Opinion
No. 2-12-0468
08-19-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONNIE CARROLL, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Lake County.
No. 88-CF-392
Honorable
Victoria A. Rossetti,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Zenoff and Birkett concurred in the judgment.
ORDER
¶ 1 Held: (1) Trial court properly dismissed defendant's petition for relief from judgment as untimely; (2) timeliness notwithstanding, defendant's claim that the trial court failed to advise him that he would be subject to a term of mandatory supervised release (MSR) did not entitle defendant to a reduction in his term of imprisonment by the period of MSR; (3) term of MSR was not imposed by Department of Corrections, but attached by operation of law; and (4) defendant's claim that this cause must be remanded for compliance with Illinois Supreme Court Rule 604(d) (eff. October 1, 1983) was not properly before court of review and, in any event, was barred by doctrine of res judicata. ¶ 2 In May 1988, defendant, Ronnie Carroll, pled guilty in the circuit court of Lake County to two counts each of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18-2) and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A-1). On July 22, 1988, the trial court, after considering both aggravating and mitigating factors, sentenced defendant to an extended term of 55 years' imprisonment for armed robbery. Defendant's motion to vacate his plea of guilty and reconsider his sentence was denied. Thereafter, defendant appealed, arguing only that the court improperly considered a factor in aggravation when it imposed sentence. We affirmed the judgment of the trial court, finding that defendant waived consideration of this issue by not including it in his motion to vacate. People v. Carroll, 195 Ill. App. 3d 445 (1990). Since then, defendant has filed numerous collateral attacks on his conviction and sentence, including various motions, multiple postconviction petitions, and two petitions for relief from judgment. In the present appeal, defendant, appearing pro se, challenges the dismissal, on the State's motion, of his second petition for relief from judgment. See 735 ILCS 5/2-1401 (West 2010). We affirm. ¶ 3 The record submitted on appeal by defendant does not include a copy of the section 2-1401 petition at issue or the State's motion to dismiss. It does, however, contain the transcript of the hearing on the petition as well as the written order dismissing the petition. Those documents reveal the following. Defendant filed his second petition for relief from judgment on July 30, 2010. In the petition, defendant claimed that at the time he was sentenced in 1988, the court did not advise him that he was subject to a term of mandatory supervised release (MSR). He therefore requested the reduction of his period of imprisonment by the length of his MSR term. See People v. Whitfield, 217 Ill. 2d 177 (2005). The State moved to dismiss the petition. The trial court granted the State's motion. Initially, the court concluded that the petition was untimely. See 735 ILCS 5/2-1401(c) (West 2010). Timeliness notwithstanding, the court determined that Whitfield did not entitle defendant to the relief he requested because it does not apply to cases such as defendant's where the conviction was finalized prior to December 20, 2005. People v. Morris, 236 Ill. 2d 345, 366 (2010). Thereafter, we granted defendant's motion to file a late notice of appeal. We review de novo the dismissal of a section 2-1401 petition without an evidentiary hearing. People v. Vincent, 226 Ill. 2d 1, 14-16 (2007). ¶ 4 On appeal, defendant raises two issues. First, he reiterates his claim that, at the time of sentencing, he was not advised that he was subject to a term of MSR. As such, he claims that this court should reduce his prison term by the length of the MSR term. Second, defendant asserts that this cause must be remanded for compliance with Illinois Supreme Court Rule 604(d) (eff. October 1, 1983). We find neither claim persuasive. ¶ 5 A section 2-1401 petition must generally be filed not later than two years after the judgment appealed from. 735 ILCS 5/2-1401(c) (West 2010). The two-year limitations period applies in the absence of a clear showing that the petitioner is under a legal disability or duress or that the grounds for relief have been fraudulently concealed. People v. Caballero, 179 Ill. 2d 205, 211 (1997). The section 2-1401 petition at issue here was filed in July 2010, approximately 22 years after the trial court imposed sentence and entered its judgment. Moreover, defendant does not allege his untimeliness should be excused due to legal disability, duress, or fraudulent concealment of his grounds for relief. As a result, we agree with the trial court that defendant's petition was untimely. ¶ 6 Of course, where a defendant challenges a judgment as being void, he or she may seek relief beyond the two-year limitations period. 