                                    2015 IL App (4th) 140971
                                                                                  FILED
                                                                                  May 26, 2015
                                                                                  Carla Bender
                                          NO. 4-14-0971                       4th District Appellate
                                                                                    Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,                       )       Appeal from
            Plaintiff-Appellee,                             )       Circuit Court of
            v.                                              )       Vermilion County
 NATHAN B. GRANT,                                           )       No. 12CF79
            Defendant-Appellant.                            )
                                                            )       Honorable
                                                            )       Craig H. DeArmond,
                                                            )       Judge Presiding.


               PRESIDING JUSTICE POPE delivered the judgment of the court, with opinion.
               Justices Turner and Appleton concurred in the judgment and opinion.

                                            OPINION
¶1             On December 16, 2013, pursuant to a negotiated plea agreement, defendant,

Nathan B. Grant, pleaded guilty to possession of a controlled substance (cocaine) (720 ILCS

570/402(c) (West 2010)), with an agreed-upon sentence of 2 years' imprisonment, with credit for

384 days served. On October 14, 2014, defendant filed a pro se postconviction petition, alleging

he did not receive the benefit of the bargain because he received a different, more onerous

sentence than the one to which he agreed. On October 20, 2014, the trial court summarily

dismissed the petition as frivolous and patently without merit.

¶2             On appeal, defendant argues the trial court erred in dismissing his postconviction

petition because his claim he did not receive the benefit of the bargain with the State presented

the gist of a constitutional claim. We affirm.

¶3                                     I. BACKGROUND
¶4             The record shows on September 23, 2011, defendant was arrested and on

September 26, 2011, was charged with two counts of aggravated battery in a public place (720

ILCS 5/12-3.05(c) (West 2010)) and one count of domestic battery (720 ILCS 5/12-3.2(a)(2)

(West 2010)) in Douglas County case No. 11-CF-70. On February 15, 2012, while out on bond,

defendant was arrested for the instant offense and charged with possession of a controlled

substance (cocaine) (720 ILCS 570/402(c) (West 2010)) and possession of cannabis (720 ILCS

550/4(c) (West 2010)) in Vermilion County case No. 12-CF-79.

¶5             Relevant to this appeal, on January 22, 2013, the Douglas County circuit court (in

case No. 11-CF-70) sentenced defendant to 3 years and 3 months' imprisonment for aggravated

battery in a public place (720 ILCS 5/12-3.05(c) (West 2010)), with credit for 268 days served

(September 23, 2011, to October 13, 2011; March 1, 2012, to May 10, 2012; and July 30, 2012,

to January 21, 2012). Defendant completed his prison sentence on December 14, 2013, but he

remained in prison during mandatory supervised release (MSR) because the Department of

Corrections (DOC) could not find housing.

¶6             On December 16, 2013, defendant appeared before the Vermilion County circuit

court on writ from the Illinois River Correctional Center, where he was serving MSR imposed by

Douglas County (in case No. 11-CF-70). The State informed the court the parties reached a fully

negotiated plea agreement. Defense counsel advised the court of the terms of the agreement,

stating defendant would plead guilty to count I, possession of a controlled substance, in exchange

for a sentence of two years' imprisonment, with credit for time served. Additionally, the State

noted count II, possession of cannabis, would be dismissed.

¶7             The trial court advised defendant of the nature of the charges and the range of

possible penalties. The court reviewed the terms of the plea agreement with defendant and



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admonished him of his right to plead not guilty and persist in that plea. The court further advised

defendant by pleading guilty, he would give up his right to trial and relinquish his rights to be

confronted with the witnesses against him and to cross-examine those witnesses. In response to

the court's queries, defendant said he understood the nature of the charges against him and the

range of possible penalties. Defendant confirmed he understood the terms of the plea agreement

and the rights he would be waiving by pleading guilty. Defendant stated his choice to plead

guilty was made of his own free will and no person forced, threatened, or coerced him to plead

guilty. Defendant further affirmed no one promised him anything other than what had been

discussed.

¶8             The trial court again asked defendant whether he understood the terms of the

agreement and defendant answered, "Yes." Thereafter, the State informed the court defendant's

sentence would run consecutively to his sentence in Douglas County case No. 11-CF-70 and the

following exchange occurred:

                       "THE COURT: [Defendant], you understand consecutive

               sentence? Sentence doesn't begin until the completion of the

               sentence.

                       THE DEFENDANT: Yes.

                       MS. LACY [assistant public defender]: Your Honor, he

               has completed other sentencing, currently on parole, but because of

               his prior sex abuse case he's required to register and therefore he

               has to do sex offender registry. He doesn't have a placement,

               Judge, so he's sitting in [DOC] currently on parole.




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       THE COURT: So you understand that this is a consecutive

sentence to the one that you've completed?

       THE DEFENDANT: I do but I don't. I don't understand

how it can be consecutive to a charge that's already done?

       THE COURT: I'm just telling you what Mr. Brozovich is

telling me.

       THE DEFENDANT: Well—

       THE COURT: Either you're in agreement with that or

you're not. If you're not in agreement with that then we don't have

a plea. If you're in agreement with that then we do. Whatever you

want to do is entirely up to you.

       THE DEFENDANT: I don't understand why it's just not a

regular plea, Judge.

       MR. BROZOVICH [Assistant State's Attorney]: You need

to talk to your attorney then. I can't answer your question.

       MS. LACY: Your Honor, I've explained to [defendant]

Grant that technically speaking while he was out on bond for the

Douglas County case—I think he was out on bond for this case

when he picked up the Douglas County case. The Douglas County

case has been served. His sentence has been completed.

