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SECOND DIVISION
December 2, 2003

No.1-01-3984

JUSTICE CAHILL delivered the opinion of the court:

Defendant Steven Russell appeals from the summary dismissal of his pro se postconvictionpetition. Defendant contends his petition was sufficient to survive dismissal at the first stage ofpostconviction relief where it alleged a due process violation based on the trial court's failure toadmonish him under Supreme Court Rule 402 (177 Ill. 2d R. 402) that he would be required toserve a 2-year period of mandatory supervised release in addition to his negotiated 14-year prisonterm. We agree with defendant and reverse and remand this case for further proceedings.

Defendant was charged with three counts of unlawful use of a weapon and one count ofattempted armed robbery for a crime he committed on November 17, 1998. Defendant agreed toplead guilty to the attempted armed robbery charge in exchange for a 14-year prison sentence. On June 4, 1999, the trial court held a conference where it admonished defendant of variousmatters under Rule 402, but did not inform defendant that he would be required to serve 2 yearsof mandatory supervised release in addition to the agreed 14-year prison term. The trial courtaccepted defendant's plea and sentenced him to 14 years in prison. The court also granted theState's motion to nol-pros the remaining three charges for unlawful use of a weapon. Althoughthe mittimus does not reflect that defendant was also sentenced to two years' mandatorysupervised release, the supervised release period was automatically included as part of thesentence under section 5-8-1(d)(2) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-1(d)(2) (West 1998)). See People v. Brown, 296 Ill. App. 3d 1041, 1043, 695 N.E.2d 1374(1998) (mandatory period of supervised release relates to a term of imprisonment by statutoryrequirement without regard to whether the period is expressly attached by the sentencing court tothe term of imprisonment; mandatory supervised release term is imposed as though written intothe term of imprisonment by the sentencing court).

On June 23, 2001, defendant filed a pro se postconviction petition alleging a due processviolation based on the trial court's failure to inform him that he was required to serve 2 years ofmandatory supervised release in addition to his 14-year prison sentence. The trial courtsummarily dismissed defendant's petition as frivolous and patently without merit.

We review de novo whether a petition for postconviction relief stated the gist of ameritorious constitutional claim sufficient to survive dismissal at the first stage of thepostconviction process. People v. Lucas, 203 Ill. 2d 410, 418, 787 N.E.2d 113 (2002).

Defendant contends on appeal that his petition stated the gist of a meritoriousconstitutional claim that his plea was neither knowing nor voluntary because the trial court failedto admonish him with respect to the two-year term of mandatory supervised release. Defendantdoes not challenge the 14-year prison sentence or his plea on any other grounds. Rather,defendant asks that we leave his 14-year prison term intact but vacate the mandatory supervisedrelease portion of his sentence.

Rule 402 sets forth the admonishments that a defendant must be given before entering aguilty plea. 177 Ill. 2d R. 402. Among other things, the rule requires that where a defendantenters into a negotiated plea agreement that contemplates the imposition of a specific sentence,and the trial court indicates that it does not concur with the agreed-upon sentence, the defendantmust be given an opportunity either to affirm or withdraw his plea. 177 Ill. 2d R. 402. In otherwords, a defendant has the right, before sentencing, to affirm or withdraw his guilty plea if thedefendant will not receive the benefit of his bargain with the State. People v. Didley, 213 Ill. App.3d 910, 915, 572 N.E.2d 423 (1991). A trial court's failure to comply with Rule 402 does notnecessarily raise an issue of constitutional dimension. People v. O'Toole, 174 Ill. App. 3d 800,802, 529 N.E.2d 54 (1988). Rather, noncompliance is relevant in postconviction proceedings tothe extent the record shows that the defendant's plea was not made knowingly and voluntarily. O'Toole, 174 Ill. App. 3d at 802.

Defendant cites People v. Moore, 214 Ill. App. 3d 938, 574 N.E.2d 37 (1991), and UnitedStates ex rel. Miller v. McGinnis, 774 F.2d 819 (7^th Cir. 1985), in support of his claim that hisplea was not entered into knowingly or voluntarily. The appellate court in Moore relied onMcGinnis to strike the defendant's mandatory supervised release term on the ground that the trialcourt failed to admonish the defendant that he would be subject to mandatory supervised releasebefore entering a negotiated guilty plea. Moore, 214 Ill. App. 3d at 944.

