SECOND DIVISION February 5, 2008
No. 1-06-2610
THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 96 CR 11502 ) JUAN MOLINA, ) Honorable ) Thomas R. Sumner, Defendant-Appellant. ) Judge Presiding.
JUSTICE KARNEZIS delivered the opinion of the court:
On September 19, 1997, defendant entered a plea of guilty for his role in the
murder of Aaron Love in exchange for a 25-year sentence of imprisonment. Although
the plea was fully negotiated, during the proceedings the trial court did not advise
defendant that he would be subject to a three-year period of mandatory supervised
release (MSR) following his 25-year sentence. Defendant did not file a motion to
withdraw his plea nor did he file a direct appeal. 1-06-2610
On July 18, 2005, defendant filed a petition under section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2004)) seeking relief from judgment. In this
petition, defendant alleged that: (1) trial counsel was ineffective for failing to file a Rule
604(d) (134 Ill. 2d R. 604(d)) certificate; and (2) the trial court failed to properly
admonish petitioner regarding the procedure for appealing a sentence imposed on a
guilty plea. The trial court denied defendant’s petition on September 12, 2005.
On April 12, 2006, defendant filed a petition for postconviction relief. Defendant
alleged that although he entered into a fully negotiated plea agreement, he was never
advised that in addition to his 25-year sentence for first degree murder, he would be
required to serve a 3-year period of MSR. Citing the recent supreme court decision of
People v. Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005), defendant argued that he
did not receive the “benefit of the bargain” as he understood it and requested that his
25-year sentence be modified to 22 years’ of imprisonment with a 3-year period of
MSR. The trial court docketed the petition and appointed the public defender to
represent defendant.
On August 4, 2006, the State filed a motion to dismiss defendant’s petition. The
State asserted that the petition was untimely filed because it was filed almost six years
beyond the statutory limitations period for filing postconviction challenges. The State
also argued that the recent decision in Whitfield did not excuse the untimely petition
because the Whitfield decision did not change the law applicable to defendant’s claim.
Furthermore, the State argued that Whitfield was distinguishable from the instant case
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because the defendant in Whitfield had filed a timely postconviction petition.
At a hearing on the State’s motion to dismiss on August 8, 2006, the State
reiterated its position that the petition should be dismissed because it was untimely.
However, during the postconviction proceedings, defense counsel argued that the
untimeliness of defendant’s petition should be excused because he filed his
“postconviction relief after he became aware of the possibility of the remedy based on
the decision in Whitfield.” Furthermore, defense counsel stated “Had he filed his
petition in a timely manner in 1998, it would have been denied because without the
precedent in Whitfield, we think it extrememly unlikely that he would have been granted
relief.” The trial court agreed with defense counsel stating, “[H]ad he [defendant] filed a
timely petition, he more than likely would not have been granted relief because at that
time, Whitfield was not the law.”
After hearing arguments on the motion, the trial court denied the State’s motion
to dismiss and granted defendant the relief requested and reduced his sentence from
25 years’ imprisonment to 22 years’ imprisonment. In granting relief, the trial court
stated that “the issue goes further than whether or not the petition was timely filed” and
“the fact that he did not file a timely petition in my opinion would be irrelevant.” The
court further stated that, “I agree with counsel that had he filed a timely petition, he
more than likely would not have been granted relief because at that time, Whitfield was
not the law.”
It is from this order that the State now appeals.
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Analysis
In the appeal presently before this court, the State argues that the trial court
improperly granted defendant postconviction relief because defendant’s petition was
untimely and he failed to set forth sufficient facts to establish that the delay in filing was
not due to his culpable negligence.
A. Post-Conviction Hearing Act
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)),
allows a criminal defendant a procedure for determining whether he was convicted in
substantial violation of his constitutional rights. 725 ILCS 5/122-1(a) (West 2004);
People v. Edwards, 197 Ill. 2d 239, 243-44, 757 N.E.2d 442 (2001). Where defendant
is not sentenced to death, the Act sets forth a three-stage process for adjudicating a
defendant's request for collateral relief. People v. Gaultney, 174 Ill. 2d 410, 418, 675
N.E.2d 102 (1996).