735 ILCS 5/2-1401(f) (West 2010); Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002); People v. Wuebbels, 396 Ill. App. 3d 763, 765 (2009). We cannot determine from a review of the petition itself whether defendant raised a voidness claim for, as noted previously, his section 2-1401 petition has not been included in the record on appeal. Further, although a review of the transcript of the hearing on the petition suggests that defendant filed the section 2-1401 petition "to attack a void judgment," he does not renew such a claim in his brief on appeal. ¶ 7 Moreover, we note that defendant, as the appellant, has the duty to provide this court with a sufficiently complete record of the proceedings at trial to support a claim of error. Foutch v. O'Bryant, 99 Ill. 2d 389, 391 (1984). As noted above, defendant has not provided this court with a copy of the section 2-1401 petition he filed in the trial court on July 30, 2012. In addition, defendant has not provided us with a transcript of the hearing at which he was sentenced or the written order imposing sentence. Under such circumstances, we cannot verify defendant's claim that he was never advised that he was subject to a term of MSR, and we must presume that the trial court acted in conformity with the law and adequately admonished defendant regarding the applicable term of MSR. See Foutch, 99 Ill. 2d at 392 ("Any doubts which may arise from the incompleteness of the record will be resolved against the appellant."); People v. Giampaolo, 385 Ill. App. 3d 999, 1004-05 (2008) (noting that in light of incomplete record, reviewing court would presume that the defendant was advised that he was subject to a term of MSR). ¶ 8 In its brief, however, the State all but concedes that the trial court did not inform defendant that he would be subject to a term of MSR at either the sentencing hearing in 1988 or in its written sentencing order. The State has appended to its brief a page from the transcript of the 1988 sentencing hearing and a copy of the mittimus. Similarly, defendant attached to his reply brief a copy of an amended mittimus. Normally, attachments to briefs that are not otherwise a part of the record are not properly before a reviewing court and cannot be used to supplement the record on appeal. People v. Stewart, 343 Ill. App. 3d 963, 975 (2003). However, as neither party disputes the authenticity of these documents, we will consider them. See Stewart, 343 Ill. App. 3d at 975 (noting that a reviewing court may consider an attachment if the parties stipulate that it is authentic); see also Giampaolo, 385 Ill. App. 3d at 1004-05 (considering pages of guilty-plea proceeding attached to the defendant's reply brief). The transcript attached to the State's brief provides in relevant part:
"While [defendant] committed [various offenses], in looking at the way they are charged, and I don't believe I can impose separate sentences on each of his offenses, I will unconditionally accept his pleas of guilty. I will enter judgment finding him guilty of armed robbery and armed violence as charged. But I will sentence him on the armed robbery charge. I believe the armed violence is really a robbery with the use of a weapon, and separate sentencing would be inappropriate. For that charge of armed robbery, he is sentenced to 55 years in the Illinois Department of Corrections."Thus, based on the portion of the record presented to us, the trial court did not reference that defendant would be subject to a term of MSR at the time it imposed sentence. We also note that while both the mittimus and the amended mittimus set forth the judgment and sentence imposed in this case, neither document mentions MSR. ¶ 9 Nevertheless, we find that defendant is not entitled to the relief he requests. In Whitfield, 217 Ill. 2d 177, the defendant entered into a negotiated plea of guilty in exchange for a specific sentence. At no time did the trial court advise the defendant that he would be subject to a three-year period of MSR following his term of imprisonment. Likewise, the written sentencing order made no reference to a term of MSR. Under these circumstances, the supreme court found that the defendant's constitutional right to due process and fundamental fairness was violated and there was an "unfair breach of the plea agreement" because the defendant "pled guilty in exchange for a specific sentence, but received a different, more onerous sentence than the one he agreed to." Whitfield, 217 Ill. 2d at 188-91, 195, 201-02. As a remedy, the supreme court reduced the defendant's term of imprisonment by the period of MSR. Whitfield, 217 Ill. 2d at 202-05. In People v. Morris, 236 Ill. 2d 345, 360-66 (2010), the supreme court held that the rule announced in Whitfield is a new rule of criminal procedure and does not apply retroactively to cases that were final before the pronouncement of that rule on December 20, 2005. ¶ 10 In the present case, defendant pleaded guilty in May 1988 and his sentence was entered on July 22, 1988. See People v. Carroll, 2012 IL App (2d) 100787, ¶ 4 (unpublished order under Supreme Court Rule 23). Defendant appealed, and this court affirmed the judgment and sentence on March 21, 1990. Carroll, 195 Ill. App. 3d 445. Defendant's petition for leave to appeal to the Illinois Supreme Court was denied on June 1, 1990. People v. Carroll, 132 Ill. 2d 548 (1990). No further appeals were taken. Therefore, for retroactivity purposes, defendant's conviction was finalized in 1990, long before the date set out in Morris for Whitfield's applicability. See People v. Kizer, 318 Ill. App. 3d 238, 246 (2000) (quoting Caspari v. Bohlen, 510 U.S. 383, 390 (1994)) (" '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.' "). Accordingly, defendant is not entitled to the application of Whitfield. See Morris, 236 Ill. 2d at 366. ¶ 11 We note further that, unlike the defendant in Whitfield, defendant in this case did not plead guilty in exchange for a specific sentence. Rather, he entered an open plea. With respect to open pleas, the Whitfield court stated:
