NOTICE 2021 IL App (4th) 200019-U FILED
This Order was filed under November 18, 2021
Supreme Court Rule 23 and NO. 4-20-0019 Carla Bender
is not precedent except in the 4th District Appellate
limited circumstances IN THE APPELLATE COURT Court, IL
allowed under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Logan County
JERRI THOMAS, ) No. 13CF122
Defendant-Appellant. )
) Honorable
) William G. Workman,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court.
Presiding Justice Knecht and Justice Holder White concurred in the judgment.
ORDER
¶1 Held: The appellate court granted appellate counsel’s motion to withdraw and affirmed
the trial court’s judgment dismissing defendant’s postconviction petition, agreeing
with appellate counsel that defendant has no meritorious issues that could be raised
on appeal.
¶2 This matter is before us on the motion to withdraw as appellate counsel filed by the
Office of the State Appellate Defender (OSAD) because defendant can raise no meritorious issue.
We permitted defendant to file a response to OSAD’s motion until April 23, 2021, but defendant
did not file a response. We agree with OSAD’s analysis, grant OSAD’s motion to withdraw, and
affirm the trial court’s judgment dismissing defendant’s postconviction petition.
¶3 I. BACKGROUND
¶4 Defendant was charged with being an armed habitual criminal (720 ILCS
5/24-1.7(a)(1) (West 2012)), possession of cocaine with intent to deliver (720 ILCS
570/401(a)(2)(a) (West 2012)), possession of cocaine (720 ILCS 570/402(a)(2)(A) (West 2012)),
and unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2012)). After filing a motion
to quash arrest and suppress evidence, and the trial court’s denial of that motion, defendant filed a
motion to suppress his statements which the trial court also denied. The parties subsequently
entered into a partially negotiated plea agreement whereby the State would dismiss all but the
armed habitual criminal Class X count and cap its sentencing recommendation at 12 years’
incarceration.
¶5 At the plea hearing, defendant acknowledged the above was his understanding of
the agreement. The trial court then read the charge to defendant, and told him it was a Class X
felony for which the court could sentence defendant to between 6 and 30 years in the Department
of Corrections. Immediately thereafter, the court advised defendant there was a “three-year period
of mandatory supervised release, which used to be called parole, that would follow that.” The court
specifically asked defendant if he understood the possible penalties, to which defendant replied,
“Yes, sir.”
¶6 The trial court admonished defendant about the rights he was giving up, and the
State provided the factual basis describing the search of the vehicle defendant was occupying and
defendant’s admission he owned the firearm found in the car. The court as well advised defendant
that the court was not bound by the State’s sentencing recommendation, and the court had the full
range of incarceration pursuant to the statute available.
¶7 At the sentencing hearing, the State reduced its recommendation to 10 years’
incarceration with three years of mandatory supervised release, and the trial court reminded
defendant again that the State’s recommendation was not binding on the court. The court sentenced
defendant to those 10 years followed by three years of mandatory supervised release. Defendant
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filed a motion to withdraw his guilty plea, claiming among other things that he had a
“misapprehension” of the offer, believing that 12 years was the absolute maximum sentence. The
court denied the motion, noting the transcript of the plea hearing demonstrated the court
specifically advised defendant the court could sentence defendant to any amount within the
sentencing range provided for by statute.
¶8 Defendant took a direct appeal, which he later voluntarily dismissed. Defendant
then filed a pro se postconviction petition. The sole issue defendant raised in his petition is that he
was not admonished that he would receive a three-year term of mandatory supervised release,
citing People v. Whitfield, 217 Ill. 2d 177, 202-03 (2005). Defendant supported the petition with
his affidavit. The trial court appointed counsel to represent defendant, who filed a motion to
withdraw as counsel and a motion for finding of no merit in the petition. The motion to withdraw
noted (1) that defendant sought specific performance of nine years of incarceration and three years
of mandatory supervised release, and (2) the transcript of the proceedings revealed the trial court
admonished defendant about the three years of mandatory supervised release which would follow
any incarceration. The motion noted the latter distinguished defendant’s situation from that in
Whitfield, and that the petition proffered no issue of colorable merit. Defendant’s attorney also
filed a certificate pursuant to Illinois Supreme Court Rule 651 (c) (eff. July 1, 2017). When the
court asked defendant about his attorney’s representations and request to withdraw, defendant said
he agreed and had nothing to add. The court granted to the motion to withdraw.
¶9 The State filed a motion to dismiss, proffering the trial court had admonished
defendant and defendant received a sentence consistent with the plea agreement. The court granted
the State’s motion to dismiss, noting the court had admonished defendant about the three-year term
of mandatory supervised release that would follow any sentence of incarceration.
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¶ 10 This appeal followed.
¶ 11 OSAD filed a motion for leave to withdraw as counsel on appeal pursuant to Illinois
law based on Rules 1.16 and 3.1 of the Illinois Rules of Professional Conduct of 2010. Ill. R. Prof’l
Conduct (2010) Rs. 1.16(a)(1), 3.1 (eff. Jan. 1, 2010). In addition, OSAD cites People v. Meeks,
2016 IL App (2d) 140509, ¶ 9. We provided defendant notice of the motion and granted defendant
until April 23, 2021, to respond, but defendant has not responded.
¶ 12 II. ANALYSIS
¶ 13 A. Standard of Review
¶ 14 Our review of this second stage dismissal of the postconviction petition is
de novo. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). A defendant may collaterally attack a
criminal conviction for substantial deprivations of federal or state constitutional rights pursuant
to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)). There can be three
stages in such a proceeding. If the postconviction petition is not summarily dismissed at the first
stage by the trial court as “frivolous or patently without merit,” it advances to the second stage.
At the second stage, the court may appoint counsel for the defendant to assist with review of the
record and amendment of the petition, which amended petition the State can either move to
dismiss or answer. Pendleton, 223 Ill. 2d at 472.
¶ 15 B. There Is No Meritorious Issue for Appeal
¶ 16 In its motion to withdraw, OSAD concludes defendant cannot make a substantial
showing of any constitutional violation. Defendant claimed the trial court committed error because
the court sentenced defendant to 10 years of incarceration followed by three years of mandatory
supervised release, when defendant’s plea agreement with the State capped defendant’s sentence
at 12 years.
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¶ 17 However, defendant’s prison term was not only within the bounds of the plea
agreement, but it also fell within the statutory range provided for the underlying offense. The trial
court, prior to accepting defendant’s plea, admonished defendant (1) that the court was not bound
by the agreement of the parties, (2) that the statutory sentencing range of incarceration was six to
30 years, and (3) that any prison term would be followed by a three-year period of mandatory
supervised release. Later, at the sentencing hearing, when the State advised it was reducing its
recommended cap to 10 years, the court again advised defendant the court was not bound by the
recommendations of the parties.
¶ 18 The trial court sentenced defendant to 10 years in the Department of Corrections,
followed by a three-year term of mandatory supervised release. Thus, the court’s sentence was
consistent with the plea agreement and statutory scheme.
¶ 19 Defendant’s claim relies on Whitfield, but contrary to that defendant, defendant
herein was advised of the three-year mandatory supervised release term and that such term would
follow any period of incarceration. Whitfield therefore is inapplicable.
¶ 20 We agree with OSAD’s conclusion the defendant cannot raise a meritorious issue
on appeal.
¶ 21 III. CONCLUSION
¶ 22 For the foregoing reasons, we grant OSAD’s motion to withdraw as counsel on
appeal and affirm the circuit court’s judgment.
¶ 23 Affirmed.
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