Docket Nos.105989, 106592 cons.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES

MORRIS, Appellant.–THE PEOPLE OF THE STATE OF

 ILLINOIS, Appellee, v. JESSE HOLBOROW, Appellant.

Opinion filed January 22, 2010.

CHIEF JUSTICE FITZGERALD delivered the judgment of the

court, with opinion.

Justices Freeman, Thomas, Kilbride, Garman, Karmeier, and

Burke concurred in the judgment and opinion.

OPINION

In this consolidated appeal, defendants, James Morris and Jesse

Holborow, contest the first-stage dismissals of their respective

postconviction petitions. Defendant Morris entered a negotiated plea

of guilty in the circuit court of Cook County to two counts of

aggravated criminal sexual assault in exchange for concurrent

sentences of 30 years. Defendant Holborow entered a negotiated plea

of guilty in the circuit court of Livingston County to home invasion

with great bodily harm to the victim, theft, and criminal trespass to a

vehicle in exchange for the dismissal of four other charges and a 16-

year term of imprisonment with concurrent terms of 3 years and 364

days. In their pro se postconviction petitions, defendants each asserted
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that they were not informed that they would be required to serve

terms of mandatory supervised release (MSR) in addition to their

sentences and, therefore, did not receive the benefit of their negotiated

plea agreements.

The appellate court affirmed in both matters, finding that

defendants’ postconviction claims were frivolous and patently without

merit, as the records showed that defendants received admonishments

that substantially complied with Supreme Court Rule 402 (177 Ill. 2d

R. 402) and otherwise satisfied due process. Morris, No. 1–06–2036

(unpublished order under Supreme Court Rule 23); Holborow, 382 Ill.

App. 3d 852. We granted leave to appeal and consolidated

defendants’ cases. 210 Ill. 2d R. 315. For the reasons that follow, we

affirm the judgment of the appellate court with respect to both

defendants.

BACKGROUND

James Morris

Following a negotiated guilty plea, Morris was convicted of two

counts of aggravated criminal sexual assault against two different

victims, S.B. and C.M. The State’s evidence demonstrated that Morris

lived in the same apartment building as the victims and was acquainted

with each of their husbands. By virtue of that acquaintance, Morris

tricked the women into opening their front doors, and then forced his

way into their apartments. While inside, he dragged, struck, and

sexually assaulted the victims. Morris opted to plead guilty pursuant

to a negotiated plea agreement rather than proceed to trial.

At the January 18, 2005, plea hearing, the trial court was advised

that an agreement had been reached between the parties. Defense

counsel outlined the agreement, stating, “Just so we are clear,***[w]e

enter pleas of guilty pursuant to the plea agreement. Pursuant to that

agreement all counts on each of those indictments will be nolled.

Those pleas are entered with the understanding the sentence would be

thirty years in the Illinois Department of Corrections.” The trial court

then admonished Morris as follows:

“These are Class X felony charges in the State of Illinois. And

Class X felonies in the State of Illinois carry with it possible

punishment of six to thirty years in the Illinois Department of
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Corrections, plus three years of mandatory supervised release.

There is no provisions for periodic imprisonment. There is no

provision for periodic probation or conditional discharge. You

could be fined up to $10,000 on each of these matters. Do you

understand the possible punishment?”

Morris responded, “Yes.” After further admonishments, the trial court

asked, “Knowing the nature of the charges against you and the

possible penalties, the legal rights that you have, do you still wish to

plead guilty to aggravated criminal sexual assault in both of these

indictments?” Morris answered, “Yes.” The trial court accepted

Morris’ plea and proceeded to sentencing. The trial court did not

mention MSR during sentencing, and there was no mention of MSR

in the sentencing order. Morris did not file a motion to withdraw his

plea and did not file a direct appeal.

In May 2006, Morris filed a pro se postconviction petition alleging

that his constitutional rights were substantially violated because he

contracted with the State to receive a 30-year sentence in exchange

for his guilty plea, he was not advised that he would be required to

serve three years of MSR in addition to his 30-year sentence, and,

therefore, he was not receiving the benefit of his bargain.

The trial court dismissed Morris’ postconviction petition, finding

that it was frivolous and patently without merit. The trial court found

that Morris’ claim was belied by the record, which demonstrated that

Morris was sufficiently admonished of his MSR obligations. Morris

filed a motion to reconsider, which was denied, and then appealed.

