People v. Newman

NO. 4-04-0847 Filed: 5/5/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from

Plaintiff-Appellee, ) Circuit Court of

v. ) Livingston County

STEVAN G. NEWMAN ) No. 01CF217

Defendant-Appellant. )

) Honorable

) Harold J. Frobish,

) Judge Presiding.

_________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

On June 25, 2004, defendant, Stevan G. Newman, filed an

amended petition for postconviction relief, alleging he received

ineffective assistance of counsel and the trial court failed to

properly admonish him regarding the period of mandatory super-

vised release (MSR) he was required to serve in connection with

his sentence. On September 1, 2004, the court dismissed defen-

dant's petition on the State's motion. Defendant appeals,

arguing the court erred in dismissing his petition because its

failure to admonish him regarding MSR violated his constitutional

rights and entitled him to an opportunity to withdraw his guilty

plea. We affirm.

On March 21, 2002, defendant pleaded guilty to felony

murder (720 ILCS 5/9-1(a)(3) (West 2000)). Pursuant to the terms

of his negotiated plea agreement with the State, the trial court

sentenced him to 20 years in prison with 155 days' credit for

time served. During the guilty-plea hearing, defendant was not

advised that he would be required to serve a three-year period of

MSR pursuant to section 5-8-1(d)(1) of the Unified Code of

Corrections (730 ILCS 5/5-8-1(d)(1) (West 2000)).

On July 8, 2002, defendant filed an amended petition to

withdraw his guilty plea and vacate sentence. He raised

ineffective-assistance-of-counsel claims and alleged his guilty

plea was not made knowingly and voluntarily. Defendant did not

raise an improper-admonishment claim. Following a hearing, the

trial court denied defendant's petition and he appealed to this

court. On December 15, 2003, while his direct appeal was pend-

ing, defendant filed a petition for postconviction relief. In

his petition, defendant alleged he was not properly admonished

regarding his MSR obligation.

On March 4, 2004, the office of the State Appellate

Defender (OSAD) moved to withdraw as defendant's appellate

counsel in his direct appeal. It contended no colorable argument

could be made that the trial court erred in dismissing defen-

dant's petition to withdraw his guilty plea. Defendant was given

until April 2, 2004, to file additional points and authorities,

but none were filed. On June 22, 2004, this court granted OSAD's

motion to withdraw and affirmed the court's judgment, stating

defendant was fully admonished and entered a knowing and volun-

tary guilty plea. People v. Newman, No. 4-02-0660 (June 22,

2004) (unpublished order under Supreme Court Rule 23).

On June 25, 2004, defendant filed an amended petition

for postconviction relief, alleging (1) defense counsel provided

ineffective assistance of counsel by coercing defendant to plead

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guilty, inadequately preparing for trial, and failing to advise

defendant he would be required to serve a period of MSR in

connection with his sentence; (2) his counsel during proceedings

to withdraw his guilty plea was ineffective for failing to advise

him that he could seek to withdraw his guilty plea based on the

trial court's failure to give an MSR admonishment; and (3) he was

denied certain state and federal constitutional rights when the

court failed to admonish him regarding MSR. On July 26, 2004,

the State filed a motion to dismiss defendant's petition. It

argued the allegations contained in the petition were barred by

the doctrines of res judicata and waiver or were conclusory and

insufficient to entitle defendant to an evidentiary hearing.

On September 1, 2004, following a hearing, the trial

court issued a written order dismissing defendant's amended

postconviction petition, finding the record did not present a

substantial showing of a constitutional violation. The court

concluded defendant's allegations regarding ineffective assis-

tance of defense counsel had been fully explored and already

determined or otherwise waived. Further, it noted, although

defendant was fully advised regarding the minimum and maximum

penalties he could receive, he was not advised regarding his

obligation to serve an MSR term. Nevertheless, the court deter-

mined the lack of an MSR admonishment did not, per se, render

defendant's plea agreement constitutionally infirm.

