NO. 4-05-1015 Filed 6/21/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) McLean County JOHN WILLIE JOLLY, ) No. 02CF811 Defendant-Appellant. ) ) Honorable ) Donald D. Bernardi, ) Judge Presiding. _________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In October 2002, defendant, John Willie Jolly, pleaded
guilty to delivery of a controlled substance (less than one gram
of a substance containing cocaine) (720 ILCS 570/401(d) (West
2002)). The trial court later sentenced him to 10 years in
prison and imposed a $100 street-value fine. Defendant later
filed motions to withdraw his guilty plea and reconsider his
sentence, which the court denied.
Defendant appealed, and this court affirmed. People v.
Jolly, 357 Ill. App. 3d 884, 830 N.E.2d 860 (2005). In October
2005, defendant filed a petition for relief, pursuant to the
Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West
2004)). In November 2005, the trial court dismissed that peti-
tion, upon finding that the issues defendant raised were frivo-
lous and patently without merit. Defendant appeals, arguing that the trial court erred
by dismissing his postconviction petition because it contained
the gist of a constitutional claim that his postplea counsel was
ineffective for failing to (1) include in defendant's motion to
withdraw his guilty plea the claim that defendant was not admon-
ished as to the mandatory-supervised-release (MSR) term he would
be required to serve and (2) preserve the issue that the trial
court improperly imposed the $100 street-value fine. We reject
defendant's arguments and affirm.
I. BACKGROUND
In July 2002, the State charged defendant with criminal
drug conspiracy (720 ILCS 570/405.1(a) (West 2002)) (count I) and
delivery of a controlled substance (720 ILCS 570/401(d) (West
2002)) (count II). At defendant's request, the trial court
appointed counsel to represent him.
A. Defendant's Jury Trial and Guilty Plea
On October 8, 2002, defendant's jury trial on both
counts began, with assistant public defender James Tusek repre-
senting defendant. The State called several witnesses to testify
about defendant's selling crack cocaine, including the confiden-
tial informant working for the Bloomington police department (who
was a crack addict), as well as defendant's accomplice, who was
present at the time of the sale. The informant testified that
(1) he gave defendant five $20 bills to purchase crack cocaine
- 2 - and (2) the sale occurred in defendant's car. Shortly thereaf-
ter, the informant left the car and turned the crack cocaine over
to the surveilling police officers. Meanwhile, other officers
stopped defendant's car and arrested him. In his sock, the
officers found five $20 bills that bore the same serial numbers
as the $20 bills they had given to the informant. (The police
had photocopied the bills before doing so.)
When the trial resumed the following morning, the trial
court and counsel agreed on the jury instructions, and Tusek
informed the court that he wanted to talk with defendant about
whether he would testify. After a brief recess, Tusek informed
the court that defendant wanted to plead guilty to count II
without any agreement from the State pertaining to his sentence.
The State agreed to dismiss count I but noted that multiple
convictions would merge into one conviction for sentencing.
The trial court then admonished defendant in accordance
with Supreme Court Rule 402 (177 Ill. 2d R. 402), explaining that
count II, which was normally a Class 2 felony, had a sentencing
range of 3 to 14 years in prison because defendant had a prior
Class 2 felony conviction. The court also informed defendant
that any prison sentence imposed was required by law to be
consecutive to another sentence that had previously been imposed
upon defendant. The court asked counsel if they would stipulate
to the evidence that had been presented as a factual basis in
- 3 - support of the offer to plead guilty, and both counsel agreed.
However, the court never informed defendant that, in addition to
any prison sentence imposed, he would need to serve an MSR term
of two years. See 730 ILCS 5/5-8-1(d)(2) (West 2002) (providing
that the MSR term for a Class 1 or Class 2 felony is two years).
The court then accepted defendant's guilty plea and set the
matter for sentencing.
B. Post Guilty-Plea Proceedings
Later in October 2002, defendant pro se filed a motion
to vacate his guilty plea, in which he asserted that Tusek was
ineffective because, in part, he "was not the vigorous advocate
to which the defendant was entitled."
