## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ARTHUR McKEN Z I E, Def endant- Appellant.

District & N o. First District, Six th Division Docke t No. 1-10-2925

Filed May 31, 2013

Held (Note : Thi s syl lab us
con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e
c o n v e n i e n c e o

f t h e
rea der

. ) Def endant’ s postconviction petition alleg ing that his plea agree ment was void beca use it included a waiver of his appellate an d p o s t conviction rig hts was proper ly dismiss ed at t h e first stag e, notwithstanding his contention that other states have found that such a waiver is ag ainst their public policy
, since the I llinois Appellate Court has upheld such waiver s for de cade s.

Dec ision Under Review Appea l from the Circuit Court of Cook County , No. 9 9

- CR

- 20952-53; the Hon. Evely

n B. Clay , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Todd T

. M cH enry , all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney , of Chicag o (Alan J

. Spellberg and J ohn E. Nowak, Assistant State’s Attorney s, of counsel), for the People.

Panel J USTI CE GORDON delivere d the judgme nt of the cour t, with opinion. Presiding J ustice L ampkin and J ustice Reyes concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant Arthur McKe nzie appea ls from the summary dismiss al of his postconvic tion petition at the first stag e. His convictions and sentenc es ar e descr ibed in the Ba ckground section, below. ¶ 2 On this appea l, defe ndant’s initial brief argued that his plea agree ment was void beca use (1) it orig inally included a void sentenc e, in excess of the statutory maxi m um; and (2) it included a waiver of appellate and postconviction rig hts, which he asked us to find was void ag ainst public policy

. Howeve r, in his reply brief, defe ndant “c o n cede s that People v. Donelson
, 2013 I L 113603, fore closes his fi rs t ar gu m ent that his plea agree ment is void solely on the basis that it include d a void se ntence .” Howeve r, his r eply brief stated that he “continues to maintain that the agree ment is void beca use the appellate and postconviction waiver s are ag ainst public policy .” ¶ 3 First, alt h o u g h the plea agree ment orig inally included a void sentenc e in excess of the statutory minimum
, this sentenc e was subsequently reduc ed by the I llinois Supreme Court, in response to defen d an t ’s re quest to do so in his petition for leave to appea l. Second, althoug h defe ndant arg

ues that other states have found that a waiver of appellate and postconviction rig hts is a g ainst public policy
, he acknow ledg es that the Appellate Court of I llinois has upheld this ty pe of a waiver for de cade s. For the followingrea sons, we af firm.

¶ 4 BA CKGROUND ¶ 5 Following a jury trial, defe ndant Arthur McKe n z i e wa s fo u n d gu ilty of first degree murder and sentenc ed to 60 y ear s in the I llinois Depa rtment of Correc tio n s (IDO C ). He subsequently enter ed a neg otiated plea of guilty to second degree murder in an unrelated case and was sentenc ed, pursuant to the agr eeme nt, to a consecutive term of 40 y ear s in I DOC. As part of that plea, defe ndant agree d to waive his rig hts to appellate and postconviction relief in both cases.

-2-¶ 6 Def endant’ s motion to vacate his gu i l t y p l ea wa s d enied by the trial court, and the appellate court dismiss ed defe ndant’s appea l from that ru li n g

. People v. McKenzie , No. 1-05- 3821 (2 0 0 8 ) (u npublished order under Supreme Court Rule 23). Def endant then filed a petition for lea

ve to appe al to the I llinois Supreme Court in which he argued, among other things, that his 40-year sentenc e for second degree murder exceede d the statutory maxi mum by 10 y ear s and that the supreme court had the power to reduc e it pursuant to its supervisory authority

. Def

endant stated: “Eve n if this [I llinois Supreme] Court denies leave to appea l, there fore
, it should exercise its supervisory authority and order that McKe nzie’s sentenc e be reduc ed from 40 y ear s to 30 y ear s.” The I llinois Supreme Court denied defe ndant’s petition for lea ve to appea l but, pursuant to defe ndant’s request, i t rema nded the case to the circ uit court, pursuant to its supervisory authority
, with instructions to reduc e defe ndant’s sentenc e for second degree murder from 40 to 30 y ear s in I DOC. People v. McKenzie , 229 I ll. 2d 684 (2008) ( supervisory

order). ¶ 7 On J une 11, 2010, defe ndant filed a pro se postconviction petition which was dismiss ed on August 31, 2010, as frivolous and patently without merit.

