People v. Dorsey

Filed 10/15/10 NO. 4-07-0572

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
JERMARI DORSEY, ) No. 04CF771
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In June 2007, the Champaign County circuit court sua

sponte dismissed the pro se postconviction petition of defendant,

Jermari Dorsey. Defendant appealed, contending (1) his due-

process rights were violated due to the trial court's failure to

admonish him his plea agreement included three years of mandatory

supervised release (or MSR) and (2) due process required the

application of the rule of lenity because two conflicting sen-

tencing provisions govern the sentencing on defendant's convic-

tion. We affirmed. Defendant filed a petition for leave to

appeal, which the supreme court denied. However, in the exercise

of its supervisory authority, that court vacated this court's

judgment and directed us to reconsider our decision in light of

People v. Morris, 236 Ill. 2d 345, 925 N.E.2d 1060 (2010).

We have reconsidered our prior decision, and now again

affirm the trial court's dismissal of defendant's postconviction
petition.

I. BACKGROUND

In April 2004, the State charged defendant with unlaw-

ful possession of a controlled substance with the intent to

deliver (720 ILCS 570/401(c)(2) (West 2004)) for his actions on

April 27, 2004. The next month, a grand jury indicted him on the

same offense. Defendant and the State entered into a plea

agreement, under which defendant would plead guilty to the charge

and the State would cap its sentencing recommendation at 20

years' imprisonment and not mention defendant's pending case

(People v. Dorsey, No. 05-CF-198 (Cir. Ct. Champaign Co.) (here-

inafter case 198)).

In March 2005, the trial court held a plea hearing.

The court explained the charge against defendant and confirmed

defendant was going to be sentenced as a Class X offender because

of his record. See 730 ILCS 5/5-5-3(c)(8) (West Supp. 2003).

The court then stated the maximum penalties as follows:

"It's a Class [1] felony, but if you

have two or more prior Class [1] or greater

felonies within the past 20 years, this be-

comes a Class X offense, which calls for a

mandatory minimum sentence of [6] years, with

a maximum sentence fixed at 30 years. If

you're sent to prison there's a period of

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 mandatory supervised release of three years.

The maximum fine can be up to $250,000."

Defendant responded in the affirmative when asked if he under-

stood the maximum penalties. The court then continued to admon-

ish defendant about the rights he was surrendering by pleading

guilty.

Afterward, the trial court asked for the plea agreement

and defendant's criminal history. After hearing such informa-

tion, the court stated the following:

"The court's going to concur with the

State's cap. [Defendant], as I understand

the situation, we're going to continue this

matter for a sentencing hearing, and at that

sentencing hearing[,] your penalty range will

be anything from [6] to 20 years, as opposed

to [6] to 30 years. Is that your understand-

ing of where we are right now?"

Defendant replied in the affirmative. MSR was not mentioned

again. After hearing the factual basis, defendant pleaded guilty

to the State's charge, and the court accepted the plea.

In April 2005, the trial court held a sentencing

hearing and sentenced defendant to 18 years' imprisonment. In

June 2005, the court denied defendant's motion to reconsider his

sentence and his motion to withdraw his guilty plea. Defendant

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appealed. In July 2006, this court affirmed the trial court's

judgment. People v. Dorsey, No. 4-05-0560 (July 5, 2006) (unpub-

lished order under Supreme Court Rule 23). Defendant filed a

petition for leave to appeal, which the Supreme Court of Illinois

denied on November 29, 2006. People v. Dorsey, 222 Ill. 2d 583,

861 N.E.2d 658 (2006) (No. 103537).

In May 2007, defendant filed a pro se postconviction

petition, asserting (1) he was entitled to sentencing credit for

the 10 days he spent in Champaign County jail after being sen-

tenced but before being transferred to state prison, (2) he was

not admonished his plea agreement included a 3-year MSR term, (3)

his presentence investigation report improperly mentioned case

198, and (4) he was denied effective assistance of counsel

because his counsel did not address the improper information in

the presentence investigation report. On June 15, 2007, the

trial court entered a written order, dismissing defendant's

postconviction petition as frivolous and patently without merit.

