People v. Thomas

NO. 5-06-0585
NOTICE

Decision filed 07/16/10. The text of
IN THE
this decision may be changed or

corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e

disposition of the same.
FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Marion County.
)
v. ) No. 05-CF-291
)
WILLIAM L.B. THOM AS, ) Honorable
) Sherri L.E. Tungate,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________

JUSTICE SPOM ER delivered the opinion of the court:

On April 17, 2008, this court issued an opinion in which we affirmed the order of the

circuit court of Marion County denying the petition for postconviction relief filed by the

defendant, William L.B. Thomas. People v. Thomas, 381 Ill. App. 3d 972 (2008). On

March 24, 2010, the Illinois Supreme Court vacated our opinion and directed us to reconsider

our decision in light of People v. Morris, 236 Ill. 2d 345 (2010). People v. Thomas, 236 Ill.

2d 540 (2010) (supervisory order). In Morris, the supreme court held that the rule of law

announced in People v. Whitfield, 217 Ill. 2d 177 (2005), was not to be applied retroactively

to convictions finalized prior to December 20, 2005, the date Whitfield was announced.

Morris, 236 Ill. 2d at 366. The Morris court also provided guidance for trial courts to follow

when giving the admonishments required by Supreme Court Rule 402 (177 Ill. 2d R. 402).

236 Ill. 2d at 366-68. Having reconsidered our decision in light of Morris, for the reasons

that follow we again affirm the order of the circuit court of Marion County that denied the

defendant's petition for postconviction relief.

In that petition, the defendant contended that under the rule of law announced in

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Whitfield, he was not properly admonished pursuant to Rule 402 that a term of mandatory

supervised release would be added to his sentence following his plea of guilty to the offenses

of unlawful possession with the intent to deliver a controlled substance (count I) and

aggravated battery (count II), in exchange for concurrent sentences of seven and five years,

respectively, in the Department of Corrections. In light of Morris, we must first determine

whether in the instant case the defendant's conviction was finalized prior to December 20,

2005, the date Whitfield was announced, before addressing the issue raised in the defendant's

petition for postconviction relief.

On November 8, 2005, the defendant pled guilty to a reduced charge of unlawful

delivery as well as aggravated battery, and in exchange he was to receive concurrent

sentences of seven and five years, respectively. The final judgment and sentence was entered

on November 15, 2005, and indicated that the sentences were to be "consecutive/concurrent."

A letter sent from the defendant to the judge was file-stamped on December 14, 2005, within

30 days of the date the final judgment was entered. The letter pointed out that the negotiated

guilty plea was meant to include a provision that both sentences were to run concurrently

with each other. Subsequently, on February 21, 2006, the court entered a correction of the

judgment and sentence order, which stated as follows: "Count[s] 1 and 2 are to run

concurrent to each other and his sentence is to run concurrent to his parole violation. All

other terms of the defendant's judgment and sentencing previously set forth on November 8,

2005, still apply." At no point did the defendant file a motion to withdraw his guilty plea or

a motion to reconsider his sentence.

In order to determine whether Whitfield applies to the instant case, we must determine

on what date the defendant's conviction became final. In a criminal case, there is no final

judgment until the sentence has been imposed, and in the absence of a final judgment, an

appeal cannot be entertained except as specified in Illinois Supreme Court Rule 604 (210 Ill.

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2d R. 604). People v. Harrison, 372 Ill. App. 3d 153, 155 (2007). Supreme Court Rule

604(d) sets forth the requirements for appealing from a judgment entered on a guilty plea:

"No appeal from a judgment entered upon a plea of guilty shall be taken unless

the defendant, within 30 days of the date on which sentence is imposed, files in the

trial court a motion to reconsider the sentence, if only the sentence is being

challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty

and vacate the judgment. No appeal shall be taken upon a negotiated plea of guilty

challenging the sentence as excessive unless the defendant, within 30 days of the

imposition of sentence, files a motion to withdraw the plea of guilty and vacate the

judgment." 210 Ill. 2d R. 604(d).

Accordingly, the initial issue in this case is whether the defendant's letter to the judge, filed

on December 14, 2005, and the resulting correction of the sentence order tolled the 30-day

limitations period stated in Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)), such that this

case was not finalized until February 21, 2006–after the date Whitfield was announced.

Although Rule 604(d) provides that only a motion to withdraw a guilty plea tolls the

limitation for appeal, it is clear in this case that the defendant did not file such a motion.

