People v. Jolly

NO. 4-05-1015 Filed 6/21/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JOHN WILLIE JOLLY, ) No. 02CF811
Defendant-Appellant. )
) Honorable
) Donald D. Bernardi,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

In October 2002, defendant, John Willie Jolly, pleaded

guilty to delivery of a controlled substance (less than one gram

of a substance containing cocaine) (720 ILCS 570/401(d) (West

2002)). The trial court later sentenced him to 10 years in

prison and imposed a $100 street-value fine. Defendant later

filed motions to withdraw his guilty plea and reconsider his

sentence, which the court denied.

Defendant appealed, and this court affirmed. People v.

Jolly, 357 Ill. App. 3d 884, 830 N.E.2d 860 (2005). In October

2005, defendant filed a petition for relief, pursuant to the

Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West

2004)). In November 2005, the trial court dismissed that peti-

tion, upon finding that the issues defendant raised were frivo-

lous and patently without merit.
 Defendant appeals, arguing that the trial court erred

by dismissing his postconviction petition because it contained

the gist of a constitutional claim that his postplea counsel was

ineffective for failing to (1) include in defendant's motion to

withdraw his guilty plea the claim that defendant was not admon-

ished as to the mandatory-supervised-release (MSR) term he would

be required to serve and (2) preserve the issue that the trial

court improperly imposed the $100 street-value fine. We reject

defendant's arguments and affirm.

I. BACKGROUND

In July 2002, the State charged defendant with criminal

drug conspiracy (720 ILCS 570/405.1(a) (West 2002)) (count I) and

delivery of a controlled substance (720 ILCS 570/401(d) (West

2002)) (count II). At defendant's request, the trial court

appointed counsel to represent him.

A. Defendant's Jury Trial and Guilty Plea

On October 8, 2002, defendant's jury trial on both

counts began, with assistant public defender James Tusek repre-

senting defendant. The State called several witnesses to testify

about defendant's selling crack cocaine, including the confiden-

tial informant working for the Bloomington police department (who

was a crack addict), as well as defendant's accomplice, who was

present at the time of the sale. The informant testified that

(1) he gave defendant five $20 bills to purchase crack cocaine

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and (2) the sale occurred in defendant's car. Shortly thereaf-

ter, the informant left the car and turned the crack cocaine over

to the surveilling police officers. Meanwhile, other officers

stopped defendant's car and arrested him. In his sock, the

officers found five $20 bills that bore the same serial numbers

as the $20 bills they had given to the informant. (The police

had photocopied the bills before doing so.)

When the trial resumed the following morning, the trial

court and counsel agreed on the jury instructions, and Tusek

informed the court that he wanted to talk with defendant about

whether he would testify. After a brief recess, Tusek informed

the court that defendant wanted to plead guilty to count II

without any agreement from the State pertaining to his sentence.

The State agreed to dismiss count I but noted that multiple

convictions would merge into one conviction for sentencing.

The trial court then admonished defendant in accordance

with Supreme Court Rule 402 (177 Ill. 2d R. 402), explaining that

count II, which was normally a Class 2 felony, had a sentencing

range of 3 to 14 years in prison because defendant had a prior

Class 2 felony conviction. The court also informed defendant

that any prison sentence imposed was required by law to be

consecutive to another sentence that had previously been imposed

upon defendant. The court asked counsel if they would stipulate

to the evidence that had been presented as a factual basis in

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support of the offer to plead guilty, and both counsel agreed.

However, the court never informed defendant that, in addition to

any prison sentence imposed, he would need to serve an MSR term

of two years. See 730 ILCS 5/5-8-1(d)(2) (West 2002) (providing

that the MSR term for a Class 1 or Class 2 felony is two years).

The court then accepted defendant's guilty plea and set the

matter for sentencing.

B. Post Guilty-Plea Proceedings

Later in October 2002, defendant pro se filed a motion

to vacate his guilty plea, in which he asserted that Tusek was

ineffective because, in part, he "was not the vigorous advocate

to which the defendant was entitled."

