1 NOTICE Decision fi led 07/25/07. The text of this decision may be changed or correct ed prior

to t he fi ling of a Peti tio n for

Rehearing o r th e disposit ion of

the same. NO. 5-06-0327 I N THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

_____________________________________________________________________ ____ TH E P EO PLE OF TH E ST ATE OF ILLINOIS, ) Appeal f rom the ) Circui t Court of Plaintiff -Appell ee, ) St . Clair County. ) v. ) No. 02-CF-394 ) DERRI S C OMPANY, ) Ho nora ble ) John Bari cevi c, De fend ant-Ap pellan t. ) Jud ge, p resid ing.

______ ___________________________________________________________________ JUST ICE ST EW ART delivered the op inion o f the co urt: On Janu ary 2 3, 20 06, p ursua nt to a fu lly negot iate d plea, th e defe ndan t pled gu ilty to
a home inva sion charge (720 ILCS 5/12- 11(a)( 1) (West 2002)) in exchang e forthe dismi ssal of a fi rst- degree murder charge (720 ILCS 5/9- 1(a)( 1) (West 2002)) . The State and the defen dantjo in tly re co mm en de d a se nt en ce of 15 ye ar s' in ca rc er ati on in th e Il linoi s Department

of Corrections. The cour t dis missed

the murder

charge , enter ed a judgment on the defendant 's pleato home in vasion, sentence d him to 15 years in the I llinois Depart ment of Co rrection s with credit fo r the time he ha d alrea dy se rved in th e St. Cla ir Co unty jail,
assess ed court cos ts, and required him to submit to DNA testi ng. In the writ ten judgment entere d on th e d ay of

th e d ef en da nt 's guilty plea , the t rialcourt made no referenc e to aterm of mand atory supe rvised release (M SR). Th e defendant

fil ed a pro se mo tion to w ithd raw his gu ilty p lea a nd t o va cate hi s sentence , which was mailed f rom pri son on February 9, 2006, and fi led of r ecord on March 3, 200 6. T he de fend ant also filed a m otion fo r the ap poin tment of co unsel, whic h was grant ed on April 24, 2 006. O n M ay 12, 2 006 , the S tate fil ed a moti on to dis miss t he2

defendant 's motion t o withdraw his guilty plea , all egi ng that it was untime ly, in that it was fil ed more than 30 days after the ent ry of the judg ment. On June 6, 2006, defense couns el fil ed a supplement al motion t o withdraw the de fendant' s gui lty pl ea "orin the a lternative to modify or reduce t

he sentenc e imposed." In t he motion, the defe ndant al leg ed that he did not "fu lly underst and or comprehend t he admonishment s of the court pur suant t o I lli noi s Supreme Court

Rule 402 at t

he time of the ent

ry of the ple a of gui lty. " The defendant did not spec ifically alle ge that the cour t had fa iled to a dvise him that he wo uld b e requ ired to serve a three-year M SR term at the co nclusion of h is prison term. On June 13, 2006, t

he court de niedthe St ate' s moti on to di sm is s a nd th e d ef en da nt 's motions . The court found that the defe ndant' s cert ifi cate of serv ice st ating

that t he motion
was mailed from p rison w ithin 30 days of the entry of judgment

was suffi cient

to show that the motion was t imely f

iled. The cour t proce eded to the meri ts of t he defendant 's motion and found, among othe r thi ngs, t hatthe defendant

had been proper ly admonis hed at the time of his guilty plea. The d efendan t filed a timely notice of app eal. W e reverse and rem and. The defen dant's sole argume nt on appe al is that, pursuant to Peop le v. Whitfield , 217 Ill. 2d 177, 840 N.E.2d 658 (2005), t he tri al court 's failure to admoni sh hi m that a 3-yea r M SR term atta ches to his fully negot iate d 15-year prison sentence requi res that his sentence be reduced t o 12 years, f ollowed by 3 ye ar s of

