1

Opinion filed 9/10/08; NO. 5-07-0199

Modified Opinion on Denial

of Rehearing filed 10/27/08. IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

_________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

 Plaintiff-Appellee, ) Effingham County.

)

v. ) No. 03-CF-264

)

TOBBY J. SMITH, ) Honorable

 ) Sherri L. E. Tungate,

 Defendant-Appellant. ) Judge, presiding.

_________________________________________________________________________

Modified Upon Denial of Rehearing

PRESIDING JUSTICE STEWART delivered the opinion of the court:

On December 11, 2003, the defendant, Tobby J. Smith, was charged with two counts

of first-degree murder for the death of Ronald Hood. On February 22, 2005, pursuant to a

fully negotiated plea, the defendant pled guilty to the charge of first-degree murder (720

ILCS 5/9-1(a)(2) (West 2004)) in return for the State dismissing all the other pending matters

against him, including a second charge of first-degree murder (720 ILCS 5/9-1(a)(1) (West

2004)) and the charges, in two other cases, of domestic battery, aggravated battery, and

aggravated battery with a firearm. At the plea hearing, the State set out the terms of the plea

agreement: the defendant would plead guilty to the charge of first-degree murder for an

agreed sentence of 22 years' imprisonment in the Department of Corrections with credit for

time served, pursuant to truth in sentencing he would serve 100% of his sentence, he would

pay the costs of the proceedings in the murder case, he would submit to DNA testing, and his

bond would be distributed for fees, fines, and costs. The State explained that in exchange

for the guilty plea, all the other charges against the defendant would be dismissed. The
2

defendant's counsel agreed with the State's description of the terms of the plea agreement.

Neither the State nor defense counsel mentioned mandatory supervised release. The

defendant received the following admonishment from the court:

"THE COURT: State says in Count II of the Indictment filed December 18th

of 2003 that on December 6 of 2003 in Effingham County you committed the offense

of first[-]degree murder in that you, without lawful justification, shot Ronald Hood

with a handgun knowing such act created a strong probability of death or great bodily

harm to Ronald Hood thereby causing the death of Ronald Hood in violation of

[section 9-1(a)(2) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(2) (West 2004))].

Do you understand what it is the State says you did?

DEFENDANT: Yes.

THE COURT: For that sentence, for that offense, you could be sentenced to

twenty to sixty years in the Department of Corrections. You could be fined up to

$25,000. You could be subject to mandatory supervised release of three years.

You're not eligible for probation. Do you understand what the possible penalty for the

charge is?

DEFENDANT: Yes."

When the court imposed the sentence, it stated as follows:

"THE COURT: Mr. Smith, I am then going to find that you understand the

charge and possible penalties, that there is a factual basis, that the plea is voluntary,

you understand your rights to trial and the other rights I explained, that you give up

those rights voluntarily, and I'm going to accept your guilty plea to Count II of the

Indictment, December 18, 2003, and per your agreement with the State I'm going to

sentence you on that Count II to 22 years in the Department of Corrections."

The court dismissed the other charges, entered a judgment on his plea to first-degree murder,
3

sentenced him to 22 years' incarceration in the Department of Corrections with credit for time

served, assessed court costs, required him to submit to DNA testing, and set out the

distribution of his bond for fees, costs, and fines. When the court pronounced the sentence,

it did not state that the defendant would be required to serve a term of mandatory supervised

release. The written sentencing judgment made no reference to a term of mandatory

supervised release.

The defendant filed no posttrial motions or direct appeal. On February 27, 2007, the

defendant filed a pro se petition for relief from judgment under section 2-1401 of the Code

of Civil Procedure (735 ILCS 5/2-1401 (West 2006)), alleging that his constitutional right

to due process and fundamental fairness was violated because he had not been informed that

a 3-year mandatory-supervised-release term would apply to the 22-year prison sentence to

which he pled guilty. The defendant did not challenge the validity of his plea, nor did he

seek the withdrawal of his guilty plea. The defendant conceded that the statutory minimum

for first-degree murder is 20 years' incarceration and that subtracting 3 years from his

sentence would take it below the statutory minimum; therefore, he requested that his sentence

be reduced to 20 years' imprisonment followed by a period of 3 years' mandatory supervised

release. On March 6, 2007, the trial court, sua sponte, ordered the defendant's petition

dismissed on the grounds that it was untimely filed and that it failed to plead facts upon

which relief could be granted. The defendant filed a timely notice of appeal alleging that,

pursuant to People v. Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005), his fully negotiated

22-year prison sentence must be modified to 20 years' imprisonment plus 3 years' mandatory

supervised release, so that his sentence will approximate the sentence to which he pled guilty.

