NO. 4-06-0462 Filed 4/9/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
STEVEN R. BORST, ) No. 03CF642
Defendant-Appellant. )
) Honorable
) Michael D. Clary,
) Judge Presiding
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
In December 2003, the State charged defendant, Steven
R. Borst, by information with attempt (aggravated criminal sexual
assault) (720 ILCS 5/8-4(a), 12-14 (West 2002)), home invasion
(720 ILCS 5/12-11(a)(2) (West 2002)), and residential burglary
(720 ILCS 5/19-3 (West 2002)). In March 2004, defendant entered
a negotiated guilty plea. He pleaded guilty to attempt
(aggravated criminal sexual assault) and home invasion in
exchange for concurrent 15-year sentences on both counts and the
dismissal of the residential-burglary charge. In May 2006,
defendant filed a petition for postconviction relief asserting he
was never informed he would be subject to a three-year period of
mandatory supervised release (MSR). The trial court denied the
petition, and defendant appeals. We affirm.
At the plea hearing, the trial court gave him the
following admonishments:
"[TRIAL COURT]: Count [I], attempted
aggravated criminal sexual assault, is a
Class [I] [f]elony punishable by one to three
years, I'm sorry, four to 15 years in the
penitentiary. If there are aggravating
factors present[,] could be 15 to 30 years.
Two years['] [MSR]. Up to four years on
probation. Up to $25,000 fine.
Count [II], home invasion, is a Class X
[f]elony as charged. It's six to 30 years in
the penitentiary. Could be 30 to 60 years if
there are aggravating factors present. Three
years['] [MSR]. Is not probationable. And
up to $25,000 fine.
Count [III], residential burglary, is a
Class 1 offense with penalty that I just read
to you except it is not probationable.
Do you have any questions about the
maximum possible penalties?
[DEFENDANT]: No, sir.
* * *
[TRIAL COURT]: I'm told that you want to
enter into a plea agreement is that true?
[DEFENDANT]: Yes, sir.
[TRIAL COURT]: If I accept the plea
agreement then there will be no trial and you
would be giving up or waiving your right to
require the [S]tate to prove what that says
beyond a reasonable doubt.
Do you understand that?
[DEFENDANT]: Yes, sir.
[TRIAL COURT]: I'm told that you would
plead guilty to attempted aggravated criminal
sexual assault, a Class 1 [f]elony; and home
invasion, a Class X [f]elony. Count [III]
would be dismissed.
You would be sentenced to a period of 15
years in the Illinois Department of
Corrections on each count. And you would
serve those concurrently, meaning at the same
time. And there would be a finding by the
court of no bodily harm.
* * *
[TRIAL COURT]: All right. At this
time[,] then you will be sentenced to 15
years in the Illinois Department of
Corrections on [c]ount [I]; 15 years in the
Illinois Department of Corrections on [c]ount
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[II].
Those will be served concurrently, at
the same time.
You will be given credit for 98 days
served on each count.
There will be finding of no great bodily
harm told to the Department of Corrections."
(Emphases added.)
The trial court accepted defendant's plea and filed its
sentencing judgment sentencing defendant to two concurrent 15-
year prison sentences for attempt (aggravated criminal sexual
assault) and home invasion, with credit for 98 days served. The
sentencing judgment did not mention MSR. Defendant filed neither
a motion to withdraw his guilty plea nor a direct appeal.
In May 2006, defendant filed a petition for
postconviction relief. In the petition, defendant requested the
enforcement of his plea agreement with the State by modifying his
sentence to comply with the plea agreement. In the petition,
defendant argued his "constitutional rights to due process and
fundamental fairness [were] violated when he [pleaded] guilty in
exchange for a specific sentence, but received a different, more
onerous sentence than the one he agreed to."
Defendant argued in the petition that he was never
informed by the State, his attorney, or the trial court during
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the negotiations leading to the plea or during the plea hearing
that he would be subject to a three-year period of MSR.
According to defendant's petition, the addition of the MSR term
breached the plea agreement and his due-process rights were
violated because he received a harsher sentence than the one to
which he agreed. Defendant also argued the court failed to
comply with Supreme Court Rule 402 (177 Ill. 2d R. 402) because
the court failed to admonish him on the record that the MSR would
be added to the two concurrent 15-year sentences to which
defendant and the State had agreed.
Defendant asked the trial court to vacate his
"unconstitutional sentence" and enter a new sentence of two
concurrent 12-year prison terms followed by three years of MSR.
That same month, the court denied defendant's petition, ruling
the petition was frivolous and patently without merit because
defendant was properly admonished about MSR.
Defendant appeals, arguing the trial court erred in
dismissing his postconviction petition. According to defendant's
brief, "[w]here the plea agreement did not mention that
[defendant] would be subject to a period of [MSR] following the
completion of his agreed-upon prison sentence, the addition of
the MSR term constituted an unfair breach of the agreement and
violated due process." Defendant requests specific performance
of his plea agreement under the specific circumstances of this
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case. According to defendant's reply brief:
"To that end, the [defendant's] argument is
limited to the facts of this case where MSR
was not included in the plea agreement and
the trial court's general admonitions
referred to MSR only in connection with an
extended[-]term sentence which 'could' be
imposed 'if' there were aggravating factors
present. [Citation.] If the prosecutor had
seen fit to include MSR in the terms of the
plea agreement, or if the court had stated
that MSR would be added by operation of law
to the sentence the petitioner had negotiated
with the prosecutor, then the situation would
be different. However, the prosecutor failed
to include MSR in the plea agreement and the
court did not admonish the petitioner that
MSR would be added to the sentence he had
bargained for."
Defendant primarily relies on the Supreme Court of
Illinois's recent decision in People v. Whitfield, 217 Ill. 2d
177, 840 N.E.2d 658 (2005). The situation in the case at bar is
similar to that in Whitfield with one important exception. In
Whitfield, the trial court did not make any mention of MSR to the
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defendant before he entered his negotiated guilty plea for a
specific term of years. Whitfield, 217 Ill. 2d at 180-81, 840
N.E.2d at 661. In the instant case, the trial court informed
defendant of MSR. While the court could have made its
admonitions clearer, the court did make defendant aware of MSR.
If the trial court had failed to give defendant any
admonitions concerning MSR, we would follow Whitfield even though
we have concerns about the supreme court's opinion. However, in
our case, the court did admonish defendant about MSR. We will
not expand the holding in Whitfield to apply to situations like
those in the instant case. While the court's admonitions in this
case were inartful, defendant's constitutional right to due
process and fundamental fairness was not violated.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State its
statutory assessment of $50 against defendant as costs of this
appeal.
Affirmed.
STEIGMANN, P.J., and APPLETON, J., concur.
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