MSR, in order

to comply wit

h the ple a agree ment. The State ar gues t hat the defendant

waivedthis argument

because he failed to raise it in his motion to w ithdraw h is guilty plea. Alth ough the defe ndant did raise a g eneralimproper -admonis hment cl aim by al leg ing that he di d n ot "f

ul ly un de rs ta nd or co m pr eh en d" th e c ou rt 's admonishment s when he enter ed his gu ilty p lea, he d id n ot sp ecifi cally allege or argue in the trial c ourt t hat the court f

aile d to adequately advi se him of the MSR term that

atta ched to hi s sente nce. "General ly, under Illinois Supreme Court

Rule 604( d) [(145 I ll. 2d R. 604(d))] , any iss ue not rai sed by the3

defendant

in his m otion to with draw the ple a of guilty shall be deemed waived u pon ap peal." P eople v. D avis , 14 5 Ill. 2d 240 , 25 0, 5 82 N .E. 2d 7 14, 719 (19 91) (citin g People v. Tannenbaum , 82 Ill. 2d 177, 41 5 N.E .2d 102 7 (1980 )). The failure to g ive the defe ndant the adm onish men ts requir ed by Illinois Supreme C ourt Ru le 402 (17 7 Ill. 2d R. 402 ), how ever, has been d etermined to b e "plain error," an exce ption to the w aiver rule. Peop le v. D avis , 145 Il l. 2d 240, 250, 582 N.E.2d 714, 71 9 (1991 ). This court has held t

hat "because of the substant ial consti tuti onal ri ghts at st ake," the pla in err or doctrine shoul d be appli ed to a de fe nd an t's clai m that he was not pr operly a dmonished of the minimum and maximum sentence s prescr ibed for his off ense as r equired by I llinois S upreme Court Rul e 402 (a)( 2) (177 Ill. 2d R. 40 2(a)(2)). People v. Blankley , 319 I ll. App. 3d 996, 1007, 747 N.E.2d 16, 24 -2 5 ( 20 01 ). Ac co rd in gl y, w e a pp ly th e p la in er ro r d oc tr in e t o t he de fe nd an t's clai m that he was not proper ly adv isedof the M SR term t hat attaches to his sentence, and we proceed to the m erits of th is app eal. A plea bar gai n depriv es a defendant of l ibert y and o ther consti tuti onally protect ed interest s; theref

ore, a def

endant who demonstr ates t hat he entere d his guilt

y plea i n reli ance
on such a plea

bargain may have a due process ri ghtto enfor ce the t erms of t he agreem ent. W hitfield , 217 Il l. 2d at

18 9, 840 N.E.2d at 666. In W hitfield , the d efend ant ple d guilty pursuant to a neg otiated plea agreement, which provi ded a speci fic s entence of 25 years in the Illinois De partment of C orrections. W hitfield , 217 I ll. 2d at 190, 840 N.E.2d at 667. The tri al court r atif

ied the agree ment and fai led to a dm onish t he defenda nt that an M SR term
wo uld be add ed to the ne gotiated 25-year sen tence. W hitfield , 217 I ll. 2d at 190, 840 N.E.2d at667 . Add itionally, in the w ritten ord er of se ntenc e and com mitmen t, the trial court made
no reference to the th ree-year M SR term. W hitfield , 217 Ill. 2d at180 n.1, 840 N.E.2d at 661 n.1. The supreme court

held that, under

these circumst ances, "a dding t he stat utori ly required three- yearMSR term to defend ant's negotiated 25-y ear sent en ce amounts to a unilateral4

modifi cati on and breach of the plea agreement by t he Stat e, incons ist ent with c onsti tuti onal
concerns of fun dam ental fa ir ness. " W hitfield , 217 I ll. 2d at 190, 840 N.E.2d at 667. The court went on to stat e:

"[T]here is no su bstan tial com plianc e w ith Ru le 402 and d ue pr oces s is viol atedwhen a defendant pleads guilt

y in exchang e for a s pecifi c sentenc e and the tri al court fails to advise the defen dant, prior to acc epting his plea, that a man datory supe rvis ed relea se ter

m will be a dded to that sent ence. In these circumst ance s , additi on of the MSR ter m to the agree d-upon sent ence vi olate s due process because the sentence imp osed is mo re onerous than the one def endant agreed to at the time of the plea hearing. Under these circumst ances, t he additi on of the MSR constitutes an unfa irbreach of