We find that the circuit court erred in dismissing the petition based upon timeliness, in failing

to recharacterize the petition as a postconviction petition, and in finding that the petition was

without merit. We reverse and remand with directions. 
4

ANALYSIS

The defendant argues that the trial court erred in dismissing, sua sponte, his section 2-

1401 petition on timeliness grounds, because the petition alleged a valid legal claim for relief.

A trial court may, sua sponte, dismiss a section 2-1401 petition when the petitioner's claim

is without merit. People v. Vincent, 226 Ill. 2d 1, 13, 871 N.E.2d 17, 26 (2007). However,

the two-year time period contained in section 2-1401 is a statute of limitation and not a

jurisdictional prerequisite. People v. Malloy, 374 Ill. App. 3d 820, 823, 872 N.E.2d 140, 143

(2007). As a statute of limitation, the State must assert the time period as an affirmative

defense, and the trial court may not, sua sponte, dismiss the petition on the basis of timeliness.

Malloy, 374 Ill. App. 3d at 823, 872 N.E.2d at 143. The defendant filed his section 2-1401

petition five days after the two-year time limit. In dismissing the defendant's petition sua

sponte, the trial court stated that the petition was not timely filed and that the defendant "failed

to set forth any reason for the late filing under this section." The trial court erred in

dismissing the defendant's section 2-1401 petition on the basis of timeliness.

We also find that the trial court erred in failing to recharacterize the defendant's pro

se pleading as a postconviction petition. It has long been recognized that a lack of legal

knowledge might cause a pro se prisoner to select the wrong method to collaterally attack his

conviction. People ex rel. Palmer v. Twomey, 53 Ill. 2d 479, 484, 292 N.E.2d 379, 382

(1973). Prior to the adoption of the Post-Conviction Hearing Act, a conviction could be

attacked by writ of error, habeas corpus, and coram nobis. People v. Slaughter, 39 Ill. 2d

278, 284, 235 N.E.2d 566, 569 (1968); Ill. Rev. Stat. 1965, ch. 38, par. 122-1 et seq. (now 725

ILCS 5/122-1 et seq. (West 2006)). This troubled the United States Supreme Court "because

no matter which method a prisoner pursued, he appeared always to be met by a claim that he

should have pursued a different remedy." Slaughter, 39 Ill. 2d at 284, 235 N.E.2d at 569

(citing Marino v. Ragen, 332 U.S. 561, 570, 92 L. Ed. 170, 176, 68 S. Ct. 240, 245 (1947)).
5

A statutory postconviction remedy that later became the Post-Conviction Hearing Act was

enacted in response. Slaughter, 39 Ill. 2d at 284, 235 N.E.2d at 569; Ill. Rev. Stat. 1949, ch.

38, pars. 826-832. 

Consistent with the intent of the Post-Conviction Hearing Act (the Act) to provide a

comprehensive postconviction procedure and to end the merry-go-round of collateral attacks

on convictions by prisoners, the supreme court held that the circuit court should evaluate

whether a pro se petition, however labeled or inartfully worded, alleged a violation of the

petitioner's rights cognizable under the Act. Palmer, 53 Ill. 2d at 484, 292 N.E.2d at 382. The

court was also urged to read pro se petitions more liberally than formal pleadings prepared

by counsel. People v. Smith, 268 Ill. App. 3d 574, 580, 645 N.E.2d 313, 318 (1994). Under

this analysis, if the petition alleged a violation cognizable under the Act, the court was

instructed to treat it as a postconviction petition, allowing the appointment of counsel to

properly frame the issues and to facilitate the adjudication in one proceeding with finality.

