ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. McKenzie, 2013 IL App (1st) 102925

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

ARTHUR McKENZIE, Defendant-Appellant.

 District & No. First District, Sixth Division

Docket No. 1-10-2925

Filed May 31, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s postconviction petition alleging that his plea agreement was

void because it included a waiver of his appellate and postconviction

rights was properly dismissed at the first stage, notwithstanding his

contention that other states have found that such a waiver is against their

public policy, since the Illinois Appellate Court has upheld such waivers

for decades.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 99-CR-20952-53; the

Hon. Evelyn B. Clay, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and Todd T. McHenry, all of

State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and

John E. Nowak, Assistant State’s Attorneys, of counsel), for the People.

Panel JUSTICE GORDON delivered the judgment of the court, with opinion.

Presiding Justice Lampkin and Justice Reyes concurred in the judgment

and opinion.

OPINION

¶ 1 Defendant Arthur McKenzie appeals from the summary dismissal of his postconviction

petition at the first stage. His convictions and sentences are described in the Background

section, below.

¶ 2 On this appeal, defendant’s initial brief argued that his plea agreement was void because

(1) it originally included a void sentence, in excess of the statutory maximum; and (2) it

included a waiver of appellate and postconviction rights, which he asked us to find was void

against public policy. However, in his reply brief, defendant “concedes that People v.

Donelson, 2013 IL 113603, forecloses his first argument that his plea agreement is void

solely on the basis that it included a void sentence.” However, his reply brief stated that he

“continues to maintain that the agreement is void because the appellate and postconviction

waivers are against public policy.”

¶ 3 First, although the plea agreement originally included a void sentence in excess of the

statutory minimum, this sentence was subsequently reduced by the Illinois Supreme Court,

in response to defendant’s request to do so in his petition for leave to appeal. Second,

although defendant argues that other states have found that a waiver of appellate and

postconviction rights is against public policy, he acknowledges that the Appellate Court of

Illinois has upheld this type of a waiver for decades. For the following reasons, we affirm.

¶ 4 BACKGROUND

¶ 5 Following a jury trial, defendant Arthur McKenzie was found guilty of first degree

murder and sentenced to 60 years in the Illinois Department of Corrections (IDOC). He

subsequentlyentered a negotiated plea of guilty to second degreemurder in an unrelated case

and was sentenced, pursuant to the agreement, to a consecutive term of 40 years in IDOC.

As part of that plea, defendant agreed to waive his rights to appellate and postconviction

relief in both cases.

-2-
¶ 6 Defendant’s motion to vacate his guilty plea was denied by the trial court, and the

appellate court dismissed defendant’s appeal from that ruling. People v. McKenzie, No. 1-05-

3821 (2008) (unpublished order under Supreme Court Rule 23). Defendant then filed a

petition for leave to appeal to the Illinois Supreme Court in which he argued, among other

things, that his 40-yearsentence for second degree murder exceeded the statutory maximum

by 10 years and that the supreme court had the power to reduce it pursuant to its supervisory

authority. Defendant stated: “Even if this [Illinois Supreme] Court denies leave to appeal,

therefore, it should exercise its supervisory authority and orderthat McKenzie’s sentence be

reduced from 40 years to 30 years.” The Illinois Supreme Court denied defendant’s petition

for leave to appeal but, pursuant to defendant’s request, it remanded the case to the circuit

court, pursuant to its supervisory authority, with instructions to reduce defendant’s sentence

for second degree murder from 40 to 30 years in IDOC. People v. McKenzie, 229 Ill. 2d 684

(2008) (supervisory order).

¶ 7 On June 11, 2010, defendant filed a pro se postconviction petition which was dismissed

on August 31, 2010, as frivolous and patently without merit.

¶ 8 ANALYSIS

¶ 9 Defendant acknowledges that, as part of his negotiated plea agreement, he agreed to

waive all appeal and postconviction challenges to both his first degreemurder conviction and

his second degree murder conviction. Nonetheless, he requests the court to hear this

postconviction appeal on the ground that this agreement is void.

¶ 10 In his initial brief on this appeal, he argued that the plea agreement was void on two

grounds: first, because it originally included a void sentence, in excess of the statutory

maximum; and, second, because it included a waiver of appellate and postconviction rights,

which he requests that we find is void against public policy. However, in his reply brief, he

conceded that the first argument was foreclosed by our supreme court’s decision in People

v. Donelson, 2013 IL 113603, and he now proceeds on only the second argument. For the

following reasons, we affirm the dismissal of his postconviction petition.

¶ 11 I. Stages of a Postconviction Proceeding

¶ 12 This appeal came to us after a first-stage summary dismissal of a postconviction petition.