At the first stage, the circuit court must determine whether the petition before it
alleges the " 'gist of a constitutional claim.' " Edwards, 197 Ill. 2d at 244, 757 N.E.2d
442, quoting Gaultney, 174 Ill. 2d at 418, 675 N.E.2d 102. Taking all well-pleaded facts
as true, the court must determine whether the petition alleges a constitutional infirmity
that, if proven, would demonstrate a deprivation of petitioner's constitutional rights. 725
ILCS 5/122-2.1(a) (West 2004); People v. Coleman, 183 Ill. 2d 366, 385, 701 N.E.2d
1063 (1998). If the trial court determines that a petitioner has stated the "gist of a
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constitutional claim," the petition is advanced to the second stage and counsel is
appointed, if necessary, in accordance with sections 122-4 through 122-6 of the Act.
725 ILCS 5/122-2.1(b) (West 2004).
At the second stage, the State is required to either answer the postconviction
petition or move to dismiss. 725 ILCS 5/122-5 (West 2004). As the State in this case
moved for dismissal, the trial court was required to rule on the legal sufficiency of the
allegations contained in the petition, taking all well-pleaded facts as true. People v.
Ward, 187 Ill. 2d 249, 255 , 718 N.E.2d 117 (1999).
When a postconviction petition is advanced to the third stage for an evidentiary
hearing, and when fact-finding and credibility determinations are involved, this court will
not reverse the decision of the trial court unless it is manifestly erroneous. People v.
Pendleton, 223 Ill. 2d 458, 473, 861 N.E.2d 999 (2006). However, if no new evidence
is presented and the issues presented are based on pure questions of law, we apply a
de novo standard of review, unless the judge presiding over the proceedings had some
special familiarity with the trial or sentencing of the defendant and that had some
bearing on the disposition of the post-conviction petition. Pendleton, 223 Ill. 2d at 473,
861 N.E.2d 999 .
In the instant case, the trial court granted relief to defendant after an evidentiary
hearing, where no new evidence was presented. Consequently, we apply de novo
review.
B. People v. Whitfield
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Defendant relied on the holding in People v. Whitfield, 217 Ill. 2d 177, 840
N.E.2d 658 (2005), as support for his argument that the circuit court should reduce his
25-year sentence to a 22-year sentence with 3 years of MSR. The trial court found that
pursuant to the holding in Whitfield, it was required to reduce defendant’s sentence to
22 years’ imprisonment.
In Whitfield, the defendant entered into a fully negotiated plea. In exchange for
his pleas of guilty to felony murder and armed robbery, the trial court sentenced the
defendant to 25 years and a concurrent 6-year sentence of imprisonment. Whitfield,
217 Ill. 2d at 179, 840 N.E.2d 658 . The defendant was never notified by the
prosecutor or the court that he would be subject to a 3-year period of MSR after his 25-
year sentence. The defendant did not appeal. Whitfield, 217 Ill. 2d at 180, 840 N.E.2d
658 .
While serving his prison sentence, the defendant learned that he would be
required to serve a 3-year period of MSR after serving his 25-year sentence.
Thereafter, the defendant filed a pro se motion for relief from judgment, which was
treated as a postconviction petition, contending that his fourteenth amendment due
process rights were violated because he was never advised of the period of 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 658 . Rather than seeking to withdraw his guilty plea, the defendant sought
specific performance of the plea agreement and asked the court to eliminate the MSR
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term or to reduce his sentence by the length of the MSR term. Whitfield, 217 Ill. 2d at
181, 840 N.E.2d 658 . The circuit court dismissed the petition at the second stage and
the appellate court affirmed the dismissal. Whitfield, 217 Ill. 2d at 182, 840 N.E.2d 658.
People v. Whitfield, No. 1-02-0314 (October 29, 2003) ( unpublished decision pursuant
to Supreme Court Rule 23).
On appeal to the Illinois Supreme Court, the defendant argued that due process
clauses of the Illinois (Ill. Const. 1970, art. I, §2)) and United States Constitutions (U.S.
