People v. Brown

Rule 23 Order filed
May 26, 1998;
Motion to publish granted
June 16, 1998.                 NO. 5-96-0807

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the 
                                    )  Circuit Court of
     Plaintiff-Appellee,            )  Franklin County.
                                    )
v.                                  )  No. 96-CF-121
                                    )
GARY D. BROWN,                      )  Honorable
                                    )  Leo T. Desmond,
     Defendant-Appellant.           )  Judge, presiding.
_________________________________________________________________

     JUSTICE KUEHN delivered the opinion of the court:  
     The defendant, Gary D. Brown, was charged with unlawful
possession with intent to deliver a controlled substance (720 ILCS
570/401(c)(2) (West 1996)) and two counts of unlawful possession of
a controlled substance (720 ILCS 570/402(c) (West 1996)).  Pursuant
to negotiations with the State, defendant entered an open plea of
guilty for concurrent terms to the two counts of unlawful
possession of a controlled substance, and the State dismissed the
remaining count.  Defendant was sentenced to concurrent extended
terms of six years' imprisonment and ordered to pay a drug
assessment of $500 on each conviction and to pay $350 in street
value fines (730 ILCS 5/5-9-1.1 (West 1996)).  He filed a motion to
reduce sentence, which was denied after a hearing.  On appeal,
defendant contends that only one drug assessment could be imposed
(see 720 ILCS 570/411.2(a)(4),(g) (West 1996)) and that he is
entitled to $490 credit toward his street value fines and the
remaining drug assessment for the time he spent in presentencing
incarceration (see 725 ILCS 5/110-14 (West 1996)).  He also
contends that the mandatory supervised release term should be
vacated because he was not informed of such a term prior to
pleading guilty and he was sentenced to the maximum period of
incarceration for which he was advised.
     The State concedes that only one drug assessment could be
imposed and that defendant is entitled to $480 credit, toward his
street value fines and the remaining assessment, for 96 days'
presentencing incarceration.  The State contends that this court
does not have jurisdiction to vacate the mandatory supervised
release term as defendant did not file a motion to withdraw his
pleas of guilty.  Defendant stands convicted of two Class 4
felonies on which the maximum extended term of six years'
imprisonment was imposed.  See 720 ILCS 570/402(c) (West 1996); 730
ILCS 5/5-8-2(a)(6) (West 1996).  Defendant is subject to a
mandatory supervised release term of one year.  See 730 ILCS 5/5-8-
1(d)(3) (West 1996).  The trial court in the case at bar never
advised defendant that he was subject to a mandatory supervised
release term, but instead the court stated, "you face the
possibility of a sentence of imprisonment for as long as six years
total covering both of these counts."  In People v. Wills, 61 Ill. 2d 105, 330 N.E.2d 505 (1975), our supreme court held that
defendants must be admonished of the mandatory supervised release
term prior to the acceptance of guilty pleas, and its holding was
applicable to pleas taken after May 19, 1975.  The mandatory
supervised release relates to a term of imprisonment by statutory
requirement without regard to whether the period is expressly
attached by the sentencing court to the term of imprisonment. 
People v. Miller, 36 Ill. App. 3d 943, 945, 344 N.E.2d 760, 762
(1976); People v. Morgan, 128 Ill. App. 3d 298, 300, 470 N.E.2d 1118, 1120 (1984).  The mandatory supervised release term is
imposed as though written into the term of imprisonment by the
sentencing court, demonstrating that the State has no right to
offer the withholding of such period as a part of the plea
negotiations and that the court has no power to withhold such
period in imposing sentence.  Miller, 36 Ill. App. 3d at 946, 344 N.E.2d  at 762; Morgan, 128 Ill. App. 3d at 300, 470 N.E.2d  at 1120. 
In the event of a revocation of mandatory supervised release,
defendant could be incarcerated for periods which exceed the
maximum determinate term imposed by the sentencing court.  See
People v. Wills, 61 Ill. 2d 105, 109, 330 N.E.2d 505, 507 (1975). 
Recently, our supreme court has held that when a defendant alleges
that the trial court violated statutory authority in imposing
sentence, the defendant need not file a motion to withdraw the
guilty plea.  People v. Wilson, 181 Ill. 2d 409, 412-13, 692 N.E.2d 1107, 1108 (1998); People v. Williams, 179 Ill. 2d 331, 333, 688 N.E.2d 1153, 1154 (1997).  Although the trial court did not violate
statutory authority in imposing sentence, it incorrectly informed
defendant of the maximum possible punishment to which he is
subjected by his plea of guilty.  Where a defendant is sentenced to
a term longer than the maximum sentence of which he had been
advised, the remedy is to remand for resentencing.  People v.
Johns, 229 Ill. App. 3d 740, 740-41, 593 N.E.2d 594, 595 (1992). 
As the courts of this State have no authority to strike the
mandatory supervised release term, the order denying the motion to
reduce sentence is vacated and this cause is remanded for
resentencing, at which time the issues of fine credit and the
impropriety of multiple drug assessments can be raised.
     For the foregoing reasons, the order denying the motion to
reduce sentence is vacated, and this cause is remanded for
resentencing.

     Judgment vacated; cause remanded.

     HOPKINS and MAAG, JJ., concur.