Palmer, 53 Ill. 2d at 483-84, 292 N.E.2d at 382. 

In 1997, however, the Act was amended by Public Act 89-609, which added subsection

(d) to section 122-1. Pub. Act 89-609, §5, eff. January 1, 1997 (1997 Ill. Laws 2674)

(amending 725 ILCS 5/122-1 (West 1994)). That subsection provides that a trial court

reviewing a petition which does not state that it is filed under the Act "need not evaluate the

petition to determine whether it could otherwise have stated some grounds for relief under"

the Act. 725 ILCS 5/122-1(d) (West 2006). While the supreme court has stated in a footnote

that under the statute a trial court is "under no obligation" to recharacterize a pro se claim as

a postconviction petition, it also stated that a trial court "may" do so. People v. Shellstrom,

216 Ill. 2d 45, 53 n.1, 833 N.E.2d 863, 868 n.1 (2005). Illinois courts have since consistently

reviewed, on an abuse-of-discretion standard, the decisions of trial courts whether to

recharacterize pro se pleadings as postconviction petitions. E.g., People v. Starks, 365 Ill.
6

App. 3d 592, 597, 850 N.E.2d 206, 212 (2006) ("[T]he trial court did not abuse its discretion

in impliedly construing defendant's 'motion for a new trial' as a petition under the Act");

People v. Holliday, 369 Ill. App. 3d 678, 682, 867 N.E.2d 1016, 1020 (2007) (The trial court

did not abuse its discretion by failing to recharacterize the defendant's habeas corpus petition

as a postconviction petition). Implicit in a trial court's sua sponte dismissal and failure to

recharacterize a pro se petition is an exercise of its discretion, which is reviewable by this

court. Thus, we believe that a trial court's express or implied decision not to recharacterize

a pro se petition may be reviewed under an abuse-of-discretion standard. 

A pro se defendant is not necessarily master of his claim, and the court may override

his choice of procedural vehicle by which to seek relief. People v. Pearson, 216 Ill. 2d 58,

66, 833 N.E.2d 827, 831 (2005). Where a pro se defendant files a pleading alleging a

deprivation of a constitutional right cognizable under the Act, the trial court may

recharacterize it as a postconviction petition, and the petition may be recharacterized even if

it is clearly labeled as another type of pleading. Shellstrom, 216 Ill. 2d at 51, 833 N.E.2d at

867. A pleading is not determined by the label applied to it by the defendant, but by its

content and character. People v. Harper, 345 Ill. App. 3d 276, 284, 802 N.E.2d 362, 369

(2003). Recharacterizing a petition protects a pro se litigant from the possible harsh result

arising from his lack of legal knowledge in selecting a method to attack his conviction when

his claim could more appropriately be dealt with as a postconviction petition. Shellstrom, 216

Ill. 2d at 52, 833 N.E.2d at 867. 

The trial court does not, however, have unlimited discretion to construe a pleading as

a postconviction petition. People v. Helgesen, 347 Ill. App. 3d 672, 677, 807 N.E.2d 718, 723

(2004). When determining whether a recharacterization is appropriate, the court should

consider whether the filing was also cognizable in the form in which the defendant filed it.

People v. Pearson, 345 Ill. App. 3d 191, 199, 802 N.E.2d 386, 393 (2003), aff'd on other
7

grounds, 216 Ill. 2d 58, 833 N.E.2d 827 (2005). Additionally, when a court recharacterizes

as a postconviction petition a pro se pleading that the petitioner has labeled as a different

action cognizable under Illinois law, the court must take the following action:

 "(1) notify the pro se litigant that the court intends to recharacterize the

pleading, (2) warn the litigant that this recharacterization means that any subsequent

postconviction petition will be subject to the restrictions on successive postconviction

petitions, and (3) provide the litigant an opportunity to withdraw the pleading or to

amend it so that it contains all the claims appropriate to a postconviction petition that

the litigant believes he or she has." Shellstrom, 216 Ill. 2d at 57, 833 N.E.2d at 870.

