People v. Levi

2020 IL App (4th) 180680-U

• Court: Appellate Court of Illinois
• Decided: September 11, 2020
• Docket: 4-18-0680
• Status: Unpublished

Opinion

NOTICE 2020 IL App (4th) 180680-U This order was filed under Supreme FILED NO. 4-18-0680 September 11, 2020 Court Rule 23 and may not be cited as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County MARC C. LEVI, ) No. 15CF1435 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices DeArmond and Harris concurred in the judgment.

ORDER ¶1 Held: We grant the Office of the State Appellate Defender’s motion to withdraw as appellate counsel and affirm the trial court’s judgment. Defendant was admonished his sentence would include a two-year term of mandatory supervised release.

¶2 This appeal comes to us on the motion of the Office of the State Appellate

Defender (OSAD) to withdraw as counsel on appeal on the ground no meritorious issues can be

raised in this case. We grant OSAD’s motion and affirm.

¶3 I. BACKGROUND

¶4 In October 2015, the State charged defendant, Marc C. Levi, by information, with

two counts of unlawful possession of a weapon by a felon (counts I and II) (720 ILCS

5/24-1.1(a) (West 2014)), both Class 2 felonies, and one count of unlawful possession with intent to deliver a controlled substance (count III) (720 ILCS 570/407(b)(2) (West 2014)), a Class 1

felony.

¶5 In August 2016, defendant pleaded guilty to count I in exchange for a four-year

prison sentence and the dismissal of counts II and III. At the plea hearing, the trial court recited

the terms of the plea, including the sentence and fines agreed to by the parties. The court

admonished defendant, in part, as follows:

“Now this is a Class 2 felony[.] It calls for a mandatory minimum sentence of 3

years[,] your maximum sentence could be fixed out to 14 years followed by a

period of mandatory supervised release of 2 years[.]

Following admonishment and the State’s assertion of the factual basis, defendant persisted in his

guilty plea. The court accepted defendant’s plea and sentenced him to four years in prison with

credit for two days’ time served. The court did not mention mandatory supervised release (MSR)

in its pronouncement of defendant’s sentence. However, the court’s written sentencing order and

sentencing judgment reflected a two-year MSR term in addition to defendant’s four-year

sentence.

¶6 In September 2018, defendant filed a pro se postconviction petition claiming the

trial court’s imposition of MSR after he completed his sentence resulted in a violation of his

constitutional and due-process rights. Defendant alleged his MSR term was an extension of his

sentence, which deprived him of his liberty and was unconstitutional based on double jeopardy

grounds. Defendant also alleged he was not informed of the two-year MSR term prior to

pleading guilty. The trial court issued a written order finding “the Defendant’s petition is

frivolous, patently without merit and is ordered dismissed.”

-2- ¶7 In October 2018, defendant filed a notice of appeal and the trial court appointed

OSAD to represent him. On May 20, 2020, OSAD filed the instant motion seeking to withdraw

as appellate counsel and attaching a memorandum of law in support of the motion. This court

mailed defendant a letter to his last known address, informing defendant he had been granted

leave to file a response to appellate counsel’s motion on or before June 24, 2020. The letter was

returned to this court as undeliverable.

¶8 This appeal followed.

¶9 II. ANALYSIS

¶ 10 On appeal, OSAD identifies the following potential issue for review: whether the

trial court properly dismissed defendant’s postconviction petition, where defendant alleged the

imposition of a two-year MSR term improperly extended his sentence and deprived him of the

benefit of his guilty plea. OSAD maintains the issue lacks merit, and we agree.

¶ 11 Defendant can make no colorable claim the two-year term of MSR following his

incarceration is unconstitutional because it improperly extended his sentence. Defendant’s

argument presupposes MSR is an additional sentence, separate and independent of his prison

sentence. OSAD acknowledges our supreme court previously rejected similar arguments in

People v. McChriston, 2014 IL 115310, 4 N.E.3d 29, and reaffirmed MSR automatically attaches

to any prison sentence (id. ¶¶ 23, 31). “MSR is a mandatory part of a criminal sentence,” and a

defendant’s MSR and prison term “are part of the same sentence, not two different sentences.”

People v. Lee, 2012 IL App (4th) 110403, ¶ 32, 979 N.E.2d 992. OSAD points out the written

sentencing judgment stated defendant’s sentence included a two-year MSR term. We find no

reason to vacate defendant’s MSR term as it was properly included by the trial court and

defendant was properly admonished of this fact.

-3- ¶ 12 Defendant can make no colorable claim he was denied the benefit of his plea

bargain because the trial court failed to admonish him of the two-year MSR term prior to

entering his guilty plea. At a plea hearing, the trial court is required to admonish the defendant

regarding, among other things, “the minimum and maximum sentence prescribed by law,

including, when applicable, the penalty to which the defendant may be subjected because of prior

convictions or consecutive sentences.” Ill. S. Ct. R. 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. “[A]s long as the trial court informs a defendant at the time of his guilty plea that an

MSR term must follow any prison sentence that is imposed upon him, he has received all the

notice and all the due process to which he is entitled regarding MSR.” People v. Andrews, 403

Ill. App. 3d 654, 665, 936 N.E.2d 648, 657 (2010).

¶ 13 Here, the trial court directly admonished defendant he would be required to serve

a two-year MSR term in addition to his prison sentence, pursuant to his plea agreement. The

court’s admonishment was sufficient as “an ordinary person in the circumstances of the accused

would understand it to convey the required warning.” (Internal quotation marks omitted.) People

v. Morris, 236 Ill. 2d 345, 366, 925 N.E.2d 1069, 1082 (2010). The court was not required to

admonish defendant of all possible lengths of MSR but only of the applicable MSR term, which

it did; and no due-process argument lies in enforcement of the plea agreement where defendant

was admonished as required. Because defendant was properly admonished regarding the

applicable MSR term which would follow his prison sentence, the claims in his petition for

postconviction relief present no meritorious issues on appeal.

-4- ¶ 14 III. CONCLUSION

¶ 15 We grant OSAD’s motion to withdraw as appellate counsel and affirm the trial

court’s judgment.

¶ 16 Affirmed.

-5-