As a result of defendant's pro se motion, the trial
court appointed Anthony K. Tomkiewicz as new counsel for defen-
dant. Tomkiewicz represented defendant at his December 2002
sentencing hearing, where the trial court sentenced defendant as
earlier stated and imposed a $100 street-value fine.
In January 2003, Tomkiewicz filed a motion to withdraw
defendant's guilty plea and vacate judgment, asserting that the
only reason defendant entered into an open guilty plea was
because of Tusek's ineffective assistance at trial, in that he
failed to sufficiently attack the credibility of the State's
witnesses. Thus, defendant believed that he had no choice but to
plead guilty to count II to avoid a conviction on count I. In
- 4 - April 2003, Tomkiewicz filed an amended motion to withdraw
defendant's guilty plea and vacate judgment, in which he reas-
serted the previous grounds and added some new assertions regard-
ing Tusek's alleged ineffective assistance. In May 2003, the
trial court denied defendant's motions. Defendant asked that
appellate counsel be appointed, and the trial court did so.
Defendant appealed, arguing only that the $100 street-
value fine must be vacated because the trial court made no
specific findings as to its basis. This court rejected defen-
dant's argument, upon concluding that defendant had forfeited his
right to raise that issue on appeal because he had not raised it
in any of his posttrial motions. Jolly, 357 Ill. App. 3d at 886,
830 N.E.2d at 861-62.
C. Defendant's Postconviction Petition
In October 2005, defendant pro se filed his postcon-
viction petition, in which he alleged that his constitutional
rights were violated when the trial court failed to properly
admonish him concerning the mandatory MSR term he would need to
serve after imprisonment. He also asserted that (1) his insuffi-
cient awareness of the consequences of the MSR term made his
guilty plea involuntary and (2) if he had known about the MSR
term, he would have persisted in finishing his trial and letting
"his peers render a verdict." Defendant also alleged that he was
denied his right to effective assistance of trial counsel when
- 5 - Tusek failed to argue that the court (1) lacked a basis for
imposing the $100 street-value fine and (2) failed to inform
defendant of the MSR term.
As earlier stated, in November 2005, the trial court
dismissed defendant's petition under section 122-2.1 of the Act
(725 ILCS 5/122-2.1 (West 2004)), upon finding that the petition
was frivolous and patently without merit.
This appeal followed.
II. ANALYSIS
A. Defendant's Contentions on Appeal
On appeal, defendant asserts the following issues are
presented for review:
"Whether the trial court erred in dis-
missing defendant's post[]conviction petition
where he stated the gist of a constitutional
claim that his post[]plea counsel
[Tomkiewicz] was ineffective for (a) failing
to include in the motion to withdraw plea the
claim that defendant was not admonished of
the [MSR] term and (b) failing to preserve
the issue that the street-value fine was not
properly imposed."
- 6 - Defendant expands upon this theme by asserting that
"[n]ot only did [Tomkiewicz] fail to preserve
a viable issue (the street-value fine) for
appeal, but he failed to attack defendant's
guilty plea on the basis that defendant was
not admonished that a term of [MSR] *** would
follow his prison sentence."
Defendant also asserts that because he was not so admonished, the
record did not show that his guilty plea was entered knowingly.
As discussed further below, the fundamental problem
with defendant's position on appeal is that the issues he pres-
ents to this court were not asserted in the postconviction
petition that the trial court dismissed--the action we are
reviewing.
B. Issues Raised for the First Time on Appeal from Dismissal of a Postconviction Petition
The Supreme Court of Illinois has recently addressed
efforts by defendants to raise for the first time on appeal
issues that were not raised in postconviction petitions that were
rejected by trial courts. In People v. Jones, 213 Ill. 2d 498,
499, 821 N.E.2d 1093, 1094 (2004), the defendant had pleaded
guilty to attempted first degree murder in exchange for a 20-year
prison sentence. He later pro se filed a petition for postcon-
viction relief. Jones, 213 Ill. 2d at 501, 821 N.E.2d at 1095.