As a result of defendant's pro se motion, the trial

court appointed Anthony K. Tomkiewicz as new counsel for defen-

dant. Tomkiewicz represented defendant at his December 2002

sentencing hearing, where the trial court sentenced defendant as

earlier stated and imposed a $100 street-value fine.

In January 2003, Tomkiewicz filed a motion to withdraw

defendant's guilty plea and vacate judgment, asserting that the

only reason defendant entered into an open guilty plea was

because of Tusek's ineffective assistance at trial, in that he

failed to sufficiently attack the credibility of the State's

witnesses. Thus, defendant believed that he had no choice but to

plead guilty to count II to avoid a conviction on count I. In

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April 2003, Tomkiewicz filed an amended motion to withdraw

defendant's guilty plea and vacate judgment, in which he reas-

serted the previous grounds and added some new assertions regard-

ing Tusek's alleged ineffective assistance. In May 2003, the

trial court denied defendant's motions. Defendant asked that

appellate counsel be appointed, and the trial court did so.

Defendant appealed, arguing only that the $100 street-

value fine must be vacated because the trial court made no

specific findings as to its basis. This court rejected defen-

dant's argument, upon concluding that defendant had forfeited his

right to raise that issue on appeal because he had not raised it

in any of his posttrial motions. Jolly, 357 Ill. App. 3d at 886,

830 N.E.2d at 861-62.

C. Defendant's Postconviction Petition

In October 2005, defendant pro se filed his postcon-

viction petition, in which he alleged that his constitutional

rights were violated when the trial court failed to properly

admonish him concerning the mandatory MSR term he would need to

serve after imprisonment. He also asserted that (1) his insuffi-

cient awareness of the consequences of the MSR term made his

guilty plea involuntary and (2) if he had known about the MSR

term, he would have persisted in finishing his trial and letting

"his peers render a verdict." Defendant also alleged that he was

denied his right to effective assistance of trial counsel when

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Tusek failed to argue that the court (1) lacked a basis for

imposing the $100 street-value fine and (2) failed to inform

defendant of the MSR term.

As earlier stated, in November 2005, the trial court

dismissed defendant's petition under section 122-2.1 of the Act

(725 ILCS 5/122-2.1 (West 2004)), upon finding that the petition

was frivolous and patently without merit.

This appeal followed.

II. ANALYSIS

A. Defendant's Contentions on Appeal

On appeal, defendant asserts the following issues are

presented for review:

"Whether the trial court erred in dis-

missing defendant's post[]conviction petition

where he stated the gist of a constitutional

claim that his post[]plea counsel

[Tomkiewicz] was ineffective for (a) failing

to include in the motion to withdraw plea the

claim that defendant was not admonished of

the [MSR] term and (b) failing to preserve

the issue that the street-value fine was not

properly imposed."

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 Defendant expands upon this theme by asserting that

"[n]ot only did [Tomkiewicz] fail to preserve

a viable issue (the street-value fine) for

appeal, but he failed to attack defendant's

guilty plea on the basis that defendant was

not admonished that a term of [MSR] *** would

follow his prison sentence."

Defendant also asserts that because he was not so admonished, the

record did not show that his guilty plea was entered knowingly.

As discussed further below, the fundamental problem

with defendant's position on appeal is that the issues he pres-

ents to this court were not asserted in the postconviction

petition that the trial court dismissed--the action we are

reviewing.

B. Issues Raised for the First Time on Appeal from
Dismissal of a Postconviction Petition

The Supreme Court of Illinois has recently addressed

efforts by defendants to raise for the first time on appeal

issues that were not raised in postconviction petitions that were

rejected by trial courts. In People v. Jones, 213 Ill. 2d 498,

499, 821 N.E.2d 1093, 1094 (2004), the defendant had pleaded

guilty to attempted first degree murder in exchange for a 20-year

prison sentence. He later pro se filed a petition for postcon-

viction relief. Jones, 213 Ill. 2d at 501, 821 N.E.2d at 1095.

