People v. Gwartney

NOTICE 2022 IL App (4th) 210737-U
This Order was filed under Su-
FILED
preme Court Rule 23 and is not NO. 4-21-0737 September 20, 2022
precedent except in the limited Carla Bender
circumstances allowed under 4th District Appellate
Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Pike County
WILLIAM E. GWARTNEY, ) Nos. 17CF36
Defendant-Appellant. ) 17CM167
)
) Honorable
) John F. McCartney,
) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.
Justices DeArmond and Harris concurred in the judgment.

ORDER

¶1 Held: Defendant was not denied the benefit of his bargain because of the circuit
court’s MSR admonishment.

¶2 In March 2017, the State charged defendant, William E. Gwartney, by infor-

mation with one count of unlawful possession of methamphetamine (720 ILCS 646/60(b)(1)

(West 2016)) in Pike County case No. 17-CF-36. At a June 2017 hearing, defendant pleaded

guilty to the charge, and the Pike County circuit court sentenced him to 24 months’ first-offender

probation. In December 2017, the State charged defendant by information with one count of bat-

tery (720 ILCS 5/12-3(a)(2) (West 2016)) and one count of assault (720 ILCS 5/12-1(a) (West

2016)) in Pike County case No. 17-CM-167. The State also filed a petition to revoke defendant’s

probation in case No. 17-CF-36 based on the new charges in case No. 17-CM-167. At a March

2018 hearing, defendant pleaded guilty pursuant to a plea agreement to the battery charge in case
No. 17-CM-167 and admitted the probation violation in case No. 17-CF-36. The court sentenced

defendant to a new term of 24 months’ probation on both charges. In November 2018, the State

filed another petition to revoke defendant’s probation based on five allegations, and defendant

later admitted the petition. At a July 2021 hearing, the court accepted the parties’ sentence

agreement and sentenced defendant to three years’ imprisonment with a one-year term of manda-

tory supervised release (MSR) in case No. 17-CF-36 and 300 days in jail in case No.

17-CM-167.

¶3 Defendant appeals, contending the circuit court did not comply with Illinois Su-

preme Court Rule 402A (eff. Nov. 1, 2003) which resulted in him being denied the benefit of his

bargain with the State. We affirm.

¶4 I. BACKGROUND

¶5 A. Case No. 17-CF-36

¶6 The State’s unlawful possession of methamphetamine charge was based on de-

fendant’s actions on March 22, 2017. The charging document noted the charge was a Class 3

felony (see 720 ILCS 646/60(b)(1) (West 2016)) and was punishable by up to 30 months’ proba-

tion, 2 to 5 years in the Department of Corrections (DOC), 1 year of MSR, and a fine of up to

$25,000.

¶7 Defendant and the State entered into a negotiated plea agreement, under which

defendant would plead guilty to the unlawful possession of methamphetamine charge and the

State would dismiss a charge in a different case (People v. Gwartney, No. 17-TR-856 (Cir. Ct.

Pike County)). The parties agreed to a sentence of 24 months’ probation, as well as other fines,

fees, and conditions.

¶8 On June 27, 2017, the circuit court held a plea hearing. Before accepting

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defendant’s guilty plea, the court informed defendant that, if he was sentenced to DOC, the range

would be two to five years “with a one year period of parole.” Defendant indicated he under-

stood the possible penalties. Defendant pleaded guilty under the terms of the plea agreement,

and the court accepted defendant’s plea and sentenced defendant to 24 months’ first-offender

probation. The probation order contained numerous conditions, including prohibiting defendant

from violating any criminal statute.

¶9 In December 2017, the State filed a petition to revoke defendant’s probation be-

cause he committed the offenses in case No. 17-CM-167. Thereafter, the circuit court held joint

proceedings on the petition to revoke and the charges in case No. 17-CM-167.

¶ 10 B. Case No. 17-CM-167

¶ 11 The December 2017 charges of battery and assault related to defendant’s actions

on December 3, 2017. The charging document noted the battery charge was a Class A misde-

meanor (see 720 ILCS 5/12-3(b) (West 2016)), and the assault charge was a Class C misde-

meanor (see 720 ILCS 5/12-1(b) (West 2016)).