The trial court dismissed the petition under section 122-2.1 of
- 7 - the Act as being frivolous and patently without merit, and the
appellate court affirmed. People v. Jones, 341 Ill. App. 3d 103,
107-08, 791 N.E.2d 1118, 1121 (2003).
The supreme court granted the defendant's petition for
leave to appeal and noted that the case presented the issue of
whether the defendant could raise for the first time on appeal
the question of improper admonishments despite the fact that he
did not include that issue in his postconviction petition. The
supreme court held that the defendant may not do so. Jones, 213
Ill. 2d at 508-09, 821 N.E.2d at 1099. Interestingly, the court
did so despite acknowledging the pro se status of the defendant
when he filed his postconviction petition:
"Stated bluntly, the typical pro se litigant
will draft an inartful pleading which does
not survive scrutiny under the
'frivolity/patently without merit' standard
of section 122-2.1, and it is only during the
appellate process, when the discerning eyes
of an attorney are reviewing the record, that
the more complex errors that a nonattorney
cannot glean are discovered. The appellate
attorney, not wishing to be remiss in his or
her duty, then adds the newly discovered
error to the appeal despite the fact that the
- 8 - claim was never considered by the trial court
in the course of its ruling. The thought
process behind the attorney's actions is
clear--the attorney is zealously guarding the
client's rights and is attempting to conserve
judicial resources by raising the claim expe-
ditiously at the first available chance.
These goals are laudable, but they nonethe-
less conflict with the nature of appellate
review and the strictures of the Act."
Jones, 213 Ill. 2d at 504-05, 821 N.E.2d at
1096-97.
To leave no doubt about the supreme court's views on
this subject, the court went on to note disapprovingly that "our
appellate court has repeatedly overlooked the [forfeiture]
language of section 122-3 [of the Act] and has addressed claims
raised for the first time on appeal for various and sundry
reasons." Jones, 213 Ill. 2d at 506, 821 N.E.2d at 1097. The
supreme court also pointed out that some appellate court deci-
sions seem to be premised upon the fact that the supreme court
itself has not always followed this rule. Jones, 213 Ill. 2d at
506-07, 821 N.E.2d at 1098. The supreme court then explicitly
overruled all such prior appellate court decisions, explaining as
follows:
- 9 - "Our detailed discussion of this issue is
intended to stress that our appellate court
is not free, as this court is under its su-
pervisory authority, to excuse, in the con-
text of postconviction proceedings, an appel-
late [forfeiture] caused by the failure of
[the] defendant to include issues in his or
her postconviction petition." Jones, 213
Ill. 2d at 508, 821 N.E.2d at 1099.
More recently, in People v. Pendleton, 223 Ill. 2d 458,
474, 861 N.E.2d 999, 1008 (2006), the defendant attempted (in an
appeal to the supreme court from the trial court's denial of his
postconviction petition) to raise the trial court's deficient
admonitions regarding his negotiated guilty plea. The supreme
court rejected his effort and wrote that "even a liberal reading
of defendant's petitions reveals no reference to an admonishment
issue in either the defendant's pro se petition or the amended
petition." Pendleton, 223 Ill. 2d at 474, 861 N.E.2d at 1008-09.
The supreme court then reaffirmed what it said in Jones about
appellate forfeiture, explaining that the court need not resolve
the case on the merits of the defendant's argument because he had
forfeited the admonishment issue under general principles of
procedural default. Pendleton, 223 Ill. 2d at 475, 861 N.E.2d at
1009.
- 10 - In People v. Little, 335 Ill. App. 3d 1046, 1055, 782
N.E.2d 957, 965 (2003), this court had reached the same conclu-
sion as the supreme court and wrote the following:
"Defendant raises [the claim that the
trial court lacked the authority to order
that her prison wages be withheld] for the
first time in her appeal from the trial
court's dismissal of her postconviction peti-
tion. In People v. Griffin, 321 Ill. App. 3d
425, 428, 748 N.E.2d 1235, 1238 (2001), this
court declined to construe the Act as permit-
ting a defendant to raise on appeal from the
dismissal of a postconviction petition an
issue she never raised in that petition. We
adhere to Griffin and thus deem this issue
forfeited. See also People v. Moore, 189
Ill. 2d 521, 544, 727 N.E.2d 348, 360 (2000)
(in which the supreme court declined to ad-
dress the merits of the defendant's claim
when he first raised it in his appeal from
the dismissal of his amended postconviction
petition)."
