No. 2--06--0563 Filed: 6-25-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court IL LI NOI S, ) of Ke nd al l C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 04--CF--306 ) MATTHEW M. PETERO, ) Honorab le ) James M. Wilson, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE HUTCHI

NSON deli vered th

e opinion o f the cou

rt: Defend ant, Matthew M . Petero, appealsfrom the t rial cou rt's sum mary dismissal o f his pro

se postconvi ction pet

ition as fr ivolous an d patentl

y w ithout mer

it. In his petition, defendant alleged that he was sentenced to pay restitution in the a mount of $9,000 despite there having been no agreement to pay

restitution as part of his guilty plea negotiated with the State. Defendant fur ther alleged that the trial court failed to admonish him before accepting his guilty

plea of the possib ility that he may be subject to restitution. The trial court dismissed defendant's petition after reviewing the transcripts of the pr oceedings on defendant' s guilty plea a nd finding that defendant was admonished that he would hav e to pay restitutio n as part

of his disp osition ne gotiate d with the State. On appeal, defendant

argues that his postconviction petition stated the gist of a cons titutional

claim and that t he trial c ourt err

ed in dismis sing his p etition. We affirm.No. 2--06--0563

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On September 21, 2004, defendant was charge d in a five-count indictment with unlawful possession with the intent to deliver more tha n 900 gr ams of co caine ( 720 I

LCS 570/401(a)(2)(D) (West 2004)), u nlawful p ossession

of more th an 900 g

rams of c ocaine (720 I

LCS 570/402(a)(2)(D) (West 2004)), unlawful possession with the intent to deliver between 500 and 2, 000 gra ms of cannabis (720 IL

CS 550/5(e) (West 2004)), unlawful possessio n of betw een 500 a nd 2,000 g

rams of cannabis (720 IL

CS 550/4(e) (West 2004)), and unlawful possession of a weapon by a felon (720 IL CS 5/24--1.1(a) (West 2004)). On May 11, 2005, the par ties appe ared b efore the trial court and indicated that they had reached a plea agreement. Under the agre ement, defendant would plead guilty to one count of unlawful possession with the intent to deliver more than 900 grams o f cocaine and the State wou ld dismiss the remaining counts. The State indicated that it wished to delay entry

of the sentenc e until June 20, 2005. H owever , the State indicated that

it would "put into the record what [it] anticipate[d] the sentence to be subject to defendant appear ing in court on [June 20] and no new violations of any offenses between now and that court date." The trial cou

rt proce eded to a

dmo nish defendant regarding the consequences of pleading guilty. I n describing the minimum and maximum sentences prescribed by law for the offense, the t rial cou rt asked defendant, "Do y ou understand this one carries with it a term of not less than 15 yearsbut not more than 60 ye ars, tha t it carr ies with it a

fine not to

exceed $500,000, that it carries withit a 3- ye ar te

rm of mand ator

y s uper vised rele ase, and t

hat it is not a pro batio nabl e off

ense [?]" Defendant

responded that

he understood the penalties associated with the offense. The trial court further admonishe d defend ant that " the sente nce that the State has indic ated toyo u that would be imposed on the June 20th date is contingent upon you appe aring at that time and on that date." TheNo. 2--06--0563

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trial court admonished defendant that, if he failed to ap pear on June 20, the trial court could then sentence him to anything

within the sentencing range. After defendant indicated his understanding of all of the trial court's admonishments, the trial court acce pted and entered his guilty plea. After defendant en tered his guilty plea, the State state d on the record the "contemplated sentence" that would be entered on June 20:

"Judge, subject to

[defenda nt] showing up on June 20th *** having no new violations of any offe nses, the defendant would be sentenced to a term of 15 yearsin the custody of the Illin ois Department of Corrections plus a 3-yea r term of mandatory supe

rvised release. He would be give n credit for any time serv ed in the K

endall Cou

nty Jail from the time of his arrest up to and including that

date. That

the fine--laboratory

fee of $100.00 would be taken from his bond. He would be ordered to complete a DNA indexing while in the D epartment of Corrections and pay

a $200.00 f ee for t hat from h

is bond. The drug

assessme nt fee wo uld be waivedon motion of the State and the remainin g finesand costswould be t aken fr om his bond that was posted." Defens e counsel concurred that this was the substance of the agreeme nt reached between the

parties as to s enten cing. On June 20, 2005, the parties appeared before the trial court for sentencing. At the beginning of the hearing, defendant confirme d that his attorney had ne gotiated an agreed se ntence w ith th e Stateand had e

xplained the agreement to him. The Sta

te prese nted the t erms of the agreed sentence as follow s: "Defendant has previously pled g

