Sixth Division December 19, 2008
No. 1-07-0399
THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court ) of Cook County Plaintiff-Appellee, ) ) v. ) 95 CR 9715 ) ELLIOT HARPER, ) ) Honorable Defendant-Appellant. ) John A. Wasilewski, ) Judge Presiding.
JUSTICE McBRIDE delivered the opinion of the court:
Defendant Elliot Harper appeals from the trial court order granting the State's motion to
dismiss his petitions for relief pursuant to the Post-Conviction Hearing Act (the Act)(725 ILCS
5/122-1 et seq. (West 2006)). On appeal, defendant contends he made a substantial showing that
(1) he did not receive the benefit of the bargain he made with the State when he pled guilty, and
(2) his mittimus must be corrected to reflect two more days of presentence custody credit.
On May 29, 1997, defendant entered a negotiated plea of guilty to first degree murder and
attempted murder. The factual basis of the plea established that on March 20, 1995, defendant
fired a weapon into a vehicle, killing Lorenzo Aldridge and wounding Tomango Willis. After
the court accepted defendant's plea, it sentenced him as follows:
"THE COURT: *** The defendant will be sentenced to 24
years in the Illinois Department of Corrections on Count 1
[murder]. He's to receive credit.
*** 1-07-0399
THE COURT: Receive credit for 798 days time served. On
Count 3 [attempted murder], the defendant will be sentenced to six
years Illinois Department of Corrections. That's to be consecutive
to the term, the sentence in Count 1, and he's also to receive credit
on that for 798 days time served."
The court also entered two separate written orders, providing that defendant should receive 798
days' credit for "Murder Count I" and 798 days' credit for "Attempt Murder Count III."1
Defendant's order of sentence and commitment reflected that he was sentenced to 24 years for
first degree murder and 6 years for attempted murder, to be served consecutively. In addition, the
mittimus noted: "credit 798 days served in custody TCS. TAS."
The parties agree that defendant did not file a postplea motion but, instead, filed a motion
to correct the mittimus to reflect credit for time served against each of his sentences. Defendant
filed this motion in August 1998 and the circuit court denied it on September 11, 1998. On
appeal, we granted appellate counsel's motion for leave to withdraw pursuant to Pennsylvania v.
Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), and affirmed the judgment of the
circuit court, noting that "[t]he relief defendant requests is precluded by People v. Latona, 184 Ill.
2d 260, 271 (1998))." People v. Harper, No. 1-98-3727, slip op. at 2 (1999) (unpublished order
under Supreme Court Rule 23).
On March 11, 1999, defendant filed a pro se postconviction petition, alleging, inter alia,
1 The original order for "Murder Count I" does not appear in the common law record, but defendant attached an undisputed copy to his pro se postconviction petition.
-2- 1-07-0399
that plea counsel Barry Pechter and the court advised him that he would receive 798 days' credit
for time served on both offenses. Defendant attached copies of the sentencing orders and a letter
from Pechter, dated January 5, 1998, stating, in part:
"It appears that the Department of Corrections has chosen
not to abide by court orders regarding time served in consecutive
cases. I personally do not believe the Department of Corrections
has the right not to obey a court order. However, the matter is now
under consideration by the Illinois Supreme Court."
Defendant also attached an affidavit from his father, Elliot Harper, Sr., who averred that on May
29, 1997, Pechter advised him and other family members that defendant would receive credit for
time served in custody on both offenses, totaling 1,596 days' credit. Last, defendant attached his
own affidavit, providing that he was advised on May 19 and 29, 1997, that he would receive
1,596 days' presentence custody credit if he pled guilty to both counts, i.e., murder and attempted
murder.
Subsequently, defendant filed a pro se motion to supplement his petition with Pechter's
affidavit, which provided that Pechter believed defendant would receive a total of 1,596 days'
credit pursuant to a Rule 402 (177 Ill. 2d. R. 402) conference he had with the court on May 9,
1997.
Defendant's petition advanced to the second stage, where postconviction counsel
ultimately filed the instant supplemental petition, alleging that defendant did not receive the
-3- 1-07-0399
benefit of the bargain regarding his plea agreement. The State filed a motion to dismiss, which
the trial court granted on October 27, 2006, noting that there was no substantial denial of
defendant's constitutional rights.
On appeal, defendant first asserts that his petition made a substantial showing of a
constitutional violation that he did not receive the benefit of the bargain he made with the State
when he pled guilty. Defendant does not contest that his plea was knowingly or voluntarily
made, nor does he seek to withdraw his plea of guilty. Rather, defendant seeks specific
performance of the plea agreement as he understood it and requests that we reduce his sentence
for murder from 24 years to 21 years and 297 days.
On appeal, defendant relies primarily on People v. Whitfield, 217 Ill. 2d 177 (2005), for
the proposition that he deserves relief because he was denied the benefit of his plea bargain. In
Whitfield, the trial court failed to advise the defendant of the three-year period of mandatory
supervised release (MSR) before ratifying a negotiated guilty plea agreement. Whitfield, 217 Ill.
