                                                    FIRST DIVISION
                                                    August 9, 2010




No. 1-08-3498


THE PEOPLE OF THE STATE OF ILLINOIS,     )    Appeal from the
                                         )    Circuit Court of
          Plaintiff-Appellee,            )    Cook County.
                                         )
     v.                                  )    Nos. 04 CR 27095
                                         )         05 CR 17363
                                         )
DARNELL DAVIS,                           )    The Honorable
                                         )    James B. Linn,
          Defendant-Appellant.           )    Judge Presiding.


     JUSTICE GARCIA delivered the opinion of the court.

     The defendant, Darnell Davis, filed a pro se petition for

relief under the Post-Conviction Hearing Act (Act) (725 ILCS

5/122-1 et seq. (West 2008)), contending the trial judge failed

to follow the rule established by the Illinois Supreme Court in

People v. Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005).     In

his postconviction petition, the defendant alleged the trial

court failed to inform him at the time he was sentenced on his

negotiated guilty plea that he would serve a three-year term of

mandatory supervised release (MSR) following the 16-year sentence

he accepted and, thus, breached the terms of his plea agreement

and violated his constitutional right to due process.   In his

first-stage review of the postconviction petition, the trial

judge recalled he informed the defendant of the MSR term and

summarily dismissed the petition.   The defendant argues that on
No. 1-08-3498

the record before us he has demonstrated that his sentence should

be reduced by the MSR term.    The transcript reveals that the

trial judge informed the defendant that "[he] would have to serve

at least three years mandatory supervised release, which is like

parole," before he entered his guilty plea.    This admonishment is

indistinguishable from the admonishment found sufficient by this

court in People v. Marshall, 381 Ill. App. 3d 724, 886 N.E.2d

1106 (2008).    Accordingly, we find the defendant's postconviction

theory of relief has no arguable basis in law or fact, and

affirm.

                              BACKGROUND

     On February 24, 2006, the defendant appeared before the

trial judge on two cases: No. 04 CR 27095 and No. 05 CR 17363.

The '04 case was on the call for a sentencing hearing following a

bench trial guilty verdict on September 15, 2005, to the charge

of aggravated battery; the '05 case came to be heard on a

negotiated guilty plea hearing.    Because the defendant was on

pretrial release on the '04 case when he was arrested on the '05

case, he faced mandatory consecutive sentences.    730 ILCS 5/5-8-

4(8) (West 2006).   The guilty plea hearing on the '05 case was

heard first, followed by the imposition of sentences on each

case.

     The '05 case involved a multicount indictment charging the

defendant with two counts of attempted first-degree murder, two

counts of aggravated battery with a firearm, one count of


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No. 1-08-3498

aggravated unlawful use of a weapon, one count of unlawful use of

a weapon by a felon, two counts of aggravated battery and one

count of felony unlawful use of a weapon.     The indictment stemmed

from a street altercation following a party in which the

defendant pulled a short shotgun from his pants, that he fired

twice at two individuals, seriously injuring one.     The parties

stipulated that the defendant would be positively identified as

the shooter by six individuals, including the seriously injured

victim.   Prior to the guilty plea hearing, the State had agreed

to proceed on a single count of aggravated battery with a

firearm, count III of the indictment.     In exchange for his plea

of guilty, the defendant would be sentenced on the Class X felony

to a prison term of 16 years.     At the guilty plea hearing, the

following exchange occurred.

                "THE COURT:    Sir, as to this offense of

           aggravated battery with a firearm, a Class X

           felony, as to Count 3, do you understand if

           you plead guilty to this, I have to sentence

           you to the penitentiary between 6 and 30

           years.    You could be fined up to $25,000.

           You would have to serve at least three years

           mandatory supervised release, which is like

           parole.    And furthermore, the sentence would

           have to be served at least 85 percent of the

           sentence and it would run consecutive to any


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No. 1-08-3498

          jail term you receive on the other case,

          where you were already found guilty.      Do you

          understand that?

                  THE DEFENDANT: Yes, sir.

                  THE COURT: Your lawyer says you want to

          plead guilty.    Is that correct?