¶ 8 ANALYSI S ¶ 9 Def

endant acknow ledg es that, as par t o f h i s n egoti ated plea agree ment, he agree d to waive all appea l and postconviction challeng es to both his first degree murder conviction and his second degree murder conviction. Nonethele ss, he reque sts the court to hear this postconviction appea l on the g round that this agree ment is void. ¶ 10 In his initial brief on this appea l, he arg ued that the plea agr ee m en t was void on two g rounds: first, beca

use it orig inally included a void sentenc e, in excess of t h e statutory maxi mum; and, second, beca use it included a waiver of appellate and postconviction rig hts, which he reque sts that we find is void ag ainst public policy

. Howeve r, in his reply brief, he

conce ded that the first argument was fore closed by our supreme court’s decision in People

v. Donelson
, 2013 I L 1 1 3603, and he now proce eds on only the second argument. For the followingrea sons, we af

firm the dismissal of his postconviction petition.

¶ 11 I . Stage s of a Postconviction Procee ding ¶ 12 This appea l came to us afte r a first-stag e summary dismiss al of a postconviction petition. ¶ 13 The Post-Convi ction Hea ring Act (the Act) (725 I L CS 5/122-1 et s eq

. (W es t 2 0 0 0)) provides a means by which a defe ndant may challeng e his or her conviction or sentenc e for violations of fede ral or state constitutional rig hts. People v. Pendleton
, 223 I ll. 2d 458, 471 (2006) (c iting People v. W hitfield
, 217 I ll. 2d 177, 183 (2005))

. To be entitled to postconviction relief

, a defe ndant must demonstrate that he or she has suffe red a substantial deprivation of his f

eder al or state constitutional rights in the proce eding s that produce d the conviction or sentenc e being challeng ed. 725 I L CS 5/122-1(a) (West 2000); Pendleton
, 223 I ll. 2d at 471 (citing W

hitfield , 217 I ll. 2d at 183). ¶ 14 The Act provide s for thre e stag es in nonca pital case s. Pendleton , 223 I ll. 2d at 471- 72. At the first stag e, the trial court has 90 day s to revie w a petition and may summarily dismiss

-3-it if the t rial court finds that the petit ion is frivolous and patently wit h o u t merit. 725 I L CS

5/122-2.1(a) (2) (West 2000); Pendleton
, 223 I ll. 2d at 472. I f the trial court does not dismiss the petition within that 90-day period, the trial court must docket it for further consideration. 725 I L CS 5/ 122-2.1(b) (West 2000); Pendleton , 223 I ll. 2d at 472. ¶ 15 The I llinois Supreme Court has held that, at this first stag e, the trial court evaluates only the merits of the petition’s substantive claim, and not its compliance with proce dural rules. People v. Perkins
, 229 I ll. 2d 34, 42 (2007). The issue at this first stag e i s whether the petition prese nts “ ‘ “the g ist of a constitutional claim.” ’ ” Perkins
, 229 I ll. 2d at 42 (quoting People v. Boclair
, 202 I ll. 2d 89, 99-100 (2002), quoting People v. Gaultney
, 174 I ll. 2d 410, 418 (1996)) . As a re sult, “[t ]he petition m ay not be dis missed as untimely at the first stag e of the proc eeding s.” Perkins , 229 I ll. 2d at 42. ¶ 16 In the case at bar, defe ndant’s petition was dismiss ed at the first stag e. Howeve r, if it ha d proce eded to the second stag e, the Act provides that counsel may be appointed for defe ndant, if defe ndant is indige nt. 725 I L CS 5/122-4 (West 2000); Pendleton
, 223 I ll. 2d at 472. After an appointment, Supreme Court Rule 651(c) require s the appointed counsel: (1) to consult with petitioner by mail or in person; (2) to examine the rec ord of the challeng ed proce eding s; and (3) to make any amendments “that are nece ssary” to the petition previously filed by the pro se de fenda