the plea agreement." W hitfield , 217 I ll. 2d at 195, 840 N.E.2dat 669. A defen dant's guilty p lea mu st be m ade w ith full knowledg e of the consequences, and thi s must be eviden t from the record
. W hitfield , 217 I ll. 2d at 200, 840 N.E.2d at 672. General knowl edge of MSR te rms resul tingfrom a def endant' s cri minal hi story or evi dence t hatMSR w as disc ussed during ple a negot iati ons is insuffi cient to est ablis h wh at a "defendant

reasonably underst ood the te rms of hi s pleaagree ment to be at the time he pled guilt y." W hitfield , 217 I ll. 2d at 200, 840 N.E.2d at 672 . W here n o evide nce e xists in the record that

affir matively s how s that the defen dant kn ew he w ould be su bject to an M SR ter m, the court

must accept

the defendant 's alle gat ions thathe w as unaw are. W hitfield , 217 Ill. 2d at 200, 840 N.E.2d at 672. When a defendantis notadvi sed that the sent ence he bargained for would i nclude an MSR term, he does not nee d to esta blish a r easo nable prob ability tha t, but fo r the lac k of spe cific ad mon ishme nt, he wo uld not hav e pled guilt y. W hitfield , 217 Il l. 2d at

201, 840 N.E.2d at 673. The promi se of a spe cifi c sentenc e induces the guilty plea , and when the defendant does not r eceiv e the sent ence for whic h he barga ined, his cons titutional righ t to due process and fundamental fairness has been violated. W hitfield ,5

217 Ill. 2d at 201-0 2, 840 N .E.2d a t 673. The facts in t

his case are simi lar to those in W hitfield . The defendant entere d into a fully negot iate d pleaagree ment whereby he was to receive a specifi c sentence of 15 years' incarc erati on in the Ill inois Department of Corrections. The court r atif ied thi s agr eement and fail ed to admoni sh the de fendant, prior to accepting hi s plea, that an MSR term would be adde d to that sentence , and it did not include an MSR term in the writ ten sent encing judgment. W hile W hitfieldinvolved n o M SR ad mon ishme nt, in this case th e trial cou rt did mention m andatory s upervised release. Arguably, however, the defendant in thi s case has
a strong er argument than the defe ndant in W hitfield . Here, the tri al court admoni she d the defen dant th at he w ould be su bject to a term o f M SR if conv icte d at a tr ial but that, under the plea agreemen t, instead of the po ssible se ntenc es availab le upo n con viction, h e w ould
rece ive the agreedsenten ce of 1 5 yea rs, w ith no m ention of M SR. A t the guilty plea hea ring, the trialcourt gave t

he defendant the following admonishments: "THE CO UR T: As M r. Roustio ind icated, M r. Com pany, if you were c onv icte d attri al of t

he Murder , I could h ave sen tence d yo u to a dete rmina te period of time in the Illinois [D]epartment of [ C]orrections bet ween 20 and 60 years, and you wo uld have t o do 100 pe rcent of that senten ce. If convicted on t he Home Invasion , I could
sen tence you to a de termina te perio d of tim e in the Illinois [D] epartm ent o f [C]orre ctions between 6 and 30 yea rs . Yo u wo uld hav e to do 85 perc ent of t hat sentence
. Itis not

probati onable. Pr obation i s not anoption, and at the conclusi on of that sentence you eithe r–eit her–the s entence on either count , y ou w o ul d do two years of mandator

y superv ised r elease , and on each one I coul d fine you $25, 000. There' s a possibili ty, Mr. Company, that I coul d sentence you consecutivel y so that theore tically you could do as manyas 90 years i n prison. Do you have any quest ions6

about the punishment s that you could hav e faced? TH E D EFE ND ANT : No, Sir. * * * THE COU RT: You heard the pleanegotiations, M r. Com pany. Instea d of the maximum of

