his permission. It was parked outside. And
when the three men left, including the defen-
dant, they left with the beer in the van.
In between, while in the home, they beat
and kicked [Bernard H.] using, among other
things, a pool cue, which one or more of them
broke over his head and body, a guitar, the
body of which, acoustic[-]type guitar, I
believe, that they broke over his head and
body. Beat him with a cast fire extinguisher
about the head and body. And one or more of
them stabbed him with a kitchen knife that
was there in the residence.
[Bernard H.], as a result of these inju-
ries, spent an extended stay in the hospital
in Peoria and ultimately could not return to
his home, and never has. [Bernard H.] has
been left to spend the rest of his days in an
extended[-]care facility, a nursing[-]home[-
]type facility. Before this event, he could
get out and about, didn't stay in a wheel-
chair, was able to communicate effectively
orally and able to listen to things and un-
derstand things when people would speak to
- 10 - him. The injuries in this event[,] the dam-
age to the brain left him having great diffi-
culty, if able to comprehend at all, when
people speak to him, with enormous memory
deficits[,] and quite simply no ability to
take care of himself any longer. This all
relating to the injuries to the brain. The
injuries to the limbs, extremities, in con-
trast, while serious, were minor in terms of
their long[-]term effect on [Bernard H.].
Those are the facts of the case, Your Honor."
The court inquired of defendant if he had heard the factual basis
for the plea, to which defendant answered in the affirmative.
The court then inquired of defendant whether he had any disagree-
ment with the factual basis, to which defendant answered in the
negative. The court found, based on the factual presentation
made, that the statutory requirements had been met for a finding
of great bodily harm to the victim. The court found that defen-
dant understood the nature of the charges, the possible penal-
ties, and the rights that he was waiving. The court further
found that the pleas of guilty were made voluntarily and that
there was a factual basis for the pleas. At sentencing, the
court did not mention MSR. The court accepted the pleas and
entered the following judgment and sentence:
"*** A judgment of conviction is entered as
to [c]ount [I], home invasion, a Class X
- 11 - felony. In accord with the plea agreement,
the defendant is sentenced to a term of 16
years in [DOC]. He is given credit for the
200 days served to date. There is also a
conviction under [c]ount [VI], theft as a
subsequent offense, a Class 4 felony. The
defendant is sentenced to a term of three
years in [DOC] to run concurrently with
[c]ount [I]. There is a conviction entered
as to [c]ount [VII], criminal trespass to [a]
vehicle. And he is sentenced to 364 days
there to run concurrently. A finding of
guilty is made as to [c]ounts [II, III, IV,
and V]. The court costs, restitution, are
all due within 12 months of release from
[DOC].
The court specifically finds based on
the factual presentation made that the statu-
tory requirements are met for a finding of
great bodily harm to the victim here. And
the court does specifically make that find-
ing."
The written plea agreement and the sentencing judgment did not
mention MSR.
In February 2005, defendant filed a pro se motion for
- 12 - reduction of sentence. Therein he alleged that (1) his "rapies"
received less time than he, (2) the Illinois State Police detec-
tive had guaranteed him a sentence of not more than 8 years at
50%, and (3) his lawyer had refused to try to get him a better
plea bargain. In a March 2005 docket entry, the court ruled "the
defendant's [m]otion is untimely and is denied for that and other
reasons."
petition. Therein he alleged that the State violated the terms
of the plea agreement by adding a three-year period of MSR to his
sentence, about which he had not been admonished and which
resulted in a more onerous sentence than that to which he had
agreed. He also challenged the constitutionality of the truth-
in-sentencing statute. In his petition, defendant sought issu-
ance of "a corrected mittimus sheet" or "one of the other reme-
dies available." The trial court found that "[t]he transcript
clearly indicates that the defendant was advised of what the
possible sentences could be under the various counts, including
the addition of a period of [MSR]." The court dismissed the
postconviction petition as frivolous and patently without merit.
This appeal followed.