                  THE DEFENDANT: Yes, sir." (Emphasis

          added.)

The trial judge proceeded to admonish the defendant pursuant to

Supreme Court Rule 605(c), following which defense counsel

stipulated to the State's proffer of a factual basis for a

finding of guilty.    210 Ill. 2d R. 605(c).    The trial judge found

the factual basis supported a plea of guilty, accepted the

defendant's plea of guilty, and entered judgment on the finding.

A hearing on aggravation and mitigation regarding both cases was

then conducted.    At its conclusion, the trial judge imposed the

sentences: "I will sentence the defendant as I promised him I

would.   As to the aggravated battery case, it did go to trial[,]

[t]wo years in the penitentiary.       That will run consecutive to 16

years in the penitentiary on the '05 case."

     The defendant was assessed certain costs and given credit

for time in custody.    The trial judge made no mention of the MSR

term in either case after imposing the sentences.       The defendant

was advised of the steps he would have to take to appeal from his

guilty plea.    When asked if he had any questions, the defendant


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No. 1-08-3498

stated his desire to appeal from the guilty verdict, which the

trial judge replied was his absolute right.       The State nol-

prossed the remaining counts of the 05 CR 17363 indictment.        No

timely motion to vacate the guilty plea was filed.

     Regarding his bench trial, the defendant was convicted of

two counts of aggravated battery of a police officer.       The

defendant appealed, contending his convictions, which arose from

the same physical act--spitting in a police officer's face--

violated the one-act, one-crime rule.       The State agreed and, in a

summary order, we affirmed the judgment, but vacated one of his

convictions.    People v. Davis, No. 1-06-0639 (2008) (unpublished

order under Supreme Court Rule 23).       Because certain proceedings

in the two cases occurred simultaneously, the records in the two

cases were combined on the instant appeal.       The combined record

reveals that prior to the defendant's bench trial on July 26,

2005, the trial court informed the defendant of the possible

consequences flowing from a conviction.       "If you go to the

penitentiary, you have to serve one year of mandatory supervised

released, which is like parole."

     On October 20, 2008, the defendant filed a pro se

postconviction petition alleging he was deprived of due process

because the trial court violated the Whitfield rule regarding the

sentence on his negotiated plea.       The trial court found the

defendant's petition frivolous.

                "[The defendant is] talking about he


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No. 1-08-3498

            didn't get admonished about his mandatory

            supervised release.    I believe he did.   He

            doesn't show a transcript of the plea

            proceedings.   I find his pro se petition

            without merit.    Accordingly, dismissed

            without merit."

The defendant timely appeals.

                                 ANALYSIS

     The Illinois Post-Conviction Hearing Act provides a process

by which a defendant can challenge his conviction if it results

in a substantial denial of his rights under the United States or

Illinois Constitution.       People v. Coleman, 183 Ill. 2d 366, 378-

79, 701 N.E.2d 1063 (1998); 725 ILCS 5/122-2.1 (West 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)(2) (West 2008).     Explaining this standard, our supreme

court held that "a pro se petition seeking postconviction relief

under the Act for a denial of constitutional rights may be

summarily dismissed 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, 11-12, 912 N.E.2d 1204 (2009).

Such a petition may be one "based on an indisputably meritless

legal theory or a fanciful factual allegation."        Hodges, 234 Ill.

2d at 16.    In assessing the merits of the postconviction petition


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No. 1-08-3498

at this stage, the court is to "take all well-pleaded facts in

the petition and affidavits as true."    Coleman, 183 Ill. 2d at

378.    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, 847 N.E.2d 614 (2006).

       In his main brief, the defendant contends he is entitled to

a reduction in his sentence because the trial court failed to

adequately inform him that he must serve an MSR term when he was

sentenced to prison.    The defendant argues the trial court failed

to meet the requirements of Supreme Court Rule 402 (177 Ill. 2d

R. 402(a)) and Whitfield because, though the court mentioned the

three-year MSR term when it admonished the defendant on the

possible range of sentences the defendant could receive, it

failed to admonish the defendant that he would "in fact" serve a

three-year term of MSR following his sentence of 16 years in the

penitentiary.