"[A] trial court's decision regarding recharacterization is addressed to its sound

discretion and will be reviewed under an abuse-of-discretion standard." Holliday, 369 Ill.

App. 3d at 682, 867 N.E.2d at 1020. While the Act does not require a trial court to

recharacterize a petition that fails to specify that it is filed under the Act, "by the strongest of

implications, the court also may do so." Starks, 365 Ill. App. 3d at 597, 850 N.E.2d at 212.

The trial court acts properly when it recharacterizes a pro se petition filed under a different

label as a postconviction petition when that construction is the only logical construction that

would preserve the court's jurisdiction. Starks, 365 Ill. App. 3d at 597, 850 N.E.2d at 212. 

The Act provides that, if a defendant did not file a direct appeal, he may file a

postconviction petition no later than three years from the date of the conviction. 725 ILCS

5/122-1(c) (West 2004). In the instant case, the defendant filed his petition for relief from

judgment (to modify his sentence) a little more than two years after his date of conviction.

The defendant's petition was not timely filed as a section 2-1401 petition, but it was timely

filed as a postconviction petition. His petition alleged the deprivation of a constitutional right.

Because this pro se petition is the only posttrial motion filed by the defendant and because the

only logical construction that would preserve the court's jurisdiction over this petition was to
8

recharacterize it as a postconviction petition, the trial court abused its discretion in failing to

recharacterize it. The trial court's judgment should therefore be reversed and this cause

remanded with directions that the court recharacterize the defendant's pro se petition as a

postconviction petition and provide him with the appropriate notification, warning, and

opportunity to withdraw or amend the pleading.

On remand, the trial court will be required to determine the merits of the defendant's

petition. Since the trial court has previously found the petition to be without merit, we find

it necessary to discuss the substance of the defendant's petition. In doing so, we note that both

parties have fully briefed the issue in this appeal. 

To be entitled to postconviction relief, the defendant must show that he suffered a

substantial deprivation of his constitutional rights in the proceeding that produced the

challenged sentence. Whitfield, 217 Ill. 2d at 183, 840 N.E.2d at 663. "The scope of the

postconviction proceeding is limited to constitutional matters that have not been, and could

not have been, previously adjudicated." Whitfield, 217 Ill. 2d at 183, 840 N.E.2d at 663.

Because a plea bargain deprives a defendant of liberty and other constitutionally protected

interests, a defendant who shows that he entered his plea in reliance on the terms of the plea

bargain may have a due process right to enforce the terms of the agreement. Whitfield, 217

Ill. 2d at 189, 840 N.E.2d at 666. 

The defendant argues that the admonishments he received concerning mandatory

supervised release were not sufficient to inform him that he would be subject to mandatory

supervised release in addition to the 22-year prison sentence to which he agreed. He cites

Whitfield in support of his argument that the addition of the term of mandatory supervised

release constitutes an unfair breach of the plea agreement and violates his due process rights,

and the facts in Whitfield are strikingly similar to those in this case. In Whitfield, the

defendant pled guilty pursuant to a negotiated plea agreement that provided a specific
9

sentence of 25 years' imprisonment in the Department of Corrections. Whitfield, 217 Ill. 2d

at 190, 840 N.E.2d at 667. The trial court ratified the agreement and failed to admonish the

defendant that a mandatory-supervised-release term would be added to the negotiated 25-year

sentence. Whitfield, 217 Ill. 2d at 190, 840 N.E.2d at 667. Additionally, the written order of

sentence and commitment made no reference to the three-year mandatory-supervised-release

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 postjudgment motion to withdraw his plea, and he never directly appealed his

conviction or sentence. Whitfield, 217 Ill. 2d at 180, 840 N.E.2d at 661. While in prison, the

defendant learned he would be subject to a mandatory-supervised-release term in addition to

his 25-year prison sentence. Whitfield, 217 Ill. 2d at 180, 840 N.E.2d at 661. He then filed

a pro se section 2-1401 "Motion for Relief From Judgment" (section 2-1401 motion).