¶ 12 C. Joint Proceedings

¶ 13 The State and defendant entered into another fully negotiated plea agreement, un-

der which defendant would plead guilty to battery in case No. 17-CM-167 and admit the allega-

tion in the State’s petition to revoke his probation in case No. 17-CF-36 and the State would dis-

miss the assault charge in case No. 17-CM-167 and a charge in a different case (People v. Gwart-

ney, No. 17-CF-199 (Cir. Ct. Pike County)). The parties agreed defendant would receive a sen-

tence of 24 months’ probation on both remaining charges. On March 6, 2018, the circuit court

held the plea hearing. In admonishing defendant, the court stated the following about the sen-

tencing range:

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 “That is—the unlawful possession of methamphetamine is a Class 3 felony, which

means it’s probationable up to 30 months, fine up to [$]25,000. If you’re sen-

tenced to [DOC], the range would be from two to five years with a one-year pe-

riod of parole.”

Defendant pleaded guilty under the terms of the plea agreement, and the court accepted defend-

ant’s plea and resentenced defendant to 24 months’ probation for unlawful possession of a meth-

amphetamine and sentenced him to a concurrent term of 24 months’ probation for battery. The

probation order again contained numerous conditions.

¶ 14 In November 2018, the State filed a petition to revoke both probation terms, alleg-

ing defendant (1) failed to report to probation on July 2, 2018; (2) did not maintain employment;

(3) failed to provide proof of being engaged in substance-abuse treatment; (4) failed to provide

proof of being engaged in mental-health treatment; and (5) failed to provide proof of being en-

gaged in domestic-violence counseling.

¶ 15 At a June 24, 2021, hearing, the parties indicated they were close to reaching a

plea agreement. Defense counsel indicated defendant was willing to admit he violated his proba-

tion in case Nos. 17-CF-36 and 17-CM-167 and waive his right to a jury trial in a new case (Peo-

ple v. Gwartney, No. 19-CF-169 (Cir. Ct. Pike County)). Defense counsel also noted she antici-

pated an agreement at sentencing for a three-year prison term for unlawful possession of meth-

amphetamine. Before accepting defendant’s admission, the circuit court told defendant that, if

he was sentenced to DOC for unlawful possession of methamphetamine, “it would be two to five

years with a one year period of parole.” The court asked defendant if he understood the possible

penalties, and he answered in the affirmative. After hearing a factual basis, the court accepted

defendant’s admission and set the case for resentencing.

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¶ 16 On July 20, 2021, the circuit court held defendant’s resentencing hearing. The

parties announced they had reached an agreement. The prosecutor explained the State would

dismiss case No. 19-CF-169; in case No. 17-CF-36, defendant “would serve three years in

[DOC], one year MSR”; and in case No. 17-CM-167, defendant would serve a concurrent term

of 300 days in jail. Defendant stated he had enough time to consider the plea agreement and

agreed the statement regarding the plea agreement was accurate. The court accepted the plea

agreement. The court then resentenced defendant as follows:

“So the 19-CF-169 case will be dismissed. You’ll be sentenced to three years

DOC on the 17-CF-36 case; 300 days on the 17-CM-167, Count I, case; credit as

I’ve already outlined. Whatever his balance is will be his balance, minus any un-

accrued probation fees, which there may not be any since he’s been on probation

for a while; day for day offense, one-year period of parole, if I’ve not already said

that.”

On the same day as the sentencing hearing, the circuit court filed its written sentencing judg-

ment, which listed an MSR term of one year.

¶ 17 On December 21, 2021, defendant timely filed a motion for leave to file a late no-

tice of appeal in both cases under Illinois Supreme Court Rule 606(c) (eff. Mar. 12, 2021), which

this court granted. Accordingly, this court has jurisdiction of defendant’s appeal under Illinois

Supreme Court Rule 603 (eff. Feb. 6, 2013).

¶ 18 II. ANALYSIS

¶ 19 Defendant argues the circuit court failed to admonish him of his MSR term before

he admitted he violated his probation for unlawful possession of methamphetamine in June 2021.