2d at 190. Under a benefit-of-the-bargain analysis, the supreme court held that the defendant was
entitled to a reduction in his negotiated 25-year sentence by 3 years to 22 years followed by a 3-
year MSR term. Whitfield, 217 Ill. 2d at 205. In the instant case, however, unlike Whitfield, the
trial court did not fail to advise defendant of the appropriate MSR term but, rather, awarded him
presentence custody credit that the law did not allow. Latona, 184 Ill. 2d at 271-72.
Although we understand defendant’s argument on appeal, we hold this case is governed
not by Whitfield but by Illinois Supreme Court’s decision in People ex rel. Ryan v. Roe, 201 Ill.
-4- 1-07-0399
2d 552 (2002). In Roe, the defendant pled guilty to predatory criminal sexual assault of a child in
exchange for an eight-year sentence. At the defendant’s guilty plea hearing, the trial court,
assistant State’s Attorney and defense counsel agreed that truth-in-sentencing would not apply
and that the defendant would be eligible for day-for-day good-conduct credit on his eight-year
sentence. The trial court wrote on the defendant’s sentencing order: “NOT SUBJECT TO
TRUTH IN SENTENCING.” Roe, 201 Ill. 2d at 555. This agreement was in violation of a
statute that provided the defendant must serve at least 85% of his sentence and does not receive
normal day-for-day good-conduct credit. Roe, 201 Ill. 2d at 556. Nearly three years later, the
State filed a mandamus complaint, seeking an amended sentencing order without language
stating that truth-in-sentencing did not apply. Roe, 201 Ill.
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Sixth Division December 19, 2008
No. 1-07-0399
THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court ) of Cook County Plaintiff-Appellee, ) ) v. ) 95 CR 9715 ) ELLIOT HARPER, ) ) Honorable Defendant-Appellant. ) John A. Wasilewski, ) Judge Presiding.
JUSTICE McBRIDE delivered the opinion of the court:
Defendant Elliot Harper appeals from the trial court order granting the State's motion to
dismiss his petitions for relief pursuant to the Post-Conviction Hearing Act (the Act)(725 ILCS
5/122-1 et seq. (West 2006)). On appeal, defendant contends he made a substantial showing that
(1) he did not receive the benefit of the bargain he made with the State when he pled guilty, and
(2) his mittimus must be corrected to reflect two more days of presentence custody credit.
On May 29, 1997, defendant entered a negotiated plea of guilty to first degree murder and
attempted murder. The factual basis of the plea established that on March 20, 1995, defendant
fired a weapon into a vehicle, killing Lorenzo Aldridge and wounding Tomango Willis. After
the court accepted defendant's plea, it sentenced him as follows:
"THE COURT: *** The defendant will be sentenced to 24
years in the Illinois Department of Corrections on Count 1
[murder]. He's to receive credit.
*** 1-07-0399
THE COURT: Receive credit for 798 days time served. On
Count 3 [attempted murder], the defendant will be sentenced to six
years Illinois Department of Corrections. That's to be consecutive
to the term, the sentence in Count 1, and he's also to receive credit
on that for 798 days time served."
The court also entered two separate written orders, providing that defendant should receive 798
days' credit for "Murder Count I" and 798 days' credit for "Attempt Murder Count III."1
Defendant's order of sentence and commitment reflected that he was sentenced to 24 years for
first degree murder and 6 years for attempted murder, to be served consecutively. In addition, the
mittimus noted: "credit 798 days served in custody TCS. TAS."
The parties agree that defendant did not file a postplea motion but, instead, filed a motion
to correct the mittimus to reflect credit for time served against each of his sentences. Defendant
filed this motion in August 1998 and the circuit court denied it on September 11, 1998. On
appeal, we granted appellate counsel's motion for leave to withdraw pursuant to Pennsylvania v.
Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), and affirmed the judgment of the
circuit court, noting that "[t]he relief defendant requests is precluded by People v. Latona, 184 Ill.
2d 260, 271 (1998))." People v. Harper, No. 1-98-3727, slip op. at 2 (1999) (unpublished order
under Supreme Court Rule 23).
On March 11, 1999, defendant filed a pro se postconviction petition, alleging, inter alia,
1 The original order for "Murder Count I" does not appear in the common law record, but defendant attached an undisputed copy to his pro se postconviction petition.
-2- 1-07-0399
that plea counsel Barry Pechter and the court advised him that he would receive 798 days' credit
for time served on both offenses. Defendant attached copies of the sentencing orders and a letter
from Pechter, dated January 5, 1998, stating, in part:
"It appears that the Department of Corrections has chosen
not to abide by court orders regarding time served in consecutive
cases. I personally do not believe the Department of Corrections
has the right not to obey a court order. However, the matter is now
under consideration by the Illinois Supreme Court."
Defendant also attached an affidavit from his father, Elliot Harper, Sr., who averred that on May
29, 1997, Pechter advised him and other family members that defendant would receive credit for
time served in custody on both offenses, totaling 1,596 days' credit. Last, defendant attached his
own affidavit, providing that he was advised on May 19 and 29, 1997, that he would receive
1,596 days' presentence custody credit if he pled guilty to both counts, i.e., murder and attempted
murder.