The trial court dismissed the petition under section 122-2.1 of

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the Act as being frivolous and patently without merit, and the

appellate court affirmed. People v. Jones, 341 Ill. App. 3d 103,

107-08, 791 N.E.2d 1118, 1121 (2003).

The supreme court granted the defendant's petition for

leave to appeal and noted that the case presented the issue of

whether the defendant could raise for the first time on appeal

the question of improper admonishments despite the fact that he

did not include that issue in his postconviction petition. The

supreme court held that the defendant may not do so. Jones, 213

Ill. 2d at 508-09, 821 N.E.2d at 1099. Interestingly, the court

did so despite acknowledging the pro se status of the defendant

when he filed his postconviction petition:

"Stated bluntly, the typical pro se litigant

will draft an inartful pleading which does

not survive scrutiny under the

'frivolity/patently without merit' standard

of section 122-2.1, and it is only during the

appellate process, when the discerning eyes

of an attorney are reviewing the record, that

the more complex errors that a nonattorney

cannot glean are discovered. The appellate

attorney, not wishing to be remiss in his or

her duty, then adds the newly discovered

error to the appeal despite the fact that the

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 claim was never considered by the trial court

in the course of its ruling. The thought

process behind the attorney's actions is

clear--the attorney is zealously guarding the

client's rights and is attempting to conserve

judicial resources by raising the claim expe-

ditiously at the first available chance.

These goals are laudable, but they nonethe-

less conflict with the nature of appellate

review and the strictures of the Act."

Jones, 213 Ill. 2d at 504-05, 821 N.E.2d at

1096-97.

To leave no doubt about the supreme court's views on

this subject, the court went on to note disapprovingly that "our

appellate court has repeatedly overlooked the [forfeiture]

language of section 122-3 [of the Act] and has addressed claims

raised for the first time on appeal for various and sundry

reasons." Jones, 213 Ill. 2d at 506, 821 N.E.2d at 1097. The

supreme court also pointed out that some appellate court deci-

sions seem to be premised upon the fact that the supreme court

itself has not always followed this rule. Jones, 213 Ill. 2d at

506-07, 821 N.E.2d at 1098. The supreme court then explicitly

overruled all such prior appellate court decisions, explaining as

follows:

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 "Our detailed discussion of this issue is

intended to stress that our appellate court

is not free, as this court is under its su-

pervisory authority, to excuse, in the con-

text of postconviction proceedings, an appel-

late [forfeiture] caused by the failure of

[the] defendant to include issues in his or

her postconviction petition." Jones, 213

Ill. 2d at 508, 821 N.E.2d at 1099.

More recently, in People v. Pendleton, 223 Ill. 2d 458,

474, 861 N.E.2d 999, 1008 (2006), the defendant attempted (in an

appeal to the supreme court from the trial court's denial of his

postconviction petition) to raise the trial court's deficient

admonitions regarding his negotiated guilty plea. The supreme

court rejected his effort and wrote that "even a liberal reading

of defendant's petitions reveals no reference to an admonishment

issue in either the defendant's pro se petition or the amended

petition." Pendleton, 223 Ill. 2d at 474, 861 N.E.2d at 1008-09.

The supreme court then reaffirmed what it said in Jones about

appellate forfeiture, explaining that the court need not resolve

the case on the merits of the defendant's argument because he had

forfeited the admonishment issue under general principles of

procedural default. Pendleton, 223 Ill. 2d at 475, 861 N.E.2d at

1009.

