Opinion
No. 1-12-0158
11-13-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JORGE MENDEZ, 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
Cook County.
Nos. 04 CR 11793
05 CR 16524
06 CR 9268
07 CR 1890
Honorable
Neil J. Linehan,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Neville and Pucinski concurred in the judgment.
ORDER
¶ 1 Held: The circuit court complied with People v. Shellstrom, 216 Ill. 2d 45 (2005), by informing defendant that it intended to recharacterize his pro se pleading as a postconviction petition, by explaining that doing so could limit defendant in the filing of a successive postconviction petition, and by affording defendant an opportunity to amend or withdraw the pleading. Defendant was not denied his constitutional right of access to the courts when, although the court denied his request for a 30 to 60-day continuance, the court granted defendant a 6-day continuance and defendant timely filed a pro se postconviction petition. Defendant's postconviction petition was properly dismissed as frivolous and patently without merit because the allegations were rebutted by the record. ¶ 2 Defendant Jorge Mendez appeals from the summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). On appeal, Mendez contends that the circuit court failed to comply with People v. Shellstrom, 216 Ill. 2d 45 (2005), and denied him his constitutional right of access to the court system because he was not given a meaningful opportunity to amend his pleading. He further contends that his petition had an arguable basis in fact and law when the trial court failed (I) to advise him of the actual terms of his negotiated plea agreement,(ii) to place the admonishment regarding mandatory supervised release (MSR) in relevant context, or (iii) to link the MSR period to his sentence. We affirm.
¶ 3 Background
¶ 4 In April 2008, Mendez entered pleas of guilty in four cases under negotiated plea agreements and was sentenced to an aggregate of 18 years in prison. In case numbers 04 CR 11793 and 06 CR 9268, Mendez entered guilty pleas to possession of a controlled substance and was sentenced to prison terms of one and two years respectively. In case numbers 05 CR 16524 and 07 CR 1890, Mendez entered guilty pleas to possession of a controlled substance with intent to deliver and was sentenced to prison terms of 5 and 10 years respectively. All sentences were to be served consecutively. ¶ 5 During the plea hearing, the trial court explained the details of the plea agreements to Mendez. The court stated that in exchange for a plea of guilty to possession of a controlled substance in case number 04 CR 11793, Mendez would be sentenced to one year in prison and one year of MSR. This was to be followed by a 5-year term of imprisonment on case number 05 CR 16524, a 2-year term of imprisonment on case number 06 CR 9268, and a 10-year term of imprisonment in case number 07 CR 1890. The court then stated that Mendez was entering a guilty plea to possession of a controlled substance with intent to deliver in case number 05 CR 16524 and would be sentenced to five years in prison to be followed by two years of MSR. In case number 06 CR 9268 the court stated that Mendez would be entering a guilty plea to possession of a controlled substance and would be sentenced to two years in prison to be followed by one year of MSR. The court finally stated that in case number 07 CR 1890, Mendez was entering a plea of guilty to possession of a controlled substance with intent to deliver and would be sentenced to 10 years in prison to be followed by 2 years of MSR. When the trial court asked Mendez whether this was his understanding of the plea agreements, Mendez answered in the affirmative. ¶ 6 The court then asked Mendez if he wished to plead guilty to each of the charges and Mendez answered in the affirmative. The court explained the charges and the possible penalties associated with each including the terms of imprisonment and MSR. The court explained, inter alia, that in case number 07 CR 1890, Mendez was charged with a Class X felony and that the possible penalties included between 6 and 30 years in prison, fines of up $25,000, and 3 years of MSR. After hearing an explanation for each of the charges, Mendez indicated that he understood the possible penalties and still wished plead guilty. Ultimately, the trial court accepted Mendez's guilty pleas and sentenced him to a total of 18 years in prison. In sentencing Mendez, the trial court again listed the terms of imprisonment and MSR for each plea and the amount of presentence custody credit to which Mendez was entitled. ¶ 7 In August 2011, Mendez filed a pro se petition for a writ of mandamus, alleging that MSR was unconstitutional because a defendant is faced with the possibility of returning to prison after his release without due process of law. In his affidavit, Mendez averred that his petition did not concern the trial court's failure to admonish him regarding the MSR term he must serve; rather, it addressed the fact that the addition of a term of MSR to his sentence was unconstitutional. ¶ 8 At a hearing on October 31, 2011, the circuit court informed Mendez that it planned to recharacterize the mandamus petition as a petition for postconviction relief and that it wanted