People v. Newman ( 2006 )

NO. 4-04-0847 Filed: 5/5/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
STEVAN G. NEWMAN ) No. 01CF217
Defendant-Appellant. )
) Honorable
) Harold J. Frobish,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
On June 25, 2004, defendant, Stevan G. Newman, filed an
amended petition for postconviction relief, alleging he received
ineffective assistance of counsel and the trial court failed to
properly admonish him regarding the period of mandatory super-
vised release (MSR) he was required to serve in connection with
his sentence. On September 1, 2004, the court dismissed defen-
dant's petition on the State's motion. Defendant appeals,
arguing the court erred in dismissing his petition because its
failure to admonish him regarding MSR violated his constitutional
rights and entitled him to an opportunity to withdraw his guilty
plea. We affirm.
On March 21, 2002, defendant pleaded guilty to felony
murder (720 ILCS 5/9-1(a)(3) (West 2000)). Pursuant to the terms
of his negotiated plea agreement with the State, the trial court
sentenced him to 20 years in prison with 155 days' credit for
time served. During the guilty-plea hearing, defendant was not
advised that he would be required to serve a three-year period of
MSR pursuant to section 5-8-1(d)(1) of the Unified Code of
Corrections (730 ILCS 5/5-8-1(d)(1) (West 2000)).
On July 8, 2002, defendant filed an amended petition to
withdraw his guilty plea and vacate sentence. He raised
ineffective-assistance-of-counsel claims and alleged his guilty
plea was not made knowingly and voluntarily. Defendant did not
raise an improper-admonishment claim. Following a hearing, the
trial court denied defendant's petition and he appealed to this
court. On December 15, 2003, while his direct appeal was pend-
ing, defendant filed a petition for postconviction relief. In
his petition, defendant alleged he was not properly admonished
regarding his MSR obligation.
On March 4, 2004, the office of the State Appellate
Defender (OSAD) moved to withdraw as defendant's appellate
counsel in his direct appeal. It contended no colorable argument
could be made that the trial court erred in dismissing defen-
dant's petition to withdraw his guilty plea. Defendant was given
until April 2, 2004, to file additional points and authorities,
but none were filed. On June 22, 2004, this court granted OSAD's
motion to withdraw and affirmed the court's judgment, stating
defendant was fully admonished and entered a knowing and volun-
tary guilty plea. People v. Newman, No. 4-02-0660 (June 22,
2004) (unpublished order under Supreme Court Rule 23).
On June 25, 2004, defendant filed an amended petition
for postconviction relief, alleging (1) defense counsel provided
ineffective assistance of counsel by coercing defendant to plead
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guilty, inadequately preparing for trial, and failing to advise
defendant he would be required to serve a period of MSR in
connection with his sentence; (2) his counsel during proceedings
to withdraw his guilty plea was ineffective for failing to advise
him that he could seek to withdraw his guilty plea based on the
trial court's failure to give an MSR admonishment; and (3) he was
denied certain state and federal constitutional rights when the
court failed to admonish him regarding MSR. On July 26, 2004,
the State filed a motion to dismiss defendant's petition. It
argued the allegations contained in the petition were barred by
the doctrines of res judicata and waiver or were conclusory and
insufficient to entitle defendant to an evidentiary hearing.
On September 1, 2004, following a hearing, the trial
court issued a written order dismissing defendant's amended
postconviction petition, finding the record did not present a
substantial showing of a constitutional violation. The court
concluded defendant's allegations regarding ineffective assis-
tance of defense counsel had been fully explored and already
determined or otherwise waived. Further, it noted, although
defendant was fully advised regarding the minimum and maximum
penalties he could receive, he was not advised regarding his
obligation to serve an MSR term. Nevertheless, the court deter-
mined the lack of an MSR admonishment did not, per se, render
defendant's plea agreement constitutionally infirm.
Instead, the trial court found defendant forfeited the
issue because he could have raised it earlier, in either the
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motion to withdraw his guilty plea or on direct appeal, but he
did not. Further, it concluded (1) defendant failed to raise a
good-faith argument that he would not have pleaded guilty if he
had been fully informed of the MSR requirement and (2) he was not
prejudiced by the court's failure to provide an MSR admonishment.
