People v. Borst

Opinion

NO. 4-06-0462 Filed 4/9/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Vermilion County STEVEN R. BORST, ) No. 03CF642 Defendant-Appellant. ) ) Honorable ) Michael D. Clary, ) Judge Presiding _________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

In December 2003, the State charged defendant, Steven

R. Borst, by information with attempt (aggravated criminal sexual

assault) (720 ILCS 5/8-4(a), 12-14 (West 2002)), home invasion

(720 ILCS 5/12-11(a)(2) (West 2002)), and residential burglary

(720 ILCS 5/19-3 (West 2002)). In March 2004, defendant entered

a negotiated guilty plea. He pleaded guilty to attempt

(aggravated criminal sexual assault) and home invasion in

exchange for concurrent 15-year sentences on both counts and the

dismissal of the residential-burglary charge. In May 2006,

defendant filed a petition for postconviction relief asserting he

was never informed he would be subject to a three-year period of

mandatory supervised release (MSR). The trial court denied the

petition, and defendant appeals. We affirm.

At the plea hearing, the trial court gave him the

following admonishments: "[TRIAL COURT]: Count [I], attempted

aggravated criminal sexual assault, is a

Class [I] [f]elony punishable by one to three

years, I'm sorry, 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.

Do you have any questions about the

maximum possible penalties?

[DEFENDANT]: No, sir.

* * *

[TRIAL COURT]: I'm told that you want to

enter into a plea agreement is that true?

[DEFENDANT]: Yes, sir. [TRIAL COURT]: If I accept the plea

agreement then there will be no trial and you

would be giving up or waiving your right to

require the [S]tate to prove what that says

beyond a reasonable doubt.

Do you understand that?

[DEFENDANT]: Yes, sir.

[TRIAL COURT]: I'm told that you would

plead guilty to attempted aggravated criminal

sexual assault, a Class 1 [f]elony; and home

invasion, a Class X [f]elony. Count [III]

would be dismissed.

You would be sentenced to a period of 15

years in the Illinois Department of

Corrections on each count. And you would

serve those concurrently, meaning at the same

time. And there would be a finding by the

court of no bodily harm.

[TRIAL COURT]: All right. At this

time[,] then you will be sentenced to 15

Corrections on [c]ount [I]; 15 years in the

Illinois Department of Corrections on [c]ount

- 3 - [II].

Those will be served concurrently, at

the same time.

You will be given credit for 98 days

served on each count.

There will be finding of no great bodily

harm told to the Department of Corrections."

(Emphases added.)

The trial court accepted defendant's plea and filed its

sentencing judgment sentencing defendant to two concurrent 15-

year prison sentences for attempt (aggravated criminal sexual

assault) and home invasion, with credit for 98 days served. The

sentencing judgment did not mention MSR. Defendant filed neither

a motion to withdraw his guilty plea nor a direct appeal.

In May 2006, defendant filed a petition for

postconviction relief. In the petition, defendant requested the

enforcement of his plea agreement with the State by modifying his

sentence to comply with the plea agreement. In the petition,

defendant argued his "constitutional rights to due process and

fundamental fairness [were] violated when he [pleaded] guilty in

exchange for a specific sentence, but received a different, more

onerous sentence than the one he agreed to."

Defendant argued in the petition that he was never

informed by the State, his attorney, or the trial court during

- 4 - the negotiations leading to the plea or during the plea hearing

that he would be subject to a three-year period of MSR.

According to defendant's petition, the addition of the MSR term

breached the plea agreement and his due-process rights were

violated because he received a harsher sentence than the one to

which he agreed. Defendant also argued the court failed to

comply with Supreme Court Rule 402 (177 Ill. 2d R. 402) because

the court failed to admonish him on the record that the MSR would

be added to the two concurrent 15-year sentences to which

defendant and the State had agreed.

Defendant asked the trial court to vacate his

"unconstitutional sentence" and enter a new sentence of two

concurrent 12-year prison terms followed by three years of MSR.

That same month, the court denied defendant's petition, ruling

the petition was frivolous and patently without merit because

defendant was properly admonished about MSR.

Defendant appeals, arguing the trial court erred in

dismissing his postconviction petition. According to defendant's

brief, "[w]here the plea agreement did not mention that

[defendant] would be subject to a period of [MSR] following the

completion of his agreed-upon prison sentence, the addition of

the MSR term constituted an unfair breach of the agreement and

violated due process." Defendant requests specific performance

of his plea agreement under the specific circumstances of this

- 5 - case. According to defendant's reply brief:

"To that end, the [defendant's] argument is

limited to the facts of this case where MSR

was not included in the plea agreement and

the trial court's general admonitions

referred to MSR only in connection with an

extended[-]term sentence which 'could' be

imposed 'if' there were aggravating factors

present. [Citation.] If the prosecutor had

seen fit to include MSR in the terms of the

plea agreement, or if the court had stated

that MSR would be added by operation of law

to the sentence the petitioner had negotiated

with the prosecutor, then the situation would

be different. However, the prosecutor failed

to include MSR in the plea agreement and the

court did not admonish the petitioner that

MSR would be added to the sentence he had

bargained for."

Defendant primarily relies on the Supreme Court of

Illinois's recent decision in People v. Whitfield, 217 Ill. 2d

177, 840 N.E.2d 658 (2005). The situation in the case at bar is

similar to that in Whitfield with one important exception. In

Whitfield, the trial court did not make any mention of MSR to the

- 6 - defendant before he entered his negotiated guilty plea for a

specific term of years. Whitfield, 217 Ill. 2d at 180-81, 840

N.E.2d at 661. In the instant case, the trial court informed

defendant of MSR. While the court could have made its

admonitions clearer, the court did make defendant aware of MSR.

If the trial court had failed to give defendant any

admonitions concerning MSR, we would follow Whitfield even though

we have concerns about the supreme court's opinion. However, in

our case, the court did admonish defendant about MSR. We will

not expand the holding in Whitfield to apply to situations like

those in the instant case. While the court's admonitions in this

case were inartful, defendant's constitutional right to due

process and fundamental fairness was not violated.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we grant the State its

statutory assessment of $50 against defendant as costs of this

appeal.

Affirmed.

STEIGMANN, P.J., and APPLETON, J., concur.

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