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

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court

ILLINOIS, ) of Kendall County.

)

Plaintiff-Appellee, )

)

v. ) No. 04--CF--306

)

MATTHEW M. PETERO, ) Honorable

) James M. Wilson,

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________

JUSTICE HUTCHINSON delivered the opinion of the court:

Defendant, Matthew M. Petero, appeals from the trial court's summary dismissal of his pro

se postconviction petition as frivolous and patently without merit. In his petition, defendant alleged

that he was sentenced to pay restitution in the amount of $9,000 despite there having been no

agreement to pay restitution as part of his guilty plea negotiated with the State. Defendant further

alleged that the trial court failed to admonish him before accepting his guilty plea of the possibility

that he may be subject to restitution. The trial court dismissed defendant's petition after reviewing

the transcripts of the proceedings on defendant's guilty plea and finding that defendant was

admonished that he would have to pay restitution as part of his disposition negotiated with the State.

On appeal, defendant argues that his postconviction petition stated the gist of a constitutional claim

and that the trial court erred in dismissing his petition. We affirm.
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On September 21, 2004, defendant was charged in a five-count indictment with unlawful

possession with the intent to deliver more than 900 grams of cocaine (720 ILCS 570/401(a)(2)(D)

(West 2004)), unlawful possession of more than 900 grams of cocaine (720 ILCS 570/402(a)(2)(D)

(West 2004)), unlawful possession with the intent to deliver between 500 and 2,000 grams of

cannabis (720 ILCS 550/5(e) (West 2004)), unlawful possession of between 500 and 2,000 grams

of cannabis (720 ILCS 550/4(e) (West 2004)), and unlawful possession of a weapon by a felon (720

ILCS 5/24--1.1(a) (West 2004)).

On May 11, 2005, the parties appeared before the trial court and indicated that they had

reached a plea agreement. Under the agreement, defendant would plead guilty to one count of

unlawful possession with the intent to deliver more than 900 grams of cocaine and the State would

dismiss the remaining counts. The State indicated that it wished to delay entry of the sentence until

June 20, 2005. However, the State indicated that it would "put into the record what [it] anticipate[d]

the sentence to be subject to defendant appearing in court on [June 20] and no new violations of any

offenses between now and that court date."

The trial court proceeded to admonish defendant regarding the consequences of pleading

guilty. In describing the minimum and maximum sentences prescribed by law for the offense, the

trial court asked defendant, "Do you understand this one carries with it a term of not less than 15

years but not more than 60 years, that it carries with it a fine not to exceed $500,000, that it carries

with it a 3-year term of mandatory supervised release, and that it is not a probationable offense[?]"

Defendant responded that he understood the penalties associated with the offense. The trial court

further admonished defendant that "the sentence that the State has indicated to you that would be

imposed on the June 20th date is contingent upon you appearing at that time and on that date." The
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trial court admonished defendant that, if he failed to appear 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 accepted and entered his guilty plea.

After defendant entered his guilty plea, the State stated on the record the "contemplated

sentence" that would be entered on June 20:

"Judge, subject to [defendant] showing up on June 20th *** having no new violations

of any offenses, the defendant would be sentenced to a term of 15 years in the custody of the

Illinois Department of Corrections plus a 3-year term of mandatory supervised release. He

would be given credit for any time served in the Kendall County 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 Department

of Corrections and pay a $200.00 fee for that from his bond. The drug assessment fee would

be waived on motion of the State and the remaining fines and costs would be taken from his

bond that was posted."

Defense counsel concurred that this was the substance of the agreement reached between the parties

as to sentencing.

On June 20, 2005, the parties appeared before the trial court for sentencing. At the beginning

of the hearing, defendant confirmed that his attorney had negotiated an agreed sentence with the

State and had explained the agreement to him. The State presented the terms of the agreed sentence

as follows:

"Defendant has previously pled guilty to the offense of Unlawful Possession with the

Intent to Deliver a Controlled Substance, Class X felony. Defendant will be sentenced to a

period of 15 years in the custody of the Illinois Department of Corrections plus a 3-year term
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of mandatory supervised release. He is given credit for 4 actual days served in the Kendall

County Jail from July 23rd to July 26th, 2004. That 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 DNA collection fee 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 court then asked defendant

whether there was "anything that the State read that [was] not accurate, or part of that statement or

that sentence, or anything that was not read that should have been?" Defendant replied negatively.