Instead, the trial court found defendant forfeited the

issue because he could have raised it earlier, in either the

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motion to withdraw his guilty plea or on direct appeal, but he

did not. Further, it concluded (1) defendant failed to raise a

good-faith argument that he would not have pleaded guilty if he

had been fully informed of the MSR requirement and (2) he was not

prejudiced by the court's failure to provide an MSR admonishment.

The court noted that, at the hearing on the State's motion to

dismiss defendant's petition, defendant stated he would not be

satisfied if his MSR term were taken away because he felt he was

innocent of the crime. The court then dismissed defendant's

petition.

This appeal followed.

On appeal, defendant argues he was not properly or

fully admonished pursuant to Supreme Court Rule 402 (177 Ill. 2d

R. 402). Specifically, he contends the trial court failed to

admonish him as to his statutory MSR obligation and, as a result,

he received a more onerous sentence than the one for which he

bargained as part of his plea agreement. Defendant requests that

this court reverse the trial court's dismissal of his amended

postconviction petition and remand to the trial court so he may

have the opportunity to withdraw his guilty plea.

The State concedes the trial court erred by failing to

admonish defendant regarding his MSR obligation but contends

defendant forfeited the issue by not raising it in his motion to

withdraw his guilty plea or on direct appeal. Defendant argues

his claim is not barred by forfeiture because the supreme court

addressed the precise issue at hand in People v. Whitfield, 217

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Ill. 2d 177, 840 N.E.2d 658 (2005), and declined to apply forfei-

ture where a defendant pleaded guilty but failed to receive an

MSR admonishment. Alternatively, he argues this court may review

his claim of error pursuant to the plain-error rule.

Supreme Court Rule 402 provides that "every defendant

who enters a plea of guilty has a due process right to be prop-

erly and fully admonished." Whitfield, 217 Ill. 2d at 188, 840

N.E.2d at 665. Compliance with Rule 402 requires that a court

admonish a defendant who pleads guilty that a period of MSR will

be part of the imposed sentence. Whitfield, 217 Ill. 2d at 188,

840 N.E.2d at 665. Substantial compliance with Rule 402 is

sufficient to establish due process; however, when a defendant

pleads guilty in exchange for a specific sentence and the trial

court does not give an MSR admonishment before it accepts the

plea, there is no substantial compliance with Rule 402 and due

process is violated. Whitfield, 217 Ill. 2d at 195, 840 N.E.2d

at 669.

Pursuant to the Post-Conviction Hearing Act (725 ILCS

5/122-1 through 122-8 (West 2002)) "a defendant may challenge his

conviction or sentence for violations of federal or state consti-

tutional rights." Whitfield, 217 Ill. 2d at 183, 840 N.E.2d at

663. A defendant is only entitled to relief under the Act if he

can prove he suffered a substantial deprivation of his constitu-

tional rights in the proceedings that produced his conviction or

sentence. Whitfield, 217 Ill. 2d at 183, 840 N.E.2d at 663. A

trial court's second-stage dismissal of a postconviction petition

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is subject to de novo review. Whitfield, 217 Ill. 2d at 182, 840

N.E.2d at 662.

Further, it is well established that issues are not

amenable to postconviction review when they could have been

raised on direct appeal but were not. Whitfield, 217 Ill. 2d at

187, 840 N.E.2d at 665. In such circumstances, the issues are

forfeited and further consideration of them is barred. People v.

Blair, 215 Ill. 2d 427, 443-44, 831 N.E.2d 604, 615 (2005). To

excuse forfeiture in the context of postconviction proceedings,

it must be determined that (1) fundamental fairness so requires,

(2) the alleged forfeiture stems from the incompetence of appel-

late counsel, or (3) facts relating to the claim do not appear on

the face of the original appellate record. Blair, 215 Ill. 2d at

450-51, 831 N.E.2d at 619.

In Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at 665,

the supreme court declined to apply forfeiture to a defendant's

improper-admonishment claim. In that case, the defendant pleaded

guilty to first degree murder and armed robbery pursuant to a

negotiated plea agreement with the State. Whitfield, 217 Ill. 2d

at 179, 840 N.E.2d at 661. The terms of the agreement included

that defendant would receive concurrent sentences of 25 and 6

years in prison. Whitfield, 217 Ill. 2d at 179, 840 N.E.2d at

661. However, the trial court failed to advise the defendant

that he would be required to serve a three-year MSR period.