Const., amend. XIV) and Illinois Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a))
required that the trial court admonish him that he would be required to serve a 3-year
period of MSR before accepting his plea agreement. Whitfield, 217 Ill. 2d at 182, 840
N.E.2d 658 . The defendant requested that the court enforce the terms of the plea
agreement and modify his sentence. Whitfield, 217 Ill. 2d at 182, 840 N.E.2d 658 .
Our supreme court reversed the decisions of the trial court and appellate court
and granted defendant postconviction relief, stating:
“In the case at bar, defendant pled guilty pursuant to a negotiated plea
agreement. The terms of the plea agreement, as set forth by the prosecutor at
the plea hearing, included a specific sentence of 25 years. The trial court ratified
this agreement and failed to admonish defendant, as required by Supreme Court
Rule 402 that a mandatory supervised release term would be added to the
sentence defendant had agreed to. Under these circumstances, we conclude
that adding the statutorily required three-year MSR term to defendant's
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negotiated 25-year sentence amounts to a unilateral modification and breach of
the plea agreement by the State, inconsistent with constitutional concerns of
fundamental fairness. We believe this conclusion is in conformity with earlier
decisions of this court and with decisions reached by other jurisdictions.”
Whitfield, 217 Ill. 2d at 190-91, 840 N.E.2d 658 .
The court further stated:
“We conclude that, although substantial 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 [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 a mandatory
supervised release term will be added to that sentence. In these circumstances,
addition of the MSR term to the agreed-upon sentence violates due process
because the sentence imposed is more onerous than the one defendant agreed
to at the time of the plea hearing. Under these circumstances, the addition of the
MSR constitutes an unfair breach of the plea agreement.” Whitfield, 217 Ill. 2d at
195, 840 N.E.2d 658 .
After concluding that the defendant must receive the benefit of the bargain, the
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Whitfield court recognized two possible remedies. The court noted that the defendant
must be afforded the opportunity to withdraw his plea or the promise must be fulfilled.
Whitfield, 217 Ill. 2d at 202, 840 N.E.2d 658 . After reviewing the defendant’s
requested relief and relevant case law from Illinois and other jurisdictions, the Whitfield
court modified the defendant’s sentence to a term of 22 years’ imprisonment to be
followed by a 3-year term of MSR. Whitfield, 217 Ill. 2d at 205, 840 N.E.2d 658 .
C. Application of Whitfield to the Facts of This Case
The State maintains that, although the instant petition presented the same
challenge to defendant’s plea as was presented in Whitfield, the trial court’s reasoning
for granting defendant relief in this case was occasioned on its mistaken belief that a
Whitfield claim presented an issue of an involuntary and, therefore, void plea. The
court’s misinterpretation of the law, the State urges, is evinced by the trial court’s
comments in awarding defendant relief. The court held that a guilty plea entered in the
absence of an admonishment regarding MSR operates to “deprive[ ] [defendant] of one
of the fundamental rights, and that is to knowingly and intelligently waive his right when
he enters the plea.”
We agree with the State that Whitfield did not address the issue of whether the
defendant’s plea was void. Nevertheless, Whitfield is still instructive in this case. The
only factual dissimilarity evident between the instant case and Whitfield is that in
Whitfield the defendant’s postconviction petition was timely filed. In the case at bar,
defendant’s petition was untimely.
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Section 122-1(c) of the Act provides that “[i]f a defendant does not file a direct
appeal, the post-conviction petition shall be filed no later than 3 years from the date of
conviction, unless the petitioner alleges facts showing that the delay was not due to his
or her culpable negligence.” 725 ILCS 5/122-1(c) (West 2004). “Culpable negligence”
contemplates something greater than ordinary negligence and is akin to recklessness.
People v. Rissley, 206 Ill. 2d 403, 420, 795 N.E.2d 174 (2003), quoting People v.
Boclair, 202 Ill. 2d 89, 106-08, 789 N.E.2d 734 (2002).