Defendant contends and we agree this issue is not forfeited because violations of Rule 402A are

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not subject to forfeiture. See People v. Curry, 2019 IL App (3d) 160783, ¶ 22, 127 N.E.3d 1139.

The State asserts the circuit court’s admonition was proper. A circuit court’s compliance with

Rule 402A admonition requirements presents a legal question, which we review de novo. People

v. Ellis, 375 Ill. App. 3d 1041, 1046, 874 N.E.2d 980, 983 (2007).

¶ 20 Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003) governs the admissions or

stipulations in proceedings to revoke probation. Rule 402A is very similar to Illinois Supreme

Court Rule 402 (July 1, 2012), which governs pleas of guilty or stipulations sufficient to convict.

People v. Bassette, 391 Ill. App. 3d 453, 456, 908 N.E.2d 1062, 1064 (2009). This court has

looked to Rule 402 jurisprudence in interpreting the requirements of Rule 402A. See People v.

Dennis, 354 Ill. App. 3d 491, 495, 820 N.E.2d 1190, 1193 (2004). Illinois Supreme Court Rule

402A(a)(6) (eff. Nov. 1, 2003) requires the circuit court to admonish the defendant of “the sen-

tencing range for the underlying offense for which the defendant is on probation ***.” Likewise,

Rule 402(a)(2) (eff. July 1, 2012) provides for the admonishment of “the minimum and maxi-

mum sentence prescribed by law, including, when applicable, the penalty to which the defendant

may be subjected because of prior convictions or consecutive sentences.”

¶ 21 In People v. Whitfield, 217 Ill. 2d 177, 194-95, 840 N.E.2d 658, 669 (2005), our

supreme court held that, prior to accepting a guilty plea, the circuit court must advise the defend-

ant a term of MSR will be added to the sentence to comply with Rule 402(a)(2) and due process.

There, the defendant had bargained for a specific sentence, and the circuit court accepted the de-

fendant’s guilty plea without advising him an MSR term would be added to the sentence, which

resulted in the defendant receiving a sentence more onerous than the sentence for which he bar-

gained, violating due process notions of fundamental fairness. Whitfield, 217 Ill. 2d at 201-02,

840 N.E.2d at 673.

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¶ 22 Later, in People v. Morris, 236 Ill. 2d 345, 366, 925 N.E.2d 1069, 1082 (2010),

the supreme court sought to clarify what information needed to be conveyed to defendants to en-

sure the MSR admonishments given during a plea hearing comply with the requirements of Rule

402 and due process after Whitfield. The Morris court stated, “Whitfield requires that defendants

be advised that a term of MSR 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. Thus, “[a]n

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 mak-

ing an informed decision about his case.” Morris, 236 Ill. 2d at 366, 925 N.E.2d at 1082. The

supreme court stated ideally the admonishment about MSR should be (1) explicitly linked to the

sentence to which the defendant agreed in exchange for his or her negotiated plea, (2) given

when reviewing the provisions of the plea agreement, and (3) reiterated both at sentencing and in

the written judgment. Morris, 236 Ill. 2d at 367-68, 925 N.E.2d at 1082. However, it recognized

there was no precise formula in admonishing a defendant of his or her MSR obligation, and the

admonition must be read in a practical and realistic way. Morris, 236 Ill. 2d at 366, 925 N.E.2d

at 1082. The supreme court explained, “ ‘[t]he admonition is sufficient if an ordinary person in

the circumstances of the accused would understand it to convey the required warning.’ ” Morris,

236 Ill. 2d at 366, 925 N.E.2d at 1082 (quoting People v. Williams, 97 Ill. 2d 252, 269, 454

N.E.2d 220, 228 (1983)).