II. ANALYSIS
This appeal involves the first-stage dismissal of
defendant's postconviction petition. The Act provides a remedy
to criminal defendants whose state or federal constitutional
rights were substantially violated by their convictions or
- 13 - sentences. People v. Coleman, 206 Ill. 2d 261, 277, 794 N.E.2d
275, 286 (2002). A postconviction proceeding is not an appeal
per se; rather, it is a collateral proceeding inquiring into
constitutional issues that were not, and could not have been,
previously adjudicated. People v. Eddmonds, 143 Ill. 2d 501,
510, 578 N.E.2d 952, 955-56 (1991).
In the first stage of a postconviction proceeding not
involving the death penalty, the trial court determines whether
defendant's petition, standing alone, is frivolous and patently
without merit. People v. Gaultney, 174 Ill. 2d 410, 418, 675
N.E.2d 102, 106 (1996). If the petition does not present "the
gist of a constitutional claim," it will be dismissed. Gaultney,
174 Ill. 2d at 418, 675 N.E.2d at 106. In the instant case, the
trial court dismissed the petition at the first stage. Accord-
ingly, we must determine only whether defendant's petition set
forth the gist of a constitutional claim. We review the trial
court's summary dismissal of a defendant's petition de novo.
People v. Williams, 209 Ill. 2d 227, 234, 807 N.E.2d 448, 453
(2004).
On appeal, defendant argues that the trial court erred
in dismissing his postconviction petition because his plea
agreement did not include any mention of the requirement that he
serve a three-year term of MSR following his release from DOC.
Therefore, defendant argues, the sentence he received was greater
than that to which he agreed during his guilty-plea negotiations
and hearing. Defendant does not challenge the validity of the
- 14 - plea and, accordingly, does not seek the withdrawal of his guilty
plea. Instead, defendant seeks reversal of the trial court's
judgment and remand with directions that his sentence be reduced
to a term of 13 years in DOC followed by 3 years on MSR. The
State maintains that defendant was admonished about MSR and that
he is not entitled to reduction in his sentence simply because
the trial court did not explicitly clarify that MSR would apply
in addition to his negotiated prison terms.
Defendant cites People v. Whitfield, 217 Ill. 2d 177,
840 N.E.2d 658 (2005), and People v. Company, 376 Ill. App. 3d
846, 876 N.E.2d 1055 (2007), as authority to support his argument
that the addition of the term of MSR constitutes an unfair breach
of the plea agreement and violates his due-process rights.
In Whitfield, the defendant entered a fully negotiated
guilty plea in exchange for concurrent 25-year and 6-year prison
terms. Whitfield, 217 Ill. 2d at 179, 840 N.E.2d at 661. At no
time during the plea proceedings did the prosecutor or the court
advise the defendant that he would be subject to a three-year
period of MSR following his release from prison. Whitfield, 217
Ill. 2d at 180, 840 N.E.2d at 661. The sentencing order did not
reference the three-year MSR term required by law. Whitfield,
217 Ill. 2d at 180 n.1, 840 N.E.2d at 661 n.1. The defendant did
not file a direct appeal. Whitfield, 217 Ill. 2d at 180, 840
N.E.2d at 661. Later, while serving his prison sentence, the
defendant became aware that a 3-year term of MSR had been added
to his 25-year sentence by operation of law. Whitfield, 217 Ill.
- 15 - 2d at 180, 840 N.E.2d at 661. The defendant filed a motion for
relief from judgment that the court treated as a postconviction
petition. The defendant contended that his fourteenth amendment
(U.S. Const., amend. XIV) due-process rights were violated
because he was never advised of the MSR that "had been added to
his negotiated sentence and resulted in a 'more onerous' sentence
than the one he had agreed to when he pled guilty." Whitfield,
217 Ill. 2d at 180, 840 N.E.2d at 661. The defendant did not
request that his plea be withdrawn but sought to enforce the
terms of the plea agreement by reducing his 25-year prison term
by the length of the MSR term. Whitfield, 217 Ill. 2d at 180-81,
840 N.E.2d at 661. The trial court denied the petition and the
appellate court affirmed. Whitfield, 217 Ill. 2d at 181-82, 840
N.E.2d at 662.