Although not cited by defendant, several other Illinois courts have found that the failure toinform a defendant of mandatory supervised release is relevant to deciding whether the defendantentered an intelligent and voluntary guilty plea. See People v. Fish, 316 Ill. App. 3d 795, 737N.E.2d 694 (2000); Didley, 213 Ill. App. 3d 910; People v. Kull, 171 Ill. App. 3d 496, 525N.E.2d 1223 (1988); O'Toole, 174 Ill. App. 3d 800; People v. Louderback, 137 Ill. App. 3d 432,484 N.E.2d 503 (1985). However, despite defendant's argument and the language in some ofthese cases to the contrary, "our supreme court made clear in Wills that the mere failure of thetrial court to explain the mandatory supervised release term prior to accepting a guilty plea doesnot, per se, render the plea agreement constitutionally infirm." People v. Smith, 285 Ill. App. 3d666, 669, 676 N.E.2d 224 (1996), citing People v. Wills, 61 Ill. 2d 105, 109-11, 330 N.E.2d 505(1975). In Smith, we held that to establish a due process violation, the following conditions mustbe met: (1) the record must establish that the court informed the defendant he would receive aspecific sentence upon entering a guilty plea; (2) the trial court sentenced the defendant to a termgreater than the term taking into account any period of supervised release; and (3) the defendantraises a good-faith argument that he would not have pled guilty if he had been fully and correctlyinformed by the court of his potential sentence. Smith, 285 Ill. App. 3d at 670; see also Fish, 316Ill. App. 3d at 800 (a defendant should not obtain relief for incomplete admonishments without agood-faith argument that the incompleteness prejudiced him).

The State concedes that defendant has established the first two conditions of the test setforth in Smith. Rather, the State argues defendant has failed to meet the last condition of theSmith test, which requires defendant to present a good-faith argument that he would not havepled guilty if he had been fully and correctly informed by the court that his sentence would includea 2-year period of mandatory supervised release in addition to the agreed 14-year prison term. We disagree.

The State fails to take into consideration the procedural posture of this case. At the firststage of postconviction relief, the trial court must review the postconviction petitionindependently to determine whether the petition is frivolous or patently without merit. People v.Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442 (2001). If the court determines that the petition isfrivolous or patently without merit, it must dismiss the petition. Edwards, 197 Ill. 2d at 244. Apostconviction petition is considered frivolous and patently without merit only where theallegations contained in the petition, taken as true, fail to present the gist of a meritoriousconstitutional claim. Edwards, 197 Ill. 2d at 244. To set forth the gist of a constitutional claim, apro se petitioner need not present claims in their entirety. Edwards, 197 Ill. 2d at 244. Rather, apro se petitioner need only present a limited amount of detail to survive dismissal at the firststage. Edwards, 197 Ill. 2d at 244-45. If the trial court does not dismiss the postconvictionpetition, then the inquiry advances to the second stage where counsel may be appointed and theState is afforded an opportunity to file responsive pleadings. Edwards, 197 Ill. 2d at 245-46. Atthe second stage, the trial court must decide whether the petition and accompanyingdocumentation make a substantial showing of a constitutional violation. Edwards, 197 Ill. 2d at246. If no such showing is made, the petition may be dismissed. Edwards, 197 Ill. 2d at 246. Onthe other hand, if the trial court finds a substantial showing of a constitutional violation, theinquiry is advanced to the third stage of postconviction relief where the trial court conducts anevidentiary hearing. Edwards, 197 Ill. 2d at 246.

Defendant's pro se petition alleged that: (1) the trial court informed defendant he wouldreceive a specific term of imprisonment upon pleading guilty; (2) the trial court sentenceddefendant to a term greater than that which was agreed upon; and (3) "[defendant] would nothave pled guilty if he had been fully and correctly informed by the court of his potential sentence." The State argues we should affirm the dismissal of defendant's pro se petition at the first stagebecause his claim that he would not have pled guilty had he known of the mandatory supervisedrelease period "is unworthy of belief" and, therefore, "his claim does not meet the thirdrequirement of Smith." The State is getting ahead of itself. A postconviction petition may onlybe dismissed at the first stage where the allegations contained therein, "taken as true and liberallyconstrued," fail to present the gist of a constitutional claim. Edwards, 197 Ill. 2d at 244. Defendant set forth the three elements required by Smith. Whether defendant is truthful in hisassertion that he would not have pled guilty had he known of the two-year term of mandatorysupervised release is not properly considered at the first stage of postconviction relief. We findthat the trial court erred in summarily dismissing defendant's petition.

We note that defendant has requested as a form of relief that we leave his 14-year prisonterm intact and simply vacate the mandatory supervised release portion of his sentence. Defendant cites Moore, 214 Ill. App. 3d 938, in support of his request. The defendant in Mooreappealed the denial of his motion to withdraw his guilty plea, arguing his plea was not enteredinto knowingly or voluntarily because the trial court failed to advise the defendant that he wouldautomatically receive a term of mandatory supervised release in addition to the specific prisonsentence agreed upon by the State. The court agreed and vacated the mandatory supervisedrelease portion of the defendant's sentence. Moore, 214 Ill. App. 3d at 944. In so doing, thecourt relied on an unpublished federal district court case that originated in Illinois (see People v.Miller, 107 Ill. App. 3d 1078 (1982)). Moore, 214 Ill. App. 3d at 943-44.