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 In People v. Little, 335 Ill. App. 3d 1046, 1055, 782

N.E.2d 957, 965 (2003), this court had reached the same conclu-

sion as the supreme court and wrote the following:

"Defendant raises [the claim that the

trial court lacked the authority to order

that her prison wages be withheld] for the

first time in her appeal from the trial

court's dismissal of her postconviction peti-

tion. In People v. Griffin, 321 Ill. App. 3d

425, 428, 748 N.E.2d 1235, 1238 (2001), this

court declined to construe the Act as permit-

ting a defendant to raise on appeal from the

dismissal of a postconviction petition an

issue she never raised in that petition. We

adhere to Griffin and thus deem this issue

forfeited. See also People v. Moore, 189

Ill. 2d 521, 544, 727 N.E.2d 348, 360 (2000)

(in which the supreme court declined to ad-

dress the merits of the defendant's claim

when he first raised it in his appeal from

the dismissal of his amended postconviction

petition)."

C. Procedural Forfeiture as Applied to This Appeal

Defendant seeks to argue here that his postplea coun-

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sel, Tomkiewicz, was ineffective for failing to (1) include in

defendant's motion to withdraw his guilty plea the claim that

defendant was not admonished as to the MSR term and (2) preserve

the issue that the trial court did not properly impose the

street-value fine. However, as the supreme court noted in

Pendleton, "even a liberal reading" of defendant's postconviction

petition reveals no reference whatsoever to any claimed ineffec-

tiveness by Tomkiewicz. Pendleton, 223 Ill. 2d at 474, 861

N.E.2d at 1008. Instead, that petition alleged that defendant's

trial counsel, Tusek, rendered ineffective assistance of counsel.

We thus conclude that defendant has forfeited any claims of

Tomkiewicz's ineffectiveness.

The supreme court's decision in People v. Whitfield,

217 Ill. 2d 177, 840 N.E.2d 658 (2005), does not require a

different result. In that case, the supreme court addressed the

defendant's argument that the trial court erred by dismissing his

postconviction claim that the trial court's failure to admonish

him that a 3-year MSR term would be added to his negotiated 25-

year prison sentence violated his fundamental rights. Whitfield,

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

able on two points. First, the defendant in Whitfield, unlike

defendant here, raised the issue in his postconviction petition.

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

the defendant in Whitfield pleaded guilty in agreement for a

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specific sentence of 25 years in prison. Whitfield, 217 Ill. 2d

at 179, 840 N.E.2d at 661. That is not the situation in this

case because defendant entered an open guilty plea, and the trial

court imposed a sentence that, with the MSR term added, does not

exceed the maximum sentence of which defendant was admonished

before he pleaded guilty. Thus, the failure to admonish him

about the MSR term does not constitute a violation of due pro-

cess.

Indeed, the supreme court in Whitfield made this clear

by reaffirming its decision in People v. McCoy, 74 Ill. 2d 398,

385 N.E.2d 696 (1979), in which the court held that, although the

trial court erred by failing to admonish the defendant as to the

MSR term,

"the error was not of constitutional dimen-

sion because defendant was not prejudiced--

the 'indeterminate sentence imposed, together

with the mandatory parole period, [was] sub-

stantially less than the maximum of 20 years

to which defendant knew he could be

sentenced.'" Whitfield, 217 Ill. 2d at 191,

840 N.E.2d at 667, quoting McCoy, 74 Ill. 2d

at 403, 382 N.E.2d at 699.

In any event, the Whitfield decision does not amount to

a "Get-Out-Of-Jail-Free card," which a defendant may use whenever

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and however he wishes if, when he pleaded guilty, the trial court

failed to give him the appropriate MSR admonition. Both at the

trial level and on appeal, defendants who wish to vindicate their

rights under those circumstances must do so in accordance both

with the statutes they attempt to utilize, such as the Post-

Conviction Hearing Act, and the decisions of the Supreme Court of

Illinois that govern the implementation of those statutes.

III. CONCLUSION

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

judgment. As part of our judgment, we grant the State's request

that defendant be assessed $50 as costs for this appeal. 55 ILCS

5/4-2002(a) (West 2004); see also People v. Smith, 133 Ill. App.

3d 613, 620, 479 N.E.2d 328, 333 (1985), citing People v.

Nicholls, 71 Ill. 2d 166, 179, 374 N.E.2d 194, 199 (1978).

Affirmed.

McCULLOUGH and COOK, JJ., concur.

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