The court noted the transcript of the plea hearing indicated

defendant was "properly admonished that a Class X felony calls

for a period of mandatory supervised release of 3 yrs." On July

6, 2007, defendant filed a notice of appeal from the dismissal of

his postconviction petition in compliance with Supreme Court

Rules 606 and 651(d) (210 Ill. 2d R. 606; 134 Ill. 2d R. 651(d)).

We affirmed the trial court's first-stage dismissal of defen-

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dant's postconviction petition, and defendant filed a petition

for leave to appeal to the supreme court. As stated, the supreme

court denied the petition for leave to appeal, but in the exer-

cise of its supervisory authority, it vacated this court's

judgment and directed us to reconsider our decision in light of

Morris, 236 Ill. 2d 345, 925 N.E.2d 1069. People v. Dorsey, 236

Ill. 2d 517, 925 N.E.2d 1173 (2010) (nonprecedential supervisory

order on denial of petition for leave to appeal). We now do so.

II. ANALYSIS

A. Standard of Review

Here, defendant appeals the first-stage dismissal of

his pro se postconviction petition.

The Post-Conviction Hearing Act (Postconviction Act)

(725 ILCS 5/122-1 through 122-8 (West 2008)) provides a defendant

with a collateral means to challenge his or her conviction or

sentence for violations of federal or state constitutional

rights. People v. Jones, 211 Ill. 2d 140, 143, 809 N.E.2d 1233,

1236 (2004) (Jones I). Once the defendant has filed a petition

under the Postconviction Act, the trial court must first, inde-

pendently and without considering any argument by the State,

decide whether the defendant's petition is "frivolous or is

patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2008).

To survive dismissal at this initial stage, the postconviction

petition "need only present the gist of a constitutional claim,"

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which is "a low threshold" that requires the petition to contain

only a limited amount of detail. People v. Gaultney, 174 Ill. 2d

410, 418, 675 N.E.2d 102, 106 (1996). Legal argument or citation

to legal authority is not required. People v. Brown, 236 Ill. 2d

175, 184, 923 N.E.2d 748, 754 (2010). In analyzing the petition,

courts are to take the allegations of the petition as true as

well as liberally construe them. Brown, 236 Ill. 2d at 184, 923

N.E.2d at 754.

Moreover, our supreme court has recently held a court

may summarily dismiss a pro se postconviction petition "as

frivolous or patently without merit only if the petition has no

arguable basis either in law or in fact." People v. Hodges, 234

Ill. 2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). A petition lacks

an arguable legal basis when it is based on an indisputably

meritless legal theory, such as one the record completely contra-

dicts. Hodges, 234 Ill. 2d at 16, 912 N.E.2d at 1212. A peti-

tion lacks an arguable factual basis when it is based on a

fanciful factual allegation, such as one that is clearly base-

less, fantastic, or delusional. Hodges, 234 Ill. 2d at 16-17,

912 N.E.2d at 1212.

Additionally, in considering a postconviction petition

at the first stage of the proceedings, the court can examine the

following: "the court file of the proceeding in which the

petitioner was convicted, any action taken by an appellate court

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in such proceeding[,] and any transcripts of such proceeding."

725 ILCS 5/122-2.1(c) (West 2008). This court reviews de novo

the trial court's dismissal of a postconviction petition without

an evidentiary hearing. People v. Simms, 192 Ill. 2d 348, 360,

736 N.E.2d 1092, 1105-06 (2000).

B. MSR

Citing People v. Whitfield, 217 Ill. 2d 177, 195, 840

N.E.2d 658, 669 (2005), defendant first asserts his due-process

rights were violated because the trial court failed to admonish

him that his plea agreement included a three-year MSR term.