       Before accepting a guilty plea, the trial court must

substantially comply with Rule 402.    A trial 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 that sentence."

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No. 1-08-3498

Whitfield, 217 Ill. 2d at 195.

     As the defendant argues in his brief, "In its Whitfield

decision, the Supreme Court recognized that a circuit court's

failure to admonish on MSR presents two 'closely related,

constitutional challenges,' to wit: (1) that the plea of guilty

was not [intelligently entered] with full knowledge of the

consequences, and (2) that the defendant did not receive the

benefit of the bargain with the State when he pled guilty."      Each
challenge focuses on matters that must occur prior to the circuit

court's acceptance of the defendant's plea of guilty.    "[Due

process is violated when] the [circuit] court fails to advise the

defendant, prior to accepting his plea [of guilty], that a

mandatory supervised release term will be added to that

sentence."   (Emphasis added.)   Whitfield, 217 Ill. 2d at 195.

     Here, the circuit court duly advised the defendant of the

MSR term prior to the defendant's plea of guilty:

                "Sir, as to this offense of aggravated

          battery with a firearm, a Class X felony, as

          to Count 3, do you understand if you plead

          guilty to this, I have to sentence you to the

          penitentiary between 6 and 30 years.   You

          could be fined up to $25,000.   You would have

          to serve at least three years mandatory

          supervised release, which is like parole."


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No. 1-08-3498

          (Emphasis added.)

The circuit court also made clear by its choice of language that

the three-year given supervised release period was mandatory.

The defendant was admonished that upon pleading guilty, he could

be fined up to $25,000; the defendant was told that upon being

sentenced to between 6 and 30 years on the class X felony, he

would be required to serve the three-year MSR term.   We also note

the trial judge was apprised of the proposed plea agreement
before the start of the hearing, as the transcript conveys an

understanding that the defendant would plead guilty to count III

of the indictment and be sentenced to 16 years in the

penitentiary.   The clear inference from the guilty plea hearing

transcript is that the MSR admonishment came after the agreement

of 16 years had been reached between the defendant and the State,

which reinforces, " 'in a practical and realistic sense,' " that

the defendant had full knowledge of the consequences of his plea

of guilty when he was told he would have to serve an MSR term of

three years if he pled guilty and was sentenced to the
penitentiary.   People v. Morris, 236 Ill. 2d 345, 366, 925 N.E.2d

1069 (2010), quoting People v. Williams, 97 Ill. 2d 252, 269, 454

N.E.2d 220 (1983).

     The narrow question of law before us is whether this

admonishment by the trial judge falls within our reading of the

Whitfield rule that we made in Marshall.   "[In Whitfield,] the

court never mentioned a 3-year mandatory supervised release

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No. 1-08-3498

requirement to the defendant who pled guilty in exchange for a

25-year sentence.    Whitfield, 217 Ill. 2d at 186.    Here, the

three-year term was mentioned to defendant and he said he

understood."    Marshall, 381 Ill. App. 3d at 735.

     In other words, 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.

     In Marshall, the trial judge admonished the 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.' "    Marshall, 381 Ill. App. 3d at 727.    We held

that this admonishment satisfied the constitutional standard that

the defendant have full knowledge of the consequences prior to

entering his plea of guilty.   In line with Marshall, we note that

a defendant who negotiates to receive a specific sentence upon

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No. 1-08-3498

his plea of guilty before the guilty plea hearing is conducted,

receives the full bargain made with the prosecution upon

receiving that sentence, as the prosecution can only bargain on

the sentence to be imposed.   The prosecution has no say on

whether a defendant must serve the corresponding MSR term as the

term is automatically imposed by law in accordance with the

classification of the felony to which the defendant has pled

guilty.

     The defendant here, recognizing that we would look to

Marshall to assess the merits of the appeal before us, argues in

his main brief that Marshall and the cases upon which the

Marshall court relied "were wrongly decided under Whitfield and

should not be followed."   We disagree.   Unlike the defendant, we

are persuaded by Marshall.    We find the instant case falls within

the four corners of the Marshall decision.    "Here, although the

judge did not mention mandatory supervised release at sentencing

or in the written sentencing judgment, he did advise defendant of

the requirement before accepting his plea.   This met the
statutory requirement."    Marshall, 381 Ill. App. 3d at 736.

