other respects.

People v. Muniz, No. 1-82-2694 (1984) (unpublished order under

Supreme Court Rule 23).

     In June 2001, defendant filed a pro se post-conviction

petition challenging his sentences under Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).      The

trial court granted the State's motion to dismiss defendant's

petition and we affirmed.    People v. Muniz, No. 1-02-2617

(2003)(unpublished order pursuant to Supreme Court Rule 23).

     In October 2006, defendant filed a second pro se post-

conviction petition, alleging for the first time that the trial

court failed to admonish him regarding the three-year MSR period.

Defendant requested that the court modify his sentence by

granting him a three-year sentence reduction or allowing him to




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vacate his plea.    The trial court denied defendant's post-

conviction petition, stating, "[t]he sentence in this case was

imposed in 1982.    The petition, post-relief petition is denied."

In a written order, the trial court denied the petition as

"patently without merit."    Defendant filed an appeal in case 1-

07-0473.

     In February 2007, while the appeal in case 1-07-0473 was
pending, defendant filed a pro se petition under section 2-1401

of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West

2006)), alleging his negotiated plea made no reference to the MSR

term that would be added to his sentence.    Defendant asserted

that his plea was not knowing or voluntary because the trial

court did not tell him that he would automatically receive a term

of MSR.    Defendant stated that he was unaware of the MSR term

until "recently" told by "effective legal assistance and parole

staff."    Defendant requested enforcement of the negotiated plea

agreement as he understood it by modifying his 60-year prison

term to 57 years plus the 3-year term of MSR.

     The trial court appointed counsel to represent defendant in

the section 2-1401 proceeding, and the State filed a motion to

dismiss the petition.    In the motion, the State alleged that

defendant's petition did not meet the time requirements of

section 2-1401 and was therefore procedurally defaulted.    The

trial court denied the State's motion to dismiss, finding that




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1-07-1385



defendant had a viable claim under People v. Whitfield, 217 Ill.

2d 177, 840 N.E.2d 658 (2005).      The court accordingly reduced

defendant's prison sentence to 57 years for murder and 27 years
                     1
for armed robbery.       The State appeals from that judgment.

     On appeal, the State contends that the trial court erred in

granting defendant relief over the State's objection that the

section 2-1401 petition was untimely.
     There is no dispute that, absent procedural default,

defendant would have been entitled to the relief granted by the

trial court.   In Whitfield, our supreme court held that a

defendant who enters a negotiated plea but is not informed of the

required MSR term is entitled to the benefit of the bargain by

having his prison sentence reduced by the length of the MSR term.

Whitfield, 217 Ill. 2d at 205.      However, Whitfield involved a

timely postconviction petition.      The question before us is not

whether defendant has a meritorious claim, but whether he

properly asserted it in a section 2-1401 petition filed 24 years

after his conviction.

     Section 2-1401 is intended to correct errors of fact,

unknown to the petitioner and the court at the time of the

judgment, which would have prevented the rendition of the

judgment had they been known.      People v. Pinkonsly, 207 Ill. 2d


     1
        After this relief was granted, defendant dismissed his
appeal in number 1-07-0473.



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1-07-1385



555, 565-66, 802 N.E.2d 236 (2003).      The petition must be filed

no later than two years after the judgment, unless the petitioner

is under legal disability or duress, or the ground for relief is

fraudulently concealed.   735 ILCS 5/2-1401(c) (West 2006); People

v. Vincent, 226 Ill. 2d 1, 7, 18, 871 N.E.2d 17 (2007).      If these

requirements are not met, the petition "cannot be considered."

Pinkonsly, 207 Ill. 2d at 562.    However, a request for relief
from a void judgment is not affected by the limitations period.

735 ILCS 5/2-1401(f) (West 2006).    Also, in a criminal case, the

State may waive the limitations period by not raising a

timeliness challenge in the trial court.      Pinkonsly, 207 Ill. 2d

at 564.