The appellate court affirmed in an unpublished order, finding that the

admonishments given to Morris prior to his guilty plea advised him of

the penalty range for the offense, including MSR, and therefore

substantially complied with Rule 402 and this court’s precedent.

Morris, No. 1–06–2036 (unpublished order under Supreme Court

Rule 23). Morris now appeals.

Jesse Holborow

Holborow entered a plea of guilty to home invasion with great

bodily harm to the victim, theft, and criminal trespass to a vehicle. The

State’s evidence showed that Holborow and two codefendants

unlawfully entered the home of the victim, 70-year-old Bernard
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Harris, and proceeded to beat him and stab him before taking his beer

and his van without permission. As a result of this attack, the victim

became wheelchair bound and cognitively deficient and was no longer

able to care for himself.

At the commencement of the plea hearing, the trial court stated:

“Mr. Holborow, I have a written plea agreement before me

indicating that you don’t want a jury trial. It indicates you are

going to plead guilty to seven counts against you. And you are

going to receive on Count 1, home invasion, a 16-yearsentence. *** There would be a finding of great bodily harm

to the victim, meaning that you would have to serve 85

percent of your sentence. *** Sixteen times 85 percent is 13.6

years. So that is what you are going to have to serve. You will

get credit for whatever time you have been in jail. Now, there

would be some court costs to pay. $200 DNA fee. There

would be restitution of $5,643.59. *** And you have to make

yourself available and provide truthful testimony in the case of

each co-defendant. *** Is that what you want to do, Mr.

Holborow?”

Defendant responded, “Yes.”

The trial court continued:

“Now, it is important that you understand with respect to

Count 1, the home invasion, that is a Class X felony. And the

law says that if this were handled by other than a plea

agreement, you could get anywhere from six to 30 years in

prison, plus three years mandatory supervised release. You are

not eligible for probation, periodic imprisonment, or

conditional discharge. If you were found guilty, you would

have to get a minimum of six years, and you could get as

much as 30. And with great bodily harm, you have to serve 85

percent of your time. So do you understand what the

possibilities there are, if this were handled by other than a plea

agreement?”

Holborow confirmed that he understood, and the trial court

continued:

“Now, Count 2, aggravated battery of a senior citizen; ***

Count 2 is a Class 2 felony.*** That is the one where you are
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charged with knowingly causing great bodily harm to Bernard

Harris, in that he was a senior citizen, an individual 60 years

of age or older. *** And you are eligible there for an extended

term. Since that is a Class 2, an extended term is seven to

fourteen years. So if this were handled by other than a plea

agreement, the law provides you could get anywhere from

three to 14 years in prison, plus two years mandatory

supervised release. Other possibilities include probation or

conditional discharge not to exceed four years, periodic

imprisonment of 18 to 30 months. And you could be fined up

to $25,000. So those are the possibilities there. Do you have

any question about that, Mr. Holborow?”

Defendant had no questions. The court then stated:

“Now, *** Count 3, 4, Count 5, are aggravated battery

counts. Those are Class 3 felonies. You are eligible for an

extended prison term of up to ten years there. So if this were

handled by other than a plea agreement as to those three

counts, you could get anywhere from two to ten years in

prison, plus two years mandatory supervised release.”

Addressing the next count, the court stated,

“Count 6 is a theft count as a subsequent offense. That is a

Class 4 felony. And there, you could get prison of anywhere

from one to three years, plus one year mandatory supervised

release.”

The court then described the potential penalties attached to the

remaining misdemeanor count.

Before accepting Holborow’s plea, the trial court reiterated the

plea agreement, but made no mention of MSR. The trial court also

failed to mention MSR in sentencing Holborow, and the MSR term

was not included in the written sentencing order. Holborow did not

seek to withdraw his plea and did not file a direct appeal.

Holborow did file a postconviction petition alleging that his

constitutional rights were substantially violated when he received a

more onerous sentence than he bargained for in accepting the plea

agreement. Holborow contended that he was never advised that he

would be required to serve a 3-year term of MSR in addition to the

16-year sentence he agreed to as part of his plea bargain. The trial
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court summarily dismissed Holborow’s petition, finding that his claim

was refuted by the record. The appellate court affirmed, finding that

the trial court mentioned MSR to Holborow four different times

during the plea hearing. Holborow, 382 Ill. App. 3d at 861. The

appellate court acknowledged that the admonishments could have

been clearer, but nevertheless concluded that the admonishments were

sufficient to make Holborow aware of the MSR requirement.