Whitfield, 217 Ill. 2d at 180-81, 840 N.E.2d at 661-62. The State moved to dismiss the section

2-1401 motion on the grounds that it was not timely filed, and in doing so it acknowledged

that the trial court could treat the defendant's section 2-1401 motion as a postconviction

petition, but it argued that the trial court was under no obligation to do so. Whitfield, 217 Ill.

2d at 181, 840 N.E.2d at 662. The defendant asked the court to treat his section 2-1401

motion as a postconviction petition. Whitfield, 217 Ill. 2d at 181, 840 N.E.2d at 662. The trial

court dismissed the defendant's section 2-1401 motion. Whitfield, 217 Ill. 2d at 181, 840

N.E.2d at 662. On appeal the defendant argued that he did not receive the benefit of the

bargain he made with the State when he pled guilty. Whitfield, 217 Ill. 2d at 184, 840 N.E.2d

at 663. He did not challenge the validity of his plea and did not seek its withdrawal.

Whitfield, 217 Ill. 2d at 187, 840 N.E.2d at 665. The defendant argued that he knowingly and

voluntarily pled guilty in exchange for the promise of a 25-year sentence. Whitfield, 217 Ill.

2d at 187, 840 N.E.2d at 665. 

The Illinois Supreme Court, treating the defendant's pleading as a postconviction
10

petition, ruled that, under these circumstances, adding the statutorily required three-year

mandatory-supervised-release term to the defendant's negotiated sentence was a unilateral

modification and breach of the plea agreement. Whitfield, 217 Ill. 2d at 190, 840 N.E.2d at

667. The court held as follows:

"[T]here is no substantial compliance with Rule 402 [(177 Ill. 2d R. 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 [mandatory-supervised-release] 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 [mandatory supervised release] constitutes an unfair breach of the

plea agreement." (Emphasis added.) Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at 669.

The defendant also relies on People v. Company, 376 Ill. App. 3d 846, 876 N.E.2d

1055 (2007), in support of his argument. In Company, the defendant entered into a fully

negotiated plea agreement whereby he was to receive a specific sentence of 15 years'

incarceration in the Department of Corrections. Company, 376 Ill. App. 3d at 850, 876

N.E.2d at 1058. The trial court admonished the defendant that, if convicted at a trial, he

would be subject to a term of mandatory supervised release but that under the plea agreement,

instead of the possible sentences available upon conviction, he would receive the agreed

sentence of 15 years' imprisonment, with no mention of mandatory supervised release.

Company, 376 Ill. App. 3d at 850, 876 N.E.2d at 1058. The written sentencing agreement

failed to include a mandatory-supervised-release term. Company, 376 Ill. App. 3d at 850, 876

N.E.2d at 1058. The court found that the defendant did not enter his plea with full knowledge

of the consequences because "the admonishment linked [mandatory supervised release] to the
11

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 State argues that People v. Holt, 372 Ill. App. 3d 650, 867 N.E.2d 1192 (2007),

is factually more similar to the instant case than Whitfield or Company. In Holt, the defendant

entered into an open plea agreement in which the State agreed to recommend a sentence.

Holt, 372 Ill. App. 3d at 651, 867 N.E.2d at 1193-94. The trial court admonished the

defendant as follows: "If you are sent to prison, there [is] a period of mandatory supervised

release of one-three years." (Emphasis omitted.) Holt, 372 Ill. App. 3d at 651, 867 N.E.2d

at 1193. The State's recitation of the plea agreement made no reference to a mandatorysupervised-release term, nor did the sentencing order include a mandatory-supervised-release

term. Holt, 372 Ill. App. 3d at 651, 867 N.E.2d at 1194. The court distinguished Whitfield

on the ground that the trial court's failure to mention a mandatory-supervised-release term

during the entirety of the plea proceedings left the defendant unaware of the consequences of

his plea, whereas in Holt, the defendant was aware that the mandatory-supervised-release term

would attach to any prison sentence, so the failure to restate the requirement during the

recitation of the plea agreement did not violate his due process rights. Holt, 372 Ill. App. 3d

at 653, 867 N.E.2d at 1195. Additionally, the court noted that the case differed from Whitfield

in that it involved an open plea as opposed to a fully negotiated plea. Holt, 372 Ill. App. 3d

at 653, 867 N.E.2d at 1195. The court held that where the State only promises to recommend

a certain sentence and the total sentence the defendant receives, including mandatory

supervised release, is less than the maximum sentence authorized by law, the trial court's

failure to properly admonish the defendant of the mandatory-supervised-release term does not

violate the defendant's constitutional rights and he receives the benefit of his bargain. Holt,