¶ 23 More recently, in People v. Boykins, 2017 IL 121365, ¶ 21, 93 N.E.3d 504, the

supreme court rejected the suggestion Morris established a bright-line rule the admonishment

must expressly link MSR during the pronouncement of the agreed-upon sentence. There, the cir-

cuit court told the defendant the sentence for first degree murder was a prison term ranging

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between 20 and 60 years and the maximum period of imprisonment could be life. Boykins, 2017

IL 121365, ¶ 17. The court further advised the defendant, “ ‘[u]pon your release from the peni-

tentiary, there is a period of three years mandatory supervised release, sometimes referred to as

parole.’ ” Boykins, 2017 IL 121365, ¶ 17. The supreme court found the aforementioned admoni-

tion satisfied the defendant’s due process rights “[w]hen read in a practical and realistic manner

and judged by an objective standard.” Boykins, 2017 IL 121365, ¶ 18. It explained that, where

the defendant “was informed that MSR was a required part of any sentence that would be im-

posed upon his release from prison, a reasonable person would understand that his negotiated

prison sentence would be followed by a term of MSR.” Boykins, 2017 IL 121365, ¶ 18. In

Boykins, 2017 IL 121365, ¶ 18, the defendant did not dispute and the record reflected the defend-

ant understood the concept of MSR or parole.

¶ 24 In this case, every time the circuit court admonished defendant about the sentenc-

ing range for unlawful possession of methamphetamine, including before it accepted defendant’s

admission in June 2021 to the petition to revoke probation, the court mentioned a one-year term

of parole in explaining the sentencing range. Defendant contends referring to MSR as parole is

inadequate because the two present substantially different release regimens for the incarcerated.

We disagree. In Boykins, 2017 IL 121365, ¶ 18, the court stated, the defendant did not dispute,

and the record reflected defendant “understood the concept of MSR or parole.” There, the circuit

court in its admonishments had stated MSR was sometimes referred to as parole (Boykins, 2017

IL 121365, ¶ 3), and the supreme court did not take issue with the circuit court’s comment. In

both Morris and Whitfield, the supreme court noted a prior decision that had stated the defendant

must be admonished about a period of parole as part of the sentence imposed to ensure the plea is

knowing and voluntary. The court simply added language after “parole” that the term was now

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called MSR. Morris, 236 Ill. 2d at 357, 925 N.E.2d at 1076; Whitfield, 217 Ill. 2d at 188, 840

N.E.2d at 665. In the above cases, the supreme court did not distinguish “parole” and “MSR” for

the purposes of admonitions. In another admonition case, the reviewing court noted it believed

MSR was “analogous to parole which it replaced.” People v. Coultas, 75 Ill. App. 3d 137, 138,

394 N.E.2d 26, 27 (1979).

¶ 25 Defendant also argues it was not reasonably inferable from the admonitions the

one-year term of parole was separate from the prison sentence and would be served afterwards.

However, the court always set forth the sentencing range and stated, “with a one year period of

parole.” The term “with” suggests something additional. Moreover, defendant answered in the

affirmative every time the court asked if he understood the possible penalties and does not ex-

pressly assert on appeal he did not understand a one-year MSR term would follow his prison sen-

tence. Like Boykins, the circuit court’s admonishment was sufficient for a reasonable person to

understand any prison sentence would be followed by a one-year term of parole. See Boykins,

2017 IL 121365, ¶ 18.

¶ 26 Regardless, defendant argues he was denied the benefit of his three-year bargain

when the court imposed the one-year MSR term. However, in this case, the sentencing agree-

ment came after defendant admitted the probation violation. With the negotiated sentence, the

record shows compliance with all but one of the Morris court’s directives for addressing MSR in

a guilty plea case with a negotiated sentence. Specifically, the record shows the State explicitly

linked a one-year MSR term to the agreed-upon sentence when describing the plea agreement,

and the court noted a one-year parole term when sentencing defendant and included a one-year

MSR term in the written judgment. The court did fail to mention the MSR term when summariz-

ing the provisions of the plea agreement. However, we do not find that omission deprived

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defendant the benefit of the bargain in this case, as no specific formula exists.

¶ 27 Accordingly, we find defendant was not denied the benefit of his bargain with the

negotiated sentence and thus, his due process rights were not violated and he is not entitled to a

sentence reduction.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm the Pike County circuit court’s judgment.

¶ 30 Affirmed.

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