90 that you' d face and more practi call y the sent ence rang e as expla ined to you by Mr. Rousti o, you are agreeing on a sentence of 15 years
. Other than t hat promise as to what your punishment

will be, has anybody made any other pr omises or thr eatened you t o get you to plea d guilty? TH E D EFE ND ANT : No, sir. * * * T HE COU RT: In which cas e then, Mr. Company, Iwill di smiss the m urde r
case agai nst you, enter judgment on your plea to the Home Inv asion, senten ce yo u to 15 years in the Illinois [ D]e partm ent of [ C]o rrection s, to gi ve yo u cred it for t he time that yo u'v e alre ady served in the St. Clair Coun ty Jail, assess court costs, req uire DN A." (Emp hasis adde d.) The defendant

bears t he bur den of es tabli shin g that, wh en ju dged by o bjec tive standards, the ci rcumst ances surro und ing the p lea justify his mista ken imp ression that his sentence did not incl ude an MSR term. Peop le v. Ja rrett , 372 I ll. App. 3d 344, 352, 867 N.E.2d 1173, 1 180 (20 07). In t he present

case, t he defendant

entere d a fully negot iate d plea, and in the wri tten s en tenc ing ju dgm en t, t he tria l co ur t d id no t in clu de th e M SR ter m. In additi on, when the tri al court orally ann ounced the defen dant's sen tence , it spec ifically mentione d the 15 ye ars' incarceration, court costs, and D NA requirement s but di d not mentionan M SR term . In adm onish ing the d efend ant ab out the senten cing ran ges if he w ere to be foun d guilty at a trial, the trial court stated that at the conclusion o f that sentence , an M SR term woul d apply. Furth ermo re, the tria l court s tated th at instead of the po ssible7

sentence s avai lable upon a convi ction at a trial, the defendant was agree ing to a sentenc e of 15 years. The MSR ter

m about which the trialcourt admoni shed the def endantwas incorr ect and was one year l ess than the one t o which he was actual ly subj ect. The t rialcourt s tate d that a two-year MSR ter

m applie d to the senten ce the t rialcourt coul d impose i f the defendant

we re to be convi cted at

a tri al, but

the court did not admoni sh the def endant about any M SR term that app lied to his guilty plea. Based on the trialcourt' s statements, the defe ndant coul d reasonably underst and that
an MSR term appli ed only if he were to be f

ound guilty at a

t rial . Not hing in the record sh ows that t

he defendant

knew he would be subje ct to an M SR term as a res ult of his guilty plea. The fact tha t the trial co urt me ntione d M SR in c onn ection with the de fend ant's poss ible sentence if he were to be foun d guilty at a trial does not establish that the d efe nda nt wa s
aware th at an M SR te rm ap pl ie d t o h is pl ea . J ud ge d b y o bj ec ti ve st an da rd s, th e d ef en da nt 's impres sionthat hi s plea di d not include an MSR term was justifi ed . As a re s ult, the defendant

did not g et the sentence for which he bargai ned, and his consti tuti onal ri ght to due process an d funda mental fairness w as violated. In Peop le v. H olt , 372 I ll. App. 3d 650, 867 N.E.2d 1192 (2007), t he court ana lyzed admonishment

language i n a sit

uation where the S tate ha d agree d to rec omm end a certain sentence
. In t

hatcase, t

he tri al court

admonished t

he defendant

that if he we re to be sent to prison, there would be an MSR period of one to three years. Ho lt , 372 I ll. App. 3d at 651, 867 N.E .2d at 119 3. The court found that this a dmo nishm ent ad vised the defen dant th e M SR term wo uld atta ch to any prison term, so t he failure to r estat e the re quirement duringthe recitationof the plea agreem ent did not violate his du e process rights. Ho lt , 372 I ll. App. 3d at 653, 867 N.E.2d at 1195. The admonishment in Ho lt differs fro m the a dmo nishm ent in the present

case. In Ho lt , the trial court stated that the M SR term applie d if t he defendant
were to be sent to p rison, w hile in th is case , the trial c ourt re ferred to the M SR term only in8

connecti on with the prison term that c o uld be impos ed if t he defendant

were to be found guilty at a trial. In People v. Borst , 372 Ill. App. 3d 3 31, 867 N.E .2d 118 1 (2007 ), the defe n dant entere d a negotiated pl ea whereby he p led guil ty to attempted ag gravat ed criminal se x ual
assau lt and h ome invasion in exc han ge for concur rent 15- year sent ences and the dismi ssal of a resi dentia l burg lary charge. At th e guilt y pl ea h earin g, the trial co urt adm onish ed him aboutthe maximu m possible sen tences. Borst , 372 I ll. App. 3d at 332- 33, 8 67 N.E. 2d at 1183. In doing so, the cou rt mentioned the MSR terms each o ffense carried. Borst , 372 Ill. App. 3d at 332, 867 N.E.2d a t 1183 . The tri al court made no menti on of MSR in the sentencing judgment. Borst , 372 I ll. App. 3d at 333, 867 N.E.2d at 1183. The cour t held that W hitf ielddid not apply because, although t he tri al court

