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Docket No. 98136-Agenda 11-January 2005.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
RONALD WHITFIELD, Appellant.

Defendant, Ronald Whitfield, appeals the dismissal of hispostconviction petition. He contends that his constitutional rightswere substantially violated because he entered a plea of guilty inexchange for a specific sentence, but, with the addition of a statutorilyrequired term of mandatory supervised release (MSR), about whichthe trial court never admonished him, he was given a more oneroussentence and, as a result, denied the benefit of his negotiated pleabargain. As a remedy, he asks that his sentence of imprisonment bedecreased by the length of the statutorily required MSR term.

For reasons that follow, we now hold that, under thecircumstances of this case, defendant has established that hisconstitutional rights were substantially violated. We remand forfurther proceedings consistent with this opinion.

BACKGROUND

On September 16, 1998, in the circuit court of Cook County,defendant Ronald Whitfield entered a plea of guilty to charges of firstdegree murder (No. 95-CR-3219) and armed robbery (No.95-CR-21921) pursuant to a negotiated plea agreement. At thehearing, the prosecutor set forth the terms of the agreement, statingthat defendant "will receive 25 years IDOC" for his plea of guilty tofelony murder and a concurrent sentence of "six years IDOC" for hisplea of guilty to armed robbery. After hearing a factual basis, thecircuit court accepted defendant's plea, ratified the agreement, and inaccordance with its terms, sentenced defendant to concurrent termsof imprisonment, 25 years and 6 years, respectively.⁽¹⁾ At no timeduring the plea hearing did the prosecutor or the court advisedefendant that, pursuant to section 5-8-1(d)(1) of the Unified Codeof Corrections (the Code) (730 ILCS 5/5-8-1(d)(1) (West 1998)), hewould be subject to a three-year period of mandatory supervisedrelease (MSR) following his 25-year sentence for murder.⁽²⁾

Defendant did not file a postjudgment motion to withdraw hisplea and never directly appealed his conviction or sentence. However,sometime while defendant was in prison, he learned that a three-yearMSR term had been added to his 25-year sentence by operation oflaw. He then filed a pro se motion, on June 8, 2001, entitled "Motionfor Relief From Judgment." In this motion, defendant contended thathis fourteenth amendment due process rights were violated because anMSR term, about which he was never advised, had been added to hisnegotiated sentence and resulted in a "more onerous" sentence thanthe one he had agreed to when he pled guilty. Defendant did not askto have his plea withdrawn. Instead, he sought to hold the State to theterms of the plea agreement. Defendant argued that the appropriaterelief would be to eliminate the MSR term or reduce his 25-yearprison term by the length of the MSR term.

On October 1, 2001, the circuit court appointed the publicdefender to represent defendant on his due process claim. On October16, 2001, the State moved to dismiss defendant's section 2-1401motion for relief from judgment, arguing that it was not timely filed.The State acknowledged that defendant's motion could be treated asa postconviction petition, but argued that the circuit court was notobligated to do so. Furthermore, the State argued that, even if thecourt treated defendant's motion as a postconviction petition, thepetition should be denied because defendant did not make a substantialshowing that his constitutional rights had been violated.

Responding to the State's motion, defendant, represented bycounsel, asked the court to treat his motion for relief from judgmentas a postconviction petition. Defendant also supplemented his petitionwith references to case law. He cited Santobello v. New York, 404U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), in support of hisclaim that he was denied the "benefit of the bargain that he made inpleading guilty." Defendant also cited People v. Moore, 214 Ill. App.3d 938 (1991), and United States ex rel. Baker v. Finkbeiner, 551F.2d 180, 184 (7th Cir. 1977), for the proposition that the court'sfailure to admonish him regarding the MSR term constituted a dueprocess violation which required the court to strike the MSR term.

After a brief hearing on December 20, 2001, the circuit courtgranted the State's motion to dismiss defendant's petition. The circuitcourt did not indicate whether or not it found that defendant hadestablished a due process violation, but simply refused to grantdefendant the relief he requested. Defendant appealed.

The appellate court, in an unpublished order (No. 1-02-0314(unpublished order under Supreme Court Rule 23)), upheld thedismissal of defendant's petition. The appellate court held that thecircuit court had informed defendant he would receive a specificsentence (25 years), but that defendant was, in fact, sentenced to aterm greater than the agreed term, taking into consideration the periodof MSR, about which defendant had not been admonished.Nevertheless, the appellate court concluded that defendant's dueprocess claim failed because he had not made a "good-faith argument"that he would not have pled guilty had he known about the MSR term.Without any discussion or analysis, the court held that decisions citedby defendant which held to the contrary, People v. Moore, 214 Ill.App. 3d 938 (1991), and United States ex rel. Miller v. McGinnis,774 F.2d 819 (7th Cir. 1985), were "factually distinguishable."

Defendant petitioned this court for leave to appeal, which weallowed. 177 Ill. 2d R. 315. Here defendant maintains, as he didbelow, that Illinois Supreme Court Rule 402(a) and the due processclauses of the Illinois and United States Constitutions required thecircuit court to admonish him, before accepting his negotiated plea forthe offense of murder, that a three-year MSR term would be added tohis sentence. Defendant further maintains that, because the circuitcourt failed to admonish him, adding the MSR term to his sentenceviolates due process, fundamental fairness, and principles of contractlaw. He asks this court to afford him the benefit of his plea bargain bymodifying his sentence to a term of 25 years, inclusive of the three-year MSR term.

ANALYSIS

The appeal in the case at bar arises from the dismissal ofdefendant's second-stage postconviction petition. The standard bywhich second-stage dismissals of postconviction petitions arereviewed is de novo. People v. Munson, 206 Ill. 2d 104, 115 (2002).We begin our review by recalling the familiar principles concerningpostconviction proceedings.

The Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq.(West 2002)) provides an avenue by which a defendant may challengehis conviction or sentence for violations of federal or stateconstitutional rights. People v. Jones, 211 Ill. 2d 140, 143-44 (2004);People v. Rissley, 206 Ill. 2d 403, 411-12 (2003); People v. Brisbon,164 Ill. 2d 236, 242 (1995). To be entitled to postconviction relief, adefendant must demonstrate that he has suffered a substantialdeprivation of his federal or state constitutional rights in theproceedings that produced the conviction or sentence beingchallenged. People v. McNeal, 194 Ill. 2d 135, 140 (2000). The scopeof the postconviction proceeding is limited to constitutional mattersthat have not been, and could not have been, previously adjudicated.Accordingly, any issues which could have been raised on directappeal, but were not, are procedurally defaulted and any issues whichhave previously been decided by a reviewing court are barred by thedoctrine of res judicata. Rissley, 206 Ill. 2d at 412.

The State asks us to affirm the appellate court's dismissal ofdefendant's petition, arguing that defendant has not demonstrated thathis constitutional rights were substantially violated at the plea hearingwhich produced his conviction and sentence.

Nature of Defendant's Claim

We believe it appropriate, at the outset, to identify the exactnature of defendant's claim. When seeking relief from a guilty plea,either directly or collaterally, there are two separate, though closelyrelated, constitutional challenges that may be made: (1) that the pleaof guilty was not made voluntarily and with full knowledge of theconsequences, and (2) that defendant did not receive the benefit of thebargain he made with the State when he pled guilty. In the case at bar,the State argues that defendant's appeal is an "improperamalgamation" of these two constitutional claims and that this courtshould clarify that "a claim that a petitioner did not get the benefit ofthe People's bargain is fundamentally different from a claim that he didnot understand the People's offer and that, as a result, his plea was notknowing and voluntary." Defendant, on the other hand, agrees that thetwo types of constitutional claims are analytically different, but deniesthat he has confused them in his petition. Defendant contends that heis raising a "benefit of the bargain" claim, i.e., that his constitutionalright to due process and fundamental fairness was violated because theState breached the plea agreement which induced his plea. In his replybrief, defendant disavows and waives any challenge to thevoluntariness of his plea.

In light of the arguments raised, we examine the two types ofconstitutional claims. The first constitutional claim derives fromBoykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709(1969). In Boykin, the defendant entered pleas of guilty to five countsof robbery and was subsequently sentenced to death. The record ofdefendant's plea hearing, however, showed that the trial court askeddefendant no questions concerning his plea and that defendant did notaddress the court. On review, the Supreme Court held that, for aguilty plea to be valid under the due process clause, the record mustaffirmatively show that the plea was entered intelligently and with fullknowledge of its consequences. Because, in that case, it could not bedetermined from the record of defendant's plea hearing that his pleahad been entered voluntarily or that he was aware of the consequencesof his plea, the Court reversed defendant's convictions and sentence.

The "benefit of the bargain" claim finds its roots in Santobello v.New York, 404 U.S. 257, 262, 30 L. Ed. 2d 427, 433, 92 S. Ct. 495,499 (1971). In Santobello, the defendant agreed to plead guilty inexchange for various concessions by the government, including apromise by the prosecutor that no sentencing recommendation wouldbe made by the government. Defendant pled guilty and, after a lengthyhiatus, was sentenced by the court. At defendant's sentencing hearing,the government, represented by a different prosecutor, recommendeda sentence to the court over defendant's objection. The court adoptedthe recommended sentence. On appeal, the government conceded thatthe promise to refrain from making a sentencing recommendation hadbeen made during plea negotiations. Accordingly, the United StatesSupreme Court reversed and remanded for further proceedings,holding:

"This phase of the process of criminal justice, and theadjudicative element inherent in accepting a plea of guilty,must be attended by safeguards to insure the defendant whatis reasonably due in the circumstances. Those circumstanceswill vary, but a constant factor is that when a plea rests inany significant degree on a promise or agreement of theprosecutor, so that it can be said to be part of theinducement or consideration, such promise must befulfilled." (Emphasis added.) 404 U.S. at 262, 30 L. Ed. 2dat 433, 92 S. Ct. at 499.

The cause was remanded to state court to determine whetherspecific enforcement of the plea agreement was the appropriateremedy or whether fundamental fairness required that defendant begiven the opportunity to withdraw his plea.

Boykin and Santobello deal with two different aspects of aplea-its acceptance and its implementation. As these decisions makeclear, principles of due process apply to both aspects-to the procedureof accepting the plea, as well as to the process of implementing thebargain itself. Mabry v. Johnson, 467 U.S. 504, 509, 81 L. Ed. 2d437, 443-44, 104 S. Ct. 2543, 2547 (1984) (both the validity of a pleaand its enforcement are governed by due process); see also People v.Walker, 54 Cal. 3d 1013, 1024, 819 P.2d 861, 867, 1 Cal. Rptr. 2d902, 908-09 (1991). There are instances, however, when these twoaspects of a plea will be interconnected. As noted by Justice Douglasin his specially concurring opinion, a "prosecutor's promise maydeprive a guilty plea of the 'character of a voluntary act.' "Santobello, 404 U.S. at 266, 30 L. Ed. 2d at 435, 92 S. Ct. at 501(Douglas, J., concurring), quoting Machibroda v. United States, 368U.S. 487, 493, 7 L. Ed. 2d 473, 478, 82 S. Ct. 510, 513 (1962). Thus,when a "benefit of the bargain" claim is made, a court may need toconsider the extent to which the plea was validly entered in order todecide "whether due process requires (a) that there be specificperformance of the plea bargain or (b) that the defendant be given theoption to go to trial on the original charges. One alternative may dojustice in one case, and the other in a different case." Santobello, 404U.S. at 267, 30 L. Ed. 2d at 436, 92 S. Ct. at 501 (Douglas, J.,concurring).

In the case at bar, defendant raises a "benefit of the bargain"claim. We note that he does not assert that the prosecutor or the courtaffirmatively promised him that he would not have to serve a periodof MSR. Instead, defendant's premise is that principles of due process,embodied in Illinois Supreme Court Rule 402, made it incumbentupon the circuit court to admonish him, on the record, regarding thestatutorily required MSR. Further, because no admonishment wasgiven, his plea agreement, as evinced by the record, was that he wouldreceive a maximum sentence of 25 years' imprisonment. Based on thispremise, defendant then argues that the State, by adding the MSRterm, has breached the plea agreement, in violation of due process,and that he is prejudiced because he received a more oneroussentence-25 years plus 3 years MSR.