"In situations where a defendant has entered an open plea and the trial court has admonished the defendant regarding the maximum sentence to which he would be exposed by his plea, the failure to admonish a defendant concerning the MSR is not a constitutional violation, as long as the sentence plus the term of MSR is less than the maximum sentence which defendant was told he could receive." Whitfield, 217 Ill. 2d at 193.As noted above, the record on appeal does not include a copy of the transcript of the hearing at which defendant was sentenced. Thus, we do not know the length of the maximum sentence defendant was told he would receive. As it was defendant's duty to provide this court with a sufficiently complete record of the proceedings at trial to support his claim of error, we will presume that the trial court acted in conformity with the law and advised defendant of the minimum and maximum sentences. Foutch, 99 Ill. 2d at 391-92; Giampaolo, 385 Ill. App. 3d at 1004-05. ¶ 12 The trial court sentenced defendant on his conviction of armed robbery to an extended term of imprisonment. Carroll, 375 Ill. App. 3d at 162. At the time defendant was sentenced, armed robbery was a class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 18-2), the extended term for which was not less than 30 years and not more than 60 years (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-2(a)(2)). In addition, a class X felony was subject to a mandatory three-year term of MSR. Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(d). The trial court imposed an extended term of 55 years' imprisonment, finding that the offense was accompanied by "exceptionally brutal and heinous behavior clearly indicative of wanton cruelty" (see Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2). Carroll, 375 Ill. App. 3d at 162. The limited record before us suggests that defendant was not advised that he was subject to a three-year term of MSR (see Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(d)). Even so, his 55-year sentence plus the 3-year MSR period is less than the 60-year maximum extended-term of imprisonment defendant could have received. Thus, even if Whitfield applied retroactively, defendant would not be entitled to the relief he requests because under Whitfield, no constitutional violation occurred. ¶ 13 Although defendant cites to Whitfield and cases interpreting Whitfield in his brief on appeal, he nevertheless insists that this appeal "is not a question of retroactively [sic] of Whitfield, as [his] case was not nogated [sic] plea." Rather, defendant claims that this appeal concerns "a simple question of law" involving whether "the [Illinois Department of Corrections is] allowed to make MSR a condition of this case if the judge never made MSR a condition of the sentence." We interpret defendant's argument in this regard to be that the Illinois Department of Corrections (Department) added the MSR term to his sentence, but did not have the authority to do so. This claim has no merit. At the time defendant was sentenced, section 5-8-1(d) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(d)) provided that "[e]xcept where a term of natural life is imposed, every sentence shall include as though written therein a term in addition to the term of imprisonment. *** For those sentenced on or after February 1, 1978, such term shall be identified as a mandatory supervised release term." This language has long been recognized to mean that MSR is a mandatory component of a defendant's sentence and attaches by operation of law. Whitfield, 217 Ill. 2d at 200-01 (noting that because a term of MSR is mandated by statute, courts have no authority to withhold the mandatory MSR term when imposing a sentence); People ex rel. Scott v. Israel, 66 Ill. 2d 190, 194 (1977) (interpreting mandatory parole, the predecessor to MSR); People v. Hunter, 2011 IL App (1st) 093023, ¶ 23; People v. Morgan, 128 Ill. App. 3d 298, 300 (1984); People v. Coultas, 75 Ill. App. 3d 137, 138 (1979). ¶ 14 In an attempt to sidestep the foregoing authority, defendant, without any analysis, directs us to People v. Munoz, 2011 IL App (3d) 100193, and United States ex rel. Carroll v. Hathaway, No. 10 C 3862, 2012 WL 171322 (N.D. Ill., Jan. 19, 2012). In Munoz, the trial court's written sentencing order reflected a two-year MSR term, but the Department's inmate records listed the defendant's MSR term as "3 Yrs to Life-To Be Determined." In fact, the offense of which the defendant was convicted required an MSR term ranging from three years to natural life. See 