People v. Clark

2022 IL App (4th) 200368-U

• Court: Appellate Court of Illinois
• Decided: January 7, 2022
• Docket: 4-20-0368
• Status: Unpublished

Opinion

NOTICE This Order was filed under 2022 IL App (4th) 200368-U FILED Supreme Court Rule 23 and is January 7, 2022 not precedent except in the limited circumstances allowed NO. 4-20-0368 Carla Bender under Rule 23(e)(1). 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County MARVIN E. CLARK, ) No. 08CF1319 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Justices Turner and Steigmann concurred in the judgment.

ORDER ¶1 Held: The appellate court reversed and remanded for further proceedings, concluding defendant stated the gist of a constitutional claim his plea of guilty was not voluntary and the circuit court erroneously dismissed his postconviction petition at the first stage of proceedings.

¶2 Defendant, Marvin E. Clark, appeals from the Champaign County circuit court’s

dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Postconviction

Act) (725 ILCS 5/122-1 to 122-7 (West 2018)) at the first stage of proceedings. Defendant

argues he set forth the gist of a claim his constitutional rights were violated in that his guilty plea

was not knowingly and voluntarily entered and he did not receive the benefit of his negotiated

plea agreement with the State. The State argues defendant forfeited any claim his guilty plea was

not knowing and voluntary or alternatively, he failed to state the gist of a constitutional claim. We reverse the circuit court’s judgment and remand for second-stage postconviction

proceedings.

¶3 I. BACKGROUND

¶4 In July 2008, defendant, who was 15 years old, was charged by information with

two counts of aggravated criminal sexual assault, Class X felonies (720 ILCS 5/12-14(a)(2), (b)

(West 2006)) (renumbered as 720 ILCS 5/11-1.30 by Pub. Act 96-1551, art. 2, § 5 (eff. July 1,

2011)) (counts I and II). At defendant’s arraignment, he was advised he faced a possible prison

sentence of 16 to 40 years, to be followed by a period of 3 years’ mandatory supervised release

(MSR).

¶5 In January 2009, defendant pleaded guilty to count I (id. § 12-14(a)(2)). Prior to

pleading guilty, the circuit court admonished defendant he faced between 6 and 30 years in

prison, which would be followed by 3 years of MSR. In exchange for defendant’s plea of guilty,

the State agreed to dismiss count II and recommend a 10-year prison sentence. In explaining the

plea agreement, the assistant state’s attorney noted, per the Sex Offender Registration Act

(SORA) (730 ILCS 150/1 to 12 (West 2008)), defendant would be required, inter alia, to register

as a sexual predator for his natural life. Following the State’s presentation of the factual basis,

the circuit court accepted defendant’s plea as knowing and voluntary.

¶6 On July 21, 2020, defendant pro se filed a postconviction petition, arguing he

suffered the following violations of his constitutional rights. First, defendant argued despite

having completed 85% of his sentence, he was still incarcerated because he would not have

housing upon his release and the Department of Corrections therefore could not release him to an

appropriate housing situation in light of restrictions he faced as a registered sex offender. Citing

section 5-8-1(d)(4) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8-1(d)(4)

-2- (West 2018)), defendant noted he was subject to an indeterminate term of MSR of three years to

life, meaning that he potentially faced natural life incarceration for an offense he committed as a

juvenile. Defendant argued under the United States Supreme Court’s holding in Miller v.

Alabama, 567 U.S. 460 (2012), this indeterminate sentence violated his rights under the eighth

amendment to the United States Constitution (U.S. Const., amend. VIII) and the proportionate

penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).

¶7 Second, defendant argued he was denied due process in the proceedings leading

to his guilty plea because he was not informed he faced an indeterminate term of MSR.

Defendant argued he did not agree to an indeterminate term of MSR and would not have pleaded

guilty had he been properly advised of that fact. In facing this indeterminate term, rather than the

three years of MSR for which he was admonished, defendant argued he did not receive the

benefit of his negotiated plea agreement with the State.

¶8 One week later, the circuit court entered a written order dismissing the petition as

frivolous and patently without merit.