C. Procedural Forfeiture as Applied to This Appeal
Defendant seeks to argue here that his postplea coun-
- 11 - sel, Tomkiewicz, was ineffective for failing to (1) include in
defendant's motion to withdraw his guilty plea the claim that
defendant was not admonished as to the MSR term and (2) preserve
the issue that the trial court did not properly impose the
street-value fine. However, as the supreme court noted in
Pendleton, "even a liberal reading" of defendant's postconviction
petition reveals no reference whatsoever to any claimed ineffec-
tiveness by Tomkiewicz. Pendleton, 223 Ill. 2d at 474, 861
N.E.2d at 1008. Instead, that petition alleged that defendant's
trial counsel, Tusek, rendered ineffective assistance of counsel.
We thus conclude that defendant has forfeited any claims of
Tomkiewicz's ineffectiveness.
The supreme court's decision in People v. Whitfield,
217 Ill. 2d 177, 840 N.E.2d 658 (2005), does not require a
different result. In that case, the supreme court addressed the
defendant's argument that the trial court erred by dismissing his
postconviction claim that the trial court's failure to admonish
him that a 3-year MSR term would be added to his negotiated 25-
year prison sentence violated his fundamental rights. Whitfield,
217 Ill. 2d at 180, 840 N.E.2d at 661. Whitfield is distinguish-
able on two points. First, the defendant in Whitfield, unlike
defendant here, raised the issue in his postconviction petition.
Whitfield, 217 Ill. 2d at 180-81, 840 N.E.2d at 661-62. Second,
the defendant in Whitfield pleaded guilty in agreement for a
- 12 - specific sentence of 25 years in prison. Whitfield, 217 Ill. 2d
at 179, 840 N.E.2d at 661. That is not the situation in this
case because defendant entered an open guilty plea, and the trial
court imposed a sentence that, with the MSR term added, does not
exceed the maximum sentence of which defendant was admonished
before he pleaded guilty. Thus, the failure to admonish him
about the MSR term does not constitute a violation of due pro-
cess.
Indeed, the supreme court in Whitfield made this clear
by reaffirming its decision in People v. McCoy, 74 Ill. 2d 398,
385 N.E.2d 696 (1979), in which the court held that, although the
trial court erred by failing to admonish the defendant as to the
MSR term,
"the error was not of constitutional dimen-
sion because defendant was not prejudiced--
the 'indeterminate sentence imposed, together
with the mandatory parole period, [was] sub-
stantially less than the maximum of 20 years
to which defendant knew he could be
sentenced.'" Whitfield, 217 Ill. 2d at 191,
840 N.E.2d at 667, quoting McCoy, 74 Ill. 2d
at 403, 382 N.E.2d at 699.
In any event, the Whitfield decision does not amount to
a "Get-Out-Of-Jail-Free card," which a defendant may use whenever
- 13 - and however he wishes if, when he pleaded guilty, the trial court
failed to give him the appropriate MSR admonition. Both at the
trial level and on appeal, defendants who wish to vindicate their
rights under those circumstances must do so in accordance both
with the statutes they attempt to utilize, such as the Post-
Conviction Hearing Act, and the decisions of the Supreme Court of
Illinois that govern the implementation of those statutes.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State's request
that defendant be assessed $50 as costs for this appeal. 55 ILCS
5/4-2002(a) (West 2004); see also People v. Smith, 133 Ill. App.
3d 613, 620, 479 N.E.2d 328, 333 (1985), citing People v.
Nicholls, 71 Ill. 2d 166, 179, 374 N.E.2d 194, 199 (1978).
Affirmed.
McCULLOUGH and COOK, JJ., concur.
- 14 -