could hav e made i t s adm onish men ts clearer, it di d i nform the de fend ant of th e M SR term that ap plied to his sentence and that, thus, hi s constitut ional right to due process and fundamental fairness had not been violated. Borst , 372 I ll. App. 3d at 334, 867 N.E.2d a t 11 84. Th e t ri al co ur t's admonishment

in Borstrelat ed MSR to the defendant 's crime. In the present ca se, how ever, th e a dm on is hm en t l in ke d M SR to th e d ef en da nt 's poss ible sen tence if he were to be f

ound guilty at a trialand not to a sentence for hi s cri me in ge neral or to the s entence t

hat was being imposed a s a result of his guilty plea. We find that the defe ndant did not enter hi s plea wit

h fullknowledg e of the consequences. Prior to accepti ng his plea, t he tri al court

did not advise t

he defendant

that
an MSR term would att ach to hi s negotiate d sentence . I nstead, the trial c ourt only indicated that a tw o- year MSR term would attach t o his pri son sente nce if he were to be foun d guilty at a trial . I n additi on, in i ts writ ten judgment, t

he tri al court

made no referen ce to a n M SR ter m. At some l ater

date, t he defendant

discov ered that a 3 -year M SR term w ould attach to his negotiated 15-y ear sentence
. This unil atera l modif icat ion of t

he plea agreement

denies9

the defendant

the benef

it of the sent ence for whic h he barga ined and v iol at es his constitutional right to due proc ess and fun damen tal fairness. When a defe ndan t's constit u tionalrights hav e been vi olate d as a res ult of improper adm onish men ts regarding t he addition of an MSR term to his fully negotiated sen tence, there are two possible remedi es: t he promis e must be f

ulfi lled or the def

endantmust be al lowed to withdraw his plea. W hitfield , 217 I ll. 2d at 202, 840 N.E.2d at 673. As in W

hitfield , the defendant

in the present

case reque sts t

hat thi s court

enforce t

he negot iate d plea agreement as he unders tood it . We conclude that this is t he appropri ate re medy. According ly, we revers e the j udgment of the ci rcu it cour

t of S t. Clair County and remandwith directions that the circuit cou rt modify the defe ndant' s sente nce to a t erm of 12 years' imprisonmen t, to be followe d by the 3 -year M SR term.
Reversed; ca use reman ded w ith directions.

SPOM ER and W EX STTE N, JJ., co ncur.NO. 5-06-0327 I N THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

___________________________________________________________________________________ TH E P EO PLE OF TH E ST ATE OF ILLINOIS, ) Appeal f rom the ) Circui t Court of Plaintiff -Appell ee, ) St . Clair County. ) v. ) No. 02-CF-394 ) DERRI S C OMPANY, ) Ho nora ble ) John Bari cevi c, De fend ant-Ap pellan t. ) Jud ge, p resid ing.

___________________________________________________________________________________ Opini on Fi led : July 25, 2007

___________________________________________________________________________________ Justi ces : Hon orable B ruce D . Stewart, J.,

Hon orable Stephen L. Spomer, J., Hon orable Jame s M . W exstten, J., Concur

___________________________________________________________________________________ Attorn eys Daniel M. Kirwan, Deputy Defender, Larry R. Well s, Assi stant Defender, Offi ce for of the State Appellate D efender, F ifth Judicial District, 117 N orth Ten th Street, Appe llant Suit e 300, Mt. Vernon, I L 62864

___________________________________________________________________________________ Attorn eys Hon. Robert Haida, S t. Clair County St ate' s Att orney, 10 Publi c Square, Bellev ill e, for IL 62220; Norbert J. Goetten, Director , St ephen E. Norris , Deputy Direct or, Patrick Appell ee D. Daly, Sta ff Attorney, Office of the St ate' s Att orneys Appel late Prosecut or, 730 East I llinois Highway 15, Suit e 2, P.O. Box 2249, Mt. Vernon, I L 62864

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