Holborow, 382 Ill. App. 3d at 865. Holborow now appeals.

ANALYSIS

The defendants collectively assert that the trial courts erred in

summarily dismissing their postconviction petitions as frivolous or

patently without merit at the first stage of postconviction review

because the petitions demonstrated that their constitutional rights

were substantially violated. The Post-Conviction Hearing Act (Act)

(725 ILCS 5/122–1 et seq. (West 2006)) provides a mechanism for

criminal defendants to challenge their convictions or sentences based

on a substantial violation of their rights under the federal or state

constitutions. People v. Beaman, 229 Ill. 2d 56, 71 (2008). A

postconviction proceeding is a collateral attack on a prior conviction

that is limited to constitutional matters that were not and could not

have been previously adjudicated. People v. Johnson, 206 Ill 2d 348,

356 (2002).

The Act provides for a three-stage proceeding in all cases that do

not involve the death penalty. People v. Harris, 224 Ill. 2d 115, 125

(2007). At the first stage, the trial court must independently

determine, within 90 days of its filing, whether the petition is frivolous

or patently without merit. People v. Gaultney, 174 Ill. 2d 410, 418

(1996); 725 ILCS 5/122–2.1(a)(2) (West 2006). A petition can be

dismissed at the first stage as frivolous or patently without merit “only

if the petition has no arguable basis either in law or in fact.” People v.

Hodges, 234 Ill. 2d 1, 16 (2009). A petition lacks an arguable basis in

law when it is grounded in “an indisputably meritless legal theory,” for

example, a legal theory which is completely contradicted by the

record. Hodges, 234 Ill. 2d at 16. A petition lacks an arguable basis

in fact when it is based on a “fanciful factual allegation,” which

includes allegations that are “fantastic or delusional” or belied by the

record. Hodges, 234 Ill. 2d at 16-17. Further, a petition alleging
 

1The appeal in defendant Morris’ case was brought by the Cook County

State’s Attorney’s office and the appeal in defendant Holborow’s case was

brought by the Illinois Attorney General. We refer to these parties as “the

State,” but note that the State raised different arguments on appeal.

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nonfactual and nonspecific assertions that merely amount to

conclusions will not survive summary dismissal under the Act. People

v. Burt, 205 Ill. 2d 28, 35-36 (2001). We review the first-stage

dismissal of a postconviction petition de novo. People v. Williams,

209 Ill. 2d 227, 234 (2004).

Defendants contend that a substantial violation of their rights

occurred because the trial courts failed to admonish them, prior to

accepting their negotiated guilty pleas, that terms of MSR would be

added to their sentences. Defendants maintain that the addition of

MSRs to their bargained-for sentences deprives them of the benefit of

their bargain and violates their right to due process. Defendants assert

that they are entitled to postconviction relief and rely on this court’s

decision in People v. Whitfield, 217 Ill. 2d 177 (2005), to support

their argument. The State first argues that both defendants were

adequately advised of the MSR requirement before pleading guilty,

and that the trial courts’ admonishments substantially complied with

Rule 402 and the requirements of due process. Alternatively, the State

argues that this court announced a new rule of criminal procedure in

Whitfield, and the new rule should not be applied retroactively to

cases that were final before the pronouncement of the rule. Notably,

there is no dispute that the convictions before us were final prior to

this court’s decision in Whitfield. As a second alternative, the State

contends that defendants’ petitions are untimely filed, and that

defendants are unable to show that the delay in filing was not due to

their culpable negligence.1

The issue of whether the admonishments given to the defendants

in this case were sufficient to comply with Whitfield would not require

resolution if we were to conclude that Whitfield created a new rule

that does not warrant retroactive application on collateral review.

Accordingly, we consider the State’s retroactivity argument first, and

determine whether Whitfield created a new rule of criminal procedure

warranting retroactive application.
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 In Whitfield, the defendant pleaded guilty to charges of first

degree murder and armed robbery pursuant to a negotiated plea

agreement which provided that the defendant would receive

concurrent sentences totaling 25 years in exchange for his guilty plea.

