PEOPLE v. PORM No. 1-04-2342.
851 N.E.2d 205 (2006)
The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James PORM, Defendant-Appellant.
Appellate Court of Illinois, First District, Fourth Division.
As Modified Upon Rehearing May 18, 2006.
MODIFIED UPON REHEARING
Justice MURPHY delivered the opinion of the court:
Defendant James Porm appeals a circuit court order granting the State's motion to
In May 2001, defendant pled guilty to attempted aggravated robbery in exchange for a 10-year Class X prison term based on his criminal history. It is undisputed that, at the plea hearing, the trial court failed to admonish defendant that he would be required to serve a three-year term of MSR in addition to his 10-year prison term. Defendant did not file any post-judgment motions or directly appeal his conviction or sentence.
In April 2004, defendant filed an amended pro se post-conviction petition alleging that the trial court failed to advise him that he would receive a term of mandatory supervised release upon completion of his sentence.
The State filed a motion to dismiss the petition on the grounds that defendant had not moved to withdraw his guilty plea and that he failed to make a substantial showing of a constitutional violation. Following a hearing, the trial court granted the State's motion to dismiss on the basis that defendant never filed a motion to withdraw his plea.
Defendant completed his sentence and was released from custody in March 2005.
On appeal, defendant contends that his constitutional rights were violated because he agreed to plead guilty in exchange for a 10-year sentence, but, as a result of the three-year period of MSR, he was given a more onerous sentence. Defendant does not challenge his 10-year sentence, nor does he seek to vacate or withdraw his guilty plea. Instead, defendant requests that the MSR be stricken from his sentence.
We review de novo the dismissal of a post-conviction petition at the second stage. People v. Whitfield,
The supreme court held that the defendant established a substantial violation of his constitutional rights because he pled guilty in exchange for a specific sentence and the addition of the MSR resulted in a sentence "more onerous than the one defendant agreed to at the time of the plea hearing." Whitfield, 217 Ill.2d at 195,
Like the defendant in Whitfield, defendant's constitutional right to due process was violated in this case because it is undisputed that defendant was not admonished that a mandatory three-year term of MSR would be added to his 10 years' imprisonment. Thus, defendant has received a more onerous sentence than that to which he ultimately pled guilty.
Having found that defendant has established a deprivation of his constitutional rights, we must determine the appropriate remedy. In Whitfield, the supreme court held that in cases where a defendant does not receive the "benefit of the bargain," there are two possible remedies: (1) the promise must be fulfilled; or (2) the defendant must be given an opportunity to withdraw his plea. Whitfield, 217 Ill.2d at 202,
In Whitfield, the defendant conceded and the supreme court recognized that because section 5-8-1(d)(1) of the Code requires that "every sentence shall include as though written therein a term in addition to the term of imprisonment," the promise which induced the defendant's plea was "unfulfillable under state law." Whitfield, 217 Ill.2d at 202-03,
Accordingly, defendant, relying on Whitfield, requests this court to strike the three-year MSR term from his sentence. Defendant argues that as he has completed his 10 year sentence, the only equitable
The State counters that defendant's claim is moot as he has already completed his prison sentence and, under Whitfield, this court has no authority to now strike his MSR sentence. The State notes that the defendant in Whitfield had yet to be discharged from prison and the remedy in that case was available to the supreme court. Again, the Whitfield court explicitly recognized that MSR terms are statutorily required and the court has no authority to withhold such a period in a sentence. Whitfield, 217 Ill.2d at 200-01,
Based on the holdings in Whitfield, the State argues that the decision in People v. Russell,
Based on Whitfield and Russell, this court cannot grant defendant the relief he requests. In the present case, defendant argues that because he completed his term of imprisonment, "a vacation of [his] plea is not warranted here" and he asserts that he is "unlikely to withdraw his plea." Thus, the only relief he requests is that we strike the MSR term from his sentence. Whitfield and Russell make clear that we do not have the authority to comply with defendant's request.
Whitfield also makes clear that the law is settled that the only remedies available in this type of situation are to fulfill the promise bargained or to give the defendant the opportunity to withdraw his plea. Defendant's sentence has been discharged, therefore we cannot grant an equitable solution as our supreme court did in Whitfield, as we only have authority to modify a sentence, not strike the MSR. At this date, there is no sentence remaining to modify as it has been discharged, only the MSR period remains. As argued, defendant's claim is moot.
Defendant has represented both in his post-conviction petition and again on appeal, that he does not want to take advantage of the only remedy available to him, withdrawal of his guilty plea. Under these circumstances, a remand would be futile, he is without any other appropriate or available post-conviction relief, and we affirm the dismissal of his post-conviction petition.
For all of the foregoing reasons, we affirm the judgment of the circuit court.
QUINN, P.J., and CAMPBELL, J., concur.
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