The Whitfield court stated that a defendant's due-
process rights may be violated where the defendant did not
receive the "benefit of the bargain" of his plea agreement with
the State. Whitfield, 217 Ill. 2d at 186, 840 N.E.2d at 664.
The defendant in Whitfield argued that the trial court was
required under Rule 402 (177 Ill. 2d R. 402) to admonish him on
the record of the statutorily required MSR term. Whitfield, 217
Ill. 2d at 186, 840 N.E.2d at 664-65. The defendant argued that
because the court failed to admonish the defendant of the statu-
torily required MSR term, the defendant's plea agreement included
only the prison sentence and not the additional MSR term.
Whitfield, 217 Ill. 2d at 186, 840 N.E.2d at 665.
- 16 - The Whitfield court concluded:
"[A]lthough substantial compliance with
Rule 402 is sufficient to establish due pro-
cess [citations], and an imperfect admonish-
ment is not reversible error unless real
justice has been denied or the defendant has
been prejudiced by the inadequate admonish-
ment [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 [an MSR]
term will be added to that sentence."
Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at
669.
The Whitfield court held that the petitioner established a
substantial violation of his constitutional rights because he
pleaded guilty in exchange for a specific sentence, and the
addition of the MSR term resulted in a sentence "more onerous
than the one defendant agreed to at the time of the plea hear-
ing." Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at 669.
However, this case is distinguishable from Whitfield in
one significant respect. In Whitfield, the trial court did not
mention MSR at all to the defendant before he entered into his
negotiated guilty plea for a specific term of years. Whitfield,
- 17 - 217 Ill. 2d at 179-80, 840 N.E.2d at 661. Here, during the
guilty-plea hearing and prior to defendant’s guilty plea, the
trial court mentioned MSR on at least four occasions as the court
admonished defendant regarding the potential penalties for each
of the charged offenses.
Further, this court has previously addressed the
admonishment issues presented in Whitfield, noting its unwilling-
ness to expand Whitfield’s ruling to cases where MSR was men-
tioned in the admonishments prior to a plea.
In People v. Borst, 372 Ill. App. 3d 331, 867 N.E.2d
1181 (2007), the defendant entered into a negotiated guilty plea
to attempt (aggravated criminal sexual assault) and home invasion
in exchange for concurrent 15-year sentences and dismissal of a
residential-burglary charge. Borst, 372 Ill. App. 3d at 332, 867
N.E.2d at 1182. At the plea hearing, the trial court gave the
following admonishments:
"'[TRIAL COURT]: Count [I], attempted
aggravated criminal sexual assault, is a
Class [1] [f]elony punishable by one to three
years, I'm sorry, four to 15 years in the
penitentiary. If there are aggravating fac-
tors present[,] could be 15 to 30 years. Two
years['] [MSR]. Up to four years on proba-
tion. Up to $25,000 fine.
Count [II], home invasion, is a Class X
[f]elony as charged. It's six to 30 years in
- 18 - 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.'" (Emphases in original.)
Borst, 372 Ill. App. 3d at 332, 867 N.E.2d at
1182.
When declaring the sentence, the court did not mention MSR again,
and the sentencing judgment did not mention MSR. Borst, 372 Ill.
App. 3d at 333, 867 N.E.2d at 1183. This court determined that,
while the trial judge was not perfectly clear, he did mention
terms of MSR while admonishing the defendant. This court,
therefore, refused to apply Whitfield to a situation in which MSR
was mentioned. Borst, 372 Ill. App. 3d at 334, 867 N.E.2d at
1184.
In People v. Holt, 372 Ill. App. 3d 650, 867 N.E.2d
1192 (2007), the defendant entered into an open guilty plea to
burglary in exchange for the State recommending a DOC sentence of
13 years and dismissal of other charges. Holt, 372 Ill. App. 3d
at 650-51, 867 N.E.2d at 1193-94. The trial court told the
defendant that "'[i]f you are sent to prison, there [is] a period
of [MSR] of one [to] three years.'" (Emphasis omitted.) Holt,
372 Ill. App. 3d at 651, 867 N.E.2d at 1193. Defendant was
sentenced to 13 years in DOC. Holt, 372 Ill. App. 3d at 651, 867
N.E.2d at 1194. Because the defendant was admonished about MSR,
this court found that the defendant had received the benefit of
his bargain with the State, and defendant's due-process rights
- 19 - had not been violated. Holt, 372 Ill. App. 3d at 653, 867 N.E.2d
at 1195.