Whitfield, 217 Ill. 2d at 179. Although a three-year term of MSR was

statutorily required to be served in addition to this sentence, MSR was

never discussed by the State during plea negotiations and the

defendant was never admonished of his MSR obligation by the trial

court during the plea hearing. Whitfield, 217 Ill. 2d at 180. The

defendant sought postconviction relief, asserting that his due process

rights were violated because the MSR term added to his negotiated

sentence resulted in a more onerous sentence than the one for which

he had bargained before pleading guilty. The defendant’s petition was

dismissed at the second stage of postconviction review, and the

appellate court affirmed the dismissal order. Whitfield, 217 Ill. 2d at

181-82.

In raising his claim before this court, the defendant made clear that

he was not contesting the validity of his plea on the grounds that it

was not knowingly and voluntarily made. Instead, the defendant

asserted a “benefit of the bargain” claim and argued that his

constitutional right to due process and fundamental fairness was

violated because the sentence he received was different, and more

onerous, than the sentence he bargained for with the State. We

explained that the defendant’s argument was rooted in the United

States Supreme Court’s decision in Santobello v. New York, 404 U.S.

257, 262, 30 L. Ed. 2d 427, 433, 92 S. Ct. 495, 499 (1971), where

the Supreme Court held that the defendant’s due process right was

violated when the State promised to refrain from making a sentencing

recommendation at the defendant’s trial as part of the plea agreement

and then failed to honor that promise. Whitfield, 217 Ill. 2d at 185.

Citing approvingly to Santobello, and our decision in People v. Evans,

174 Ill. 2d 320, 326-27 (1996) (holding that both the State and the

defendant are bound to the terms of a plea agreement under

Santobello), we declared that a defendant has a due process

“contract” right to enforce the terms of a plea agreement, and the

unilateral modification of the agreement to include a term of MSR not

previously bargained for amounted to a breach of the plea agreement
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and violated principles of fundamental fairness. Whitfield, 217 Ill. 2d

at 189-91.

We stated that our opinion in Whitfield was “in conformity with

earlier decisions of this court.” Whitfield, 217 Ill. 2d at 191. We

pointed to Rule 402(a)(2), which safeguards defendants’ due process

right to be properly and fully admonished, and this court’s holding in

People v. Wills, 61 Ill. 2d 105, 109 (1975), that a defendant must be

admonished that a period of parole (now called MSR) is part of the

sentence imposed to ensure that the plea is knowing and voluntary.

We also pointed to People v. McCoy, 74 Ill. 2d 398, 402 (1979),

where this court held that the failure to admonish a defendant of

parole did not amount to a due process violation, as the defendant was

still sentenced to a term significantly lower than that which could have

been imposed had he not entered a guilty plea and negotiated for a

sentence recommendation. Additionally, we discussed appellate court

cases that distinguished McCoy and found that the failure to admonish

a defendant of MSR amounted to a due process violation where the

defendant entered an open guilty plea, but where the term imposed,

plus MSR, exceeded the maximum sentence the defendant was told he

could receive. People v. Fish, 316 Ill. App. 3d 795 (2000); People v.

Brown, 296 Ill. App. 3d 1041 (1998); People v. Coultas, 75 Ill. App.

3d 137 (1979). We also noted appellate court cases that held that a

due process violation occurred where the defendant was not advised

of MSR after entering a negotiated guilty plea for a specific sentence.

People v. Smith, 285 Ill. App. 3d 666 (1996); People v. Moore, 214

Ill. App. 3d 938 (1991); People v. Didley, 213 Ill. App. 3d 910

(1991); People v. O’Toole, 174 Ill. App. 3d 800 (1988); People v.

Kull, 171 Ill. App. 3d 496 (1988). In reliance on these cases, and the

principles of Rule 402, we held:

“[A]lthough 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
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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.” Whitfield,