Whitfield, 217 Ill. 2d at 180, 840 N.E.2d at 661.

The defendant did not file a motion to withdraw his

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guilty plea or a direct appeal but later filed a motion for

relief from judgment that was treated as a postconviction peti-

tion. Whitfield, 217 Ill. 2d at 180-81, 840 N.E.2d at 661-62.

In his motion, the defendant alleged his due-process rights were

violated because he was not advised that an MSR term would be

added to his negotiated sentence. Whitfield, 217 Ill. 2d at 180,

840 N.E.2d at 661. Finding forfeiture did not apply to the facts

of that case, the supreme court noted every defendant who enters

a plea of guilty is entitled to be properly and fully admonished

and such admonishments include being advised of MSR obligations.

Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at 665-66. It noted

the defendant was not properly and fully admonished and stated as

follows:

"Under the circumstances, it would be incon-

gruous to hold that defendant forfeited the

right to bring a postconviction claim because

he did not object to the circuit court's

failure to admonish him. To so hold would

place the onus on defendant to ensure his own

admonishment in accord with due process."

Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at

666.

The court went on to note that the defendant could not have

raised his claim of error in a motion to withdraw his guilty plea

or on direct appeal, even if he had filed them, because he did

not learn about his MSR obligation until he was in prison.

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Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at 666.

In this case, defendant filed both a motion to withdraw

his guilty plea and a direct appeal. Although he could have

raised his improper-admonishment claim in connection with each,

he did not. Thus, the State correctly asserts defendant for-

feited this issue. As noted, forfeiture does not apply when

fundamental fairness so requires, the forfeiture stems from the

incompetence of appellate counsel, or facts relating to the claim

do not appear on the face of the original appellate record.

Defendant does not make arguments in connection with any of these

recognized exceptions and, thus, we do not consider them.

Instead, defendant contends this precise issue was

addressed in Whitfield, wherein the supreme court determined the

defendant's improper-MSR-admonishment claim was not barred by

forfeiture. Whitfield, however, is distinguishable from the case

at bar. Specifically, in Whitfield the supreme court determined

there was no procedural default under the facts of that case; it

did not hold that all improper-MSR-admonishment claims were

immune from forfeiture. Further, unlike defendant in this case,

the defendant in Whitfield did not file a motion to withdraw his

guilty plea or a direct appeal. Instead, the court was faced

with the defendant's failure to make a contemporaneous objection

to the trial court's improper admonishment.

Additionally, in Whitfield, the supreme court noted

that the defendant alleged he did not become aware of his im-

proper admonishment until after he was already in prison and when

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he could not have raised the error in a motion to withdraw his

plea or on direct appeal. Defendant here makes no similar

allegation. Further, the record shows that while his direct

appeal was pending, defendant filed his initial postconviction

petition on December 15, 2003, and alleged he was not advised of

his MSR obligation. Thus, defendant was aware of that particular

claim of error prior to (1) the date OSAD moved to withdraw as

appellate counsel, on March 4, 2004; (2) when this court granted

him leave to file additional points and authorities, of which

defendant filed none; and (3) the resolution of his direct

appeal.

In Whitfield, the supreme court's forfeiture decision

was based upon the particular facts of that case and defendant's

situation is factually distinguishable. Moreover, Whitfield does

not stand for the proposition that allegations of improper MSR

admonishments are immune from forfeiture in postconviction

proceedings. Thus, defendant's procedural default is not excused

under the reasoning of that case.

Defendant also argues any forfeiture is excused because

the trial court committed plain error by failing to admonish

regarding MSR. The plain-error rule, however, does not apply

when a defendant is seeking review of procedurally defaulted

claims raised in a postconviction petition. People v. Owens, 129

Ill. 2d 303, 317, 544 N.E.2d 276, 281 (1989). Therefore, defen-

dant's forfeiture of his improper-admonishment claim is also not

excused pursuant to that rule.

