                               No. 2--07--0229   Filed: 11-26-08
______________________________________________________________________________

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 03--CF--239
                                       )
EFRAIN J. MENDEZ,                      ) Honorable
                                       ) Victoria A. Rossetti,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE ZENOFF delivered the opinion of the court:

       Defendant, Efrain J. Mendez, appeals from an order of the circuit court of Lake County,

which summarily dismissed his pro se petition brought under the Post-Conviction Hearing Act (Act)

(725 ILCS 5/122--1 et seq. (West 2006)). Defendant argues that the trial court erred by dismissing

his petition as frivolous and without merit, because his petition stated the gist of a constitutional

claim for due process violations in conjunction with the proceedings on his negotiated guilty plea.

Because the record shows that defendant was not sufficiently admonished regarding the imposition

of mandatory supervised release (MSR), we reverse and remand with directions.

                                         BACKGROUND

       Defendant was indicted for aggravated battery with a firearm (720 ILCS 5/12--4.2(a)(1)

(West 2002)), aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(1) (West 2002)), defacing

identification marks on a firearm (720 ILCS 5/24--5(a) (West 2002)), and aggravated unlawful use
No. 2--07--0229


of a weapon (720 ILCS 5/24--1.6(a)(1), (a)(3)(A) (West 2002)). Defendant entered a negotiated

guilty plea on March 7, 2003. The terms of the plea agreement were that defendant would plead

guilty to count I (aggravated battery with a firearm), in exchange for the State's dismissal of counts

II, III, and IV, and for a sentence of 12 years in the Department of Corrections. Neither the terms

of the plea nor the written judgment mentioned MSR.

       The following colloquy took place at the plea proceeding on March 7, 2003:

               "THE COURT: Now, the agreement is that you would be sentenced to serve 12 years

       from [sic] the Department of Corrections and that is not at good time or day for day credit,

       but you have to serve 85 percent. Do you understand that?

               THE DEFENDANT: Yes.

               THE COURT: You went over that with Mr. Curran [defense counsel]?

               THE DEFENDANT: Yes.

               THE COURT: And the remaining charges would be dismissed. Is that your

       understanding?

               THE DEFENDANT: Yes.

                                                ***

               THE COURT: *** [T]he way this was charged, it is a Class X felony, which means

       that its possible penalties could have been between six and thirty years in the Department of

       Corrections with three years of mandatory supervised release or what was known as parole.

       Do you understand that?

               THE DEFENDANT: Yes.




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               THE COURT: Under certain circumstances you could receive an extended term

       sentence. That could mean between thirty and sixty years, with three years of mandatory

       supervised release. Do you understand that?

               THE DEFENDANT: Yes.

               THE COURT: You cannot receive probation or conditional discharge or periodic

       imprisonment. That's time served in the county jail. It is a mandatory sentence of at least

       six years in the Department of Corrections. Do you understand that?

               THE DEFENDANT: Yes.

               THE COURT: Knowing what the possible penalties could have been on this charge,

       do you still wish to plead guilty?

               THE DEFENDANT: Yes.

               THE COURT: Again, Mr. Mendez, you went over all of this with Mr. Curran?

               THE DEFENDANT: Yes."

Thereafter, the court explained that, by pleading guilty, defendant was waiving his right to a trial by

jury. The court also determined that there was no coercion or additional promise made to defendant

and that there was a factual basis to support the plea. The court then ascertained that defendant was

giving up his right to a presentence investigation and full sentencing hearing, and then added:

               "THE COURT: However, when you plead guilty and agree to the 12 years you're

       telling me that you do not wish to have that done. You wish to proceed with the sentencing

       today. Is that correct?

               THE DEFENDANT: Yes.




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                THE COURT: Sir, I will go along with this. Judgment of conviction will enter. You

        are sentenced to serve 12 years in the Department of Corrections and that will be served at

        85 percent. You will get credit for the days you have served in the county jail."

The written sentencing order reflected these words of the court. It did not include any reference

to MSR.

        Almost four years later, on January 19, 2007, defendant filed a pro se petition for

postconviction relief, alleging, inter alia, that the trial court failed to inform him that his agreed

sentence included a term of MSR. Defendant stated in the petition that he had just recently

discovered the MSR term, so that "any alleged issue of untimeliness [wa]s not due to defendants

[sic] culpable negligence." After the trial court summarily dismissed the petition on January 31,

2007, defendant filed a timely notice of appeal on February 21, 2007.