Defendant does not challenge the validity of the plea and,accordingly, does not seek the withdrawal of his plea of guilty.Instead, defendant contends that his plea of guilty, given in exchangefor the promise of a 25-year sentence, was voluntarily and knowinglymade. He requests specific enforcement of the negotiated pleaagreement as he understood it. He now concedes, however, that aterm of supervised release is statutorily mandated and, therefore,cannot be legally struck from his sentence. For this reason, he asksthat his sentence be modified to 22 years' imprisonment plus 3 yearsof mandatory supervised release to "approximate" the bargain thatwas struck between the parties.

Waiver

Initially, the State argues that the dismissal of defendant's petitionshould be affirmed based on principles of waiver. Noting the well-established rule that "issues that could have been raised on directappeal, but were not, are not amenable to post-conviction review"(see People v. Collins, 153 Ill. 2d 130, 135 (1992)), the Statecontends that defendant should be denied collateral review of his claimbecause he "was aware from the date of his guilty plea that the judgehad not included an admonition regarding the period of MSR" andnever sought to withdraw his guilty plea or directly appeal hisconviction.

The State's "waiver" argument is, to be more precise, a claim ofprocedural default. "[W]aiver implies a knowing relinquishment of aright, whereas procedural default refers to the failure to adequatelypreserve an issue for later appellate review." People v. Blair, 215Ill.2d 427, 457 n.3(2005) (Freeman, J., dissenting, joined by McMorrow,C.J., and Kilbride, J.). See also People v. Jung, 192 Ill. 2d 1, 11(2000) (Freeman, J., specially concurring, joined by Miller andMcMorrow, JJ.); People v. Terrell, 185 Ill. 2d 467, 522 (1998)(Freeman, C.J., specially concurring, joined by McMorrow, J.) Here,the State is arguing that defendant did not preserve his improper-admonishment claim for appellate review because he did not raise theissue in a motion to withdraw his guilty plea or in a direct appeal. TheState's claim, thus, is one of procedural default.

We find, however, that there was no procedural default under thefacts of this case. Pursuant to Illinois Supreme Court Rule 402, everydefendant who enters a plea of guilty has a due process right to beproperly and fully admonished.⁽³⁾ Moreover, in People v. Wills, 61 Ill.2d 105, 109 (1975), this court held that "compliance with Rule402(a)(2) requires that a defendant be admonished that the mandatoryperiod of parole [now called mandatory supervised release] pertainingto the offense is a part of the sentence that will be imposed." See alsoPeople v. McCoy, 74 Ill. 2d 398 (1979). It is undisputed that thecircuit court failed to admonish defendant in accord with the rule.Under the circumstances, it would be incongruous to hold thatdefendant forfeited the right to bring a postconviction claim becausehe did not object to the circuit court's failure to admonish him. To sohold would place the onus on defendant to ensure his ownadmonishment in accord with due process. Moreover, defendantalleges that it was not until he was in prison that he learned that hissentence had been increased by a three-year period of MSR.Therefore, he could not have raised the error in a motion to withdrawhis plea or a direct appeal. Accordingly, we address the merits ofdefendant's claim.

Due Process and Benefit of the Bargain

In the case at bar, defendant contends that his constitutional rightto due process and fundamental fairness was violated because he pledguilty in exchange for a specific sentence, but received a different,more onerous sentence than the one he agreed to. We agree.

As discussed earlier, the Court held in Santobello that, "when aplea rests in any significant degree on a promise or agreement of theprosecutor, so that it can be said to be part of the inducement orconsideration, such a promise must be fulfilled." Santobello, 404 U.S.at 262, 30 L. Ed. 2d at 433, 92 S. Ct. at 499. By this holding, theCourt recognized that plea agreements may be enforceable onconstitutional grounds. In other words, if a defendant shows that hisplea of guilty was entered in reliance on a plea agreement, he mayhave a due process right to enforce the terms of the agreement. SeeMabry v. Johnson, 467 U.S. 504, 509, 81 L. Ed. 2d 437, 443-44, 104S. Ct. 2543, 2547 (1984); People v. Navarroli, 121 Ill. 2d 516, 522(1988) ("defendant who enters a guilty plea in reliance upon thepromise of the prosecutor is entitled to a remedy when the prosecutorbreaches that promise"). This is because a plea bargain, onceembodied in the judgment of a court, deprives a defendant of libertyand other constitutionally protected interests. Mabry v. Johnson, 467U.S. at 507-08, 81 L. Ed. 2d at 442, 104 S. Ct. at 2546.

This court recognized the constitutional underpinnings of pleaagreements in People v. Evans, 174 Ill. 2d 320, 326-27 (1996), whenwe held:

"Courts must keep in mind that the defendant's 'underlying"contract" right is constitutionally based and thereforereflects concerns that differ fundamentally from and runwider than those of commercial contract law.' [Citation.] Asa result, the application of contract law principles to pleaagreements may require tempering in some instances."

In Evans, we consolidated the appeals of two defendants whohad entered negotiated pleas of guilty in exchange for specificsentences and, subsequently, brought motions to reduce theirsentences. Applying the principles first espoused in Santobello, weheld in Evans that when a defendant enters a negotiated plea of guiltyin exchange for specified benefits, such as the dismissal of certaincounts or the promise of a certain sentence or sentencingrecommendation, both the State and the defendant must be bound bythe terms of the agreement. Evans, 174 Ill. 2d at 327. Although, inEvans, we were concerned with the constitutionality of holdingdefendants to the terms of their negotiated plea agreements, wequoted with favor United States v. Harvey, 791 F.2d 294, 300 (4thCir. 1986), for the proposition that "[n]either side should be able, anymore than would private contracting parties, unilaterally to renege orseek modification simply because of uninduced mistake or change ofmind." We concluded that, "[i]n effect, the defendants are seeking tohold the State to its part of the bargain while unilaterally modifyingthe sentences to which they had earlier agreed" and that it would be"inconsistent with constitutional concerns of fundamental fairness" toallow defendants to attempt to unilaterally reduce their sentences.Evans, 174 Ill. 2d at 328.