to afford Mendez the opportunity to either withdraw the pleading or amend it to contain all of his postconviction claims. When Mendez indicated that he did not understand, the court then explained that although Mendez did not ask for postconviction relief in the original pleading, the court planned to recharacterize the pleading as a postconviction petition, and, if the court did so, Mendez could be limited in the filing of a successive postconviction petition. Mendez requested, and received, a continuance to research the issue. ¶ 9 At the next hearing, Mendez indicated that he wished to withdraw the mandamus petition and file a postconviction petition. He also stated that he had only recently learned that his constitutional rights were violated. Mendez requested 30 to 60 days to file the petition and explained that he had just been moved and had not visited the prison law library. The court granted Mendez six days, that is, until November 10, 2011 to file the petition. ¶ 10 Mendez's pro se postconviction petition, filed on November 10, alleged that the trial court failed to properly admonish him regarding the term of MSR he must serve on his release from prison when the court only mentioned MSR as a possibility. In an affidavit, Mendez averred that although he was admonished as to the "possibilities" that he was facing, the trial court failed to readmonish him after the entry of the guilty pleas regarding the result of those pleas. The circuit court summarily dismissed the petition as frivolous and patently without merit. ¶ 11 Mendez then filed a pro se motion for reconsideration alleging that the court's order dismissing the petition focused on issues raised the in the mandamus petition rather than the postconviction petition. The motion also alleged that Mendez did not understand the terms of his plea agreement due to an accident he suffered before his arrest and that he was forced to plead guilty by his attorney. The circuit court denied the motion.
¶ 12 Analysis
¶ 13 On appeal, Mendez first contends that the circuit court failed to comply with the requirements of People v. Shellstrom, 216 Ill. 2d 45 (2005), and denied him meaningful access to the court system when it only afforded him six days to redraft his mandamus petition into a postconviction petition. In other words, Mendez contends that he was not given an adequate "opportunity" to amend or withdraw his petition. ¶ 14 Under People v. Shellstrom, 216 Ill. 2d 45, 57 (2005), before recharacterizing a pleading as a postconviction pleading, the trial court is required to tell the defendant of its intention, warn the defendant that recharacterization means that any subsequent postconviction petition will be subject to the restrictions on successive postconviction petitions, and give the defendant an opportunity to withdraw the pleading or to amend it so that the petition contains all the postconviction claims that the defendant believes he or she has. We review de novo the question of whether the trial court used the proper procedure when complying with the mandate in Shellstrom. People v. Corredor, 399 Ill. App. 3d 804, 806 (2010). ¶ 15 Here, the circuit court explained to Mendez that although he did not ask for postconviction relief in the original pleading, the court planned to recharacterize the pleading as a postconviction petition, and if the court did so, Mendez could be limited in the filing of a successive postconviction petition. The court also told Mendez that he had the opportunity to withdraw or amend his petition and then gave Mendez time to determine a course of action and draft a postconviction petition. The record reveals that the circuit court complied with the mandates of Shellstrom. See Shellstrom, 216 Ill. 2d at 57. ¶ 16 But, Mendez contends that he was not given an adequate opportunity to amend or withdraw his petition when the circuit court gave him just six days. Mendez argues that federal district courts "commonly afford" pro se defendants 30 days to amend pleadings that have been recharacterized as postconviction petitions and that 6 days was insufficient. ¶ 17 Initially, this court notes that Shellstrom does not define "opportunity" in terms of a specific amount of time; rather, it outlines the procedure the court must follow when recharacterizing a pleading, i.e., give the defendant the opportunity to reject the postconviction petition label by withdrawing his pleading or to accept it by amending the petition to include all of his potential postconviction claims. See Shellstrom, 216 Ill. 2d at 57 (court must "provide the litigant an opportunity to withdraw the pleading or to amend it so that it contains all the claims appropriate to a postconviction petition that the litigant believes he or she has"). ¶ 18 After the circuit court gave Mendez the Shellstrom admonishments, the court granted Mendez's request for a continuance to research the issue. At the next hearing, Mendez indicated that he wished to file a postconviction petition and requested 30 to 60 days to do so, but instead was granted six days to draft his petition. He filed the petition, an affidavit, and motion for the appointment of counsel by the deadline. Although Mendez may have wanted more time to draft his postconviction petition, the record does not