                                              ANALYSIS

        This appeal involves the first-stage dismissal of defendant's postconviction petition. The

Post-Conviction Hearing Act "provides a procedural mechanism through which a convicted criminal

can assert 'that in the proceedings which resulted in his or her conviction there was a substantial

denial of his or her rights under the Constitution of the United States or of the State of Illinois or

both.' " People v. Blair, 215 Ill. 2d 427, 447 (2005), quoting 725 ILCS 5/122--1(a) (West 2002).

A three-stage proceeding is contemplated under the Act for noncapital cases. People v. Harris, 224

Ill. 2d 115, 125 (2007). At the first stage, the trial court determines if " 'the petition is frivolous or

is patently without merit.' " People v. Coleman, 183 Ill. 2d 366, 379 (1998), quoting 725 ILCS

5/122--2.1(a)(2) (West 1994). The petition is frivolous or patently without merit only if it fails to

state the "gist of a constitutional claim." People v. Edwards, 197 Ill. 2d 239, 244 (2001). If the



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petition so fails, dismissal is warranted. Edwards, 197 Ill. 2d at 244. If the original trial record

contradicts the allegations of the petition, the petition is without merit and dismissal is also

warranted. Coleman, 183 Ill. 2d at 381-82. Dismissal without an evidentiary hearing is reviewed

de novo. Harris, 224 Ill. 2d at 123.

       Defendant argues that the trial court erred in dismissing his postconviction petition as

frivolous or patently without merit, because his petition stated the gist of a constitutional claim. He

claims that, because he was not properly admonished that his prison term would be followed by a

three-year term of MSR (see 730 ILCS 5/5--8--1(d)(1) (West 2002)), the imposition of MSR

increases the sentence for which he bargained and, therefore, breaches his agreement with the State

and violates his right to due process of law. Pursuant to People v. Whitfield, 217 Ill. 2d 177 (2005),

defendant claims that the appropriate remedy is to reduce his prison term by the length of the MSR

term. The State contends that the record contradicts defendant's allegation that he was not advised

of the imposition of MSR when entering his plea, because the record demonstrates that the trial court

did substantially comply with Supreme Court Rule 402(a)(2) (177 Ill. 2d R. 402(a)(2))--which

requires admonishment as to "the minimum and maximum sentence prescribed by law" prior to the

acceptance of any plea of guilty. Therefore, according to the State, defendant's due process rights

were not violated and the trial court was correct in summarily dismissing defendant's petition. We

agree with defendant.

       "[C]ompliance with Rule 402(a)(2) requires that a defendant be admonished that the ***

[MSR] pertaining to the offense is a part of the sentence that will be imposed." Whitfield, 217 Ill.

2d at 188, quoting People v. Wills, 61 Ill. 2d 105, 109 (1975). This admonishment serves to ensure

that due process is provided, since "due process requires that it be evident from the record that a



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defendant's plea of guilty is entered with full knowledge of the consequences." Whitfield, 217 Ill.

2d at 200. In Whitfield, the trial court did not mention MSR at all during the plea hearing.

Whitfield, 217 Ill. 2d at 180. The defendant pleaded guilty to first-degree murder and armed robbery

in exchange for concurrent sentences of 25 years and 6 years, respectively. Whitfield, 217 Ill. 2d at

179. MSR was not included in the written sentencing order. Whitfield, 217 Ill. 2d at 180 n.1. These

facts indicated a failure to admonish the defendant as required by Rule 402. Whitfield, 217 Ill. 2d

at 190. The Whitfield court reasoned:

               "[A]lthough substantial compliance with Rule 402 is sufficient to establish due

       process [citations], and an imperfect admonishment is not reversible error unless real justice

       has been denied or the defendant has been prejudiced by the inadequate admonishment

       [citation], 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. Under these circumstances, the addition

       of the MSR constitutes an unfair breach of the plea agreement." Whitfield, 217 Ill. 2d at 195.

In light of the mandatory nature of MSR, the Whitfield remedy was to reduce the defendant's 25-year

prison term to 22 years and add the statutorily required 3-year MSR term, thus approximating, as

closely as possible, the sentence for which the defendant had bargained. Whitfield, 217 Ill. 2d at

203, 205.




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       Accordingly, the determination of whether the trial court properly dismissed defendant's

petition requires that we review whether a sufficient admonishment was given to defendant at the

plea hearing, such that defendant had "full knowledge of the consequences" of his plea. If defendant

did not have full knowledge that MSR was part of his agreed sentence, then adding MSR to his

prison term results in a sentence more onerous than the one for which he bargained and a violation

of his due process rights. Whitfield, 217 Ill. 2d at 195.