In the case at bar, defendant pled guilty pursuant to a negotiatedplea agreement. The terms of the plea agreement, as set forth by theprosecutor at the plea hearing, included a specific sentence of 25years. The trial court ratified this agreement and failed to admonishdefendant, as required by Supreme Court Rule 402, that a mandatorysupervised release term would be added to the sentence defendant hadagreed to. Under these circumstances, we conclude that adding thestatutorily required three-year MSR term to defendant's negotiated25-year sentence amounts to a unilateral modification and breach ofthe plea agreement by the State, inconsistent with constitutionalconcerns of fundamental fairness. We believe this conclusion is inconformity with earlier decisions of this court and with decisionsreached by other jurisdictions.

In People v. McCoy, 74 Ill. 2d 398 (1979), the defendant filed apostconviction petition alleging that the court's "failure to admonishhim at the time of his plea of guilty that the mandatory parole termwas a part of the sentence was per se a constitutional violationentitling him to post-conviction relief." McCoy, 74 Ill. 2d at 401. Werejected this claim, holding that "the quid pro quo for the plea ofguilty was the [prosecutor's] recommendation that there beconcurrent sentences of 1 to 3 years [and] defendant knew that thecourt was not bound to accept the recommendation and couldsentence defendant to a term of not less than 1 nor more than 20years." (Emphasis added.) McCoy, 74 Ill. 2d at 403. We concludedthat, although it was error for the court to have omitted theadmonishment, the error was not of constitutional dimension becausedefendant was not prejudiced-the "indeterminate sentence imposed,together with the mandatory parole period, [was] substantially lessthan the maximum of 20 years to which defendant knew he could besentenced." Under the facts of that case, then, there were no groundsfor granting the defendant relief on his postconviction petition.Defendant received a sentence that was less than the maximumsentence he was told he could receive and, as a result, the omittedadmonition did not affect the voluntariness of the plea. McCoy, 74 Ill.2d at 403. Moreover, because the State promised only to recommenda sentence, defendant received the benefit of the bargain he made withthe State.

Significantly, in McCoy, we considered decisions issued by theUnited States Court of Appeals for the Seventh Circuit, United Statesex rel. Baker v. Finkbeiner, 551 F.2d 180 (7th Cir. 1977), and UnitedStates ex rel. Ferris v. Finkbeiner, 551 F.2d 185 (7th Cir. 1977), butfound them to be "factually distinguishable." McCoy, 74 Ill. 2d at 403-04. In Baker and Ferris, the defendants, like the defendant in the caseat bar, entered pleas of guilty in exchange for the promise of a specificsentence and were not informed by the court, prior to the court'sacceptance of their plea, that a statutorily required mandatory periodof parole would be attached to the prison sentence.⁽⁴⁾ Having beendenied relief in state court, the defendants sought writs of habeascorpus.

The Baker court ruled that the defendant's due process rights hadbeen violated, holding:

"The correct test to be used in determining whether thecircumstances surrounding Baker's negotiated guilty pleaviolated the Due Process Clause is that the plea mustwithstand collateral attack unless the sentence actuallyimposed upon Baker significantly differed from the sentencewhich the prosecutor and the trial court promised him."Baker, 551 F.2d at 183.

Citing Santobello v. New York, 404 U.S. 257, 161-63, 30 L. Ed.2d 427, 432-33, 92 S. Ct. 495, 498-99 (1971), the Baker court heldthat the addition of the mandatory parole term made defendant'ssentence "more onerous" than what he had been promised and, as aresult, he did not receive the benefit of the bargain he had made withthe State. The Baker court concluded that, because the defendant hadentered his plea in exchange for a specific sentence, the failure of theprosecutor and the trial court to advise Baker of the mandatory paroleterm "created a defect of constitutional dimension in his guilty plea"in that the guilty plea was "unfairly induced in violation of the DueProcess Clause." Baker, 551 F.2d at 181, 184.

In Ferris, the court relied on its decision in Baker and concludedthat Ferris, too, had been "substantially prejudiced by the additionalparole term, and that due process notions of fundamental fairnessrequired that he receive the benefit of the bargain he had struck."

Distinguishing Baker and Ferris from the situation in McCoy, weheld that Baker and Ferris differed in that the defendants' negotiatedplea agreements in those cases had been, not just for a sentencingrecommendation, but for the promise of a particular prison sentence.Thus, in McCoy, we suggested that the result might have beendifferent had McCoy's negotiated plea been for the promise of aspecific sentence.

Since McCoy, our appellate court has had several opportunitiesto consider, both in the context of direct appeals and postconvictionproceedings, whether a defendant's due process rights are violated bya trial court's failure to admonish the defendant that a mandatorysupervised release term will be added to the term of incarceration.Generally, our appellate court has drawn a distinction, as suggestedin McCoy, between "open" guilty pleas and negotiated pleas for aspecific sentence.⁽⁵⁾ In situations where a defendant has entered an openplea and the trial court has admonished the defendant regarding themaximum sentence to which he would be exposed by his plea, thefailure to admonish a defendant concerning the MSR is not aconstitutional violation, as long as the sentence plus the term of MSRis less than the maximum sentence which defendant was told he couldreceive. See People v. Fish, 316 Ill. App. 3d 795 (2000) (in astipulated bench trial, defendant was advised that the maximumpenalty was 14 years, but he was sentenced to 14 years plus two yearsMSR and fines; thus stipulation was not a knowing and intelligent actdone with sufficient awareness of the consequences); People v.Brown, 296 Ill. App. 3d 1041 (1998) (although defendant entered anopen plea, he was admonished as to a maximum sentence, but wassentenced to the maximum plus an MSR term; thus failure toadmonish regarding MSR was not harmless error); People v. Coultas,75 Ill. App. 3d 137 (1979) (no constitutional error occurred becausesentence of three years plus mandatory supervised release was lessthan the maximum five-year sentence defendant was advised could beimposed).

On the other hand, if the defendant negotiated a plea agreementfor a specified sentence, the court's failure to advise the defendant, onthe record, concerning the MSR term has been held to be reversibleerror and a violation of due process. As explained in People v. Didley,213 Ill. App. 3d 910, 915 (1991):

"When a defendant has pled guilty in contemplation ofreceiving a specific sentence, imposing additional andunbargained-for terms or conditions is not permissible."