     Here, defendant filed his petition 24 years after the

judgment being challenged, and there is no suggestion of legal

disability, duress or fraudulent concealment.     Although

defendant's brief asserts, in a single sentence, that his claim

"raises the same concerns associated with void sentences," he

does not argue that the judgment was void.     In People v. Molina,

379 Ill. App. 3d 91, 96, 882 N.E.2d 1212 (2008), a case in which

we applied procedural default to an MSR claim raised in a

successive postconviction petition, we recognized that "Whitfield

did not address the issue of whether the defendant's plea was

void."    Under these circumstances, where defendant's petition was

neither timely nor void, and the State raised the bar of




                                 - 5 -
1-07-1385



untimeliness in the trial court, the trial court erred in

granting the petition.

     Defendant tries to circumvent the procedural bar by asking

us not to "pigeonhole" his claim into "section 2-1401's two-year

statute of limitations and the statutory exceptions to that

filing deadline."   But it is defendant who chose to bring his

claim under section 2-1401, and the trial court's judgment on the
petition is the only judgment before us in this appeal.

     Defendant then argues that a Whitfield claim cannot be

procedurally defaulted if (1) the trial court did not inform the

defendant about MSR, and (2) the defendant did not learn that he

was subject to MSR until he was in prison, sometime after the

time to directly appeal had expired.     See Whitfield, 217 Ill. 2d

at 180-81.   He points out that the second district adopted this

position in People v. Welch, 376 Ill. App. 3d 705, 877 N.E.2d 134

(2007), where it granted relief on a successive postconviction

petition without considering whether the defendant met the cause-

and-prejudice test.

     We are not persuaded by Welch.      As the dissenting justice

pointed out, the majority based its decision on when the

defendant allegedly became aware that he had a legal claim

involving MSR instead of when he became aware of the fact that he

would have to serve MSR.   Welch, 376 Ill. App. 3d at 710-11 (J.

Gilleran Johnson, dissenting).    Also, in Molina, this district




                                 - 6 -
1-07-1385



recently applied procedural default to an MSR claim raised in a

successive postconviction petition.    In doing so, we rejected the

interpretation of Whitfield advanced in Welch, and held that

"Whitfield does not represent a change in the law so as to excuse

the untimely filing of defendant's petition."    Molina, 379 Ill.

App. 3d at 98.   We adhere to the reasoning of Molina and conclude

that the trial court erred in granting defendant relief.
     Based on the foregoing, this cause is reversed and remanded

to the trial court to vacate its order granting relief and to

vacate the sentence reduction it allowed, reinstating the

concurrent 60-year and 30-year sentences initially imposed.    See

Molina, 379 Ill. App. 3d at 100.

     Reversed and remanded.

     R. GORDON, P.J., and GARCIA, J., concur.




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1-07-1385


                  REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                     (Front Sheet to be Attached to Each Case)

  Please use              THE PEOPLE OF THE STATE OF ILLINOIS,
following form:
                                        Plaintiff-Appellant

  Complete                       v.
    TITLE
   of Case                CARLOS MUNIZ,

                                        Defendant-Appellee.


  Docket Nos.                            No. 1-07-1385

    COURT                             Appellate Court of Illinois
                                      First District, 1st Division
   Opinion
    Filed                                 November 24, 2008

                                      (Give month, day and year)

  JUSTICES                JUSTICE WOLFSON delivered the opinion of the court:

                          GORDON, P.J., and GARCIA, J., concur.



APPEAL from the     Lower Court and Trial Judge(s) in form indicated in margin:
Circuit Court of
Cook County; the          Appeal from the Circuit Court of Cook County.
Hon.___________,
Judge Presiding.            The Hon. James M. Schreier, Judge Presiding.


For APPELLANTS,     Indicate if attorney represents APPELLANTS or APPELLEES and
John Doe, of        include attorneys of counsel. Indicate the word NONE if
Chicago.            not represented.

For APPELLEES,            For Appellant, Richard A. Devine, State's Attorney
Smith and Smith,          of Cook County, of Chicago. (James E. Fitzgerald,
of Chicago                Michele Grimaldi Stein, and Miles J. Keleher, of counsel).


                          For Appellee, Patricia Unsinn, Deputy Defender,
Joseph Brown,             and Christopher Kopacz, Assistant Appellate Defender,
of counsel).              Office of the State Appellate Defender, of Chicago.

Also add attor-
neys for third-
party appellants
and/or appellees.

                            (USE REVERSE SIDE IF NEEDED)




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