Initially, we must determine whether Whitfield applies

to defendant's case. After analyzing retroactivity under Teague

v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989),

our supreme court held "the new rule announced in Whitfield

should only be applied prospectively to cases where the convic-

tion was not finalized prior to December 20, 2005, the date

Whitfield was announced." Morris, 236 Ill. 2d at 366, 925 N.E.2d

at 1081. "'"A state conviction and sentence become final for

purposes of retroactivity analysis when the availability of

direct appeal to the state courts has been exhausted and the time

for filing a petition for a writ of certiorari has elapsed or a

timely filed petition has been finally denied."'" People v.

Simmons, 388 Ill. App. 3d 599, 609, 903 N.E.2d 437, 448 (2009),

quoting People v. Kizer, 318 Ill. App. 3d 238, 246, 741 N.E.2d

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1103, 1110 (2000), quoting Caspari v. Bohlen, 510 U.S. 383, 390,

127 L. Ed. 2d 236, 246, 114 S. Ct. 948, 953 (1994).

Here, the trial court sentenced defendant in April 2005

and denied defendant's postplea motions in June 2005. Defendant

appealed, and this court affirmed the trial court's judgment in

July 2006. Dorsey, No. 4-05-0560. Thus, on December 20, 2005,

defendant's direct appeal was pending. Since defendant's direct-

appeal rights had not been exhausted when the supreme court

announced the Whitfield decision, defendant's conviction was not

final at that time, and Whitfield applies.

In Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at 669,

our supreme court held "due process is violated when a defendant

pleads guilty in exchange for a specific sentence and the trial

court fails to advise the defendant, prior to accepting his plea,

that [an MSR] term will be added to that sentence." The Whitfie-

ld court explained that, under those circumstances, a due-process

violation occurs because the addition of the MSR term to the

agreed-upon sentence makes the sentence imposed more onerous than

the one defendant agreed to at the plea hearing. The addition of

the unknown MSR term unfairly breaches the plea agreement.

Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at 669.

In Whitfield, 217 Ill. 2d at 179, 840 N.E.2d at 661,

the defendant had pleaded guilty to first degree murder in

exchange for a 25-year prison sentence. "At no time during the

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plea hearing" did the trial court admonish the defendant he would

be subject to a 3-year MSR term following the agreed-upon 25-year

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

661.

In Morris, 236 Ill. 2d at 366-68, 925 N.E.2d at 1082-

83, our supreme court took the opportunity to clarify its deci-

sion in Whitfield. The Morris court proclaimed Whitfield re-

quires trial courts to advise defendants an MSR term "will be

added to the actual sentence agreed upon in exchange for a guilty

plea to the offense charged." Morris, 236 Ill. 2d at 367, 925

N.E.2d at 1082. It explained that, in addition to ensuring a

defendant enters a plea "'intelligently and with full knowledge

of its consequences,'" admonishments must also inform the defen-

dant of the actual terms of the bargain made with the State.

Morris, 236 Ill. 2d at 366, 925 N.E.2d at 1082, quoting Whitfiel-

d, 217 Ill. 2d at 184, 840 N.E.2d at 663, citing Boykin v.

Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 279-80, 89 S. Ct.

1709, 1712 (1969). "An admonition that uses the term 'MSR'

without putting it in some relevant context cannot serve to

advise the defendant of the consequences of his guilty plea and

cannot aid the defendant in making an informed decision about his

case." Morris, 236 Ill. 2d at 366, 925 N.E.2d at 1082. Addi-

tionally, the supreme court declared that, while a trial court's

MSR admonishments need not be perfect, the admonishments "must

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substantially comply with the requirements of [Supreme Court]

Rule 402 [(177 Ill. 2d R. 402)] and the precedent of this court."

Morris, 236 Ill. 2d at 367, 925 N.E.2d at 1082.