217 Ill. 2d at 195.

Having determined that the defendant’s constitutional rights were

violated, we fashioned an appropriate remedy. Whitfield, 217 Ill. 2d

at 202. We noted that in Santobello, the Supreme Court instructed

that, where a defendant does not receive the benefit of his bargain, the

remedy is to ensure that the promise be fulfilled or that defendant is

given the opportunity to withdraw his plea. Whitfield, 217 Ill. 2d at

202, citing Santobello, 404 U.S. at 262-63, 30 L. Ed. 2d at 433, 92

S. Ct. at 499. We determined that the remedy requested by the

defendant–fulfillment of the promise through modification of his

sentence–was appropriate, and after considering cases from other

jurisdictions affording this type of relief, we determined that the

defendant’s sentence should be modified from a term of 25 years plus

3 years MSR to a term of 22 years plus 3 years MSR. The matter was

remanded to the trial court for modification of the sentence. Whitfield,

217 Ill. 2d at 205.

The State now asks us to consider whether our decision in

Whitfield constituted a new rule and, if so, whether the rule should be

applied retroactively to cases on collateral review. To make this

determination, we apply the analysis set forth by the Supreme Court

in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060

(1989), and adopted by this court in People v. Flowers, 138 Ill. 2d

218, 237 (1990). In Teague, the Supreme Court held that new

constitutional rules of criminal procedure are not applicable to cases

on collateral review unless the rule falls within one of two exceptions:

(1) the new rule places certain kinds of primary, private individual

conduct beyond the power of the criminal-law-making authority to

proscribe; or (2) the new rule is a “watershed rule” of criminal

procedure, i.e., a rule that is “ ‘ “implicit in the concept of ordered

liberty” ’ ” and “without which the likelihood of an accurate

conviction is seriously diminished.” Teague, 489 U.S. at 311-13, 103

L. Ed. 2d at 356-58, 109 S. Ct. at 1076-77, quoting Mackey v. United

States, 401 U.S. 667, 693, 28 L. Ed. 2d 404, 421, 91 S. Ct. 1160,
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1180 (1971), quoting Palko v. Connecticut, 302 U.S. 319, 325, 82 L.

Ed. 288, 292, 58 S. Ct. 149, 152 (1937).

The Teague Court acknowledged that it is often difficult to

determine when a new rule is announced, but instructed that, in

general, “a case announces a new rule when it breaks new ground or

imposes a new obligation on the States or the Federal Government.

[Citations.] To put it differently, a case announces a new rule if the

result was not dictated by precedent existing at the time the

defendant’s conviction became final.” (Emphasis in original.) Teague,

489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070; Flowers,

138 Ill. 2d at 239-40. Since Teague, the Supreme Court has further

explained the “new rule” concept. In Butler v. McKellar, 494 U.S.

407, 415, 108 L. Ed. 2d 347, 356, 110 S. Ct. 1212, 1217 (1990), the

Court instructed that “the fact that a court says that its decision is

within the ‘logical compass’ of an earlier decision, or indeed that it is

‘controlled’ by a prior decision, is not conclusive for purposes of

deciding whether the current decision is a ‘new rule’ under Teague.”

Further, in Saffle v. Parks, 494 U.S. 484, 488, 108 L. Ed. 2d 415,

424, 110 S. Ct. 1257, 1260 (1990), the Supreme Court stated that a

decision constitutes a new rule unless “a state court considering ***

[the] claim at the time *** [the] conviction became final would have

felt compelled by existing precedent to conclude that the rule *** was

required by the Constitution.”

Applying these principles to Whitfield, we conclude that a new

rule was created in that case. Prior to Whitfield, Illinois courts

routinely held that a defendant’s right to due process was protected

even in the face of a faulty MSR admonishment, as long as the

defendant’s plea was entered knowingly and voluntarily. As this court

explained in Wills, “[t]he constitutional requirement for a valid plea of

guilty is that it be intelligent and voluntary.” Wills, 61 Ill. 2d at 110.

The Wills court went on to explain that this requirement stemmed

from the United States Supreme Court’s decision in Boykin v.

Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), and

added that one of the objectives of the newly amended version of Rule

402 was to comply with Boykin’s requirement. Although courts

considered the defendant’s bargain with the State in determining the

propriety of certain MSR admonishments, particularly in cases where

there was a fully negotiated plea (Smith, 285 Ill. App. 3d 666; Moore,
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214 Ill. App. 3d 938; Didley, 213 Ill. App. 3d 910; O’Toole, 174 Ill.

App. 3d 800 (1988); Kull, 171 Ill. App. 3d 496), the focus of

reviewing courts’ analysis remained on the requirements of Rule 402

and the voluntary and knowing nature of the plea.