       Ideally, the trial court's admonition would explicitly state that MSR would be added to the

sentence to which the defendant agreed. Nonetheless, substantial compliance with Rule 402 is

sufficient. Whitfield, 217 Ill. 2d at 195. The determination of whether an admonishment

substantially complies with Rule 402 is necessarily fact specific. Essentially, we must decide

whether an ordinary person in defendant's place would have reasonably understood that MSR would

be added to his sentence. See Whitfield, 217 Ill. 2d at 200; see also People v. Jarrett, 372 Ill. App.

3d 344, 352 (2007) ("The 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 [that MSR was

not included in the agreed sentence]").

       First, defendant was admonished that his agreement with the State provided for dismissal of

three counts of the indictment and a sentence of 12 years in the Department of Corrections, at 85%,

in exchange for his plea of guilty on count I, aggravated battery with a firearm. No mention of MSR

was made. Second, the trial court did include MSR when it stated what "the possible penalties could

have been" (emphasis added) and when it discussed the possibility of an extended-term sentence.

Significantly, the "could have been" language suggested that these were the possible penalties had

the circumstances been other than what they were, i.e., in the absence of a plea and in the event of



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a conviction at trial. This interpretation is especially reasonable given that defendant was told, third,

that the mandatory minimum sentence was six years, again, with no mention of MSR. Importantly,

the reference to the mandatory minimum sentence of six years, without mention of MSR, tended to

negate any possible effectiveness of the preceding general admonition on what the possible penalties

could have been. In light of how the mandatory minimum sentence was explained, the general

admonition on what the sentence "could have been," interpreted in context, reasonably would be

understood to mean that MSR is not mandatory. Fourth, in accepting the plea, the trial court

continued to use similar language: "Knowing what the possible penalties could have been, do you

still wish to plead guilty?" (Emphasis added.) The trial court then stated: "When you plead guilty

and agree to the 12 years [you are waiving the presentence investigation]." No mention was made

of MSR. Finally, when the trial court actually imposed the sentence, it was expressed only as 12

years at 85%, credit for time served. Overall, the trial court's language conveyed that MSR would

have been a possibility only in the absence of a plea and that defendant was agreeing to 12 years,

nothing more. Hence, an ordinary person in defendant's place would not have reasonably understood

MSR to be part of his sentence; consequently, defendant could not have entered his plea with full

knowledge of the consequences. Indeed, it was more reasonable for defendant to have concluded

that a benefit of his plea was avoiding the possible penalty of MSR. Therefore, the addition of the

3-year MSR term to defendant's 12-year prison term resulted in a sentence more onerous than the

one for which he bargained.

        Other courts have interpreted the Whitfield requirements for substantial compliance with

Rule 402. For example, in People v. Thomas, 381 Ill. App. 3d 972 (2008), the Fifth District found

that a sufficient admonishment had been given. The defendant, who was already serving an MSR



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term for a previous murder conviction, argued that he had not been sufficiently admonished that

MSR would be added by operation of law to his new sentences under the negotiated plea agreement

at issue. Thomas, 381 Ill. App. 3d at 973. The trial court had specifically admonished the defendant

that "[a]ny sentence of imprisonment would carry with it upon a release from prison a period of

mandatory supervised release for a period of two years." (Emphasis added.) Thomas, 381 Ill. App.

3d at 973. On appeal, the Thomas court found that this admonishment, when given to a defendant

who actually received a sentence of imprisonment, made it objectively unreasonable to believe that

no MSR was included. Thomas, 381 Ill. App. 3d at 974. Thus, in Thomas, unlike the case at bar,

MSR was linked to the defendant's agreed-upon sentence so that he entered his plea with full

knowledge of the consequences.

       In contrast, in People v. Company, 376 Ill. App. 3d 846 (2007), the Fifth District found that

the defendant had received an insufficient admonishment. The defendant, under a negotiated plea

agreement, pleaded guilty to home invasion in exchange for a sentence of 15 years in prison and the

dismissal of a first-degree murder charge. Company, 376 Ill. App. 3d at 847. The admonishment

was as follows:

               " 'THE COURT: *** [I]f you were convicted at trial of the Murder, I could have

       sentenced you to a determinate period of time in the Illinois [D]epartment of [C]orrections

       between 20 and 60 years, and you would have to do 100 percent of that sentence. *** [A]nd

       at the conclusion of that sentence *** you would do two years of [MSR]. *** Do you have

       any questions about the punishments that you could have faced?