Even after the supreme court's clarification in Morris,

a split among the appellate courts remains on the issue of

whether a trial court's mentioning MSR will be attached to any

prison sentence when informing the defendant of the minimum and

maximum penalties of the crimes charged satisfies due process,

Rule 402, and Whitfield. We note the Third District has yet to

weigh in on this issue since Morris.

In dicta, the Fifth District found such a statement by

the trial court was sufficient compliance as it informed the

defendant of MSR. People v. Thomas, No. 5-06-0585, slip op. at 7

(July 16, 2010), ___ Ill. App. 3d ___, ___, 932 N.E.2d 658, 663.

It opined that, "[u]nder those circumstances, any misunderstand-

ing about the applicability of [MSR], although perhaps unfortu-

nate, cannot be deemed objectively reasonable." Thomas, slip op.

at 7, ___ Ill. App. 3d at ___, 932 N.E.2d at 663. The Fifth

District further noted it did not believe "any of the guidance

provided by the Morris court casts doubt on our reasoning."

Thomas, slip op. at 8, ___ Ill. App. 3d at ___, 932 N.E.2d at

663.

The First District reached the same conclusion as the

Fifth District, citing its pre-Morris decision in People v.

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Marshall, 381 Ill. App. 3d 724, 886 N.E.2d 1106 (2008). See

People v. Davis, No. 1-08-3498, slip op. at 9-11 (August 9,

2010), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___. The First

District explained its reasoning as follows:

"[U]nder Whitfield, a constitutional

violation occurs only when there is abso-

lutely no mention to a defendant, before he

actually pleads guilty, that he must serve an

MSR term in addition to the agreed-upon sen-

tence that he will receive in exchange for

his plea of guilty. If, prior to the guilty

plea admonishments, the defendant knows he

will be sentenced to the penitentiary in

exchange for his plea of guilty, and knowing

this, he is told during the guilty plea hear-

ing that he must serve an MSR term upon being

sentenced to the penitentiary, then the de-

fendant is placed on notice that his debt to

society for the crime he admits to having

committed extends beyond fulfilling his sen-

tence to the penitentiary." Davis, slip op.

at 10, ___ Ill. App. 3d at ___, ___ N.E.2d at

___.

Moreover, after noting the supreme court cited Marshall with

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approval in Morris, 236 Ill. 2d at 367, 925 N.E.2d at 1082, the

First District declared Marshall settled the issue for that

district. Davis, slip op. at 12, ___ Ill. App. 3d at ___, ___

N.E.2d at ___.

In People v. Andrews, No. 4-06-0904, slip op. at 23

(August 18, 2010), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___,

___, another panel of this court arrived at the same conclusion

as the First and Fifth Districts, adhering to our holdings in

pre-Morris decisions (see People v. Holt, 372 Ill. App. 3d 650,

652-53, 867 N.E.2d 1192, 1195 (2007); People v. Jarrett, 372 Ill.

App. 3d 344, 352, 867 N.E.2d 1173, 1180 (2007); People v. Borst,

372 Ill. App. 3d 331, 334, 867 N.E.2d 1181, 1184 (2007)). The

defendant in Andrews argued his due-process rights were violated

because his plea agreement did not mention he would be subject to

MSR at the completion of his agreed-upon sentence. The Andrews

court found the argument failed because Whitfield's holding did

not address plea agreements, and then went further and discussed

what was a sufficient MSR admonishment. See Andrews, slip op. at

17-20, ___ Ill. App. 3d at ___, ___ N.E.2d at ___. The Andrews

court explained that, "as long as the trial court informs a

defendant at the time of his guilty plea that an MSR term must

follow any prison sentence that is imposed upon him, he has

received all the notice and all the due process to which he is

entitled regarding MSR." Andrews, slip op. at 20, ___ Ill. App.

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3d at ___, ___ N.E.2d at ___. It further noted its belief that

nothing in Morris required a deviation from our pre-Morris

decisions and took issue with the supreme court's continued

reference to plea agreements in addressing MSR admonishments.