Finally, the trial court inquired of defendant, "You're asking me to approve that sentence; is that

correct?" Defendant replied affirmatively. The trial court entered a written order sentencing

defendant to serve 15 years' imprisonment and 3 years' mandatory supervised release, to pay $10,000

in fines and costs, a $100 laboratory fee, a $3,000 drug assessment, and $9,200 in restitution to the

Kendall County Cooperative Police Assistance Team (KCCPAT), and to provide a DNA sample.

On April 6, 2006, defendant filed a pro se postconviction petition. As already noted,

defendant alleged that he was sentenced to pay restitution despite there having been no agreement

to pay restitution as part of his guilty plea negotiated with the State. Defendant further alleged that

the trial court failed to admonish him before accepting his guilty plea of the possibility that he may

be subject to restitution. On May 15, 2006, the trial court dismissed defendant's postconviction

petition as frivolous and patently without merit. In its written order, the trial court indicated that the

report of proceedings from May 11, 2005, and June 20, 2005, reflected that defendant was
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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 was not part of his negotiated guilty

plea. Defendant argues that, on the date he entered his guilty plea, the State did not indicate that

restitution would be part of the sentence. Defendant further argues that, in reciting the applicable

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 term [that] was 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-Conviction Hearing Act(theAct)(725 ILCS 5/122--1 et seq. (West 2006)) provides

a remedy to criminal defendants who have suffered substantial violations of their constitutional

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 proceedings under the Act. Barcik, 365 Ill. App. 3d at

190. In the instant case, defendant's petition was dismissed at the first stage. During the first stage,

the trial court determines whether the defendant's allegations sufficiently demonstrate a

constitutional violation that would necessitate relief. 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 ILCS 5/122--2.1(a)(2) (West 2006). A petition is "frivolous or

patently without merit" if it does not state the gist of a constitutional claim. People v. Edwards, 197

Ill. 2d 239, 244 (2001). We review de novo the first-stage dismissal of a postconviction petition.

Barcik, 365 Ill. App. 3d at 190.
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Defendant's claim that he never agreed to the entry of an order of restitution as part of his

negotiated plea is directly refuted by the record. Prior to the trial court's entry of sentence on June

20, 2005, the State presented the details of the agreed sentencing disposition, a portion of which

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

after the State's recitation of the sentence, the trial court inquired and defendant confirmed three

separate times that this was the sentence he had agreed to and wanted the trial court to enter. As the

record establishes defendant's clear understanding of and agreement to the terms of the sentence

imposed by the trial court, defendant cannot now claim that the sentence was contrary to the terms

of the negotiated plea agreement. See People v. Maury, 287 Ill. App. 3d 77, 83 (1997) (holding that

record refuted the defendant's claim that his guilty plea was involuntary); People v. Neely, 24 Ill.

App. 3d 682, 683-84 (1974) (same).

In reaching this conclusion, we acknowledge that the State failed to mention restitution

during the May 11, 2005, hearing at which defendant entered his guilty plea. However, 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 description of a "contemplated" or "anticipated"

sentence that it would recommend be entered on June 20, 2005. The State indicated that its

recommendation of such a sentence was dependent upon defendant's appearance on June 20, 2005,

and upon his commission of no new offenses. Defense counsel agreed 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 statements, it is apparent that on May 11, 2005, the parties had not

yet reached a final agreement on defendant's sentence. The final agreed sentencing disposition was

not presented to the trial court until June 20, 2005, at which time the State specifically indicated that

the sentence would include a restitution order. As already discussed, defendant acknowledged the
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sentencing agreement and agreed to the entry of such a sentencing order. In view of the record

before us, we conclude that an order of restitution was part of defendant's agreed sentencing

disposition and hold that the State did not violate the terms of defendant's plea agreement. See

Neely, 24 Ill. App. 3d at 683-84.

Defendant additionally contends that the restitution order should be vacated in its entirety

because the trial court did not admonish him about the possibility of paying restitution as required

by Supreme Court Rule 402(a)(2) (177 Ill. 2d R. 402(a)(2)). Rule 402(a)(2) provides that a trial

court may not accept a plea of guilty without first informing the defendant in open court of the

minimum and maximum sentences prescribed by law and determining that the defendant understands

those penalties. 177 Ill. 2d R. 402(a)(2). Illinois reviewing courts have held that, under 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 this case, prior to accepting defendant's guilty plea, the trial court did not specifically

admonish defendant regarding 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 sentenced to between 15 and 60 years' imprisonment, 3 years' mandatory supervised release, and

a fine not to exceed $500,000. The trial court's failure to admonish defendant 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 failure to properly admonish a defendant does not itself

automatically establish grounds for reversing the judgment or vacating the plea. People v. Fuller,