372 Ill. App. 3d at 653-54, 867 N.E.2d at 1195. The State also argues that People v.
12

Borst, 372 Ill. App. 3d 331, 867 N.E.2d 1181 (2007), is applicable to the instant case. In

Borst, the trial court admonished the defendant about the maximum possible sentences for the

crimes to which he was entering a fully negotiated plea. Borst, 372 Ill. App. 3d at 332-33,

867 N.E.2d at 1182-83. In doing so, the court advised the defendant of the mandatorysupervised-release terms each offense carried. Borst, 372 Ill. App. 3d at 332, 867 N.E.2d at

1182. The trial court did not mention a mandatory-supervised-release term in the oral

recitation of the plea agreement, nor did the written sentencing order include a term of

mandatory supervised release. Borst, 372 Ill. App. 3d at 333, 867 N.E.2d at 1183. The court

held that Whitfield did not apply because, while the trial court could have made its

admonishments clearer, the defendant was informed that mandatory-supervised-release terms

applied, and thus, his constitutional right to due process and fundamental fairness was not

violated. Borst, 372 Ill. App. 3d at 334, 867 N.E.2d at 1184. 

The defendant bears the burden of establishing that the circumstances existing at the

time of the plea hearing, when judged by objective standards, justify his mistaken impression

that his sentence did not include a mandatory-supervised-release term. People v. Jarrett, 372

Ill. App. 3d 344, 352, 867 N.E.2d 1173, 1180 (2007). The only admonition the defendant

received about mandatory supervised release occurred when the trial court informed him that,

for the offense of first-degree murder, he could be sentenced to 20 to 60 years in the

Department of Corrections, he could be fined up to $25,000, and he could be subject to 3

years' mandatory supervised release. The trial court never linked the mandatory-supervisedrelease term to the defendant's plea. When the trial court accepted the plea and imposed the

sentence, it specifically mentioned the 22 years' incarceration, court costs, DNA testing, and

disbursement of bond monies, but it did not mention a term of mandatory supervised release.

Because the defendant negotiated a sentence at the low end of the sentencing range, the failure

to affirmatively inform the defendant that mandatory supervised release remained as a part
13

of his sentence could have led him to believe that the mandatory-supervised-release term had

also been negotiated away. If an ordinary person in the circumstances of the accused would

understand the admonishments given by the trial court as conveying the information required

by Rule 402, then there has been substantial compliance. People v. Sutherland, 128 Ill. App.

3d 415, 419, 470 N.E.2d 1210, 1214 (1984). We believe that an ordinary person in the

defendant's circumstances would not understand the trial court's admonishment to mean that

a term of mandatory supervised release would be added to any prison sentence, but would

understand the admonishment as a warning about the possible penalties. Judged by objective

standards, the circumstances existing at the time of the plea hearing justify the defendant's

belief that his sentence did not include a mandatory-supervised-release term. 

The State argues that the defendant had been repeatedly informed that he would be

subject to a three-year mandatory-supervised-release term at hearings prior to the plea hearing

and that, therefore, he could not claim that he was unaware that a mandatory-supervisedrelease period would follow his release from the Department of Corrections or that the

mandatory-supervised-release term was something he could bargain away. Admonitions

given at prior proceedings cannot be relied upon to remedy the lack of proper admonitions at

the subsequent plea hearing. People v. Blankley, 319 Ill. App. 3d 996, 1007, 747 N.E.2d 16,

25 (2001). To satisfy the constitutional requirement of substantial compliance with Rule 402,

the admonitions must be made at the time the plea is taken. Blankley, 319 Ill. App. 3d at

1007, 747 N.E.2d at 25. Even if the defendant has some general knowledge about mandatorysupervised-release terms, that is insufficient to establish that he understood the terms of his

plea agreement at the time he pled guilty. Whitfield, 217 Ill. 2d at 200, 840 N.E.2d at 672.