nt. I ll. S. C t. R. 651(c) (e ff. De c. 1, 1984); Perkins , 229 I ll. 2d at 42. ¶ 17 The Act provides that, afte r defe nse counsel has made any nece ssary amendments to the petition, the State may move to dismiss it. Pendleton
, 223 I ll. 2d at 472 (discussing 725 I L CS 5/122-5 (West 2000)). See also Perkins
, 229 I ll. 2d at 43. I f the State moves to dismiss
, the tri al co u rt may hold a dismiss al hearing, which is still part of the second stag e. People v. Coleman
, 183 I ll. 2d 366, 380-81 (1998). A trial court is f orec losed “fr om eng ag ing in a ny fac t-finding at a dismiss al hear ing beca use all well-plea ded fac ts are to be taken as true at this point in the procee ding.” Coleman , 183 I ll. 2d at 380-81. ¶ 18 At a third-stag e evidentiary h ea ri ng , the trial court “may rec eive proof by aff idavits, depositions, oral testimony
, or other evidenc e,” and “may order the petitioner brought befor e the court.” 725 I L CS 5/122-6 (West 2000). I n the case at bar, defenda nt asks us to reve rse the trial court’s dismiss al of his pet i t i o n as frivolous and rema nd for second- stag e proce eding s.

¶ 19 I I . Standard of Re view ¶ 20 T h e question of whether a trial court’s summary first-stag e dismiss al was i n er ro r i s purely a question of law, which an appellate court revie ws de novo

. People v. Petrenk o , 237 I ll. 2d 490, 496 (2010); see also Pendleton
, 223 I ll. 2d at 473. De novo consideration means that we perf

orm the same analy sis that a trial judge would perf orm. People v. Daniel
, 2013 I LApp (1st) 111876, ¶ 22. ¶ 21 Our supreme court has held t h at a t ri al co u rt m ay s u mmarily dismiss a petition as frivolous only

if it has no arguable ba sis either: (1) in law ; or (2) in fa ct. Petrenk o , 237 I ll. 2 d at 4 9 6 (citing People v. Hodges
, 234 I ll. 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

m eritl ess l eg al t heory
, such as one that is completely contra dicted by the record” ; and t h at

-4-(2) it lacks an arguable basis in fac t “if it is based upon a fanc iful fac tual alleg ation, such as

one that is clea

rly basele ss, fanta stic or delusional.” P et r en ko
, 2 3 7 I ll. 2d at 496 (citing Hodges , 234 I ll. 2d at 16-17).

¶ 22 I I I . Def endant’ s Orig inal Sentence ¶ 23 In the case at bar, there is no dispute among the parties that defe ndant’s orig inal sentenc e for second degree murder, as contained in his plea agree ment, was void beca use it was in

excess of the statutory maxi mum. Howeve r, that agree ment was ref ormed, at defe ndant’s reques t , b y t h e supreme court. Def endant reque sted the supreme court to exercise its supervisory authority to reduc e his sentenc e, and it g rante d his reque st. Once a defe ndant has asked one court for a particula r reme dy to corr ect a mistake and it g rants his prayer for relief
, he cannot then g o to a differ ent court and arg ue, in essenc e, that what he asked for previously

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

a court to proc ee d in a cer tain manner and than contend in a differ ent court that the order which he thus obtained was in err or. People v. Segoviano , 189 I ll. 2d 228, 241 (2000) (citing People v . Lowe , 153 I ll. 2d 195, 199 (1992)). ¶ 24 In his orig inal appellate brief, defe ndant relied primarily on the I llinois Supreme Court’s opinion in People v. W

hite
, 2011 I L 109616. Howeve r, that case is distinguishable. In W hite
, our supreme c ourt held that a plea agree ment was void where the trial court had imposed a sentenc e that was less than th e s tatutory minimum

