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NOTICE

Decision filed 10/24/08. The text of

this dec ision m ay be changed or

corrected prior to the filing of a

Petition for Re hea ring o r the

disposition of the same.

NO. 5-07-0184

IN THE 

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________

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

) Circuit Court of

 Plaintiff-Appellee, ) Madison County.

)

v. ) No. 03-CF-488

)

WILLIAM H. LEE, JR., ) Honorable

) James Hackett,

 Defendant-Appellant. ) Judge, presiding.

________________________________________________________________________

JUSTICE DONOVAN delivered the opinion of the court:

William H. Lee, Jr., defendant, appeals the denial of his petition for postconviction

relief. We affirm.

Defendant pleaded guilty to aggravated battery with a firearm in connection with an

incident that occurred on February 15, 2003, in exchange for a prison sentence of 10 years.

At the time defendant entered his negotiated plea, he was advised that the potential penalties

included 6 to 30 years' imprisonment and 3 years' mandatory supervised release. The plea

agreement stated in open court by the prosecutor was that defendant would plead guilty in

exchange for a 10-year prison term, with defendant having to serve 85% of the sentence

before becoming eligible for parole. The court accepted the plea and sentenced defendant

to 10 years' imprisonment with credit for 565 days served. Nothing was said about the

mandatory supervised release when the sentence was pronounced or in the sentencing order.

Defendant did not pursue a motion to withdraw guilty plea or a direct appeal. Defendant did

file a petition for postconviction relief, which was denied by the circuit court of Madison

County. In denying the petition, the court held that the recitation of the mandatory-
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supervised-release term as a part of the general admonishments was sufficient. Defendant

argues on appeal that the denial of his petition for postconviction relief must be reversed

because he was denied due process of law when he was not advised that his specific plea

agreement included a term of 3 years' mandatory supervised release in addition to the 10-year

prison term. Relying on People v. Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005),

defendant further contends that his 10-year prison sentence should be reduced to 7 years to

conform to the plea agreement stated in open court.

A defendant's due process rights may be violated when a defendant does not receive

the "benefit of the bargain" of his plea agreement. Whitfield, 217 Ill. 2d at 186, 840 N.E.2d

at 664; People v. Holt, 372 Ill. App. 3d 650, 652, 867 N.E.2d 1192, 1194 (2007). The

defendant in Whitfield argued that the trial court was required, under Supreme Court Rule

402(a) (177 Ill. 2d R. 402(a)), to admonish him on the record of the statutorily required

mandatory-supervised-release term. He further claimed in his petition for postjudgment

relief that he was sentenced to a more "onerous" sentence than that to which he had agreed,

because at no time during the plea did the prosecutor or the circuit court advise him that he

would be subject to the three-year period of mandatory supervised release. Whitfield, 217

Ill. 2d at 186, 840 N.E.2d at 664-65. The defendant did not ask that his plea be withdrawn

but instead that the State be held to the terms of its plea agreement, which would necessitate

the elimination of the 3-year term or the reduction of his 25-year sentence. Whitfield, 217

Ill. 2d at 180-81, 840 N.E.2d at 661. The court agreed and held that the defendant did not

receive the benefit of his bargain because the addition of the mandatory-supervised-release

term resulted in a more onerous sentence than the one to which he had agreed in the hearing.

Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at 669. The court further noted that while there need

be only substantial compliance with Rule 402 (and an imperfect admonishment is not

reversible error unless real justice has been denied or prejudice is inflicted), there can be no
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substantial compliance with Rule 402 when a defendant pleads guilty in exchange for a

specific sentence and the court fails to advise the defendant that a mandatory-supervisedrelease term will be added to the sentence. Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at 669.

Whitfield, however, is distinguishable from the instant case. In Whitfield, there was

no mention of the mandatory-supervised-release term during the entirety of the proceedings;

accordingly, the defendant was not aware of the consequences of his plea. Here, in contrast,

the trial court, in advising defendant of the nature of the charge to which he was pleading

guilty, expressly admonished him that the offense carried a three-year period of mandatory

supervised release. Specifically, the court stated, "That count that you are going to be

pleading to *** is a Class X Felony which carries a maximum $25,000 fine and a sentence

of imprisonment not less than six nor more than 30 years in the penitentiary, mandatory

supervised release of 3 years." There is nothing in the record to show that what the circuit

court described as "mandatory" somehow was no longer mandatory. Nor is there anything

in the admonishments that misleadingly suggested defendant's guilty plea removed the

mandatory-supervised-release requirement. Cf. People v. Company, 376 Ill. App. 3d 846,

876 N.E.2d 1055 (2007). The State's failure to restate the mandatory-supervised-release

requirement during its recitation of the plea agreement did not violate defendant's due

process rights, and defendant received the benefit of his bargain. See Holt, 372 Ill. App. 3d

at 652-53, 867 N.E.2d at 1195. As noted in People v. Jarrett, "Years of [mandatory

supervised release] and years in prison are not interchangeable." People v. Jarrett, 372 Ill.

App. 3d 344, 351, 867 N.E.2d 1173, 1179 (2007). Mandatory supervised release is not a

"sentence" for the offense itself. Its length is determined by the class of offense to which a

defendant is convicted and may be shortened by the Department of Corrections wholly within

its discretion. See 730 ILCS 5/3-3-8(a), (b) (West 2004); Jarrett, 372 Ill. App. 3d at 351, 867

N.E.2d at 1179. Again, as noted in Holt, substantial compliance is what is required by
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Supreme Court Rule 402. Holt, 372 Ill. App. 3d at 653, 867 N.E.2d at 1195. As in any Rule

402 admonishment, the question is whether the defendant is advised of the consequences of

his plea. Hence, a defendant who is told that he is pleading guilty to an offense that will also

require a period of mandatory supervised release has been told of the consequences of his

plea. Unlike the defendant in Whitfield who was never made aware of the consequences of

his plea, defendant here was properly admonished. See also People v. Borst, 372 Ill. App.

3d 331, 334, 867 N.E.2d 1181, 1184 (2007) (despite the defendant's contentions that because

mandatory supervised release was explained in a manner that merely suggested it "could"

apply and that due process required the court to expressly tell him that his sentence would

carry the term, the court's admonitions, while "inartful," nonetheless told the defendant about

mandatory supervised release and therefore did not violate the defendant's constitutional right

to due process).

For the foregoing reasons, we affirm the denial of defendant's postconviction petition.

Affirmed.

STEWART, P.J., and CHAPMAN, J., concur.
 NO. 5-07-0184

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________________

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

) Circuit Court of

 Plaintiff-Appellee, ) Madison County.

)

v. ) No. 03-CF-488

)

WILLIAM H. LEE, JR., ) Honorable

) James Hackett,

 Defendant-Appellant. ) Judge, presiding.

___________________________________________________________________________________

Opinion Filed: October 24, 2008

___________________________________________________________________________________

Justices: Honorable James K. Donovan, J.

Honorable Bruce D. Stewart, P.J., and

Honorable Melissa A. Chapman, J.,

Concur

___________________________________________________________________________________

Attorneys Daniel M. Kirwan, Deputy Defender, E. Joyce Randolph, Assistant Defender, Office

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

Appellant 300, Mt. Vernon, IL 62864

___________________________________________________________________________________

Attorneys Hon. William A. Mudge, Madison County State's Attorney, 155 N. Main Street, Suite

for 120, Edwardsville, IL 62025; Norbert J. Goetten, Director, Stephen E. Norris, Deputy

Appellee Director, Patrick D. Daly, Staff Attorney, Office of the State's Attorneys Appellate

Prosecutor, 730 East Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864

___________________________________________________________________________________