See also People v. Smith, 285 Ill. App. 3d 666 (1996) (wheredefendant agreed to plead guilty in exchange for an 11-year sentence,the failure to advise defendant that a 3-year MSR term would beadded to his sentence made his plea unknowing); People v. Moore,214 Ill. App. 3d 938, 944 (1991) (because defendant negotiated for apredetermined sentence, the failure to admonish him regarding theMSR was error); People v. O'Toole, 174 Ill. App. 3d 800, 801 (1988)(defendant entitled to postconviction relief because due process wasviolated when the court advised defendant that he would be sentencedto "a flat ten years" and did not tell him that a term of mandatorysupervised release would be added); People v. Kull, 171 Ill. App. 3d496 (1988) (plain error occurred because defendant pled guilty inexchange for an agreed 22-year sentence, but was given 22 years plus3 years' mandatory supervised release).

Having reviewed the above cases, we conclude that, althoughsubstantial compliance with Rule 402 is sufficient to establish dueprocess (People v. Fuller, 205 Ill. 2d 308, 323 (2002); People v. Burt,168 Ill. 2d 49, 64 (1995)), and an imperfect admonishment is notreversible error unless real justice has been denied or the defendanthas been prejudiced by the inadequate admonishment (People v.Davis, 145 Ill. 2d 240, 250 (1991)), there is no substantial compliancewith Rule 402 and due process is violated when a defendant pleadsguilty in exchange for a specific sentence and the trial court fails toadvise the defendant, prior to accepting his plea, that a mandatorysupervised release term will be added to that sentence. In thesecircumstances, addition of the MSR term to the agreed-upon sentenceviolates due process because the sentence imposed is more onerousthan the one defendant agreed to at the time of the plea hearing.Under these circumstances, the addition of the MSR constitutes anunfair breach of the plea agreement.

In reaching this conclusion, we reject the appellate court'sholding that a due process violation was not established in the case atbar because defendant "never raised a good-faith argument" that hewould not have pled guilty had he been made aware of the MSR term.The appellate court relied on People v. Smith, 285 Ill. App. 3d 666(1996), wherein the court held that a due process violation is shownonly if (1) the record discloses the court informed the petitioner hewould receive a specific sentence of incarceration upon a guilty plea;(2) the trial court sentenced petitioner to a term greater than theagreed term, taking into account and including any period of MSR;and (3) petitioner raises a good-faith argument that he would not havepled guilty if he had been fully and correctly informed by the court ofhis potential sentence. The Smith court purported to rely on UnitedStates ex rel. Williams v. Morris, 633 F.2d 71 (7th Cir. 1980),vacated as moot, 455 U.S. 624, 71 L. Ed. 2d 508, 102 S. Ct. 1322(1982), and United States ex rel. Baker v. Finkbeiner, 551 F.2d 180(7th Cir. 1977), as legal support for the three-prong test itpromulgated.

Upon examination, the Baker decision reveals that the courtexplicitly rejected the argument that "Baker cannot now attack thevalidity of his guilty plea unless he can affirmatively demonstrate thathe would not have entered the pleas if he had known of the mandatoryparole term." Baker, 551 F.2d at 183. The Baker court reasoned that,when a defendant enters a plea in exchange for a specific sentence,rather than an open plea as in Bachner v. United States, 517 F.2d 589(7th Cir. 1975), no additional showing is necessary because prejudicehas already been shown. The court stated:

"In contrast [to Bachner], Baker did suffer a detriment. Heagreed to plead guilty in exchange for the promise of aspecific sentence by the prosecutor, which was then ratifiedby the trial judge. Yet he was given a more onerous sentencethan he had been promised." Baker, 551 F.2d at 183.

In United States ex rel. Williams the habeas petitions of threedefendants were consolidated for consideration. Analyzing the factsof each defendant's plea in comparison to Baker (negotiated plea) andBachner (open plea), the court found that, in all cases but one, reliefshould be granted because the plea of guilty had been entered, as inBaker, in exchange for a specified sentence and the total sentence,with the addition of the parole term, exceeded the sentence that waspromised.

Clearly, neither Baker nor Williams supports the holding in Smiththat, where a defendant enters a negotiated plea for a specificsentence, a finding that due process has been violated is contingent onthe defendant's ability to demonstrate that he would not have pledguilty had he known about the MSR.⁽⁶⁾ Accordingly, we reject it.

Moreover, contrary to the State's argument, we find that therecent Supreme Court decision United States v. Dominguez Benitez,542 U.S. 74, 159 L. Ed. 2d 157, 124 S. Ct. 2333 (2004), does notsupport a finding that a defendant, such as the one in the case at bar,must plead and prove that he would not have pled guilty had heknown about the MSR. In Dominguez Benitez, the defendant (whospoke only Spanish) was arrested after he sold drugs to a confidentialinformant. He was charged with conspiracy to possess more than 500grams of methamphetamine and possession of 1,391 grams ofmethamphetamine, both with the intent to distribute. As a result ofplea negotiations, the government agreed, in writing, to drop thepossession charge and to stipulate to a "safety-valve" reduction of twolevels if defendant pled guilty to the conspiracy charge, which carrieda mandatory minimum sentence of 10 years. The "safety-valve"reduction would have allowed the district court to give defendant asentence below the 10-year minimum. Eligibility for the safety-valvereduction was contingent on satisfying five conditions, one going todefendant's criminal history. The contingencies, however, were notlisted in the written agreement.

At the plea hearing, defendant was admonished in accord withRule 11 of the Federal Rules of Criminal Procedure in all respects butone-defendant was warned that the agreement reached with thegovernment was not binding on the court, but he was not advised thathe would be unable to withdraw his guilty plea if the government'srecommendations were not followed. The written agreement,however, which had been read to the defendant in Spanish, providedthe defendant with this specific warning. Defendant pled guilty butwas not immediately sentenced.

At the subsequent sentencing hearing, the district court imposeda sentence of 10 years, the mandatory minimum without the safety-valve reduction. Defendant was told that at this time that he wasineligible for the safety-valve reduction because the probation reportrevealed that he had a more extensive criminal history than waspreviously known. Defendant did not object to the sentence at thetime of the hearing, but later appealed, claiming that the court's failureto advise him properly at the plea hearing pursuant to Rule 11 wasplain error and grounds for allowing him to withdraw his plea. Onreview, the court of appeals reversed defendant's conviction, findingthat the district court's error affected defendant's substantial rights.The Supreme Court granted certiorari on the following question:

" '[w]hether, in order to show that a violation of FederalRule of Criminal Procedure 11 constitutes reversible plainerror, a defendant must demonstrate that he would not havepleaded guilty if the violation had not occurred.' "Dominguez Benitez, 542 U.S. at ___, 159 L. Ed. 2d at 166,124 S. Ct. at 2338.