               THE DEFENDANT: No, sir.

                                               ***



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                THE COURT: You heard the plea negotiations, Mr. Company. Instead of the

        maximum *** that you'd face *** you are agreeing on a sentence of 15 years.' " (Emphases

        in original.) Company, 376 Ill. App. 3d at 850-51.

On appeal, the Company court found that the defendant could not have entered his plea with full

knowledge of the consequences because MSR was specifically linked to a finding of guilt at a trial.

Company, 376 Ill. App. 3d at 851. MSR was linked neither to the defendant's negotiated sentence

nor even to his crime in general. Company, 376 Ill. App. 3d at 852. In fact, "the trial court stated

that instead of the possible sentences available upon a conviction at a trial, the defendant was

agreeing to a sentence of 15 years." (Emphasis in original.) Company, 376 Ill. App. 3d at 851. The

Company court found this misleading admonishment to be more egregious than the trial court's

silence in Whitfield. Company, 376 Ill. App. 3d at 850. (Additionally, the Company trial court had

erroneously stated that the MSR term would have been two years, rather than the applicable three-

year term. Company, 376 Ill. App. 3d at 851.) Therefore, the Company court reversed and

remanded with directions to impose a Whitfield remedy. Company, 376 Ill. App. 3d at 853.

        The trial court's admonishment in our case, though not as egregious, was similarly

misleading. The "could have been" language has the same meaning as the language in Company.

In the instant case, without a plea, the "possible penalties could have been" 6 to 30 years plus 3 years'

MSR; in Company, "if [the defendant] were convicted at trial" the possible penalties "could have"

been 20 to 60 years plus MSR, and those were the punishments the defendant "could have faced" had

he not pleaded guilty. (Emphases added.) Company, 376 Ill. App. 3d at 850. Also, the language

of the trial court in our case when imposing sentence--"When you plead guilty and agree to the 12

years"--resembled that of the Company trial court: "you are agreeing on a sentence of 15 years"



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(Company, 376 Ill. App. 3d at 850-51). Thus, similar to the defendant in Company, an ordinary

person in defendant's place would have been led to reasonably believe that MSR was a possibility

only in the absence of the plea agreement (i.e., if convicted at trial), and that, by virtue of the plea,

MSR would not be imposed in his case. Therefore, since MSR is statutorily required, the

admonishments in this case and in Company were not only seriously misleading, but indeed were

false, because MSR would automatically attach to each sentence by operation of law, regardless of

the defendants' reasonable understandings of their agreements.

        We note that in People v. Borst, 372 Ill. App. 3d 331 (2007), the Fourth District found that

"the [trial] court did admonish defendant about MSR" by including it in the general list of possible

penalties faced by the defendant. Borst, 372 Ill. App. 3d at 334. The defendant pleaded guilty to

attempted aggravated criminal sexual assault and home invasion in exchange for concurrent 15-year

sentences and the dismissal of a residential burglary charge. Borst, 372 Ill. App. 3d at 332. The trial

court in Borst admonished the defendant:

                "Count [I], attempted aggravated criminal sexual assault, is a Class [1] [f]elony

        punishable by *** four to 15 years in the penitentiary. If there are aggravating factors

        present[,] could be 15 to 30 years. Two years['] [MSR]. Up to four years on probation. Up

        to $25,000 fine.

                Count [II], home invasion, is a Class X [f]elony as charged. It's six to 30 years in the

        penitentiary. Could be 30 to 60 years if there are aggravating factors present. Three years[']

        [MSR]. Is not probationable. And up to $25,000 fine.

                Count [III], residential burglary, is a Class 1 offense with penalty that I just read to

        you except it is not probationable." (Emphases omitted.) Borst, 372 Ill. App. 3d at 332.



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On appeal, the Borst court held that, although the admonitions were "inartful, defendant's

constitutional right to due process and fundamental fairness was not violated." Borst, 372 Ill. App.

3d at 334. Noting that the trial "court could have made its admonitions clearer, the court did make

defendant aware of MSR." Borst, 372 Ill. App. 3d at 334.

       Borst is factually distinguishable from our case. The trial court complied with the Whitfield

requirement to link the MSR term to the plea, by linking MSR "to the defendant's crime." Company,

376 Ill. App. 3d at 852. The trial court in Borst individually listed each count of the indictment,

named the offense and the class of felony, and stated that the offense was "punishable by" a prison

term, possibly an extended term, MSR, probation (or not), and a fine. Borst, 372 Ill. App. at 332.