uilty to the offense of U

nlawful Possession with the Intent to Deliver a Controlled Substance, Class X felony . Defendant will be sentenced to a period of 15 years in the c

ustody of the I

llinois Department

of Corrections plus a 3-y ear termNo. 2--06--0563

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of mandatory super

vised release. He is given credit for 4 actual day s served

in the Kendall County Jail from July 23rd to July 26th, 2004 . Tha t fine and costs shall be paid in the amount of $10,000 from his bond, that a $3,000 drug fee, $100.00 laboratory analysis fee

to be paid all

from his bond. Restitution to Kendall County CPAT in the amount of $9,000 to be taken from his bond, $200.00 D NA colle ction fe e to be taken from his bond. While in the custody of the Illinois Department of Corrections, he will provide a DNA sample as required by statute." The trial court asked defendant whether the State' s recitation was an accurate statement of the agreed sentence. Defendant replied that the recitation was accurate. The trial c ourt then asked defendant whether there was "any

thing that the State read that [was] not accurate, or part of that statement or that sentence, or anything that was n ot read that s hould have b een?" De fe nd an t r ep li ed ne ga ti ve ly. Finally , the trial

court inq uired of defenda nt, "You 're as king me t

o approv e that se

ntence; is tha t

co rr ec t?" Defe ndant replied affirmatively . The trial court entered a written order se ntencing defendant to serve 15 ye ars' imprisonment and 3 y ears' mandatory supervised release, to pay $10,000 in fines an d costs, a $100 laboratory f ee, a $3,000 drug assessment, and $9,200 in restitution to the Kendall County Cooperative Police Assistanc e Team (KCCPAT), and to provide a DNA sample. On April 6, 2006, defendant filed a pro se postconviction p eti tion. As already note d, defendant alleged that he was se ntenced to pay

restitutio n despite

there having been no ag

reement to pay restitution as part of his g uilty plea negotiated with the State. Defendant further alleged that the trial court failed

to admonis h him befo

re acc epting h

is guilty plea of the possibility that he may be subject to restitution. On May 15, 2006, the trial cour t di smissed defendant's postconviction petition as frivo lous and pa tently without me

rit. In its written order, the trial court indica ted that the report of proceedings from May 11, 20 05, an d June 20, 2005, reflected that defendant wasNo. 2--06--0563

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admonished as to "all fines, costs, assessments, and restitution." Defendant has filed a timely notice of appeal from the trial court's dismissal order. On appeal, defendant asserts that the restitution order wa s notpart of h is negot iated guilty plea. Defendant argues that, on the date he entere d his guil t y plea, the State did not indicate tha t restitution would be part of the sentence. Defend ant furth er arg ues that, in reciting the a

pplicabl e minimum and maximum sentences to the charge, the trial court never admonished him that he was potentially subject to an order of restitution. Defendant asserts that the order of restitution was an improper "new te rm [that] wa s added to

the previously

agreed upon sentence." Defendant concludes that his petition stated the gist of a constitutional claim and that the trial court erred in dismissing it. The Post -Conv icti on Hear ing Act (the Act) (725 I LCS 5/122--1 et seq. (West 2006)) provides

a remedy to crimi n al defendants who have suffered substantial violations of their c onstitutional rights. People v. Barcik , 365 Ill. App. 3d 183, 190 (2006). When the death penalty is not involved, as is the case here, there

are three stages to proceeding s under the Act. Barcik , 365 Ill. App. 3d at 190. In the

instant ca se, defe

ndant' s petition w as dismisse d at the f irst stag e. Durin g the fi

rst stage, th e tria l court determines whether the defendant' s allegations sufficiently demonstrate a constitutional violation t

hat would

necessita te relie f. People v. Coleman , 183 Ill. 2d 366, 380 (1998). The trial court may summarily dismiss the petition if it finds that the petition is "frivolous

or is patently without merit." 725 IL CS 5/122--2.1(a)(2) (West 2006). A petition is "frivolous or patently without me

rit" if it does not st

ate the g ist of a constitutional claim. People v. Edwards , 197 Ill. 2d 239, 244 (2001). We review de novo the fi rst-stage dismissal of a postconviction petition. Barcik , 365 Ill. App. 3d at 190.No. 2--06--0563