In the case at bar, the trial court found that defendnat’s failure to file a timely
postconviction petition was “irrelevant.” It is important to note here that a review of
defendant’s postconviction petition reveals that defendant did not include specific
allegations to show that the delay in filing of his petition was not due to his culpable
negligence, other than to simply state he was “unaware” of the three-year MSR period
until “after he was already in prison.”
The State argues that the trial court erred when it determined that the nature of
defendant’s claim effectively rendered the untimeliness of defendant’s postconviction
petition irrelevant. Additionally, the State claims that defendant’s petition did not
include any allegations to show that his more than five-year delay in filing his
postconviction petition was not due to his culpable negligence. Defendant argues that
despite the fact that his petition was untimely filed, he is not culpably negligent where
he filed a petition that relies upon a change in the law. In support of his position,
defendant relies on People v. Ramirez, 361 Ill. App. 3d 450, 837 N.E.2d 111 (2005).
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In Ramirez, the defendant pled guilty to armed violence and was sentenced to a
12 1/2 year prison sentence on November 7, 1995. At the time the defendant pled
guilty , he was admonished by the trial court that the minimum sentence for his
conviction was 10 years. The usual six-year minimum sentence for armed violence was
not applied because, at the time, Public Act 88-680 (Pub. Act 88-680, eff. January 1,
1995), also known as the Safe Neighborhoods Act, increased the minimum sentence
for offenses involving certain weapons. Four years after the defendant was
sentenced, the Safe Neighborhoods Act was declared unconstitutional by the Illinois
Supreme Court in People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265 (1999). After the
striking of the Safe Neighborhoods Act, the law remained as it had been prior to Public
Act 88-680, so the minimum sentence the defendant faced was six years’
imprisonment. On May 27, 2003, the defendant filed a post-conviction petition seeking
relief based on Cervantes. The State moved to dismiss the petition based on the fact
that it was untimely filed. After a hearing, the trial court denied the State’s motion and
ordered the State to answer the defendant’s petition. The trial court ultimately denied
the defendant’s petition following another hearing. Ramirez, 361 Ill. App. 3d at 455,
837 N.E.2d 111.
On appeal, the defendant argued that the untimeliness of his petition was not
due to his culpable negligence because he did not have the benefit of the Cervantes
precedent until four years after his conviction. Thus, he could not have filed his
postconviction petition within the three-year time limit. Citing People v. Lee, 326 Ill.
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App. 3d 882, 762 N.E.2d 18 (2001) (defendant was not culpably negligent for filing his
petition two months after a supreme court decision changed the applicable law), and
People v. Hernandez, 296 Ill. App. 3d 349, 694 N.E.2d 1082 (1998) (defendant was not
culpably negligent for filing his petition 11 months after a change in the law), the
Ramirez court agreed with the defendant, finding that the defendant was not culpably
negligent for failing to file his petition prior to Cervantes being decided. However, the
court ultimately concluded that the defendant was culpably negligent when he filed his
petition 3 1/2 years after Cervantes was decided. Ramirez, 361 Ill. App. 3d at 453, 837
N.E.2d 111.
The State claims that, unlike Ramirez, Whitfield did not represent a change the
law. The State claims that Whitfield was decided on principles well established long
before defendant’s petition was due. Defendant suggests that the application of
contract principles to plea bargains, the prohibition of unilateral changes in the terms
and its application to the failure to admonish regarding MSR had never been fully
explored by our supreme court until Whitfield. Consequently, defendant states, the
Whitfield decision represents a change in the law.
We agree with the State. Whitfield does not represent a change in the law so as
to excuse the untimely filing of defendant’s petition. Our supreme court first decided
that a defendant must be admonished of the mandatory period of parole (now called
MSR) in 1975 in People v. Wills, 61 Ill. 2d 105, 330 N.E.2d 505 (1975). The Wills court
held that compliance with “Rule 402(a)(2) requires that a defendant be admonished
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that the mandatory period of parole [now called mandatory supervised release]
pertaining to the offense is a part of the sentence that will be imposed.” Wills, 61 Ill. 2d
at 109, 330 N.E.2d 505 . The court again considered a similar issue in People v.