¶ 13 The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2000))

provides a means by which a defendant may challenge his or her conviction or sentence for

violations of federal or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471

(2006) (citing People v. Whitfield, 217 Ill. 2d 177, 183 (2005)). To be entitled to

postconviction relief, a defendant must demonstrate that he or she has suffered a substantial

deprivation of his federal or state constitutional rights in the proceedings that produced the

conviction or sentence being challenged. 725 ILCS 5/122-1(a) (West 2000); Pendleton, 223

Ill. 2d at 471 (citing Whitfield, 217 Ill. 2d at 183).

¶ 14 The Act provides for three stages in noncapital cases. Pendleton, 223 Ill. 2d at 471-72.

At the first stage, the trial court has 90 days to review a petition and may summarily dismiss

-3-
it if the trial court finds that the petition is frivolous and patently without merit. 725 ILCS

5/122-2.1(a)(2) (West 2000); Pendleton, 223 Ill. 2d at 472. If the trial court does not dismiss

the petition within that 90-day period, the trial court must docket it for further consideration.

725 ILCS 5/122-2.1(b) (West 2000); Pendleton, 223 Ill. 2d at 472.

¶ 15 The Illinois Supreme Court has held that, at this first stage, the trial court evaluates only

the merits of the petition’s substantive claim, and not its compliance with procedural rules.

People v. Perkins, 229 Ill. 2d 34, 42 (2007). The issue at this first stage is whether the

petition presents “ ‘ “the gist of a constitutional claim.” ’ ” Perkins, 229 Ill. 2d at 42 (quoting

People v. Boclair, 202 Ill. 2d 89, 99-100 (2002), quoting People v. Gaultney, 174 Ill. 2d 410,

418 (1996)). As a result, “[t]he petition may not be dismissed as untimely at the first stage

of the proceedings.” Perkins, 229 Ill. 2d at 42.

¶ 16 In the case at bar, defendant’s petition was dismissed at the first stage. However, if it had

proceeded to the second stage, the Act provides that counsel maybe appointed for defendant,

if defendant is indigent. 725 ILCS 5/122-4 (West 2000); Pendleton, 223 Ill. 2d at 472. After

an appointment, Supreme Court Rule 651(c) requires the appointed counsel: (1) to consult

with petitioner bymail or in person; (2) to examine the record of the challenged proceedings;

and (3) to make any amendments “that are necessary” to the petition previously filed by the

pro se defendant. Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984); Perkins, 229 Ill. 2d at 42.

¶ 17 The Act provides that, after defense counsel has made any necessary amendments to the

petition, the State maymove to dismissit. Pendleton, 223 Ill. 2d at 472 (discussing 725 ILCS

5/122-5 (West 2000)). See also Perkins, 229 Ill. 2d at 43. If the State moves to dismiss, the

trial court may hold a dismissal hearing, which is still part of the second stage. People v.

Coleman, 183 Ill. 2d 366, 380-81 (1998). A trial court is foreclosed “from engaging in any

fact-finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this

point in the proceeding.” Coleman, 183 Ill. 2d at 380-81.

¶ 18 At a third-stage evidentiary hearing, the trial court “may receive proof by affidavits,

depositions, oral testimony, or other evidence,” and “mayorderthe petitioner brought before

the court.” 725 ILCS 5/122-6 (West 2000). In the case at bar, defendant asks us to reverse

the trial court’s dismissal of his petition as frivolous and remand for second-stage

proceedings.

¶ 19 II. Standard of Review

¶ 20 The question of whether a trial court’s summary first-stage dismissal was in error is

purely a question of law, which an appellate court reviews de novo. People v. Petrenko, 237

Ill. 2d 490, 496 (2010); see also Pendleton, 223 Ill. 2d at 473. De novo consideration means

that we perform the same analysis that a trial judge would perform. People v. Daniel, 2013

IL App (1st) 111876, ¶ 22.

¶ 21 Our supreme court has held that a trial court may summarily dismiss a petition as

frivolous only if it has no arguable basis either: (1) in law; or (2) in fact. Petrenko, 237 Ill.

2d at 496 (citing People v. Hodges, 234 Ill. 2d 1, 16 (2009)). Our supreme court has

explained that (1) a petition lacks an arguable basis in law “if it is based on an indisputably

meritless legal theory, such as one that is completely contradicted by the record”; and that

-4-
(2) it lacks an arguable basis in fact “if it is based upon a fanciful factual allegation, such as

one that is clearly baseless, fantastic or delusional.” Petrenko, 237 Ill. 2d at 496 (citing

Hodges, 234 Ill. 2d at 16-17).