However, in People v. Green, 375 Ill. App. 3d 1049, 1053-54 (2007), the appellate court held

that "any initial and timely motion directed against the judgment, even a motion unauthorized

under Rule 604(d), tolls the time for filing an appeal under Rule 606(b)." Rule 606(b) states

that a motion to reconsider a sentence arising from a negotiated guilty plea affects appellate

jurisdiction, and the rule requires only that a postjudgment motion be (1) timely, (2) directed

against the judgment, and (3) the first such motion. Official Reports Advance Sheet No. 7

(April 8, 2009), R. 606(b), eff. March 20, 2009; Green, 375 Ill. App. 3d at 1053. In Green,

although the defendant failed to move to withdraw his guilty plea as required by Rule 604(d),

the court found that his motion to reconsider the sentence on his negotiated plea served to

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toll the time for appeal. 375 Ill. App. 3d at 1051. Similarly, in the present case, the

defendant did not file a motion to withdraw his guilty plea; he filed only a letter requesting

the correction of his sentence. If this letter were to be construed as a motion to reconsider

his sentence, then such a motion tolled the time for appeal, putting the date of the final

judgment at February 21, 2006, and within the application of the Whitfield decision.

However, we conclude that because the defendant's letter served only to point out a

discrepancy between the details of the negotiated plea and the sentencing order and mittimus,

it was not a motion to reconsider his sentence but instead was the equivalent of a motion to

correct the mittimus. In cases when a person is imprisoned, incarcerated, confined, or

committed, the mittimus is a document that reflects the judge's signed judgment or order and

details the defendant's sentence. 735 ILCS 5/2-1801(a) (West 2000). Because the mittimus

serves to inform the person or entity detaining a prisoner about the specifics of the prisoner's

sentence, the appellate court has previously held that a trial court's act of correcting a

mittimus "is a ministerial act and does not change the underlying sentence." People v.

Wright, 337 Ill. App. 3d 759, 762 (2003). The appellate court has previously found that

because the mittimus is not a part of the common law record and because the trial court may

amend the mittimus at any time, the trial court's act of correcting the mittimus is not the same

as if it issued a new sentence. Wright, 337 Ill. App. 3d at 762. Although Rule 604(d) states

the limitation period for filing an appeal must be "within 30 days of the date on which

sentence is imposed" (210 Ill. 2d R. 604(d)), "the date on which sentence is imposed" means

the date the judgment and sentence were originally filed and not the date the trial court

amended the mittimus. Wright, 337 Ill. App. 3d at 763.

Moreover, the appellate court found in Wright that the final judgment's sentence does

not have to be correct in order to start the time period but that the "date of conviction" that

triggers the limitations period for Rule 604(d) remains the date the judgment and sentence

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were filed. Wright, 337 Ill. App. 3d at 763. The filing date of a corrected mittimus is

therefore not equivalent to "the date on which sentence is imposed" on the defendant, and

the defendant's motion to correct the mittimus does not toll the 30-day limitations period for

filing a motion to withdraw a guilty plea. Wright, 337 Ill. App. 3d at 762.

As previously explained, the defendant's letter merely pointed out a discrepancy and

requested that the court correct the judgment to reflect the agreed-upon negotiated guilty

plea; accordingly, the court's subsequent action was the equivalent of the issuance of a

corrected sentencing order and mittimus. The defendant did not file a motion to withdraw

his guilty plea, nor did he make a substantive argument for why the judge should reconsider

the sentence based on the merits of his case. Instead, the purpose of the defendant's letter

was to clarify a mistake in the sentence and to call the court's attention to the concurrent

running of the sentences, which had previously been agreed upon but had not been correctly

memorialized on November 15, 2005. The court's act of correcting the judgment and

sentence order on February 21, 2006, was an action undertaken to correct the prior mistake.

Therefore, we find that the date the defendant's conviction became final was prior to the

announcement of Whitfield. Thus, like the defendant in Morris, he is not entitled to a

prospective application of Whitfield (see Morris, 236 Ill. 2d at 366), and his sole claim in this

appeal must fail.

Furthermore, even if we were to assume, arguendo, that Whitfield did apply to the

instant case, we would still affirm the order of the circuit court. As we noted in our previous

opinion, the record in this case shows that when the trial judge informed the defendant of the

range of penalties for each offense to which the defendant was pleading guilty, the judge told

the defendant, inter alia, that with regard to count I "[a]ny sentence of imprisonment would

carry with it upon a release from prison a period of mandatory supervised release for a period

of two years" and that with regard to count II "[a]ny sentence of imprisonment would carry

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with it upon a release from prison a period of mandatory supervised release for a period of

one year." The defendant contends that because the judge began the general admonitions

about the range of penalties for each count with the phrase "without the benefit of this plea

agreement," the defendant should be allowed to withdraw his guilty plea, because "a

reasonable person" who heard the admonitions "would justifiably conclude that [mandatory

supervised release] is a necessary part of non[]negotiated sentences only[] and that pleading

guilty pursuant to a plea agreement allows a defendant to avoid the additional loss of liberty

that [a mandatory-supervised-release] term entails."