McCoy, 74 Ill. 2d 398, 385 N.E.2d 696 (1979). The McCoy court determined that the
defendant was not entitled to postconviction relief despite the fact that he was not
admonished of the parole period because he entered into an open plea agreement
where the State only promised to recommend a sentence. McCoy, 74 Ill. 2d at 403,
385 N.E.2d 696 .
This court has also had the opportunity to consider error has occurred when a
trial court has failed to admonish a defendant that he will be required to serve a period
of MSR subsequent to his incarceration, when the plea agreement is negotiated and
the defendant agrees to a specific sentence. In People v. Russell, 345 Ill. App. 3d 16,
20-21, 801 N.E.2d 977 (2003), this court found that the defendant stated the gist of a
constitutional claim when he argued in his timely postconviction petition that the trial
court failed to inform him of MSR and remand to the trial court was necessary so that
the defendant’s petition could be advanced to the second stage. In People v. Didley,
213 Ill. App. 3d 910, 915, 572 N.E.2d 423 (1991), defendant was granted
postconviction relief on the basis that his plea was involuntary because the trial court
failed to admonish him that he would be required to serve MSR. Similarly, in People v.
O’Toole, 174 Ill. App. 3d 800, 801 , 529 N.E.2d 54 (1988), the defendant was entitled to
postconviction relief on his timely filed petition because his due process rights were
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violated when the trial court failed to advise him that a term of MSR would be added to
his “flat ten year” sentence. Finally, in People v. Kull, 171 Ill. App. 3d 496, 525 N.E.2d
1223 (1988), this court found that plain error occurred because the defendant pled
guilty in exchange for a 22-year sentence, but was given 22 years plus and additional 3
years’ MSR.
Certainly, the argument advanced by defendant here is not a novel one, nor
without the benefit of Whitfield, did it lack a legal basis. See Bousley v. United States,
523 U.S. 614, 622, 140 L. Ed. 2d 828, 840 ,118 S. Ct. 1604, 1611 (1998). A criminal
defendant cannot sit idly back waiting for our supreme court to decide an issue
potentially relevant to his case. Defendant could have and should have raised this
claim in a timely fashion.
The untimeliness of defendant’s petition is absolutely relevant in this case.
Because defendant’s petition was untimely and because he failed to establish a lack of
culpable negligence, the trial court erred in granting defendant postconviction relief.
Whether defendant would have been granted postconviction relief if he filed a timely
petition without the benefit of the Whitfield decision is irrelevant to the issue before us.
Furthermore, while the Whitfield court unequivocally determined that a defendant who
was not admonished of MSR was entitled to one of two remedies at law, a change in
available remedies does not represent a change in law that would excuse the untimely
filing of a post-conviction petition.
Finally, we note that, after the briefs in this case were filed, the State attempted
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to argue an additional point not included in its briefs. The State sought and was
granted leave to file additional authority on January 7, 2008, wherein it argued that,
similar to People v. Adams, 373 Ill. App. 3d 991, 869 N.E.2d 856 (2007), the plea
agreement in this case was not negotiated and therefore defendant was not entitled to
postconviction relief. As pointed out by defendant’s counsel at oral argument, the State
initially cited Adams in its reply brief on page 10 for the proposition that “new authority
alone does not resuscitate an untimely asserted claim.”
The purpose of allowing parties to cite additional authority is to bring this court’s
attention to relevant or dispositive case law that was decided after the parties' briefs
were filed. While we attempt to give the parties the benefit of the doubt when they seek
to file additional authority, we certainly do not appreciate the State’s attempt here to
“sneak in” a new argument obviously initially overlooked, based on a case that was
clearly available at the time its briefs were filed. Consequently, any and all arguments
raised in the State’s motion to cite additional authority will be disregarded.
Based on the foregoing, this cause is reversed and remanded to the trial court.
The trial court is instructed to vacate its order granting defendant postconviction relief,
to vacate the reduction in sentence it allowed on August 8, 2006, and to reinstate the
sentence initially imposed on September 19, 1997.
Reversed and remanded.
HOFFMAN, P.J., and SOUTH, J., concur.
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