The court noted that, at the hearing on the State's motion to
dismiss defendant's petition, defendant stated he would not be
satisfied if his MSR term were taken away because he felt he was
innocent of the crime. The court then dismissed defendant's
petition.
This appeal followed.
On appeal, defendant argues he was not properly or
fully admonished pursuant to Supreme Court Rule 402 (177 Ill. 2d
R. 402). Specifically, he contends the trial court failed to
admonish him as to his statutory MSR obligation and, as a result,
he received a more onerous sentence than the one for which he
bargained as part of his plea agreement. Defendant requests that
this court reverse the trial court's dismissal of his amended
postconviction petition and remand to the trial court so he may
have the opportunity to withdraw his guilty plea.
The State concedes the trial court erred by failing to
admonish defendant regarding his MSR obligation but contends
defendant forfeited the issue by not raising it in his motion to
withdraw his guilty plea or on direct appeal. Defendant argues
his claim is not barred by forfeiture because the supreme court
addressed the precise issue at hand in People v. Whitfield, 217
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Ill. 2d 177, 840 N.E.2d 658 (2005), and declined to apply forfei-
ture where a defendant pleaded guilty but failed to receive an
MSR admonishment. Alternatively, he argues this court may review
his claim of error pursuant to the plain-error rule.
Supreme Court Rule 402 provides that "every defendant
who enters a plea of guilty has a due process right to be prop-
erly and fully admonished." Whitfield, 217 Ill. 2d at 188, 840
N.E.2d at 665. Compliance with Rule 402 requires that a court
admonish a defendant who pleads guilty that a period of MSR will
be part of the imposed sentence. Whitfield, 217 Ill. 2d at 188,
840 N.E.2d at 665. Substantial compliance with Rule 402 is
sufficient to establish due process; however, when a defendant
pleads guilty in exchange for a specific sentence and the trial
court does not give an MSR admonishment before it accepts the
plea, there is no substantial compliance with Rule 402 and due
process is violated. Whitfield, 217 Ill. 2d at 195, 840 N.E.2d
at 669.
Pursuant to the Post-Conviction Hearing Act (725 ILCS
5/122-1 through 122-8 (West 2002)) "a defendant may challenge his
conviction or sentence for violations of federal or state consti-
tutional rights." Whitfield, 217 Ill. 2d at 183, 840 N.E.2d at
663. A defendant is only entitled to relief under the Act if he
can prove he suffered a substantial deprivation of his constitu-
tional rights in the proceedings that produced his conviction or
sentence. Whitfield, 217 Ill. 2d at 183, 840 N.E.2d at 663. A
trial court's second-stage dismissal of a postconviction petition
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is subject to de novo review. Whitfield, 217 Ill. 2d at 182, 840
N.E.2d at 662.
Further, it is well established that issues are not
amenable to postconviction review when they could have been
raised on direct appeal but were not. Whitfield, 217 Ill. 2d at
187, 840 N.E.2d at 665. In such circumstances, the issues are
forfeited and further consideration of them is barred. People v.
Blair, 215 Ill. 2d 427, 443-44, 831 N.E.2d 604, 615 (2005). To
excuse forfeiture in the context of postconviction proceedings,
it must be determined that (1) fundamental fairness so requires,
(2) the alleged forfeiture stems from the incompetence of appel-
late counsel, or (3) facts relating to the claim do not appear on
the face of the original appellate record. Blair, 215 Ill. 2d at
450-51, 831 N.E.2d at 619.
In Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at 665,
the supreme court declined to apply forfeiture to a defendant's
improper-admonishment claim. In that case, the defendant pleaded
guilty to first degree murder and armed robbery pursuant to a
negotiated plea agreement with the State. Whitfield, 217 Ill. 2d
at 179, 840 N.E.2d at 661. The terms of the agreement included
that defendant would receive concurrent sentences of 25 and 6
years in prison. Whitfield, 217 Ill. 2d at 179, 840 N.E.2d at
661. However, the trial court failed to advise the defendant
that he would be required to serve a three-year MSR period.