¶9 This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 On appeal, defendant argues the circuit court erroneously dismissed his petition at

the first stage of proceedings because he stated the gist of a claim his constitutional rights were

violated when the circuit court incorrectly admonished him regarding his MSR term and

therefore (1) his plea was not knowingly and voluntarily entered, or alternatively, (2) he did not

receive the full benefit of his plea agreement with the State. The State responds defendant

forfeited any argument his guilty plea was not knowing and voluntary by failing to adequately

raise it in his postconviction petition. Alternatively, the State argues if this court finds

-3- defendant’s argument was not forfeited, defendant failed to demonstrate he was prejudiced by

the circuit court’s improper admonishment regarding his MSR term and therefore failed to state

the gist of a constitutional claim the plea was not voluntary or that he did not receive the benefit

of his agreement with the State. We agree with defendant that he has stated at least the gist of a

constitutional claim his plea was not knowingly and voluntarily entered based on the circuit

court’s incorrect MSR admonishment.

¶ 12 A. Postconviction Proceedings

¶ 13 The Postconviction Act provides a means by which criminal defendants can assert

their convictions were the result of a substantial denial of their rights under the federal or state

constitutions, or both. People v. Guerrero, 2012 IL 112020, ¶ 14, 963 N.E.2d 909. The

Postconviction Act establishes a three-stage process for adjudicating a postconviction petition.

People v. English, 2013 IL 112890, ¶ 23, 987 N.E.2d 371. At the first stage, the trial court’s

review of the postconviction petition is to determine whether “the petition is frivolous or is

patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018). A pro se postconviction petition

is considered frivolous or patently without merit only if it “ ‘has no arguable basis either in law

or in fact.’ ” People v. Brown, 236 Ill. 2d 175, 184-85, 923 N.E.2d 748, 754 (2010) (quoting

People v. Hodges, 234 Ill. 2d 1, 16, 912 N.E.2d 1204, 1212 (2009)). The threshold for surviving

the first stage of postconviction proceedings is low; the petition need only present “the gist of a

constitutional claim.” People v. Harris, 224 Ill. 2d 115, 126, 862 N.E.2d 960, 967 (2007). This

court reviews the dismissal of a postconviction petition at the first stage of proceedings de novo.

People v. Buffer, 2019 IL 122327, ¶ 12, 137 N.E.3d 763.

¶ 14 B. Guilty Pleas

-4- ¶ 15 A criminal defendant seeking relief from his guilty plea in a collateral proceeding

may raise the following constitutional challenges: “(1) that the plea of guilty was not made

voluntarily and with full knowledge of the consequences, and (2) that defendant did not receive

the benefit of the bargain he made with the State when he pled guilty.” People v. Whitfield, 217

Ill. 2d 177, 183-84, 840 N.E.2d 658, 663 (2005). With respect to the first type of claim,

“[g]enerally, due process requires that in order for a defendant to knowingly and voluntarily

plead guilty, a defendant must be advised of the direct consequences of a guilty plea.” People v.

Hughes, 2021 IL 112817, ¶ 35, 983 N.E.2d 439. “[A] direct consequence of a guilty plea is one

which has a definite, immediate and largely automatic effect on the range of a defendant’s

sentence.” Id.

¶ 16 Specifically, prior to accepting a defendant’s plea of guilty, the trial court must

admonish the defendant of “the minimum and maximum sentence prescribed by law.” Ill. Rev.

Stat. 1991, ch. 110A, ¶ 402 (recodified as Illinois Supreme Court Rule 402(a)(2) (eff. July 1,

2012)). “To substantially comply with Rule 402 and due process where a defendant enters into a

negotiated plea for a specific sentence, the trial court must advise the defendant, prior to

accepting his plea, that a term of MSR will be added to the sentence.” People v. Boykins, 2017 IL

121365, ¶ 13, 93 N.E.3d 504. Our supreme court in Boykins explained that Rule 402 and due

process “require[ ] that defendants be advised that a term of MSR will be added to the actual

sentence agreed upon in exchange for a guilty plea to the offense charged.” (Internal quotation

marks omitted.) Id. (quoting People v. Morris, 236 Ill. 2d 345, 367, 925 N.E.2d 1069, 1082

(2010)).