The defendant in Miller argued on direct appeal to this court that his convictions formurder, attempted murder, attempted armed robbery and aggravated battery should be reversedbecause, among other things, his guilty plea was not entered into knowingly or voluntarily basedon the trial court's failure to instruct the defendant as to the mandatory supervised release periodsthat attached to his convictions. Miller, 107 Ill. App. 3d at 1079. We rejected the defendant'sargument and affirmed his convictions. Miller, 107 Ill. App. 3d at 1086. Following our decision,the defendant filed a writ of habeas corpus petition in the United States District Court. SeeMcGinnis, 774 F.2d at 822. The district court agreed with the defendant's argument that hisguilty plea was not voluntary and struck the mandatory supervised release portion of thedefendant's sentence. See McGinnis, 774 F.2d at 822. On appeal from that decision, the SeventhCircuit Court of Appeals found that because the trial court committed errors beyond the failure toinform the defendant that he would automatically receive a term of mandatory supervised release,the striking of the defendant's mandatory supervised release term from the sentence was aninadequate remedy. McGinnis, 774 F.2d at 825. After concluding that the plea proceedings as awhole were deficient, the Seventh Circuit remanded the case to the district court with instructionsto issue a writ of habeas corpus unless, within 120 days, the State of Illinois vacated thedefendant's plea and allowed him to plead anew. McGinnis, 774 F.2d at 825.

The court in Moore stated that it found "the order of the district court in Miller persuasive, and thus order[ed] that the three-year term of mandatory supervised release bestricken from [the defendant's] sentence." Moore, 214 Ill. App. 3d at 944. We decline to followMoore for two reasons. First, unlike this case, Moore involves a direct appeal rather than anappeal from the dismissal of a postconviction petition. As explained above, proceedings under thePost-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)) are subject to specificstatutory directives concerning the court's treatment of a postconviction petition. Here, defendantfiled a pro se postconviction petition that was summarily dismissed by the trial court as frivolousand patently without merit. As stated above, we find that the trial court's dismissal was errorbecause defendant's petition stated the gist of a meritorious constitutional claim sufficient tosurvive first-stage summary dismissal. The only appropriate remedy is to remand this case back tothe trial court with directions that defendant's petition be redocketed and advanced to the secondstage of postconviction relief. See Edwards, 197 Ill. 2d at 257-58.

Our second point of contention with Moore is particularly relevant to the proceedings onremand. Specifically, we disagree with Moore to the extent it holds that a court has authority tostrike only the portion of a defendant's sentence that imposes a term for mandatory supervisedrelease. Under the plain language of section 5-8-1(d)(2) of the Code (730 ILCS 5/5-8-1(d)(2)(West 1998)), a defendant's sentence must be accompanied by a period of mandatory supervisedrelease. The statute provides:

"Except where a term of natural life is imposed, every sentence shallinclude as though written therein a term in addition to the term of imprisonment. For those sentenced under the law in effect prior to February 1, 1978, such termshall be identified as a parole term. For those sentenced on or after February 1,1978, such term shall be identified as a mandatory supervised release term. Subject to earlier termination under Section 3-3-8, the parole or mandatorysupervised release term shall be as follows:

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(2) for a Class 1 felony or a Class 2 felony, 2 years[.]" (Emphasis added.) 730 ILCS 5/5-8-1(d)(2) (West 1998).

Courts do not have authority to strike the mandatory supervised release term imposed under thisstatute. See People v. Brown, 296 Ill. App. 3d at 1043 (mandatory supervised release attaches tosentence automatically; State has no right to offer the withholding of such period and the courthas no power to withhold such period in imposing sentence). We conclude that if defendantsucceeds in his postconviction claim, the only available remedy is to permit defendant to withdrawhis guilty plea and vacate his sentence. See People v. Evans, 174 Ill. 2d 320, 332, 673 N.E.2d244 (1996) (where a defendant and the State enter into a negotiated plea agreement in which thedefendant pleads guilty to certain charges in exchange for the State's agreement to dismiss othercharges and recommend a specific sentence, the defendant must move to withdraw his plea andvacate sentence so that, in the event the motion is granted, the parties are returned to the statusquo).

The judgment of the circuit court is reversed and the cause is remanded with directions.

Reversed and remanded.

WOLFSON, P.J., and GARCIA, J., concur.