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Defend ant's claim that he never agree d to the entry of an order of restitutio n as part

of his negotiated

plea is directly re

futed by the record. Prior

to the trial court's entry

of sentence on June 20, 2005, the

State pre sented the detailsof the ag reed se ntencin g dispos ition, a portion of which required defendant

to pay restitution to the KCCPAT in the amount of $9,000. As detailed above,

a fte r the State's recitation of the sentence, the trial c ourt inquired and defendant confirmed three separa te times that

this was the sentence he ha d agre ed to and wanted the trial court to enter. As the record establishes defendant's clear unde rstanding of and agree

ment to the terms of t he se ntence imposed by

the trial court, de fendant cannot no w claim

that the se

ntence w as contr

ary to the ter ms of the negotiated plea agreement. See People v. Maury , 287 Ill. App. 3d 77, 83 (1997) (holding that record refute d the def

endant' s claim tha

t his guilt y pl ea was in

voluntar y) ; Peopl e v. Nee ly , 24 I

ll. App. 3d 682, 683-84 (1974) (same). In reachi ng this c onclusion , we ack nowledg e that the

State fa iled to men

tion rest it ution during the May 11, 2005, hea ring at which defendant entere d his guilty plea. Howe ver, the record establishes that the parties were not prepared to enter sentence on that date. Instead, following the entry of defendant's plea, the State provided a descr iption of

a "contemplated" or "a

nticipated" sentence that it would recommend be entered on June 20, 2005. The State i ndi cated th at its recommendation of such a sentence was dependent upon defenda nt's appearance on June

20, 2005, and upon his co mmission of no new of

fenses. Defens e counse

l agre ed that the purpose

of the May 11, 2005, hearing was for entry of defendant's guilty

plea only and that

he would not be sentenced

on that date . Based

upon these

statemen ts, it is apparent that on May

11, 2005, the parties had not yet reached a final agreement

on defendant's sentence. The f inal agreed sentencing

disposition was notpresent

ed to the t rial cou rt until June 20, 200 5, at which timethe State specifically indicated that the sentenc e would

include a restitution order. As already discussed, defendant acknowledged theNo. 2--06--0563

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sentencing agreement and ag r eed to the entry

of such a sentencing order. I n view of the record before us, w e concl ude that an order of restitution was part of defenda nt's agreed sentencing disposition and hold that the State did not violate the terms of defendant's plea a g reement. See Neely , 24 Ill. App. 3d at 683-84. D efe ndant

additiona

lly c ontends th at the re stitution or der shoul d be vac ated in itsentirety because the trial court did not admonish him about the possibility of pay ing restitution as required by Supreme Court Rule 402(a)(2) (177 I ll. 2d R. 402(a)(2) ). Ru le 402(a)(2) provides that a trial court may not ac cept a p lea of gu ilty without f

irst informing the defendant in open court of the minimum and maximum sentences prescribed by law a nd determining that the defenda nt understands those penaltie s. 177 I

ll. 2d R. 402 (a)(2) . Illi nois revi ewing c ourts hav e held tha t, un der Rule 402(a)(2), a

trial court must admonish a defendant about the possibility of restitution. See People

v. Jenkins , 141 Ill. App. 3d 602, 608 -09 (1986 ); People v. Culp , 127 Ill. App. 3d 916, 925-27 (1984). In th is ca se , p ri or to ac ce pt in g d ef en da nt 's gu il ty p lea, t he trial c ourt did no t specifi cally admonish defend ant r egarding the possibility of restitution. As detailed above, in describing the minimum and maximum sentences prescribed by the law, the trial court stated that defendant could be sentenc ed to betw een 15 a nd 60 years'

imprisonment, 3 years'

mandatory

supervised release, and

a fine not to exce ed $ 500,000. The trial court's failure to admonish defenda nt regarding the possibility

of restitution violated Rule 402(a)(2) and was error. See Jenkins , 141 Ill. App. 3d at 608- 09; Culp , 127 Ill. App. 3d at 925-27. However, the trial

court' s fail ure to p roperly admonish a

defenda nt does not

itself automatic ally

establish grounds for reversing the judg ment or vacating the plea. People v. Fuller , 205 Ill. 2d 308, 323 (2002 ). Substan tial compl iance w ith Rule 402 suffices t o establis h due pro cess. Fuller , 205 Ill. 2d at 323. Whether an imperfectadmonishment requires reversal depends on whetherNo. 2--06--0563

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real justice has been denied or whether the inadequa te admonishmen t prejudic ed the defendant

. Fuller , 205 Ill. 2d at 323. In People v. Thompson , 375 Ill. App. 3d 488 (2007), the First District considered whether

a trial cou rt's fa ilure to a dmonish the

defenda nt of the p ossibil ity that he c ould be ordered to pay restitution constituted reversible error. I n that case, the defendant agr eed t o ple ad guilty to four burglary counts wit

h a sentencing ca

p of seve n ye ars' im

prisonme nt and, in r

eturn, the State

agreed to dismiss three other

pending charges. Thompson , 375 Ill . App. 3d at 4 90. At the pl ea heari ng, the trial court admonished the defendant that each count of bur glary was punishable by