indicate that he later requested additional time. This court rejects Mendez's apparent contention that the circuit court abused its discretion by granting him a six-day continuance in light of Mendez having complied with the court's deadline and not having requested a second continuance. See People v. Walker, 232 Ill. 2d 113, 125 (2009) (grant or denial of continuance is matter resting in sound discretion of trial court, and reviewing court will not interfere with decision absent clear abuse of discretion). ¶ 19 Similarly, we reject Mendez's contention that he was denied his constitutional right of meaningful access to the court system because he was afforded only six days to draft his postconviction petition. The constitutional right of access to the courts requires inmates be assisted in the preparation and filing of meaningful legal papers by providing them with adequate law libraries or assistance from persons trained in the law. Bounds v. Smith, 430 U.S. 817, 828 (1977); Romero v. O'Sullivan, 302 Ill. App. 3d 1031, 1037 (1999). A prisoner claiming a denial of his right of access to the courts must establish that he suffered an actual injury, defined as actual prejudice to existing or impending litigation. Lewis v. Casey, 518 U.S. 343, 349, 351-52 (1996). ¶ 20 Mendez has shown no actual injury when he filed his pro se postconviction petition by the circuit court's deadline, and did not request additional time or inform the court that he had trouble complying with the deadline. The injuries contemplated by the Supreme Court in Lewis were actual rather than theoretical, such as the dismissal of a defendant's complaint for failure to satisfy technical requirements or the failure of a defendant to even prepare a complaint for an actionable harm due to law library inadequacies. Lewis, 518 U.S. at 351. Mendez's speculative contention on appeal that his postconviction petition would have been better, that is, successful, if he was afforded more time, is not an injury. See Lewis, 518 U.S. at 355 (concluding that Bounds did not give defendants "the wherewithal to transform themselves into litigating engines" rather it requires that inmates be provided the tools needed to attack their sentences, directly or collaterally and challenge condition of their imprisonment). The fact that defendant's petition was unsuccessful does not, without more, prove that he was deprived of his constitutional guarantee of access to the courts. See Lewis, 518 U.S. at 351. ¶ 21 Mendez next contends that his pro se postconviction petition was improperly dismissed because the trial court's admonishments at his plea hearing failed to place MSR within an understandable context and misstated the term of MSR that accompanied a Class X felony. ¶ 22 Initially, this court rejects Mendez's claim that the trial court affirmatively misstated the term of MSR which accompanies a Class X felony. Although the trial court initially stated that Mendez was entering a plea of guilty of possession of a controlled substance with intent to deliver in case number 07 CR 1890 and would be sentenced to 10 years in prison to be followed by 2 years of MSR, the trial court later explained that in case number 07 CR 1890, Mendez was charged with a Class X felony and that the possible penalties included between 6 and 30 years in prison, fines of up $25,000, and 3 years of MSR. ¶ 23 Before addressing the merits of Mendez's contention on appeal, we address the State's argument that Mendez has waived this claim because he did not raise it in a motion to withdraw his plea or on direct appeal. But, the record indicates that Mendez did not file a motion to withdraw his plea or pursue a direct appeal, and, consequently, he may raise claims of constitutional deprivations in his postconviction petition. See People v. Brooks, 371 Ill. App. 3d 482, 485-86 (2007) (finding rule that defendant cannot raise issue in postconviction petition that could have been raised on direct appeal to be inapplicable to situations where defendant did not take direct appeal). Accordingly, the merits of Mendez's claim will be considered. ¶ 24 The Act provides a procedural mechanism through which a defendant may assert a substantial denial of his constitutional rights in the proceedings which resulted in his conviction. 725 ILCS 5/122-1 (West 2010). At the first stage of a postconviction proceeding, a defendant files a petition and the circuit court determines whether it is frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2010); People v. Coleman, 183 Ill. 2d 366, 379 (1998). "Unless positively rebutted by the record, all well-pled facts [in the petition] are taken as true" at this stage. People v. Montgomery, 327 Ill. App. 3d 180, 183-84 (2001). ¶ 25 A petition should be summarily dismissed as frivolous or patently without merit only when it has no arguable basis in either fact or law. People v. Hodges, 234 Ill. 2d 1, 11-12 (2009); see also People v. Tate, 2012 IL 112214, ¶ 9 ("the threshold for survival is low"). Our supreme court has held that a petition lacks an arguable basis in fact or law when it is based on "an indisputably meritless legal theory or a fanciful factual allegation." Hodges, 234 Ill. 2d at 16. Fanciful factual allegations are those which are "fantastic or delusional" and