205 Ill. 2d 308, 323 (2002). Substantial compliance with Rule 402 suffices to establish due process.

Fuller, 205 Ill. 2d at 323. Whether an imperfect admonishment requires reversal depends on whether
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real justice has been denied or whether the inadequate admonishment prejudiced 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 court's failure to admonish the defendant of the possibility that he could be ordered to pay

restitution constituted reversible error. In that case, the defendant agreed to plead guilty to four

burglary counts with a sentencing cap of seven years' imprisonment and, in return, the State agreed

to dismiss three other pending charges. Thompson, 375 Ill. App. 3d at 490. At the plea hearing, the

trial court admonished the defendant that each count of burglary was punishable by (1) 3 to 7 years'

imprisonment, which could be 7 to 14 years' imprisonment if aggravating factors were present; (2)

2 years' mandatory supervised release; (3) up to 4 years' probation; and (4) up to a $25,000 fine.

Thompson, 375 Ill. App. 3d at 490. The trial court subsequently sentenced the defendant to four

concurrent six-year prison terms and ordered him to pay a total of $1,242.69 in restitution.

Thompson, 375 Ill. App. 3d at 494.

On appeal, the reviewing court affirmed the defendant's sentence and held that the trial court's

failure to admonish the defendant regarding the possibility of paying restitution did not result in

prejudice. Thompson, 375 Ill. App. 3d at 494. Relying on our supreme 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 receives a more onerous sentence than

the defendant was told he or she would receive. Thompson, 375 Ill. App. 3d at 493-95, citing

Whitfield, 217 Ill. 2d at 193-95. The Thompson court noted that the portion of the trial court's

sentencing order requiring the defendant to pay $1,242.69 in restitution was lower than "the

admonished maximum fine of $25,000." Thompson, 375 Ill. App. 3d at 494. The Thompson court

concluded that, because the defendant did not receive "a more onerous sentence, his plea agreement
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was not breached and the imperfect admonishment did not deny him real justice." Thompson, 375

Ill. App. 3d at 494.

We find the Thompson court's reasoning persuasive 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

specifically 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 sentenced

to pay a substantial fine. As detailed above, the trial court specifically admonished defendant that

he could be sentenced to pay a fine of up to $500,000. Although we acknowledge that a fine and

restitution are different types of penalties (see People v. Fulkerson, 326 Ill. App. 3d 1124, 1125-26

(2002)), defendant was nonetheless admonished that he could potentially be liable to pay up to

$500,000 as part of his sentence. As the combined total in fines, costs, fees, assessments, and

restitution that defendant was ordered to pay was substantially 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 Whitfield, 217 Ill. 2d at 193 (noting that a trial court's failure to admonish a defendant

concerning applicable term of mandatory supervised release was not a constitutional violation as

long as the sentence plus the term of mandatory supervised release was less than the maximum

sentence defendant was told he or she could receive). Moreover, as we have already noted, at the

June 20, 2005, hearing, defendant specifically indicated that he had agreed to a sentence including

restitution and he requested the trial court to enter such a sentence. Under these circumstances,

defendant's plea agreement was not breached and he was not prejudiced by the trial court's imperfect

admonishments. See Thompson, 375 Ill. App. 3d at 494. Therefore, defendant's postconviction

petition failed to state the gist of a constitutional claim, and the trial court properly dismissed the

petition as frivolous and patently without merit.
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In closing, we note that the State has requested the mittimus be corrected to accurately reflect

the amount of restitution actually ordered by the trial court. Although the trial court ordered

restitution to the KCCPAT in the amount of $9,000, the mittimus requires payment of restitution in

the amount of $9,200. We agree with the State that the mittimus must be corrected to reflect the

appropriate restitution amount. We therefore order that defendant's mittimus be corrected to reflect

that he pay restitution to the KC0CPAT in the amount of $9,000. See People v. Brown, 371 Ill. App.

3d 972, 986 (2007).

For the foregoing reasons, we affirm the judgment of the circuit court of Kendall County

dismissing defendant's postconviction petition and we remand the cause for the clerk of the circuit

court to correct defendant's mittimus as directed.

Affirmed; cause remanded with directions.

McLAREN and BOWMAN, JJ., concur.