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For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

TURNER, P.J., concurs.

COOK, J., dissents.

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JUSTICE COOK, dissenting:

I respectfully dissent and would reverse and remand the

dismissal of defendant's amended petition for postconviction

relief.

As the majority recognizes, compliance with Rule 402(a)

requires that a defendant pleading guilty be admonished that the

period of mandatory supervised release is a part of the sentence

that will be imposed. Whitfield, 217 Ill. 2d at 188, 840 N.E.2d

at 665. The requirement is an affirmative one that generally

cannot be forfeited. A failure to object does not constitute

forfeiture. "[I]t would be incongruous to hold that defendant

forfeited the right to bring a postconviction claim because he

did not object to the circuit court's failure to admonish him.

To so hold would place the onus on defendant to ensure his own

admonishment in accord with due process." Whitfield, 217 Ill. 2d

at 188, 840 N.E.2d at 666.

Nor is there a procedural default because a defendant

does not raise the improper-admonishment claim in a motion to

withdraw his guilty plea or in a direct appeal. Where the

defendant did not learn of the problem until later, "he could not

have raised the error in a motion to withdraw his plea or a

direct appeal." Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at

666.

The majority distinguishes Whitfield on the basis that

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the defendant there did not file a motion to withdraw guilty plea

or a direct appeal. Defendant here filed both a motion to

withdraw guilty plea and a direct appeal, and although "he could

have raised his improper-admonishment claim in connection with

each, he did not." Slip op. at 8.

The majority misreads Whitfield. The supreme court in

Whitfield did not attempt to distinguish between defendants who

file motions and direct appeals and defendants who do not. The

supreme court considered a defendant who "did not raise the issue

in a motion to withdraw his guilty plea or in a direct appeal."

(Emphasis added.) Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at

665. A defendant who files a motion that does not mention an

issue fails to raise the issue just as a defendant who files no

motion at all. A defendant who files a direct appeal that does

not mention an issue fails to raise the issue just as a defendant

who takes no appeal at all. Once a defendant learns of an

improper-admonishment claim, however, he is required to raise it.

Defendant raised the improper-admonishment claim here

when he filed a pro se petition for postconviction relief on

December 15, 2003. Nevertheless, OSAD, on March 24, 2004, moved

to withdraw as defendant's appellate counsel in his direct appeal

on the basis no colorable argument could be made. Assuming the

majority's argument that OSAD forfeited the issue by failing to

raise it on direct appeal has any validity, OSAD's "forfeiture"

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cannot bind defendant here. OSAD was clearly ineffective in

moving to withdraw, either in failing to confer with defendant

regarding his allegations, or in failing to raise those

allegations in the appeal.

The majority complains that defendant failed to file

additional points and authorities when OSAD moved to withdraw,

but that argument has been properly rejected. People v. Jones,

No. 1-01-3731 (June 9, 2005), ___ Ill. App. 3d ___, ___, ___

N.E.2d ___, ___. We cannot avoid ineffective-assistance-of-

counsel issues by complaining that defendant should have known

better than his attorney.

The majority recognizes that forfeiture does not apply

where the forfeiture stems from the incompetence of appellate

counsel but complains that "[d]efendant [OSAD] does not make

arguments in connection with any of these recognized exceptions

and, thus, we do not consider them." Slip op. at 8. OSAD's

failure to raise a claim that it was ineffective on the direct

appeal is excused. People v. Coulter, 352 Ill. App. 3d 151, 155,

815 N.E.2d 899, 903 (2004) (OSAD's argument that it could not be

expected to raise its direct appeal ineffectiveness in the

postconviction petition was rejected, where OSAD did not file the

postconviction petition). It would be unreasonable to expect

appellate counsel to raise and argue his own incompetency.

People v. Gaines, 105 Ill. 2d 79, 91, 473 N.E.2d 868, 875 (1984).

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Defendant is whipsawed in this case. The majority says

that his improper-admonishment argument could have been raised on

direct appeal because he had already raised it in his

postconviction petition. Then the majority says that the

postconviction petition cannot be considered because the issue

could have been raised on direct appeal.

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