In deciding the issue before it, the Court noted that Rule 11,itself, provides that "[a] variance *** is harmless error if it does notaffect substantial rights." Fed. R. Crim. Proc. 11(h); DominguezBenitez, 542 U.S. at ___, 159 L. Ed. 2d at 166, 124 S. Ct. at 2338.The Court concluded that the omission of a single Rule 11 warning,without a showing of prejudice, was not a "structural" error, i.e., anerror which " 'affects substantial rights' " or has " 'substantial andinjurious effect or influence in determining the ... verdict.' "Dominguez Benitez, 542 U.S. at ___, 159 L. Ed. 2d at 167, 124 S. Ct.at 2339, quoting Kotteakos v. United States, 328 U.S. 750, 776, 90L. Ed. 1557, 1572, 66 S. Ct. 1239, 1253 (1946).⁽⁷⁾ The Court then heldthat, to show prejudice, "a defendant who seeks reversal of hisconviction after a guilty plea, on the ground that the district courtcommitted plain error under Rule 11, must show a reasonableprobability that, but for the error, he would not have entered theplea." Dominguez Benitez, 542 U.S. at ___, 159 L. Ed. 2d at 168, 124S. Ct. at 2340. The Court reversed the decision of the court ofappeals, finding that it had applied the wrong standard and remandedfor further proceedings.

Dominguez Benitez is inapposite to the case at bar. Similar toBachner and Timmereck, the defendant in Dominguez Benitez enteredan open plea and was advised by the court, prior to the time that heentered his plea, that the court was free to impose any sentenceavailable under the law and that the court was not obligated to followthe sentencing recommendations proffered by the government. Thus,the district court's failure to advise defendant that he could notwithdraw his plea if the government's recommendation was notfollowed had no direct effect on the validity of the plea or the sentenceimposed. Simply stated, Dominguez Benitez could not establish thathe suffered any prejudice as a result of the faulty admonishment.Unlike the defendant in the case at bar, Dominguez Benitez was neverpromised by the government and the court that he would receive aparticular sentence, only to learn later that the actual sentenceimposed was more lengthy. The Court's decision in DominguezBenitez is not inconsistent with our holding in the case at bar.

Finally, we reject the State's argument that we must remanddefendant's postconviction petition for a third-stage evidentiaryhearing. The State argues that, although defendant alleged that he didnot know that a mandatory supervised release term would be addedto his sentence and although "it is uncontested that MSR was notmentioned" at defendant's plea hearing, defendant should be requiredto prove, at an evidentiary hearing, that he was not actually aware thata period of MSR would be added to his sentence. We disagree.

First, it is unclear what sort of additional showing defendantcould provide which would establish his lack of knowledge. Secondly,even if, as the State speculates, defendant had some level of generalknowledge about MSR terms as a result of his criminal history orevidence could be mustered which would show that MSR wasdiscussed during plea negotiations, it would not establish whatdefendant reasonably understood the terms of his plea agreement tobe at the time he pled guilty. Finally, and most importantly, dueprocess requires that it be evident from the record that a defendant'splea of guilty is entered with full knowledge of the consequences. SeePeople v. Day, 311 Ill. App. 3d 271, 274 (2000) ("Due process isviolated where a court admonishes a defendant that he will receive ashorter sentence than he actually receives; this includes the failure toadvise a defendant of the three-year MSR attached to his sentence").Where, as here, the record contains no evidence which affirmativelyshows that defendant knew that he would be subject to an MSR term,defendant's alleged unawareness must be taken as true.

We recognize that MSR terms are statutorily required and that"the State has no right to offer the withholding of such a period as apart of the plea negotiations and *** the court has no power towithhold such period in imposing sentence." People v. Brown, 296 Ill.App. 3d 1041, 1043 (1998). We have little doubt that, in the case atbar, neither the prosecutor nor the court intended to impose asentence without the statutorily required MSR. However, as noted bythe Court of Appeals for the Ninth Circuit, in United States v.Anderson, 970 F.2d 602 (9th Cir. 1992), a present inability to fulfilla promise does not mean a breach of the plea agreement has notoccurred. See also United States v. Cook, 668 F.2d 317, 320 (7th Cir.1982) ("[a] plea induced by an unfulfillable promise is no less subjectto challenge than one induced by a valid promise which theGovernment simply fails to fulfill"). Here, the court was required toadmonish defendant regarding the MSR term. Failing to do so was anuninduced error by the State.

In sum, we find that, in the case at bar, defendant has establisheda substantial violation of his constitutional rights. The record shows,and the appellate court found, that defendant pled guilty to murder inexchange for the promise of a 25-year sentence. It is "uncontested"that the circuit court failed to admonish defendant, as required bySupreme Court Rule 402 and due process, that a three-year MSRterm would be added, by operation of law, to the negotiated 25-yearsentence defendant agreed to when he pled guilty. As a result of thecircuit court's error, defendant was never advised that the sentence hewas told he would receive in exchange for his plea of guilty was notthe sentence which he would ultimately receive. Defendant wasprejudiced by the omitted admonition because he received a moreonerous sentence than the one he was told he would receive. Underthese circumstances, it is not necessary for defendant to demonstratea reasonable probability that, but for the error, he would not havepleaded guilty. Based on the record, defendant's guilty plea wasinduced by the promise of a specific sentence, which he did notreceive. Thus, defendant has established that this constitutional rightto due process and fundamental fairness was violated.