     We acknowledge, however, the conflicting authority the

defendant cites from the Fifth District: People v. Company, 376

Ill. App. 3d 846, 876 N.E.2d 1055 (2007), and People v. Smith,

386 Ill. App. 3d 473, 898 N.E.2d 1055 (2008).   Based on a

footnote in his main brief in the course of citing the Fifth

District cases, it appears the defendant sought to cast doubt on

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No. 1-08-3498

the viability of Marshall and the cases it cites, by noting that

the supreme court granted leave to appeal in People v. Holborow,

382 Ill. App. 3d 852, 892 N.E.2d 1 (2008), appeal allowed, 229

Ill. 2d 680, 900 N.E.2d 1122 (2008), on the issue of whether "the

sole mention of MSR at the guilty plea hearing" satisfies the

rule in Whitfield.   The granting of leave to appeal, however,

does not necessarily call into question a decision, especially

one well-reasoned.   People v. Harris, 123 Ill. 2d 113, 129, 526

N.E.2d 335 (1988) ("[T]he precedential effect of an appellate

court opinion is not weakened by the fact that a petition for

leave to appeal has been granted and is pending in that case").

     The supreme court ruled on the Holborow case in People v.

Morris, 236 Ill. 2d 345, 925 N.E.2d 1069 (2010), which the

defendant discusses in his reply brief.   The Morris case,

however, does not resolve the issue before us as the supreme

court concluded that the new rule announced in Whitfield did not

extend to the defendant Holborow as his conviction was final

before the Whitfield decision was issued.    Morris, 236 Ill. 2d at
366 ("Defendants Morris and Holborow are therefore not entitled

to prospective application of Whitfield").   The supreme court

also cited with approval the Marshall decision.    Morris, 236 Ill.

2d at 367.   Until 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.

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No. 1-08-3498

     Though we affirm, we repeat the succinct words of Presiding

Justice Cahill in Marshall, which the supreme court quoted in

Morris: " 'The better practice would incorporate the mandatory

supervised release admonition when the specific sentencing is

announced.   The written sentencing judgment should also include

the term of mandatory supervised release.' "   Morris, 236 Ill. 2d

at 367, quoting Marshall, 381 Ill. App. 3d at 736.

                            CONCLUSION

     The circuit court properly dismissed in the first-stage

proceeding the defendant's postconviction petition alleging that

the trial court violated his due process rights when it failed to

inform him that he would be required to serve a three-year term

of mandatory supervised release following his negotiated guilty

plea to a Class X felony.   The defendant's postconviction claim

is positively rebutted by the record.

     Affirmed.

     HALL, P.J., and PATTI, J., concur.




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No. 1-08-3498

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
__________________________________________________________________________

            PEOPLE OF THE STATE OF ILLINOIS
                 Plaintiff-Appellee,

            v.

             DARNELL DAVIS,
                  Defendant-Appellant.
       ________________________________________________________________
                                  No. 1-08-3498

                            Appellate Court of Illinois
                           First District, First Division

                             Filed: August 9, 2010
      _________________________________________________________________
               JUSTICE GARCIA delivered the opinion of the court.

                       HALL, P. J., and PATTI, J., concur.
      _________________________________________________________________

                  Appeal from the Circuit Court of Cook County
                    Honorable James B. Linn, Judge Presiding
      _________________________________________________________________

For PLAINTIFF-          Anita Alvarez, State's Attorney, County of Cook
APPELLEE                Alan J. Spellberg
                        Tasha-Marie Kelly
                        Jacqueline James
                        Assistant State's Attorneys
                        Richard J. Daley Center, Room 309
                        Chicago, IL 60602

For DEFENDANT-          Michael J. Pelletier, State Appellate Defender
APPELLANT               Patricia Unsinn, Deputy Defender
                        Manuel S. Serritos
                        Assistant Appellate Defender
                        Office of the State Appellate Defender
                        203 N. LaSalle Street, 24th Floor
                        Chicago, IL 60601

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