Whitfield, 217 Ill. 2d at 180, 840 N.E.2d at 661.
The defendant did not file a motion to withdraw his
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guilty plea or a direct appeal but later filed a motion for
relief from judgment that was treated as a postconviction peti-
tion. Whitfield, 217 Ill. 2d at 180-81, 840 N.E.2d at 661-62.
In his motion, the defendant alleged his due-process rights were
violated because he was not advised that an MSR term would be
added to his negotiated sentence. Whitfield, 217 Ill. 2d at 180,
840 N.E.2d at 661. Finding forfeiture did not apply to the facts
of that case, the supreme court noted every defendant who enters
a plea of guilty is entitled to be properly and fully admonished
and such admonishments include being advised of MSR obligations.
Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at 665-66. It noted
the defendant was not properly and fully admonished and stated as
follows:
"Under the circumstances, it would be incon-
gruous to hold that defendant forfeited the
right to bring a postconviction claim because
he did not object to the circuit court's
failure to admonish him. To so hold would
place the onus on defendant to ensure his own
admonishment in accord with due process."
Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at
666.
The court went on to note that the defendant could not have
raised his claim of error in a motion to withdraw his guilty plea
or on direct appeal, even if he had filed them, because he did
not learn about his MSR obligation until he was in prison.
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Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at 666.
In this case, defendant filed both a motion to withdraw
his guilty plea and a direct appeal. Although he could have
raised his improper-admonishment claim in connection with each,
he did not. Thus, the State correctly asserts defendant for-
feited this issue. As noted, forfeiture does not apply when
fundamental fairness so requires, the forfeiture stems from the
incompetence of appellate counsel, or facts relating to the claim
do not appear on the face of the original appellate record.
Defendant does not make arguments in connection with any of these
recognized exceptions and, thus, we do not consider them.
Instead, defendant contends this precise issue was
addressed in Whitfield, wherein the supreme court determined the
defendant's improper-MSR-admonishment claim was not barred by
forfeiture. Whitfield, however, is distinguishable from the case
at bar. Specifically, in Whitfield the supreme court determined
there was no procedural default under the facts of that case; it
did not hold that all improper-MSR-admonishment claims were
immune from forfeiture. Further, unlike defendant in this case,
the defendant in Whitfield did not file a motion to withdraw his
guilty plea or a direct appeal. Instead, the court was faced
with the defendant's failure to make a contemporaneous objection
to the trial court's improper admonishment.
Additionally, in Whitfield, the supreme court noted
that the defendant alleged he did not become aware of his im-
proper admonishment until after he was already in prison and when
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he could not have raised the error in a motion to withdraw his
plea or on direct appeal. Defendant here makes no similar
allegation. Further, the record shows that while his direct
appeal was pending, defendant filed his initial postconviction
petition on December 15, 2003, and alleged he was not advised of
his MSR obligation. Thus, defendant was aware of that particular
claim of error prior to (1) the date OSAD moved to withdraw as
appellate counsel, on March 4, 2004; (2) when this court granted
him leave to file additional points and authorities, of which
defendant filed none; and (3) the resolution of his direct
appeal.
In Whitfield, the supreme court's forfeiture decision
was based upon the particular facts of that case and defendant's
situation is factually distinguishable. Moreover, Whitfield does
not stand for the proposition that allegations of improper MSR
admonishments are immune from forfeiture in postconviction
proceedings. Thus, defendant's procedural default is not excused
under the reasoning of that case.
Defendant also argues any forfeiture is excused because
the trial court committed plain error by failing to admonish
regarding MSR. The plain-error rule, however, does not apply
when a defendant is seeking review of procedurally defaulted
claims raised in a postconviction petition. People v. Owens, 129
Ill. 2d 303, 317, 544 N.E.2d 276, 281 (1989). Therefore, defen-
dant's forfeiture of his improper-admonishment claim is also not
excused pursuant to that rule.
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For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
TURNER, P.J., concurs.