Remedy

Having established that his constitutional rights were substantiallyviolated, defendant is entitled to postconviction relief. The SupremeCourt, in Santobello, provided for two possible remedies when adefendant does not receive the "benefit of the bargain": either the"promise must be fulfilled" or defendant must be given theopportunity to withdraw his plea. Santobello, 404 U.S. at 262-63, 30L. Ed. 2d at 433, 92 S. Ct. at 499. In Lane v. Williams, 455 U.S. 624,71 L. Ed. 2d 508, 102 S. Ct. 1322 (1982), the Court agreed that,under circumstances nearly identical to the those in the case at bar,two forms of relief were available, stating:

"[R]espondents could seek to remedy this error in two quitedifferent ways. They might ask the District Court to set asidetheir convictions and give them an opportunity to pleadanew; in that event, they might either plead not guilty andstand trial or they might try to negotiate a different pleabargain properly armed with the information that anysentence they received would include a special parole term.Alternatively, they could seek relief in the nature of 'specificenforcement' of the plea agreement as they understood it; inthat event, the elimination of the mandatory parole term fromtheir sentences would remove any possible harmfulconsequence from the trial court's incomplete advice." Lane,455 U.S. at 630, 71 L. Ed. 2d at 514, 102 S. Ct. at 1326.

The remedy defendant requests in the case at bar is enforcementof the negotiated plea agreement as he understood it. At the sametime, however, defendant concedes that a term of supervised releaseis mandated by statute and legally cannot be struck from his sentence.See 730 ILCS 5/5-8-1(d)(1) (West 1998) (every sentence shallinclude as though written therein a term in addition to the term ofimprisonment). Having conceded that the promise which induced hisplea is unfulfillable under state law, defendant asks that his sentencebe modified to 22 years' imprisonment plus 3 years of mandatorysupervised release to approximate the bargain that was struck betweenthe parties.

After reviewing decisions by courts in other jurisdictions, we findthe remedy sought by defendant to be appropriate. In James v. State,699 N.W.2d 723 (Minn. 2005), the Minnesota Supreme Courtconsidered a postconviction petition brought on grounds similar tothose of the case at bar. In James, the petitioner entered a guilty pleaand was not admonished that he would be subject to a statutorilymandated conditional release term. The court found that the additionof the 10-year conditional release term "resulted in a sentence that wasin excess of the upper limit contemplated at the time [defendant]entered into the plea agreement." The court concluded thatdefendant's plea was induced by an unfulfillable promise and that hewas entitled to withdraw his plea or have his sentence "modified in away that does not violate the agreement." See also State v. JumpingEagle, 620 N.W. 2d 42 (Minn 2000). We note that, in James, thecourt did not grant either remedy, but remanded for furtherproceedings, stating that, due to the petitioner's substantial delay inbringing his claim, the court should determine whether allowingpetitioner to withdraw his plea would be unduly prejudicial to theState, in which case, defendant would be limited to the alternativeremedy.

In Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976),the defendant pled guilty in exchange for various promises from theCommonwealth, including a promise that certain sentences would runconcurrently-a promise which was unfulfillable because it wascontrary to law. In a postconviction appeal, the Supreme Court ofPennsylvania held that the defendant's plea had been induced by theillegal promise and granted defendant's request to have his sentencereduced, stating:

"By so doing, appellant will then have received 'the benefitof the bargain' made with the Commonwealth and still servea prison sentence commensurate with the term contemplatedby all of the parties to the plea proceedings." Zuber, 466 Pa.at 462, 353 A.2d at 446.

In United States ex rel. Ferris v. Finkbeiner, 551 F.2d 185, 187(7th Cir. 1977), cited earlier, the Court of Appeals for the SeventhCircuit held:

"Since Ferris has substantially begun performing his sideof the bargain, it would not be fair to vacate the plea andrequire him to go through the procedure anew. Fundamentalfairness can be had by limiting his term of custody to thatportion of the sentence which comports with the bargainmade."

Similarly, in United States v. Bowler, 585 F.2d 851, 856 (7th Cir.1978), the court held that "the fashioning of an appropriate remedy islargely a matter of the exercise of the sound discretion of the courtaccording to the circumstances of each case." The Bowler courtproffered three choices: "Appropriate relief can include allowing adefendant to withdraw a guilty plea, United States v. Hammerman,528 F.2d 326 (4th Cir. 1975); directing the Government to providespecific performance of a promise, Geisser v. United States, 513 F.2d862 (5th Cir. 1975); or ordering the imposition of a specific sentencewhere withdrawal of a guilty plea or specific performance by theGovernment would be either meaningless or infeasible. Correale v.United States, 479 F.2d 944 (1st Cir. 1973)."

Recently, in People ex rel. Ryan v. Roe, 201 Ill. 2d 552, 557(2002), this court exercised its discretion and fashioned an appropriateremedy in a situation where a guilty plea had been induced by a legallyunfulfillable promise. The circumstances were procedurally differentfrom those in the case at bar. In Roe, the State brought a mandamuscomplaint, seeking to have a sentencing order amended on thegrounds that the sentence was illegal. After finding that the sentence,which had been imposed pursuant to a plea agreement, violated thelaw and, therefore, was void, we held that an "equitable solution"would be to modify the sentence to one which defendant proposedand which would approximate the penal consequences contemplatedby the original plea agreement.

In light of Roe and Justice Douglas' admonition that "a courtought to accord a defendant's preference considerable, if notcontrolling, weight inasmuch as the fundamental rights flouted by aprosecutor's breach of a plea bargain are those of the defendant, notof the State" (Santobello, 404 U.S. at 267, 30 L. Ed. 2d at 436, 92 S.Ct. at 501 (Douglas, J., concurring)), we conclude that, in the case atbar, the appropriate remedy is to modify defendant's sentence to aterm of 22 years of imprisonment, to be followed by the mandatory 3-year term of supervised release.

CONCLUSION

We reverse the judgment of the appellate court, vacate thesentence imposed by the Cook County circuit court and remand to thecircuit court with directions that it impose a sentence of 22 years'imprisonment, to be followed by a term of 3 years' mandatorysupervised release.

Appellate court judgment reversed;

cause remanded with directions.

CHIEF JUSTICE THOMAS, specially concurring:

I agree with the majority that defendant made a substantialshowing that his constitutional rights were violated because he did notreceive the benefit of his bargain and further that the appropriateremedy for such a claim, under the circumstances, would be to modifythe defendant's sentence. I also agree with the majority's conclusionthat the cause need not be remanded for an evidentiary hearing to testdefendant's claim that he failed to receive the benefit of his bargain.I write separately because I reach the conclusion that an evidentiaryhearing is not required for different reasons than the majority.