an example of an indisputably meritless legal theory is one that is completely contradicted by the record. Hodges, 234 Ill. 2d at 16-17. This court reviews the summary dismissal of a postconviction petition de novo. Coleman, 183 Ill. 2d at 388-89. ¶ 26 In People v. Whitfield, 217 Ill. 2d 177 (2005), the Illinois supreme court held that when a defendant pleads guilty in exchange for a specific sentence under a negotiated plea agreement and the trial court fails to admonish the defendant before accepting the plea that a MSR term would be added to the sentence, the sentence imposed is more onerous than the one agreed to by the defendant thereby breaching the plea agreement and violating due process. Whitfield, 217 Ill. 2d at 195. The court then determined that either the promise must be fulfilled or the defendant be permitted to withdraw the guilty plea. Whitfield, 217 Ill. 2d at 202. Thereafter, in People v. Morris, 236 Ill. 2d 345 (2010), the court clarified that "MSR admonishments need not be perfect" but strongly encouraged trial courts to "explicitly link MSR to the sentence to which defendant agreed in exchange for his guilty plea." Morris, 236 Ill. 2d at 367. Admonishments must "'in a practical and realistic sense'" inform a defendant of the actual consequences of the plea, i.e., if the defendant pleads guilty and is sentenced to term of imprisonment, he or she will have to serve a term of MSR on release from prison. Morris, 236 Ill. 2d at 366, quoting People v. Williams, 97 Ill. 2d 252, 269 (1983). ¶ 27 While Mendez acknowledges that the trial court mentioned MSR when discussing the guilty pleas and reciting the plea agreements, he asserts that the trial court did not place MSR within a "relevant context." Rather, according to defendant, MSR was discussed by the court in a "highly convoluted" manner in which four potential MSR terms in relation to the four guilty pleas were mentioned. Mendez contends that he was denied the benefit of his bargain with the State because the court failed to explicitly link the term of MSR he will be required to serve on his release from prison with his aggregate sentence. ¶ 28 But, in People v. Davis, 403 Ill. App. 3d 461 (2010), this court rejected a similar argument. There, this court determined that under Whitfield a constitutional violation occurs only when there is "absolutely no mention" to a defendant, before the entry of a guilty plea, that the defendant must serve a term of MSR in addition to the agreed on sentence received in exchange for the plea. Davis, 403 Ill. App. 3d at 466, but see People v. Burns, 405 Ill. App. 3d 40, 44-45 (2d Dist. 2010) (admonishments were insufficient when MSR term was not linked to actual sentences defendant would receive and did not convey unconditionally that MSR would be added to those sentences). ¶ 29 The case at bar is not an instance where there was no mention of MSR before the defendant actually entered a guilty plea. See Davis, 403 Ill. App. 3d at 466. Mendez was informed before the entry of his guilty pleas of the term of MSR that accompanied each of the charges to which he was pleading guilty. At sentencing, the trial court again highlighted the term of MSR that accompanied each guilty plea. While Mendez is correct that the trial court did not state an ultimate term of MSR which would accompany Mendez's aggregate sentence, he was put "on notice" that the punishment for the crimes he had admitted to committing encompassed more than completing a sentence in the penitentiary (Davis, 403 Ill. App. 3d at 466), and the trial court satisfied the requirements of due process by advising Mendez before imposing sentence that he would have to serve a term of MSR on his release from prison. ¶ 30 Although Mendez acknowledges that Davis held that Whitfield is violated only when there is absolutely no mention of MSR to a defendant before the entry of a guilty plea (see Davis, 403 Ill. App. 3d at 466), he urges this court to follow the reasoning of Burns, that admonishments are insufficient when the term of MSR that a defendant must serve is not linked to the defendant's actual sentence (see Burns, 405 Ill. App. 3d at 44-45), instead. This court's decision in People v. Hunter, 2011 IL App (1st) 093023, ¶ 18 considered, and rejected, a similar argument. Thus, we continue to adhere to the court's decision in Davis. ¶ 31 Accordingly, as the record reveals that Mendez was adequately admonished regarding the term of MSR he must serve on his release from prison, the circuit court did not err in finding that Mendez's claim challenging the trial court's admonishments was frivolous and patently without merit and dismissing Mendez's petition on that basis. See Hodges, 234 Ill. 2d at 11-12. ¶ 32 Despite our ruling that the admonishments here sufficed to put Mendez "on notice," we encourage judges to take time at sentencing, even if he or she previously spelled it out, to once more give the term of the MSR that will accompany each charge as well as the ultimate term of MSR that will accompany the defendant's aggregate sentence. This is so the record and mittimus are clear to the defendant, the court, and as is the case here the Illinois Department of Corrections. ¶ 33 The judgment of the circuit court of Cook County is affirmed. ¶ 34 Affirmed.