Andrews, slip op. at 22-23, ___ Ill. App. 3d at ___, ___ N.E.2d

at ___.

To the contrary, the Second District held such a

statement was insufficient because it did not link the MSR term

to the actual sentences the defendant would receive under his

plea agreement and did not convey unconditionally the MSR term

would be added to the agreed-upon sentences. People v. Burns,

No. 2-07-0475, slip op. at 5 (August 9, 2010), ___ Ill. App. 3d

___, ___, ___ N.E.2d ___, ___. It explained "an ordinary person

in the defendant's place might have reasonably believed that he

would not have to serve any MSR as a result of his plea agree-

ment." Burns, slip op. at 6, ___ Ill. App. 3d at ___, ___ N.E.2d

at ___. Stated differently, the admonition could have fostered a

reasonable belief MSR attached only to a particular contingency

that might or might not happen. Burns, slip op. at 7, ___ Ill.

App. 3d at ___, ___ N.E.2d at ___. The Second District further

noted it had previously found the type of admonishment at issue

insufficient because it linked MSR to the maximum sentences

rather than to the sentences specified in the plea agreement.

Burns, slip op. at 6, ___ Ill. App. 3d at ___, ___ N.E.2d at ___,

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citing Daniels, 388 Ill. App. 3d at 959, 905 N.E.2d at 356.

While we will follow Andrews to maintain a consistent

body of case law within the Fourth District, we take the opportu-

nity to explain our stance on the issue of whether a trial

court's mentioning MSR will be attached to any prison sentence

when informing the defendant of the minimum and maximum penalties

of the crimes charged satisfies due process and Rule 402 in light

of Morris's clarification.

The Morris court expressly stated Whitfield mandates

defendants be advised an MSR term "will be added to the actual

sentence agreed upon in exchange for a guilty plea to the offense

charged." Morris, 236 Ill. 2d at 367, 925 N.E.2d at 1082.

Moreover, the Morris decision discusses the need for defendants

to be informed of the actual terms of the bargain they made with

the State and encourages trial courts to discuss MSR when review-

ing the terms of a defendant's plea bargain. See Morris, 236

Ill. 2d at 366-68, 925 N.E.2d at 1082-83. Thus, Morris suggests

Whitfield also requires trial courts to address MSR when explain-

ing any type of plea agreement, not just one with an agreed

sentence. Additionally, the Morris court emphasized the court's

admonishments must comply not only with Rule 402 but also with

supreme court precedent (Morris, 236 Ill. 2d at 367, 925 N.E.2d

at 1082), which would include Whitfield.

When describing the maximum and minimum penalties of

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each of the pending charges, a general statement MSR will be

added to any prison term does not explicitly link MSR to the

parties' agreed-upon sentence or sentencing range. We agree

with the Second District such an admonishment links the MSR term

to the statutory sentencing range or the maximum sentence depend-

ing on the court's language. See Daniels, 388 Ill. App. 3d at

959, 905 N.E.2d at 356 (finding the admonishment linked MSR to

the maximum sentences and not the agreed-upon sentences). When

entering a negotiated guilty plea, the defendant believes he is

getting a special sentence as he or she has made a deal with the

State to avoid the statutory sentencing range. It is unreason-

able to assume an ordinary person is aware of the fact MSR

attaches to all prison terms regardless of whether a plea agree-

ment existed. As noted by the Second District, without any more

language connecting the MSR term to the agreed-upon sentence, an

ordinary person could reasonably believe the MSR term only

applied to his sentence if he did not plead guilty under the

negotiated plea agreement. Burns, slip op. at 5-6, ___ Ill. App.

3d at ___, ___ N.E.2d at ___. A court's mentioning of MSR only

during the minimum and maximum penalties requires an ordinary

person to make a significant analytical jump that MSR, which the

court had just informed him or her applied to any prison term

under the statutory sentencing range, also applied to the agreed-

upon sentence or sentence under an agreed-upon sentencing range.