The purpose of a postconviction proceeding is to allow inquiryinto constitutional issues involved in the original conviction andsentence that have not been, and could not have been adjudicatedpreviously on direct appeal. People v. Morgan, 187 Ill. 2d 500, 528(1999). The Post-Conviction Hearing Act provides the mechanism bywhich those under a criminal sentence can assert that their convictionswere the result of a substantial denial of their constitutional rights.People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). The Act providesfor various, distinct stages to conduct this inquiry. First, a defendantcommences proceedings under the Act by the filing of a petition,which must clearly set forth the respects in which the defendant'srights were violated. 725 ILCS 5/122-2 (West 2002). The Actrequires that a defendant attach affidavits, records, or other evidencesupporting the petition's allegations. 725 ILCS 5/122-2 (West 2002).Thereafter, if the defendant is under a sentence of imprisonment, thecircuit court is to examine the petition to determine if it is frivolous orpatently without merit; if it is determined to be frivolous or patentlywithout merit, the court is authorized to dismiss the petition. 725ILCS 5/122-2.1(a) (West 2002). If the petition is not dismissed at thisstage, it is docketed for further proceedings in accordance withsections 122-4 through 122-6 of the Act. 725 ILCS 5/122-2.1(b)(West 2002). Under section 122-5 of the Act, the State then has anopportunity to file a motion to dismiss or an answer. 725 ILCS5/122-5 (West 2002). If a motion to dismiss is filed and then denied,the State must then file an answer within 20 days after such denial.725 ILCS 5/122-5 (West 2002). The court may then receive proof byaffidavits, depositions, oral testimony, or other evidence. 725 ILCS5/122-6 (West 2002). In its discretion, the court may order thedefendant to be brought before the court for the hearing. 725 ILCS5/122-6 (West 2002). If the court finds in favor of the defendant, itis required to enter an appropriate order with respect to the judgmentor sentence in the former proceedings. 725 ILCS 5/122-6 (West2002).

In the present case, the State's motion to dismiss was grantedwithout comment, so it never actually had an opportunity to file ananswer denying the factual allegations of defendant's petition. Whileit is true that all well-pleaded facts in a defendant's petition and in theaccompanying affidavits are taken as true, this is only for the purposeof making a substantial showing that constitutional rights have beenviolated so that a defendant can proceed to an evidentiary hearing onhis allegations. Morgan, 187 Ill. 2d at 528. This court has repeatedlystressed that an evidentiary hearing is required whenever a defendantmakes a substantial showing of a violation of constitutional rights.Coleman, 183 Ill. 2d at 381. Thus, if the court finds a substantialshowing of a constitutional violation, the inquiry is normally advancedto the third stage of the postconviction procedure where the trial courtconducts an evidentiary hearing. People v. Edwards, 197 Ill. 2d 239,246 (2001). When the petitioner's claims are based on matters outsidethe record, it is not the intent of the Act that such claims beadjudicated on the pleadings. People v. Simms, 192 Ill. 2d 348, 360(2000); People v. Kitchen, 189 Ill. 2d 424, 433 (1999); Coleman, 183Ill. 2d at 382.

In support of its ruling that no hearing is required, the majorityasserts that "it is unclear what sort of additional showing defendantcould provide which would establish his lack of knowledge." Slip op.at 18. The State's counter to this seems to be that, at an evidentiaryhearing on a defendant's claims, the burden is on the defendant toprove his claims by a preponderance of the evidence (People v.Coleman, 206 Ill. 2d 261, 277 (2002)), and that contract principlesgovern this case, requiring the party seeking to enforce a contract toprove its terms (see, e.g., Mannion v. Stallings & Co., 204 Ill. App.3d 179, 186 (1990)). According to the State, the exact terms of theoffer agreed upon are matters outside the record. Therefore, itcontends, defendant would have to prove his claim either by testifyingorally that the State did not tell him during plea negotiations that MSRwould be included in his sentence or by submitting an affidavitindicating the same. The State also maintains that it would be free tosubmit evidence to show that defendant was told that MSR would bea part of his sentence. According to the State, these scenarios wouldraise conflicts in the evidence and questions of credibility for the courtto resolve at the hearing.

The State's analysis would be sound if not for the requirement ofSupreme Court Rule 402(b), which requires that the terms of a pleaagreement be "stated in open court." 177 Ill. 2d R. 402(b).Specifically, the rule provides in relevant part as follows:

"The court shall not accept a plea of guilty without firstdetermining that the plea is voluntary. If the tendered plea isthe result of a plea agreement, the agreement shall be statedin open court. The court, by questioning the defendantpersonally in open court, shall confirm the terms of the pleaagreement ***." (Emphases added.) 177 Ill. 2d R. 402(b).

One of the purposes of an open-court statement and a personalconfirmation of the terms of the plea agreement is to prevent adefendant from swearing falsely at a later collateral attack upon theproceedings that the terms of the agreement were other than the actualsentence imposed. See People v. Salvaggio, 38 Ill. App. 3d 482, 486(1976). Additionally, this court has emphasized that the requirement"prevents misunderstandings as to the terms of an agreement. It is anefficient means of reducing what is typically an oral understandingto a matter of record. It also insures that the agreement will be visiblefor examination. *** Announcing the agreement in open court willdeter *** future unfounded claims by a defendant that an agreemententered into was not honored." (Emphasis added.) People v. Dudley,58 Ill. 2d 57, 60 (1974).

It would be incongruous to hold that the State is free to arguethat the terms of the agreement differed from those stated in opencourt, while at the same time, preclude a defendant from challenginga plea stated in open court on the basis that it differed from an earlieroral understanding. Rule 402(b) takes the guessing game out ofdiscerning the parties' oral understandings by reducing thoseunderstandings to a matter of record. This is analogous to a contractsetting where the parties' oral negotiations are reduced to a writtencontract, with all previous understandings merging into the writtencontract. Because I find that the plea agreement is a matter of recordthat can be easily discerned from a review of that record, I agree thatno evidentiary hearing is necessary to resolve the benefit-of-the-bargain issue in this case.

1.  The order of sentence and commitment found in the record also shows
that defendant was sentenced on the murder count to