750 ILCS 5/5-8-1(d)(4) (West 2006). As phrased by the Munoz court, the issue presented was whether the Department had authority to impose an indeterminate term of MSR of three years to life when the trial court sentenced the defendant to two years MSR. The Munoz court answered the question in the negative, holding that the power to impose an MSR term is "exclusively" the function of the trial court and the trial court must do so within the statutory guidelines. Munoz, 2011 IL App (3d) 100193, ¶¶ 10-12. As a remedy, the Munoz defendant asked the reviewing court to direct the Department to comply with the trial court's sentencing order and reinstate a two-year term of MSR. The court concluded, however, that to do so would impose a term of MSR that is void for lack of statutory authority. Munoz, 2011 IL App (3d) 100193, ¶ 14. As such, the court vacated the term of MSR imposed by the Department and remanded the matter to the trial court with directions that it impose MSR as provided under the Code, i.e., a range from a minimum of three years to a maximum of the natural life of the defendant. Munoz, 2011 IL App (3d) 100193, ¶ 14. ¶ 15 In Carroll, No. 10 C 3862, 2012 WL 171322 (N.D. Ill., Jan. 19, 2012), the defendant challenged his three-year MSR term, arguing that the Department unconstitutionally added the term to his sentence where the trial court did not impose the term during resentencing. In evaluating the defendant's claim, the Carroll court, relying on Early v. Murray, 451 F. 3d 71 (2d Cir. 2006), wherein the court "consider[ed] an almost identical question under New York law," held that the Department could not constitutionally impose an MSR term required by state law but not imposed by the sentencing judge. Carroll, No. 10 C 3862, slip op. at _, 2012 WL 171322, at *10. As a remedy, the Carroll court excised the term of MSR from the defendant's sentence. Carroll, No. 10 C 3862, slip op. at _, 2012 WL 171322, at *10. It noted, however, that its ruling "is not intended to preclude any motion in state court to lawfully modify [the defendant's] sentence to include an MSR term." Carroll, No. 10 C 3862, slip op. at _, 2012 WL 171322, at *10. ¶ 16 The present case is distinguishable from Munoz because the MSR term imposed by the trial court in Munoz was unauthorized by statute. See People v. Thompson, 209 Ill. 2d 19, 24-25 (2009) (noting that sentence which does not conform to statutory requirement is void). With respect to Carroll, we point out that decisions of lower federal courts are not binding on Illinois courts. Wilson v. County of Cook, 2012 IL 112026, ¶ 30. Moreover, prior to Carroll, the same district court reached a contrary decision. See Nance v. Lane, 663 F. Supp 33, 35 (1987) (holding that a term of MSR attached to a period of imprisonment by operation of law even though the sentencing order did not provide for MSR). In any event, neither Munoz nor Carroll authorizes the relief defendant requests. As noted, the Munoz court remanded the matter to the trial court with directions to impose the statutorily-required term of MSR. Munoz, 2011 IL App (3d) 100193, ¶ 14. Similarly, the Carroll court noted that its ruling was not intended to bar the state from seeking a modification of the defendant's sentence to include MSR. Carroll, No. 10 C 3862, slip op. at _, 2012 WL 171322, at *10. Thus, these decisions do not endorse a remedy that would involve the reduction of a term of imprisonment by the period of MSR. ¶ 17 Defendant's second contention on appeal is that this cause must be remanded for compliance with Illinois Supreme Court Rule 604(d) (eff. Oct. 1, 1983). The record suggests that this theory was not presented in defendant's section 2-1401 petition. Notably, this theory was not argued before the trial court, and it was not addressed in the trial court's order dismissing defendant's petition. Moreover, we cannot verify whether such a claim was raised below as a copy of the petition has not been included in the record on appeal. As such, this issue is not properly before us. See People ex rel. Johnson v. Payne, 127 Ill. App. 3d 398, 403 (1984) (declining to address on appeal allegation in petition for relief from judgment that was not raised in the trial court). In any event, as we noted in an earlier appeal, this issue could have been raised in defendant's direct appeal, but was not. As a result, it is barred by the doctrine of res judicata. Carroll, 375 Ill. App. 3d at 163.
Defendant also cites to People v. Bumpers, 379 Ill. App. 3d 611 (2008), for the proposition that a violation of the rule set forth in Whitfield requires the reduction of an offender's prison term by the MSR term. However, like Whitfield, Bumpers involved a guilty plea in exchange for a specific sentence. See Bumpers, 379 Ill. App. 3d at 613 ("[D]efendant pled guilty to first-degree murder in exchange for a sentence of 45 years."). This distinction notwithstanding, we also point out that, pursuant to its supervisory authority, the supreme court vacated Bumpers on appeal. People v. Bumpers, 229 Ill. 2d 632 (2008).
¶ 18 III. CONCLUSION
¶ 19 For the reasons set forth above, we affirm the judgment of the circuit court of Lake County. ¶ 20 Affirmed.