"[D]ue process requires that it be evident from the record that a defendant's plea of

guilty is entered with full knowledge of the consequences." Whitfield, 217 Ill. 2d at 200, 840

N.E.2d at 672. When a trial court fails to properly admonish a defendant that a mandatory-
14

supervised-release term will attach to his prison sentence, the defendant need not demonstrate

a reasonable probability that, but for the lack of specific admonishment, he would not have

pled guilty. Whitfield, 217 Ill. 2d at 201, 840 N.E.2d at 673. 

In Whitfield, the supreme court plainly held that a defendant pleading guilty to a

specified term of imprisonment pursuant to a plea bargain must be advised prior to accepting

his plea that a term of mandatory supervised release will be added to the defendant's sentence.

Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at 669. Accordingly, we do not believe that any mere

mention of the phrase "mandatory supervised release" during a plea hearing is sufficient to

satisfy the constitutional requirements explained in Whitfield. Contra People v. Holborow,

382 Ill. App. 3d 852, 861-62, 892 N.E.2d 1, 8-9 (2008). In order to comply with Whitfield,

the court must advise the defendant that a mandatory-supervised-release term will be added

to his sentence, and that advisement must occur prior to accepting his plea.

As in Whitfield and Company, in this case the defendant's pleading sufficiently alleges

that the trial court failed to advise the defendant, prior to accepting his plea, that a three-year

mandatory-supervised-release term would be added to the sentence that was the subject of his

plea agreement. When the trial court's failure to properly admonish a defendant results in him

receiving a more onerous sentence than the one he was told he would receive, his

constitutional right to due process and fundamental fairness has been violated. When a

defendant's constitutional rights have been violated due to improper admonitions regarding

the addition of a mandatory-supervised-release term to his fully negotiated sentence, the plea

promise must be enforced or the defendant must be allowed to withdraw his plea. Whitfield,

217 Ill. 2d at 202, 840 N.E.2d at 673. 

CONCLUSION

Accordingly, we reverse the judgment of the Effingham County circuit court and
15

remand with directions that the circuit court recharacterize the defendant's petition as a

postconviction petition and conduct further proceedings not inconsistent with this opinion.

Reversed; cause remanded with directions.

GOLDENHERSH and WEXSTTEN, JJ., concur.
 NO. 5-07-0199

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

 Plaintiff-Appellee, ) Effingham County.

)

v. ) No. 03-CF-264

)

TOBBY J. SMITH, ) Honorable

 ) Sherri L. E. Tungate,

 Defendant-Appellant. ) Judge, presiding.

___________________________________________________________________________________

Opinion Filed: September 10, 2008

Modified Opinion on Denial of Rehearing Filed: October 27, 2008

___________________________________________________________________________________

Justices: Honorable Bruce D. Stewart, P.J.

Honorable Richard P. Goldenhersh, J., and

Honorable James M. Wexstten, J.,

Concur

___________________________________________________________________________________

Attorneys Daniel M. Kirwan, Deputy Defender, Edwin J. Anderson, Assistant Defender, Office

for of the State Appellate Defender, Fifth Judicial District, 117 North Tenth Street, Suite

Appellant 300, Mt. Vernon, IL 62864

___________________________________________________________________________________

Attorneys Charles Zalar, Special Prosecutor, Office of the State's Attorneys Appellate

for Prosecutor, 725 South Second Street, Springfield, IL 62704; Norbert J. Goetten,

Appellee Director, Stephen E. Norris, Deputy Director, Kendra S. Peterson, Staff Attorney,

Office of the State's Attorneys Appellate Prosecutor, 730 E. Illinois Highway 15,

Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864; Hon. Ed Deters, State's Attorney, 

Effingham County Courthouse, 120 W. Jefferson, 2nd Floor, Effingham, IL 62401

___________________________________________________________________________________