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The Morris decision demands a clearer and closer link between MSR

and the agreed-upon sentence or sentencing range to inform the

defendant of the consequences of his guilty plea.

While MSR is generally not part of plea negotiations

and expressly stated in plea agreements, the Morris court's

reference to a plea agreement with the State does not undercut

its requirement the MSR term be explicitly linked to the agreed-

upon sentence. The supreme court has the power to extend its

Rule 402 (177 Ill. 2d R. 402) to require a defendant receive an

explicit admonishment informing him or her an MSR term will be

added to his or her agreed-upon sentence or sentence received

within an agreed-upon range.

Here, defendant was admonished about the three-year

MSR term when the trial court set forth the minimum and maximum

penalties for the charge of unlawful possession of a controlled

substance with the intent to deliver. The court then asked

defendant if he understood the maximum penalties. Accordingly,

the MSR admonishment was linked to the maximum penalties.

Moreover, neither the State nor the court mentioned the MSR term

when describing the terms of his plea agreement or in any other

way connected MSR to the agreed-upon sentence. Thus, in light of

Morris's clarification of Whitfield, our view is defendant's

postconviction petition did state the gist of a constitutional

claim regarding the court's failure to admonish defendant an MSR

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term would apply to a sentence within the agreed-upon sentencing

range. However, since the trial court's admonishment is suffi-

cient under Andrews, we conclude defendant failed to state the

gist of a constitutional claim on this issue.

C. Rule of Lenity

Defendant also argues the mandatory sentencing provi-

sions of sections 5-5-3(c)(8) and 5-8-1(a)(4) of the Unified Code

of Corrections (Unified Code) (730 ILCS 5/5-5-3(c)(8) (West Supp.

2003); 730 ILCS 5/5-8-1(a)(4) (West 2004)) contain conflicting

provisions. Thus, he contends due process requires the applica-

tion of the rule of lenity, which would yield the application of

section 5-8-1(a)(4) of the Unified Code (730 ILCS 5/5-8-1(a)(4)

(West 2004)) with a maximum sentence of 15 years' imprisonment.

However, as the State notes, defendant is raising this issue for

the first time on appeal from the dismissal of his postconviction

petition and thus has forfeited the issue. See Jones I, 211 Ill.

2d at 149-50, 809 N.E.2d at 1239. Citing People v. Wright, 194

Ill. 2d 1, 23, 740 N.E.2d 755, 766 (2000), defendant contends the

constitutionality of a criminal statute may be challenged at any

time.

In Wright, 194 Ill. 2d at 22, 740 N.E.2d at 766,

defendant raised his constitutionality challenge for the first

time in a petition for rehearing while his case was on direct

appeal from his conviction and sentence. Here, defendant is

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raising such a challenge on appeal from the first-stage dismissal

of his postconviction petition. Our supreme court has held a

defendant's contentions of constitutional error not raised in the

original postconviction petition are forfeited on appeal from the

trial court's first-stage dismissal of the petition. Jones I,

211 Ill. 2d at 149-50, 809 N.E.2d at 1239. The Supreme Court of

Illinois has further stressed the following:

"our appellate court is not free, as this

court is under its supervisory authority, to

excuse, in the context of postconviction

proceedings, an appellate waiver caused by

the failure of a defendant to include issues

in his or her postconviction petition."

People v. Jones, 213 Ill. 2d 498, 508, 821

N.E.2d 1093, 1099 (2004) (Jones II).

Thus, under Jones I and Jones II, we find defendant has

forfeited this issue by failing to raise it in his postconviction

petition.

III. CONCLUSION

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

first-stage dismissal of defendant's postconviction petition.

As part of our judgment, we award the State its $50 statutory

assessment against defendant as costs of this appeal.

Affirmed.

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KNECHT and APPLETON, JJ., concur.

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