Whitfield distinguished its rationale from Boykin and its progeny

by relying squarely on the Supreme Court’s decision in Santobello,

and thus marked the first time this court held that a faulty MSR

admonishment deprived a defendant of his right to due process by

denying him the benefit of his bargain with the State. The fact that our

opinion in Whitfield was “in conformity” with other opinions of the

court (Whitfield, 217 Ill. 2d at 191) does not mean that our decision

was “dictated” (Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349, 109

S. Ct. at 1070) or “compelled” by this court’s precedent (Saffle, 494

U.S. at 488, 108 L. Ed. 2d at 424, 110 S. Ct. at 1260; see also

Flowers, 138 Ill. 2d at 240). Additionally, there can be no dispute that

the remedy we fashioned in Whitfield was novel and not based on the

precedent of this court. Accordingly, we hold that Whitfield

announced a new rule.

Having reached this conclusion, we now determine whether the

new rule should be applied retroactively to cases on collateral review.

Retroactive application would only be appropriate if the new rule falls

within one of the Teague exceptions. It is clear that the rule

announced in Whitfield does not legalize primary, private individual

conduct and does not reinterpret a statute. Therefore, we find that the

first Teague exception is inapplicable. We also find that Whitfield did

not present a “watershed rule” of criminal procedure implicit in the

concept of ordered liberty and central to the accuracy of a conviction.

Teague, 489 U.S. at 311-13, 103 L. Ed. 2d at 356-58, 109 S. Ct. at

1076-77;Flowers, 138 Ill. 2d at 241-42. We cautioned in Flowers that

this exception must be “narrowly construed” (Flowers, 138 Ill. 2d at

242), and we now note that, since Teague, the United States Supreme

Court has rejected every claim brought before it alleging that a new

rule satisfies the requirements for watershed status (Whorton v.

Bockting, 549 U.S. 406, 418, 167 L. Ed. 2d 1, 12, 127 S. Ct. 1173,

1181-82 (2007)). The only rule identified by the Supreme Court as an

example of a wathershed rule was pronounced 16 years before Teague

in Gideon v. Wainwright, 372 U.S. 335, 344-45, 9 L. Ed. 2d 799,

805, 83 S. Ct. 792, 796-97 (1963). There, the Court held that counsel
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must be appointed for any indigent defendant charged with a felony

because the denial of such representation presents an intolerably high

risk of an unreliable verdict. The rule in Gideon has been described as

a “profound and ‘ “sweeping” ’ change” which altered our

understanding of the “bedrock procedural elements” essential to the

fairness of a criminal proceeding. Whorton, 549 U.S. at 420-21, 167

L. Ed. 2d at 14, 127 S. Ct. at 1183-84.

Teague explains that the scope of the second exception should be

limited:

“to those new procedures without which the likelihood of an

accurate conviction is seriously diminished.

Because we operate from the premise that such

procedures would be so central to an accurate determination

of innocence or guilt, we believe it unlikely that many such

components of basic due process have yet to emerge. We are

also of the view that such rules are ‘best illustrated by

recalling the classic grounds for the issuance of a writ of

habeas corpus–that the proceeding was dominated by mob

violence; that the prosecutor knowingly made use of perjured

testimony; or that the conviction was based on a confession

extorted from the defendant by brutal methods.’ [Citation.]”

Teague, 489 U.S. at 313-14, 103 L. Ed. 2d at 358, 109 S. Ct.

at 1077.

Gideon represented this type of rule. However, the rule announced

in Gideon, unlike the rule before us, directly affected the integrity of

a criminal conviction and altered the manner by which criminal trials

are conducted. Teague makes clear that the focus of the inquiry when

considering whether the second exception applies is the accuracy of

the conviction and finding of guilt. The due process violation that

occurs when a defendant does not agree to a term of MSR but then

receives one has nothing to do with accuracy of the conviction, but

involves a matter of sentencing. We emphasized this distinction in

People v. De La Paz, 204 Ill. 2d 426, 438 (2003), when we

considered whether the rule announced in Apprendi v. New Jersey,

530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), met the

second exception of Teague. We concluded that a rule that only

affects the enhancement of a defendant’s sentence does not amount to

an error which seriously affects the fairness, integrity or public
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reputation of judicial proceedings so as to fall within the second

Teague exception requiring retroactivity in all cases. We see no reason

to deviate from this rationale here.