Thus, the Borst trial court's general admonition was sufficient because it was a broad statement that

the defendant's prison term would be followed by MSR. What remained open for negotiation in the

plea process was merely the length of the prison term. This is unlike our case. Although the format

of the admonishment in our case--naming the offense, the class of felony, the range of prison terms,

and MSR--superficially linked MSR to defendant's crime, the language used has a very different

meaning from that used in Borst. The Borst trial court said that the offense was "punishable by" a

certain number of years, then listed the extended term, MSR, probation, and fine information. This

language was prospective and indicated that those penalties were possibilities for anyone guilty of

the particular offense. In contrast, the trial court here stated that the possible penalties "could have

been" a certain number of years, with MSR. This language suggested that those would have been

the penalties had the circumstances been different. In fact, the trial court here did not even include

MSR in its explanation of the mandatory minimum sentence for the crime. Thus, our case is more




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like Company, in which the defendant was led to believe that, by pleading guilty, he avoided what

the possible penalties could have been.

       We observe that, following Borst, the Fourth District, in People v. Holborow, 382 Ill. App.

3d 852, 864-65 (2008), decided a case that was factually similar to ours and to Company. The

Holborow court held that the trial court did substantially comply with Rule 402 when it mentioned

MSR during the plea hearing, prior to the acceptance of the plea. The defendant entered a negotiated

plea to home invasion, theft, and criminal trespass to a vehicle in exchange for concurrent sentences

of 16 years, 3 years, and 364 days, respectively, and the dismissal of four other charges. Holborow,

382 Ill. App. 3d at 853. The trial court had admonished:

               "Now it is important that you understand with respect to [c]ount [I], the home

       invasion, that is a Class X felony. And the law says that if this were handled by other than

       a plea agreement, you could get anywhere from six to 30 years in prison, plus three years [of

       MSR]. You are not eligible for probation, periodic imprisonment[,] or conditional discharge.

       If you were found guilty, you would have to get a minimum six years, and you could get as

       much as 30. And with great bodily harm, you have to serve 85[%] of your time. So do you

       understand what the possibilities there are [sic], if this were handled by other than a plea

       agreement?" (Emphasis omitted.) Holborow, 382 Ill. App. 3d at 855.

Acknowledging the factual similarity between this admonishment and the admonishment in

Company, the Holborow court disagreed with the holding in Company and followed its own Fourth

District decision in Borst instead. Holborow, 382 Ill. App. 3d at 864-65.

       We reject the proposition that the mere mention of MSR is sufficient under Whitfield,

because Whitfield clearly requires that a Rule 402 admonishment link MSR to the plea (Whitfield,



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217 Ill. 2d at 188 (finding that defendant must be admonished that MSR "is a part of the sentence

that will be imposed")). Of course, this can be accomplished by a general admonishment, as in

Borst, in which MSR was linked to the defendant's crime itself. However, what is necessary is not

that MSR is merely mentioned, as the Holborow court concluded, but rather that, based on the

discussion as a whole at the plea hearing, the defendant should have known that MSR was part of

the agreed-upon sentence. Taking the plea hearing discussion as a whole in our case, an ordinary

person in defendant's place would not have reasonably known that MSR attached to his prison term.

The only mention of MSR was in the court's statement of what the "possible penalties could have

been." That alone made it objectively reasonable for defendant to believe that, by pleading guilty

instead of opting for a trial, he was avoiding those penalties. Moreover, any effectiveness of the

general admonition was undermined by the court's statement that the mandatory minimum sentence

was six years in prison and nothing more.

       We note that it would not place a significant burden on trial courts to comply with Rule 402

under Whitfield by explicitly admonishing defendants that the statutorily required terms of MSR will

be added to their agreed-upon sentences. Neither is it a significant burden to include MSR on

written judgments. These simple, basically clerical, procedures easily would avoid the problem of

insufficient admonishments.

       For the reasons given, we reverse the judgment of the circuit court of Lake County summarily

dismissing defendant's postconviction petition, and we vacate defendant's sentence. We remand to

the circuit court with directions that it impose a sentence of nine years' imprisonment, followed by

a three-year term of MSR.1



       1
           See People v. Gulley, 383 Ill. App. 3d 727 (2008) (granting relief after appeal from first-

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       Reversed and remanded with directions.

       McLAREN and SCHOSTOK, JJ., concur.




stage dismissal of postconviction petition). We also direct the circuit court to include in its order

the additional details in its original order dated March 7, 2003, such as credit for time served and

that the sentence is to be served at 85%.

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