Subsequently, defendant filed a pro se motion to supplement his petition with Pechter's
affidavit, which provided that Pechter believed defendant would receive a total of 1,596 days'
credit pursuant to a Rule 402 (177 Ill. 2d. R. 402) conference he had with the court on May 9,
1997.
Defendant's petition advanced to the second stage, where postconviction counsel
ultimately filed the instant supplemental petition, alleging that defendant did not receive the
-3- 1-07-0399
benefit of the bargain regarding his plea agreement. The State filed a motion to dismiss, which
the trial court granted on October 27, 2006, noting that there was no substantial denial of
defendant's constitutional rights.
On appeal, defendant first asserts that his petition made a substantial showing of a
constitutional violation that he did not receive the benefit of the bargain he made with the State
when he pled guilty. Defendant does not contest that his plea was knowingly or voluntarily
made, nor does he seek to withdraw his plea of guilty. Rather, defendant seeks specific
performance of the plea agreement as he understood it and requests that we reduce his sentence
for murder from 24 years to 21 years and 297 days.
On appeal, defendant relies primarily on People v. Whitfield, 217 Ill. 2d 177 (2005), for
the proposition that he deserves relief because he was denied the benefit of his plea bargain. In
Whitfield, the trial court failed to advise the defendant of the three-year period of mandatory
supervised release (MSR) before ratifying a negotiated guilty plea agreement. Whitfield, 217 Ill.
2d at 190. Under a benefit-of-the-bargain analysis, the supreme court held that the defendant was
entitled to a reduction in his negotiated 25-year sentence by 3 years to 22 years followed by a 3-
year MSR term. Whitfield, 217 Ill. 2d at 205. In the instant case, however, unlike Whitfield, the
trial court did not fail to advise defendant of the appropriate MSR term but, rather, awarded him
presentence custody credit that the law did not allow. Latona, 184 Ill. 2d at 271-72.
Although we understand defendant’s argument on appeal, we hold this case is governed
not by Whitfield but by Illinois Supreme Court’s decision in People ex rel. Ryan v. Roe, 201 Ill.
-4- 1-07-0399
2d 552 (2002). In Roe, the defendant pled guilty to predatory criminal sexual assault of a child in
exchange for an eight-year sentence. At the defendant’s guilty plea hearing, the trial court,
assistant State’s Attorney and defense counsel agreed that truth-in-sentencing would not apply
and that the defendant would be eligible for day-for-day good-conduct credit on his eight-year
sentence. The trial court wrote on the defendant’s sentencing order: “NOT SUBJECT TO
TRUTH IN SENTENCING.” Roe, 201 Ill. 2d at 555. This agreement was in violation of a
statute that provided the defendant must serve at least 85% of his sentence and does not receive
normal day-for-day good-conduct credit. Roe, 201 Ill. 2d at 556. Nearly three years later, the
State filed a mandamus complaint, seeking an amended sentencing order without language
stating that truth-in-sentencing did not apply. Roe, 201 Ill. 2d at 555.
In awarding the writ, the Roe court stated that "the trial court had no authority to order,
and the State had no authority to agree, that the defendant's eight-year sentence was not subject to
truth-in-sentencing." Roe, 201 Ill. 2d at 557. Nevertheless, in the exercise of its supervisory
authority, the Roe court granted the defendant's request to reduce his sentence from eight years'
to six years' imprisonment, the statutory minimum for the charged offense. Roe, 201 Ill. 2d at
558. The Roe court found that the proposed solution was equitable considering "neither party
contemplated truth-in-sentencing requirements when negotiating toward a guilty plea." Roe, 201
Ill. 2d at 558.
In this case, although the defendant contends he is entitled to the benefit of the bargain,
the State has maintained throughout these proceedings that defendant was not entitled to double
-5- 1-07-0399
credit on his consecutive sentences.
Here, as in Roe, the trial court did not have authority to award double day-for-day credit
to defendant's consecutive sentence. Latona, 184 Ill. 2d at 271-72. Unlike the supreme court in
Roe, however, we do not have supervisory authority to grant the extraordinary relief which
defendant requests, i.e., a reduction in his sentence for murder from 24 years to 21 years and 297
days. Accordingly, we must uphold the dismissal of defendant's postconviction petition.
Next, defendant asserts and the State rightly concedes that he spent 800, not 798, days in
presentence custody. Further, defendant asks that we correct his mittimus to reflect two
additional days of presentence credit. Because we have the authority to correct the mittimus at
any time without remanding the matter to the trial court (People v. Pryor, 372 Ill. App. 3d 422,
438 (2007)), we order the correction of the mittimus to reflect two additional days of presentence
custody credit.
For the foregoing reasons, we affirm trial court's dismissal of defendant's postconviction
petition and direct the clerk of the circuit court to correct the mittimus to reflect 800 days of
presentence custody credit.
Affirmed; mittimus corrected.
O’MALLEY, P.J., and CAHILL, J., concur.
-6-