. W hite
, 2011 I L 109616, ¶ 31. The supreme c ourt rema

nded the case to the trial court with instruc tions that it a llow defe ndant to withdraw his guilty plea an d proce ed to trial, if he so chooses. W hite
, 2011 I L 109616, ¶ 31. ¶ 25 That case is distinguishable in two respe cts. First, in W hite
, the defe ndant was denied the benef it of his barg ain. He had barg ained for a lower sentenc e, and once that was denied him, it would have bee n unfair to hold him to an agree ment that he had ne ver ba rg ained f or. B y contra st, in the case at bar, defe ndant had barg ained for a highe r sentenc e than the one he is

n o w rec eiving

. He had agree d to a 40-year sentenc e, and he is now serving a 30-year sentenc e; so he is now re ceivingmore than he barg ained f or, not less. ¶ 26 Second, in W

hite
, defe ndant asked for one reme dy and rec eived it, namely
, the ability to

vacate his plea. By contra s t , in the case at bar, defe ndant asked for a differ ent reme dy
, namely
, a reduc tion in sentenc e and rec eived it. Unlike the defe ndant in W hite
, defe ndant is askingfor a

n additional reme dy

for the sa me mistake. ¶ 27 Since defe ndant rec eived the benef it of his barg ain–ac tually more–a nd alre ady

reque sted and re ceive d a re medy

for the sta

tutory err or, we find that W

hite is disti nguishable. ¶ 28 Fur

ther, in defe ndant’s reply brief, he conce ded that this argument was fore closed by our supreme court’s rec ent decision in People v. Donelson
, 2013 I L 113603. In Donelson
, the supreme c ourt held that W hite does not a llow a defe ndant to w ithdraw his guilty plea if his sentenc e can be modified to provide the defe ndant with the benef it of his barg ain. Donelson
, 2013 I L113603, ¶¶ 26- 28.

-5-¶ 29 IV. Public Poli cy

¶ 30 Def

endant now argues that his plea agree ment is void solely beca use it included a wa iver of appellate and postconviction rig hts, which he asks us to find is void ag ainst public policy

. ¶ 31 In support of his argument, defe ndant obser v es that sever al states have held that such waiver s are unenfor cea

ble as ag ainst public policy
, and he cites Spann v. State , 704 N.W.2d 486 (Minn. 2005), State v. Ethin g t o n , 592 P.2d 768 (Ariz. 1979) ( en banc ), and People v. Harrison , 191 N.W.2d 371 (Mich. 1971). Howeve r, he admi t s t h at t h e I llinois Appellate Court has enfor ced these waiver s for deca des, citing People v. Nichols
, 143 I ll. App. 3d 673 (1986), and People v. Fearing , 110 I ll. App. 3d 643 (1982). Defen d an t d o es not cite any I llinois case s that have opposed these decisions. Def endant’ s argument that these case s should be overturne d, based on public policy and a trend in other states, is better direc ted to

our supreme court. We decline his invitation to depar t from our well-e stablished prec edent.

¶ 32 CONCLUSI ON ¶ 33 In his initial appellate brief, defe ndant argues that his plea agree ment was void beca use (1) it orig inally included a void sentenc e, in excess of the s t atutory maxi mum; and (2) it included a waiver of appellate and postconviction rig hts, which he asked us to find was void ag ainst public policy

. ¶ 34 First, althoug h the plea agree ment origi n all y included a void sentenc e in excess of the statutory minimum , this sentence w as subseque ntly reduc ed by the I llinois Supreme Court by supervisory order
, in response to defe ndant’s reque st to do so in his petition f or leave to appea l. In addition, defe ndant withdrew this argument in his reply brief, conce ding that it was fore closed by

our supre me cour

t’s decision in People v . Donelson , 2013 I L 113603. ¶ 35 Second, althoug h defe ndant argues that other states have found that a waiver of appellate and postconviction rig hts is ag ainst their public policy
, he acknow ledg es that the Appellate Court of I llinois has upheld this ty pe of a waiver for deca des. For the fore g oing rea sons, we aff irm the summary

dismiss al of de fenda

nt’s postconviction petition.

¶ 36 Affir

med.

-6-