NO. 4-07-0395 Filed 5/1/08
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
JESSE G. HOLBOROW, ) No. 04CF141
Defendant-Appellant. )
) Honorable
) Harold J. Frobish,
) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In January 2005, defendant, Jesse G. Holborow, entered
into a negotiated plea to home invasion with great bodily harm to
the victim (720 ILCS 5/12-11(a)(2) (West 2004)) (count I), theft
(subsequent offense) (720 ILCS 5/16-1(a)(1), (a)(2) (West 2004))
(count VI), and criminal trespass to a vehicle (720 ILCS 5/21-2
(West 2004)) (count VII). In exchange for the plea, the State
dismissed four other charges and the trial court sentenced
defendant to concurrent sentences of 16 years in the Department
of Corrections (DOC) for home invasion, 3 years for theft, and
364 days for criminal trespass to a vehicle. Defendant filed a
motion to reduce sentence, which the court denied. He did not
file a direct appeal.
In April 2007, defendant filed a pro se postconviction
petition under the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 through 122-8 (West 2006)), wherein he alleged violation
of the terms of his plea agreement because he had not been
admonished that he would be required to serve a three-year term
of mandatory supervised release (MSR) upon his release from
prison. Several days later, the court summarily dismissed the
postconviction petition as frivolous and patently without merit.
Defendant appeals. We affirm.
I. BACKGROUND
In July 2004, defendant was charged by information with
seven crimes. Count I charged defendant with the Class X felony
of home invasion in that defendant "knowingly and without author-
ity entered the dwelling place of another, [Bernard H.], ***
having reason to know [Bernard H.] to be present within that
dwelling, and intentionally caused injury to [Bernard H.] by
beating [Bernard H.] about the head and body[] within said
dwelling place" (720 ILCS 5/12-11(a)(2) (West 2004)). Count II
charged defendant with the Class 2 felony of aggravated battery
of a senior citizen in that defendant "knowingly caused great
bodily harm to [Bernard H.], an individual sixty (60) years of
age or older[,] being seventy (70) years of age, in that said
defendant knowingly beat [Bernard H.] about the head and body,
causing swelling of the brain and other injuries" (720 ILCS 5/12-
4.6(a) (West 2004)). Count III charged defendant with the Class
3 felony of aggravated battery in that he "knowingly caused great
bodily harm to [Bernard H.], in that said defendant knowingly
beat [Bernard H.] about the head and body, causing swelling of
the brain and other injuries" (720 ILCS 5/12-4(a) (West 2004)).
Count IV charged defendant with the Class 3 felony of aggravated
battery in that defendant "knowingly caused bodily harm to
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[Bernard H.], an individual sixty (60) years of age or older[,]
being seventy (70) years of age, by beating [Bernard H.] about
the head and body" (720 ILCS 5/12-4(b)(10) (West 2004)). Count V
charged defendant with the Class 3 felony of aggravated battery
in that defendant "used a deadly weapon, in that said defendant
knowingly caused bodily harm to [Bernard H.] by stabbing [Bernard
H.] with a knife" (720 ILCS 5/12-4(b)(1) (West 2004)). Count VI
charged defendant with the Class 4 felony of theft (subsequent
offense) in that defendant, "a person previously convicted of the
offense of [b]urglary ***, knowingly exerted unauthorized control
over certain property of [Bernard H.], being beer, intending to
deprive [Bernard H.] permanently of the use of the property" (720
ILCS 5/16-1(a)(1), (a)(2) (West 2004)). Count VII charged
defendant with the Class A misdemeanor of criminal trespass to a
vehicle in that defendant "knowingly and without authority
entered a vehicle of another, a 1986 Ford van of [Bernard H.]"
(720 ILCS 5/21-2 (West 2004)).
In January 2005, the State and defendant entered into a
written, fully negotiated plea of guilty to all charges. In
exchange therefor, defendant was sentenced only on count I (home
invasion with great bodily harm to the victim), count VI (theft--
subsequent offense), and count VII (criminal trespass to a
vehicle) and sentenced to concurrent prison terms of 16 years on
the home-invasion count (noting it would be served at 85% under
truth in sentencing), 3 years on the theft count, and 364 days on
the criminal-trespass-to-a-vehicle count. In addition to the DOC
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sentences, defendant was ordered to pay a $200 deoxyribonucleic
acid (DNA) fee and $5,643.59 restitution and to make himself
available and provide truthful testimony in the case against a
codefendant. Defendant waived his presentence investigation.
Defendant's prior criminal record included burglary, two convic-
tions for theft from a person, and criminal damage to property.
At the January 2005 plea hearing, the trial court went
over the details of the written plea agreement with defendant in
open court. Defendant indicated his intention to plead guilty.
The trial court admonished defendant as to each charge against
him, and defendant expressed his understanding of the charges.
The court further admonished defendant as follows:
"THE COURT:
* * *
Now it is important that you understand
with respect to [c]ount [I], the home inva-
sion, that is a Class X felony. And the law
says that if this were handled by other than
a plea agreement, you could get anywhere from
six to 30 years in prison, plus three years
[of MSR]. You are not eligible for proba-
tion, periodic imprisonment[,] or conditional
discharge. If you were found guilty, you
would have to get a minimum six years, and
you could get as much as 30. And with great
bodily harm, you have to serve 85[%] of your
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time. So do you understand what the possi-
bilities there are, if this were handled by
other than a plea agreement?