In support of this argument, the defendant cites People v. Company, 376 Ill. App. 3d

846, 850 (2007), wherein this court held insufficient an admonition that the defendant would

be subject to a term of mandatory supervised release if convicted at a trial but that under the

plea agreement into which he was entering, instead of that possible sentence, he would

receive the agreed sentence of 15 years, with no mention by the trial court of mandatory

supervised release. Company is easily distinguishable from the present case; in Company,

the defendant was given a misleading admonition in which the trial judge explicitly stated

that instead of the sentence described in the range of penalties that included mandatory

supervised release, the defendant would receive an agreed-upon sentence of 15 years. 376

Ill. App. 3d at 851. Moreover, the mandatory-supervised-release term the court had earlier

described was not accurate and was in fact one year less than the one to which the defendant

was actually subject. Company, 376 Ill. App. 3d at 851. The errors in Company, in other

words, were far more egregious than those alleged in the case at bar and resulted in actual

prejudice to the defendant. As we noted in Company, the defendant bears the burden of

establishing that, when judged by objective standards, the circumstances surrounding a plea

justify the defendant's mistaken impression that the sentence rendered did not include a term

of mandatory supervised release. 376 Ill. App. 3d at 851. In this case, the defendan t is

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unable to meet that burden. Although the defendant contends that because the judge

prefaced the general admonitions regarding the range of penalties with the phrase "without

the benefit of this plea agreement," the defendant could reasonably have believed that

mandatory supervised release would not apply to the sentences flowing from his pleas, we

do not agree that such an interpretation would be objectively reasonable. The judge in this

case clearly and unequivocally stated, after finishing her general description of the range of

penalties for each offense, that any sentence of imprisonment would carry with it a term of

mandatory supervised release. The defendant knew, as he stood before the court to enter his

plea, that he was about to receive a sentence of imprisonment, and in fact he did receive a

sentence of imprisonment. Under those circumstances, any misunderstanding about the

applicability of mandatory supervised release, although perhaps unfortunate, cannot be

deemed objectively reasonable. See Morris, 236 Ill. 2d at 366 (a Rule 402 admonishment

is sufficient if an ordinary person in the accused's circumstances would understand it to

convey the required warning).

The defendant also relies directly upon Whitfield, from which he claims this case is

indistinguishable. In fact, Whitfield, like Company, is factually distinguishable from the case

at bar. In Whitfield, no mention at all was made of mandatory supervised release. 217 Ill.

2d at 180. In the case at bar, not only was mandatory supervised release explicitly

mentioned, but as explained above, the trial judge specifically stated that with regard to each

count, any sentence of imprisonment would carry with it a term of mandatory supervised

release. As the Whitfield court itself recognized, an imperfect admonishment is a violation

of due process only where real justice has been denied or a defendant has shown prejudice.

217 Ill. 2d at 195. We conclude that in this case, the admonitions of the trial judge that any

sentence of imprisonment would carry with it a term of mandatory supervised release were

sufficient to inform the defendant of mandatory supervised release and that real justice has

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not been denied, nor has the defendant shown prejudice. We do not believe any of the

guidance provided by the Morris court casts doubt on our reasoning in this case.

For the foregoing reasons, the order of the circuit court of Marion County is affirmed.

Affirmed.

GOLDENHERSH, P.J., and DONOVAN, J., concur.

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 NO. 5-06-0585

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
___________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Marion County.
)
v. ) No. 05-CF-291
)
WILLIAM L.B. THOM AS, ) Honorable
) Sherri L.E. Tungate,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed: July 16, 2010
___________________________________________________________________________________

Justices: Honorable Stephen L. Spomer, J.

Honorable Richard P. Goldenhersh, P.J., and
Honorable James K. Donovan, J.,
Concur
___________________________________________________________________________________

Attorneys Daniel M. Kirwan, Deputy Defender, John H. Gleason, 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. Matt Wilzbach, State's Attorney, Marion County Courthouse, P.O. Box 157,
for Salem, IL 62881; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director,
Appellee Patrick D. Daly, 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
___________________________________________________________________________________