In People v. Jarrett, 372 Ill. App. 3d 344, 345, 867
N.E.2d 1173, 1174-75 (2007), the defendant entered into a par-
tially negotiated plea of guilty to unlawful possession of a
controlled substance with intent to deliver in exchange for the
State dismissing other charges and offering a "'cap at 10
years.'" Jarrett, 372 Ill. App. 3d at 345, 867 N.E.2d at 1175.
The trial court admonished the defendant of the potential penal-
ties absent a plea agreement and then stated, "'There's what's
called [MSR], what we used to call parole, up to [three] years.'"
(Emphasis in original.) Jarrett, 372 Ill. App. 3d at 345-46, 867
N.E.2d at 1175. The defendant was sentenced to eight years in
DOC. Jarrett, 372 Ill. App. 3d at 345, 867 N.E.2d at 1174.
After noting its "serious concerns about both the analysis and
remedy in Whitfield" (Jarrett, 372 Ill. App. 3d at 351, 867
N.E.2d at 1179), this court held that it was not constrained to
follow the Whitfield decision because, unlike Whitfield, Jarrett
involved only a partially negotiated plea instead of a fully
negotiated plea, and the trial court did mention MSR during the
guilty-plea hearing. Jarrett, 372 Ill. App. 3d at 351-52, 867
N.E.2d at 1179-80.
Defendant maintains that, "at first blush," this line
of cases seems to control the issue at bar because this was a
fully negotiated plea, the trial court did mention MSR during the
plea hearing, and the sentencing order made no mention of MSR.
- 20 - However, defendant argues that in the case sub judice the court
stated specifically that MSR was only a penalty defendant could
receive if the matter were resolved by "other than a plea agree-
ment." For that reason, defendant relies on Company, 376 Ill.
App. 3d 846, 876 N.E.2d 1055, which he maintains is directly on
point and which he argues should control the resolution of this
issue.
In Company, the defendant entered into a fully negoti-
ated plea of guilty to home invasion in exchange for dismissal of
a murder charge and a 15-year sentence to DOC. Company, 376 Ill.
App. 3d at 847, 876 N.E.2d at 1056. The trial court admonished
the defendant as follows:
"'THE COURT: As Mr. Roustio indicated,
Mr. Company, if you were convicted at trial
of the [m]urder, I could have sentenced you
to a determinate period of time in [DOC]
between 20 and 60 years, and you would have
to do 100[%] of that sentence. If convicted
on the [h]ome [i]nvasion, I could sentence
you to a determinate period of time in [DOC]
between 6 and 30 years. You would have to do
85[%] of that sentence. It is not
probationable. Probation is not an option,
and at the conclusion of that sentence you
either--either--the sentence on either count,
you would do two years of [MSR], and on each
- 21 - one I could fine you $25,000. There's a
possibility, Mr. Company, that I could sen-
tence you consecutively so that theoretically
you could do as many as 90 years in prison.
Do you have any questions about the punish-
ments that you could have faced?
THE DEFENDANT: No, [s]ir.'" (Emphases
in original.) Company, 376 Ill. App. 3d at
850, 876 N.E.2d at 1058-59.
The written order of judgment made no mention of MSR. The
defendant filed a motion to withdraw his guilty plea or, in the
alternative, to modify or reduce the sentence imposed. In his
motion, the defendant alleged that he did not "'fully understand
or comprehend the admonishments of the court pursuant to Illinois
Supreme Court Rule 402 at the time of the entry of the plea of
guilty.'" Company, 376 Ill. App. 3d at 847-48, 876 N.E.2d at
1056. The court denied the defendant’s motion to withdraw his
guilty plea. Company, 376 Ill. App. 3d at 848, 876 N.E.2d at
1056-57.