THE DEFENDANT: Yes.
THE COURT: Okay. Now, [c]ount [II],
aggravated battery of a senior citizen *** is
a Class 2 felony. *** That is the one where
you are charged with knowingly causing great
bodily harm to [Bernard H.], in that he was a
senior citizen, an individual 60 years of age
or older. And he was 70 years of age. Know-
ingly beating him about the head and body
causing swelling and other injuries. And you
are eligible there for an extended term.
Since that is a Class 2, an extended term is
seven to fourteen years. So if this were
handled by other than a plea agreement, the
law provides you could get anywhere from
three to 14 years in prison, plus two years
[of MSR]. Other possibilities include proba-
tion or conditional discharge not to exceed
four years, periodic imprisonment of 18 to 30
months. And you could be fined up to
$25,000. So those are the possibilities
there.
Do you have any questions about that,
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Mr. Holborow?
THE DEFENDANT: No.
THE COURT: Now, [c]ount [III],
[c]ount[s] [III], [IV], [c]ount [V] are
aggravated-battery counts. Those are Class 3
felonies. You are eligible for an extended
prison term of up to ten years there. So if
this were handled by other than a plea agree-
ment as to those three counts, you could get
anywhere from two to ten years in prison,
plus two years [of MSR]. Other possibilities
include probation or conditional discharge
not to exceed 30 months, periodic imprison-
ment not to exceed 18 months. And you could
be fined up to $25,000 and ordered to make
restitution.
Any questions about that?
THE DEFENDANT: No.
THE COURT: *** Count [VI] is a theft
count as a subsequent offense. This is a
Class 4 felony. And there, you could get
prison of anywhere from one to three years,
plus one year of [MSR]. Other possibilities
include probation or conditional discharge
not to exceed 30 months, periodic imprison-
ment not to exceed 18 months. You could be
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fined up to $25,000 and ordered to pay resti-
tution. So those are the possibilities
there.
Any questions about that?
THE DEFENDANT: No.
THE COURT: And [c]ount [VII] is criminal
trespass to a vehicle. That is a Class A
misdemeanor for which you could get jail of
up to a year.
Now, once again, you are going to plead
guilty, as I understand it, to all seven
counts. You are going to get a conviction on
[c]ount [I], home invasion. You are going to
get the 16 years there. You are going to get
a conviction then also as to [c]ount [VI].
And there, you are going to get a three-year
concurrent prison sentence. That is a theft
as a subsequent offense. And then at [c]ount
[VII], that is criminal trespass to a vehi-
cle. You are going to get 364 days there.
Now, that sentence in [c]ount[s] [VI and
VII], that is going to be concurrent with
your 16 years, so you are going to get 16 as
a maximum. And these other two periods of
imprisonment are going to be served concur-
rently. There is going to be a finding of
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guilty of [c]ount[s] [II, III, IV, and V].
But there is going to be no conviction there.
THE DEFENDANT: So everything is run
concurrent with the case I am in on now?
THE COURT: You are going to get three
convictions. Home invasion. You are not
going to get a conviction on the other
aggravated[-]battery counts because it is the
same conduct. You can only be convicted once
for the same act. So the act that has the
conviction is the home[-]invasion count. You
are going to get sentenced on that one to 16
years. You are going to be found guilty of
[c]ounts of [II, III, IV, and V]. And then
you are going to get a second conviction for
theft and a third conviction for criminal
trespass to [a] vehicle. And the jail sen-
tence in [c]ounts [VI and VII], the theft and
criminal trespass are going to run concur-
rently to the 16 years.
THE DEFENDANT: [Nods affirmatively.]
THE COURT: Any questions.
THE DEFENDANT: No." (Emphasis added.)
The trial court then admonished defendant regarding the
rights he was waiving by pleading guilty. The court questioned
defendant about any coercion or additional promises, to which
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defendant responded in the negative, whether defendant had had
adequate opportunity to discuss the decision to plead guilty with
his attorney, to which defendant responded in the affirmative,
and whether he needed any additional time to think about his
decision, to which defendant responded in the negative. Defen-
dant persisted in his desire to plead guilty.
The trial court went through the details of each count,
including the fact that on some counts defendant was eligible for
extended-term sentencing. As to each count, defendant indicated
his plea of guilty. The State presented the following factual
basis for the plea:
"Your Honor, the evidence would show,
had the case gone to trial, that on the night
of Sunday, Monday, June 27-28, 2004, in the
City of Fairbury, in Livingston County, there
was a gentleman by the name of [Bernard H.],
who was born in 1934, who was at his home at
[address]. The defendant and those with whom
he acted in concert that night, Nathon Hogan,
who has already pled guilty to this
offense[,] and a Robert Collett. Some or all
of them had been to [Bernard H.'s] home
prior, but on one occasion that night they
entered the home without authority, ostensi-
bly, to get beer. They wanted beer. Ulti-
mately, they got beer. Taking that from the
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home, taking [Bernard H.'s] beer and depart-
ing with it and [Bernard H.People v. Holborow
Combined Opinion