While the rule announced in Whitfield is based on the bedrock

constitutional right to due process, the Supreme Court instructs that

this is not enough to meet the second Teague exception. The Teague

requirement:

“cannot be met simply by showing that a new procedural rule

is based on a ‘bedrock’ right. We have frequently held that the

Teague bar to retroactivity applies to new rules that are based

on ‘bedrock’ constitutional rights. [Citation.] Similarly, ‘[t]hat

a new procedural rule is “fundamental” in some abstract sense

is not enough.’ [Citation.] Instead, in order to meet this

requirement, a new rule must itself constitute a previously

unrecognized bedrock procedural element that is essential to

the fairness of a proceeding. In applying this requirement, we

again have looked to the example of Gideon, and ‘we have not

hesitated to hold that less sweeping and fundamental rules’ do

not qualify. [Citation.]” (Emphasis in original.) Whorton, 549

U.S. at 420-21, 167 L. Ed. 2d at 14, 127 S. Ct. at 1183.

The rule announced in Whitfield cannot be characterized as a

profound and sweeping change to rules of criminal procedure which

is essential to the fundamental fairness of criminal proceedings.

Accordingly, we conclude that under Teague and its progeny, the rule

announced in Whitfield does not represent a watershed rule of

criminal procedure that requires retroactive application to cases on

collateral review.

This conclusion does not end our analysis, however, because in

addition to providing instruction on the application of new rules on

collateral review, the Teague opinion also provides instruction on the

announcement of new rules on collateral review. In Teague, the

Supreme Court stated:

“Were we to recognize the new rule urged by petitioner in

this case, we would have to give petitioner the benefit of that

new rule even though it would not be applied retroactively to

others similarly situated. In the words of JUSTICE

BRENNAN, such an inequitable result would be ‘an
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unavoidable consequence of the necessity that constitutional

adjudications not stand as mere dictum.” [Citation.] ***

If there were no other way to avoid rendering advisory

opinions, we might well agree that the inequitable treatment

described above is ‘an insignificant cost for adherence to

sound principles of decision-making.’ [Citation.] But there is

a more principled way of dealing with the problem. We can

simply refuse to announce a new rule in a given case unless the

rule would be applied retroactively to the defendant in the case

and to all others similarly situated. *** We therefore hold that,

implicit in the retroactivity approach we adopt today, is the

principle that habeas corpus cannot be used as a vehicle to

create new constitutional rules of criminal procedure unless

those rules would be applied retroactively to all defendants on

collateral review through one of the two exceptions we have

articulated.” (Emphasis omitted.) Teague, 489 U.S. at 315-16,

103 L. Ed. 2d at 359-60, 109 S. Ct. at 1078.

In cases following Teague, the Court has stated that “[u]nder Teague,

new rules will not be applied or announced in cases on collateral

review unless they fall into one of two exceptions.” (Emphasis added.)

Penry v. Lynaugh, 492 U.S. 302, 313, 106 L. Ed. 2d 256, 274, 109

S. Ct. 2934, 2944 (1989); Butler, 494 U.S. at 412, 108 L. Ed. 2d at

355, 110 S. Ct. at 1216.

The portion of the Teague opinion discussing the announcement

of new rules on collateral review has not been applied or discussed in

the case law of this state. Our courts have not had the opportunity to

address this portion of the Teague opinion, as other than Whitfield our

research has revealed no other case that set forth a new rule of

criminal procedure in a collateral proceeding. A review of the

Whitfield opinion and the briefs filed in that case demonstrates that the

new rule announced was announced without the benefit of briefing or

argument on the issue of retroactive versus prospective application.

This court was not asked to consider the issue of retroactive versus

prospective application and did not contemplate it.

We acknowledge that, where a case is “before us on collateral

review, we must determine, as a threshold matter,” whether granting

the relief sought will create a new rule. Penry, 492 U.S. at 313, 106

L. Ed. 2d at 274, 109 S. Ct. at 2944; Wills, 61 Ill. 2d at 111 (noting
 

2The question of whether Whitfield represented a new rule has been raised

in the appellate court. See People v. Molina, 379 Ill. App. 3d 91 (2008);

People v. Muniz, 386 Ill. App. 3d 890 (2008); People v. Johnson, 392 Ill.

App. 3d 897 (2009).