In Company, the Fifth District found the facts were
similar to Whitfield. However, unlike Whitfield, "the trial
court did mention [MSR]" when admonishing the defendant. Com-
pany, 376 Ill. App. 3d at 850, 876 N.E.2d at 1058-59. But when
mentioning MSR, the court stated that the defendant would be
subject to a term of MSR "'if *** convicted at trial of the
[m]urder'" and "'if convicted on the [h]ome [i]nvasion.'" The
- 22 - court explained that "'[i]nstead of'" those penalties, the
defendant was "'agreeing on a sentence of 15 years.'" (Emphasis
omitted.) Company, 376 Ill. App. 3d at 850-51, 876 N.E.2d at
1058-59. Accordingly, the court stated that the defendant could
reasonably have understood that an MSR term applied only if he
were to be found guilty at a trial and that nothing in the record
showed that the defendant knew he would be subject to an MSR term
as a result of his guilty plea. Company, 376 Ill. App. 3d at
851, 876 N.E.2d at 1059.
The Company court then distinguished its holding from
both Holt and Borst. Holt was distinguishable because, in that
case, the defendant was clearly admonished by the trial court
that an MSR term of one to three years attached to a prison term.
Borst was distinguishable because, in that case, when the court
admonished the defendant about the minimum and maximum sentences
each offense carried, the court also mentioned the MSR term each
offense carried. Company, 376 Ill. App. 3d at 852, 876 N.E.2d at
1060. The court distinguished Borst by stating that in Borst the
trial court's admonishment had "related MSR to the defendant's
crime," while in Company, the trial court had "linked MSR to the
defendant's possible sentence if he were to be found guilty at a
trial and not to a sentence for his crime in general or to the
sentence that was being imposed as a result of his guilty plea."
Company, 376 Ill. App. 3d at 852, 876 N.E.2d at 1060. The court
reversed and remanded with directions that the trial court reduce
the defendant's prison sentence from a term of 15 to a term of 12
- 23 - years. Company, 376 Ill. App. 3d at 853, 876 N.E.2d at 1061.
The case sub judice is similar to Company in many
respects. This case involved a fully negotiated plea for a set
term of years. When admonishing defendant at the plea hearing,
the trial court mentioned MSR four times as follows:
"Now it is important that you understand
[of MSR]. *** So do you understand what the
possibilities there are, if this were handled
by other than a plea agreement?
a Class 2 felony. *** And you are eligible
there for an extended term. Since that is a
Class 2, an extended term is seven to four-
teen years. So if this were handled by other
than a plea agreement, the law provides you
could get anywhere from three to 14 years in
prison, plus two years [of MSR]. *** So
those are the possibilities there.
- 24 - Mr. Holborow?
[c]ount[s] [III], [IV], [c]ount [V] are ag-
gravated battery counts. Those are Class 3
extended felonies. prison term You are of up eligible to ten for years an there. So if
this were handled by other than a plea agreement as to
those three counts, you could get anywhere from two to
ten years in prison, plus two years [of MSR]. ***
plus one year of [MSR]. *** So those are
the possibilities there.
The written plea agreement, docket entry, and sentencing order,
however, made no mention of MSR. When the trial court sentenced
defendant, the court specifically mentioned the 16 years' impris-
onment, court costs, and DNA requirements but did not mention an
MSR term.
However, in accordance with our prior decisions in
Jarrett, Borst, and Holt, we disagree with the Fifth District
- 25 - holding in Company. We, therefore, decline to apply it to the
case sub judice. "[S]ubstantial 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." Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at 669.
The trial court in the case sub judice certainly could have made
the admonitions clearer. Regardless, the court did substantially
comply with the requirements of Supreme Court Rule 402 when the
court mentioned MSR to defendant during the court's admonitions
prior to defendant's guilty plea. Defendant was made aware of
MSR, and he was not deprived of the benefit of the bargain he
made with the State. Therefore, defendant's due-process rights
were not violated. The court appropriately dismissed defendant's
postconviction petition.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's
judgment dismissing defendant's postconviction petition. As part
of our judgment, we grant the State's request that defendant be
assessed $50 as costs for this appeal.
Affirmed.
KNECHT and STEIGMANN, JJ., concur.
- 26 -