COOK, J., dissents.
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JUSTICE COOK, dissenting:
I respectfully dissent and would reverse and remand the
dismissal of defendant's amended petition for postconviction
relief.
As the majority recognizes, compliance with Rule 402(a)
requires that a defendant pleading guilty be admonished that the
period of mandatory supervised release is a part of the sentence
that will be imposed. Whitfield, 217 Ill. 2d at 188, 840 N.E.2d
at 665. The requirement is an affirmative one that generally
cannot be forfeited. A failure to object does not constitute
forfeiture. "[I]t would be incongruous to hold that defendant
forfeited the right to bring a postconviction claim because he
did not object to the circuit court's failure to admonish him.
To so hold would place the onus on defendant to ensure his own
admonishment in accord with due process." Whitfield, 217 Ill. 2d
at 188, 840 N.E.2d at 666.
Nor is there a procedural default because a defendant
does not raise the improper-admonishment claim in a motion to
withdraw his guilty plea or in a direct appeal. Where the
defendant did not learn of the problem until later, "he could not
have raised the error in a motion to withdraw his plea or a
direct appeal." Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at
666.
The majority distinguishes Whitfield on the basis that
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the defendant there did not file a motion to withdraw guilty plea
or a direct appeal. Defendant here filed both a motion to
withdraw guilty plea and a direct appeal, and although "he could
have raised his improper-admonishment claim in connection with
each, he did not." Slip op. at 8.
The majority misreads Whitfield. The supreme court in
Whitfield did not attempt to distinguish between defendants who
file motions and direct appeals and defendants who do not. The
supreme court considered a defendant who "did not raise the issue
in a motion to withdraw his guilty plea or in a direct appeal."
(Emphasis added.) Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at
665. A defendant who files a motion that does not mention an
issue fails to raise the issue just as a defendant who files no
motion at all. A defendant who files a direct appeal that does
not mention an issue fails to raise the issue just as a defendant
who takes no appeal at all. Once a defendant learns of an
improper-admonishment claim, however, he is required to raise it.
Defendant raised the improper-admonishment claim here
when he filed a pro se petition for postconviction relief on
December 15, 2003. Nevertheless, OSAD, on March 24, 2004, moved
to withdraw as defendant's appellate counsel in his direct appeal
on the basis no colorable argument could be made. Assuming the
majority's argument that OSAD forfeited the issue by failing to
raise it on direct appeal has any validity, OSAD's "forfeiture"
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cannot bind defendant here. OSAD was clearly ineffective in
moving to withdraw, either in failing to confer with defendant
regarding his allegations, or in failing to raise those
allegations in the appeal.
The majority complains that defendant failed to file
additional points and authorities when OSAD moved to withdraw,
but that argument has been properly rejected. People v. Jones,
No. 1-01-3731 (June 9, 2005), ___ Ill. App. 3d ___, ___, ___
N.E.2d ___, ___. We cannot avoid ineffective-assistance-of-
counsel issues by complaining that defendant should have known
better than his attorney.
The majority recognizes that forfeiture does not apply
where the forfeiture stems from the incompetence of appellate
counsel but complains that "[d]efendant [OSAD] does not make
arguments in connection with any of these recognized exceptions
and, thus, we do not consider them." Slip op. at 8. OSAD's
failure to raise a claim that it was ineffective on the direct
appeal is excused. People v. Coulter, 352 Ill. App. 3d 151, 155,
815 N.E.2d 899, 903 (2004) (OSAD's argument that it could not be
expected to raise its direct appeal ineffectiveness in the
postconviction petition was rejected, where OSAD did not file the
postconviction petition). It would be unreasonable to expect
appellate counsel to raise and argue his own incompetency.
People v. Gaines, 105 Ill. 2d 79, 91, 473 N.E.2d 868, 875 (1984).
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Defendant is whipsawed in this case. The majority says
that his improper-admonishment argument could have been raised on
direct appeal because he had already raised it in his
postconviction petition. Then the majority says that the
postconviction petition cannot be considered because the issue
could have been raised on direct appeal.
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