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that the court must consider whether a new rule should apply

retroactively or prospectively, and determining that the admonition

requirement announced would apply prospectively to guilty pleas

taken subsequent to the date the opinion was filed).2 However, now

that the issue of retroactivity is squarely before us, we recognize that

a better course in Whitfield would have been to forgo the

announcement of a new rule, as the rule announced cannot be

evenhandedly applied to defendant Whitfield and to all others similarly

situated. Teague, 489 U.S. at 316, 103 L. Ed. 2d at 359, 109 S. Ct.

at 1078. However, the fact remains that a new rule was announced

that should not be applied retroactively to cases on collateral review

because it does not meet one of the two exceptions articulated in

Teague. Accordingly, we hold that the new rule announced in

Whitfield should only be applied prospectively to cases where the

conviction was not finalized prior to December 20, 2005, the date

Whitfield was announced. Defendants Morris and Holborow are

therefore not entitled to prospective application of Whitfield because

both of their convictions were final prior to the Whitfield decision.

We are aware that our decision in Whitfield has created some

confusion in the lower courts and this confusion has not been limited

to claims for postconviction relief. Indeed, questions remain in the

minds of trial court judges as to what information must be conveyed

to ensure that the admonishments given during a plea hearing comply

with the requirements of Rule 402 and due process post-Whitfield.

We take this opportunity to clarify.

Ultimately, admonishments are given to ensure that “the plea was

entered intelligently and with full knowledge of its consequences”

(Whitfield, 217 Ill. 2d at 184, citing Boykin v. Alabama, 395 U.S.

238, 243, 23 L. Ed. 2d 274, 279-80, 89 S. Ct. 1709, 1712 (1969)),

but they must also advise the defendant of the actual terms of the

bargain he has made with the State. An admonition that uses the term

“MSR” without putting it in some relevant context cannot serve to

advise the defendant of the consequences of his guilty plea and cannot
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aid the defendant in making an informed decision about his case. We

recognize that there is no precise formula in admonishing a defendant

of his MSR obligation, and we are mindful that “[a]n admonition of

the court must be read in a practical and realistic sense. The

admonition is sufficient if an ordinary person in the circumstances of

the accused would understand it to convey the required warning.”

People v. Williams, 97 Ill. 2d 252, 269 (1983). The trial court’s MSR

admonishments need not be perfect, but they must substantially

comply with the requirements of Rule 402 and the precedent of this

court. Whitfield, 217 Ill. 2d at 195. Whitfield requires that defendants

be advised that a term of MSR will be added to the actual sentence

agreed upon in exchange for a guilty plea to the offense charged.

Ideally, a trial court’s admonishment would explicitly link MSR to

the sentence to which defendant agreed in exchange for his guilty plea,

would be given at the time the trial court reviewed the provisions of

the plea agreement, and would be reiterated both at sentencing and in

the written judgment. See People v. Daniels, 388 Ill. App. 3d 952,

956 (2009) (“the trial court should specifically advise a defendant that

a term of MSR is part of the sentence to which the defendant

agreed”); Berrios, 387 Ill. App. 3d at 1064 (“[w]e recognize that trial

courts should incorporate the mandatory supervised release

admonitions into the pronouncement of the specific sentence and the

written judgment”); People v. Mendez, 387 Ill. App. 3d 311, 321

(2008) (“[I]t would not place a significant burden on trial courts to

comply with Rule 402 under Whitfield by explicitly admonishing

defendants that the statutorily required terms of MSR will be added

to their agreed-upon sentences. Neither is it a significant burden to

include MSR on written judgments. These simple, basically clerical,

procedures easily would avoid the problem of insufficient

admonishments”); People v. Marshall, 381 Ill. App. 3d 724, 736

(2008) (“The better practice would incorporate the mandatory

supervised release admonition when the specific sentencing is

announced. The written sentencing judgment also should include the

term of mandatory supervised release”); People v. Jarrett, 372 Ill.

App. 3d 344, 352 (2007) (“the trial court’s admonishment could have

been improved by explicitly stating that MSR was in addition to any

sentence he received”). We strongly encourage trial court judges to

follow this practice, and to discuss MSR when reviewing the terms of
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a defendant’s plea agreement, to include the MSR term when

imposing sentence, and to add the MSR term to the written order of

conviction and sentence. This practice, which is not unduly

burdensome, would ensure that defendants understand the

consequences of their plea agreement and would avoid prolonged

litigation on the issue.

CONCLUSION

For the reasons stated herein, we affirm the judgments of the

appellate court.

Judgments affirmed.