¶ 22 III. Defendant’s Original Sentence

¶ 23 In the case at bar, there is no dispute among the parties that defendant’s original sentence

for second degree murder, as contained in his plea agreement, was void because it was in

excess of the statutory maximum. However, that agreement was reformed, at defendant’s

request, by the supreme court. Defendant requested the supreme court to exercise its

supervisory authority to reduce his sentence, and it granted his request. Once a defendant has

asked one court for a particular remedy to correct a mistake and it grants his prayer for relief,

he cannot then go to a different court and argue, in essence, that what he asked for previously

was insufficient and now he wants more. It is well established that a defendant may not ask

a court to proceed in a certain manner and than contend in a different court that the order

which he thus obtained was in error. People v. Segoviano, 189 Ill. 2d 228, 241 (2000) (citing

People v. Lowe, 153 Ill. 2d 195, 199 (1992)).

¶ 24 In his original appellate brief, defendant relied primarily on the Illinois Supreme Court’s

opinion in People v. White, 2011 IL 109616. However, that case is distinguishable. In White,

our supreme court held that a plea agreement was void where the trial court had imposed a

sentence that was less than the statutory minimum. White, 2011 IL 109616, ¶ 31. The

supreme court remanded the case to the trial court with instructions that it allow defendant

to withdraw his guilty plea and proceed to trial, if he so chooses. White, 2011 IL 109616,

¶ 31.

¶ 25 That case is distinguishable in two respects. First, in White, the defendant was denied the

benefit of his bargain. He had bargained for a lower sentence, and once that was denied him,

it would have been unfair to hold him to an agreement that he had never bargained for. By

contrast, in the case at bar, defendant had bargained for a higher sentence than the one he is

now receiving. He had agreed to a 40-year sentence, and he is now serving a 30-year

sentence; so he is now receiving more than he bargained for, not less.

¶ 26 Second, in White, defendant asked for one remedy and received it, namely, the ability to

vacate his plea. By contrast, in the case at bar, defendant asked for a different remedy,

namely, a reduction in sentence and received it. Unlike the defendant in White, defendant is

asking for an additional remedy for the same mistake.

¶ 27 Since defendant received the benefit of his bargain–actuallymore–and already requested

and received a remedy for the statutory error, we find that White is distinguishable.

¶ 28 Further, in defendant’s reply brief, he conceded that this argument was foreclosed by our

supreme court’s recent decision in People v. Donelson, 2013 IL 113603. In Donelson, the

supreme court held that White does not allow a defendant to withdraw his guilty plea if his

sentence can be modified to provide the defendant with the benefit of his bargain. Donelson,

2013 IL 113603, ¶¶ 26-28.

-5-
¶ 29 IV. Public Policy

¶ 30 Defendant now argues that his plea agreement is void solely because it included a waiver

of appellate and postconviction rights, which he asks us to find is void against public policy.

¶ 31 In support of his argument, defendant observes that several states have held that such

waivers are unenforceable as against public policy, and he cites Spann v. State, 704 N.W.2d

486 (Minn. 2005), State v. Ethington, 592 P.2d 768 (Ariz. 1979) (en banc), and People v.

Harrison, 191 N.W.2d 371 (Mich. 1971). However, he admits that the Illinois Appellate

Court has enforced these waivers for decades, citing People v. Nichols, 143 Ill. App. 3d 673

(1986), and People v. Fearing, 110 Ill. App. 3d 643 (1982). Defendant does not cite any

Illinois cases that have opposed these decisions. Defendant’s argument that these cases

should be overturned, based on public policy and a trend in other states, is better directed to

our supreme court. We decline his invitation to depart from our well-established precedent.

¶ 32 CONCLUSION

¶ 33 In his initial appellate brief, defendant argues that his plea agreement was void because

(1) it originally included a void sentence, in excess of the statutory maximum; and (2) it

included a waiver of appellate and postconviction rights, which he asked us to find was void

against public policy.

¶ 34 First, although the plea agreement originally included a void sentence in excess of the

statutory minimum, this sentence was subsequently reduced by the Illinois Supreme Court

by supervisory order, in response to defendant’s request to do so in his petition for leave to

appeal. In addition, defendant withdrew this argument in his replybrief, conceding that it was

foreclosed by our supreme court’s decision in People v. Donelson, 2013 IL 113603.

¶ 35 Second, although defendant argues that other states have found that a waiver of appellate

and postconviction rights is against their public policy, he acknowledges that the Appellate

Court of Illinois has upheld this type of a waiver for decades. For the foregoing reasons, we

affirm the summary dismissal of defendant’s postconviction petition.

¶ 36 Affirmed.

-6-