(1) 3 to 7 y

ears' imprisonme

nt, which could be 7 to 1 4 ye ars' imprisonment if aggravating fa ctors were present; (2) 2 years' mandatory super

vised release; (3) up to 4 years' proba tion; and (4) up to a $25,000 fine. Thompson , 375 Ill. App. 3d at 490. The trial court subsequently sent e nced the defendant to four concurrent

six-y ear pri son terms a nd order ed him to pa

y a total of $1 ,242.69 in

restituti on . Thompson , 375 Ill. App. 3d at 494. On appeal , the reviewing co urt affirme d the d efenda nt's s enten ce and h eld th at the trial court 's failure to admon ish the defendant regar ding the possibility

of pay ing res titution did

not resul t in prejudice. Thompson , 375 Ill. App. 3d at 494. Relying on our supr eme court's decision in People

v. Whitfield , 217 Ill. 2d 177 (2005), the Thompson court explained that a trial court's violation of Rule 402 results in reversible error only where a defendant rece

ives a more onerous sentence than the defendant was told heor s he would receive. Thompson , 375 Ill. App. 3d at 493-95, citing Whitfield , 217 Ill. 2 d at 19 3-95. The Thompson court noted that t he por tion of the trial court 's sente ncing order requiring the defenda nt to pay $1,242.69 in restitution was lower than " the admonished maximu m fine of $25 ,000." Thompson , 375 Ill. App. 3d at 494. The Thompson court concluded

that, bec ause the

defenda nt did not receive "a more onerous sente nce, his plea agreementNo. 2--06--0563

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was not brea

ched an d the impe

rfect a dmonishme

nt did not deny him real justice." Thompson , 375 Ill. App. 3d at 494. We find the Thompson court's reasoning persua sive and similarly conclude that defendant in the instant case cannot demonstrate that he was prejudiced as a result of the trial court's failure

to specific ally

admonish him of the possibility that he could be required to pay restitution. Defendant here, like the defendant in Thompson , was admonished of the possibility that he could be se ntenced to pay a substantial fine. As detailed above, the trial court specifically admonished defendant that he could be sen tenced to pay a fi ne of u p to $ 500,0 00. Al thou gh we acknowled ge that a fine and restitution are different ty pes of penalties (see People v. Fulkerson , 326 Ill. App. 3d 1124, 1125-26 (20 02)), defenda nt was nonetheles s admonished that he could pote

ntially be liable to pay up to $500,000 as part of his sentence. As the combined total in fines, co sts, fees, assessments, and restitution that defendant was ordered to pay was substantia

lly less than $500,000, he did not receive a more onerous sentence than the one the trial court admonished him he could potentially receive. See Whi tfield , 217 Ill. 2d at 193 (noting that a trial cour t's failure to admonish a defendant concerning applicable term of mandatory supervised re lease wa s not a constitutional violation as long as the sentence plus th e term of mandatory supervised release was less than the maximum sentence defendant was told he or she could receive ). Moreover, as we have alre ady noted, at the June 20, 2005, hearing, defendant specific ally indicated that he had agreed

to a sentence including restitution and he reque sted the tr ial cour t to enter such a se

ntence. Under these cir

cumstanc es, defend ant's plea agreement was not brea ched and he was not prejudiced by

the trial court's imperfect admonishm

ents. See Thompson , 37 5 Ill. App. 3d at 494. Therefore, defendant' s postconviction petition failed to state the g ist o f a constitutional claim, and the trial court properly dismissed the petition a s frivolou s and pate ntly without me

rit.No. 2--06--0563

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In closing, we note that the State has requested the mittimus be corrected to accurately

reflect the amount of

restitutio n actually o

rdered by t he trial c ourt. A lthough the trial court ordered restitution to the KCCPAT in the amount of $9,000, the mittimus requires payment of r estitution in the amount of $9,200. We ag ree with the S tate that the mittimus must be corrected to reflect the appropr iaterestitution amount. We therefore order that defendant's mittimus be correcte d to reflect that he pay re stitution to the KC0CPAT in the amount of $9,000. See People v. Brown , 371 Ill. App. 3d 972, 986 (2007). For the foregoingrea sons, we a ffirm the judgmen t of the c ircuit co

urt of Ke ndall Coun

ty dismissing defendant's postconviction petition and we remand the cause for the cle rk of the ci rcuit court to correct defendant' s mittimus as directed. Affirme d; cause

remande d with directions. McLAREN and BOWMAN, JJ., concur.