¶ 17 A trial court’s failure to properly admonish a defendant as to the correct

sentencing range, including any term of MSR prescribed by the Unified Code, may render the

-5- defendant’s plea involuntary under certain circumstances. See, e.g., People v. Davis, 145 Ill. 2d

240, 251, 582 N.E.2d 714, 719 (1991); People v. McCracken, 237 Ill. App. 3d 519, 521, 604

N.E.2d 1104, 1106 (1992). However, “the failure to properly admonish a defendant, standing

alone, does not automatically establish grounds for reversing the judgment or vacating the plea.

[Citation.] Rather, a reviewing court focuses on whether the guilty plea was affirmatively shown

to have been made voluntarily and intelligently.” People v. Delvillar, 235 Ill. 2d 507, 520, 922

N.E.2d 330, 338 (2009).

¶ 18 C. This Case

¶ 19 First, we disagree with the State’s argument defendant forfeited any claim on

appeal his plea was not knowing and voluntary by failing to raise it in his postconviction

petition. See 725 ILCS 5/122-3 (West 2018) (stating any claim not raised in the original or

amended petition is forfeited). In his petition, defendant specifically argued “the court’s failure

to advise [him], on the record, concerning the MSR term is a reversible error and a violation of

due process.” Defendant additionally alleged he “would not have pled guilty if [he was] fully

admonished of a 3 to life mandatory MSR term imposing an indeterminate sentence upon the

completion of the agreed upon 10 year prison term at 85%.” Given this court’s duty to liberally

construe the allegations in the petition at the first stage of proceedings (Harris, 224 Ill. 2d at

126), we find defendant adequately raised the issue of the voluntariness of his guilty plea to

allow for appellate review.

¶ 20 Next, we find defendant sufficiently stated the gist of a constitutional claim his

plea was not knowing and voluntary because the circuit court failed to properly admonish

defendant he would be required to serve a term of MSR that could potentially span his natural

life. The circuit court admonished defendant that in addition to his sentence, he would be

-6- required to serve a three-year MSR term. This was a remarkable discrepancy from the statutorily

mandated MSR term of three years to natural life. See 730 ILCS 5/5-8-1(d)(4) (West 2018).

Further, we reject the State’s argument this case is analogous to People v. Andrews, 403 Ill. App.

3d 654, 936 N.E.2d 648 (2010), and People v. Dorsey, 404 Ill. App. 3d 829, 942 N.E.2d 535

(2010). In both of those cases, the trial courts accurately stated the MSR terms applicable to

those defendants in their discussion of the minimum and maximum penalties connected with the

charged offenses. Andrews, 403 Ill. App. 3d at 656 (concluding the trial court correctly informed

the defendant a one-year term of MSR would follow any term of imprisonment); Dorsey, 404 Ill.

App. 3d at 831 (concluding the trial court correctly informed the defendant a three-year term of

MSR would follow any term of imprisonment). In contrast, the circuit court in this case, when

admonishing defendant, objectively misstated the MSR term applicable to him. Although “[t]he

trial court’s MSR admonishments need not be perfect, *** they must substantially comply with

the requirements of Rule 402 and the precedent of this court.” Morris, 236 Ill. 2d at 367. The

circuit court’s significant misstatement here rendered its admonishments deficient under Rule

402, and because, under first-stage post-conviction proceedings we take as true petitioner’s

statement he would not have pleaded guilty but for this inaccurate admonishment, we conclude

his petition sufficiently stated the gist of a claim his due process rights were violated.

Accordingly, we reverse the circuit court’s judgment and remand for second-stage

postconviction proceedings.

¶ 21 Because we reverse and remand this cause for further proceedings based on the

court’s improper MSR admonishments, we need not reach defendant’s additional argument on

appeal regarding whether he received the full benefit of his plea agreement with the State.

¶ 22 III. CONCLUSION

-7- ¶ 23 For the reasons stated, consistent with Illinois Supreme Court Rule 23(b) (eff. Jan.

1, 2021), we reverse the judgment of the Champaign County circuit court and remand for

second-stage postconviction proceedings.

¶ 24 Reversed and remanded.

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