Essentially he was paroled Friday. He was brought here. He's

now currently on parole, and I do believe that he would get credit

from the 2012 time that he spent in custody and they surrendered



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               on bond from 2/21 of 2013 until yesterday's date. I've explained

               all of that to him, Your Honor, so I don't know what it is that

               [defendant] would like to do. He indicated to me he wanted to

               accept the plea based upon my explanations to him. I don't have

               control over [DOC] *** and I don't know, quite frankly, to be

               honest with the Court and I told [defendant] this, I don't know how

               [DOC] is going to figure out that time.

                       THE DEFENDANT: I understand, Your Honor. I just—

               what I'm trying to say is the wording. When you sentence me you

               say it's consecutive to my time. The DOC will look at it as

               consecutive jail time credit, consecutive one charge, you only get

               one credit serving, you understand what I'm saying.

                       THE COURT: I understand.

                       THE DEFENDANT: Only reason I'm stating this is for

               you to just sentence me, not say it's consecutive to the time I've

               already done.

                       THE COURT: Sounds like we don't have a plea."

               (Emphases added.)

¶9             The trial court asked if the case should be set for trial and defense counsel replied,

"[t]hat's fine, Judge." When the court scheduled the matter for trial, defendant interjected:

                       "THE DEFENDANT: I mean, I wanted to take the plea,

               though, Your Honor, I wanted to take the plea, I just—




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                     THE COURT: No, I can't do anything other than what the

              plea agreement—

                     THE DEFENDANT: All right. I'm gonna take the plea. I

              already said yes I would, I want to take the plea. I just trying to get

              an understanding if this gonna be—

                     THE COURT: The problem is that you don't have an

              agreement as to whether it's consecutive or not. State is saying

              plea contingent upon it being a consecutive sentence. So without

              that condition in there[,] there is no plea.

                     MS. LACY: Would Your Honor be willing to pass the case

              briefly so I could speak to [defendant] since they're here.

                     THE COURT: Sure." (Emphases added.)

¶ 10          Following an 11-minute recess, the parties appeared on the record and the

following colloquy occurred:

                     "THE COURT: Where are we, Ms. Lacy?

                     MS. LACY: I'm sorry, Your Honor. Thank you for giving

              us that opportunity to speak. I've spoken with [defendant]. We

              have gone over everything including consecutive credits, all that

              type of stuff and he's indicated to me he'd like to accept the

              proposed plea agreement that we proposed to Your Honor earlier

              this morning.

                     THE COURT: Is that true, [defendant]?

                     THE DEFENDANT: Yes.



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                      THE COURT: And you understand that that includes the

               provision that the sentence is consecutive to the sentence that

               you've completed in the Douglas County case?

                      THE DEFENDANT: Yes." (Emphasis added.)

¶ 11           The trial court obtained defendant's waiver of his trial rights and the State

presented a factual basis for the plea. The court accepted defendant's plea of guilty as knowing

and voluntary and entered a finding of guilty. Defendant waived his right to a presentence

investigation report and the court immediately moved to sentencing. The State presented

evidence of defendant's criminal history as evidence in aggravation and defendant offered

nothing in mitigation. At the close of the plea hearing, the following exchange occurred between

the court and defendant:

                      "THE COURT: [Defendant], you've got the right to make a

               statement in your own behalf before I impose sentence. Is there

               anything that you wish to say?

                      THE DEFENDANT: Just that I want my jail time credit

               and possibly reimbursed on that—my bond from the Circuit Clerk.

                      THE COURT: Bond issue I can't address ***.

                      Of the credit you'll be entitled to—what was the total?

                      MS. LACY: 384.

                      THE COURT: 384 days for the dates specified."

The court sentenced defendant to 2 years' imprisonment, to run consecutively to the sentence

imposed in Douglas County case No. 11-CF-70, 1 year MSR, and credit for 384 days previously




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served (February 15, 2012, to May 11, 2012; and February 21, 2013, to December 15, 2013).

Defendant did not file a direct appeal.

¶ 12           On October 14, 2014, defendant filed a pro se petition for postconviction relief

pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2012)).

He argued his negotiated guilty plea was based upon credit for 384 days in presentence custody,

which he did not receive. (We note, DOC awarded defendant 16 days' credit for time actually

served.) Defendant attached the following to his postconviction petition: (1) the written

sentencing judgments in case Nos. 11-CF-70 and 12-CF-79; (2) three sentence-calculation

worksheets prepared by DOC; (3) counseling summaries from the Illinois River Correctional

Center records office; (4) a letter from DOC's chief records officer; (5) defendant's grievance and

response to his grievance; and (6) portions of the plea hearing transcript. On October 20, 2014,

the trial court dismissed defendant's postconviction petition as frivolous and patently without

merit.

¶ 13           This appeal followed.

¶ 14                                       II. ANALYSIS

¶ 15           Defendant argues the trial court erred in summarily dismissing his postconviction

petition because he presented the gist of a constitutional claim regarding his guilty plea. He does

not contest the validity of his guilty plea but asserts he did not receive the benefit of his plea

bargain with the State. Specifically, defendant asserts he has been deprived of 368 days' credit to

be applied against his 2-year sentence. As relief, defendant asks this court to reduce his prison

sentence by 736 days, twice the amount of presentence credit, based on his eligibility for day-

for-day sentencing credit.

¶ 16                                         A. The Act



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¶ 17           The Act provides a three-stage procedure through which a defendant may assert a

substantial denial of his constitutional rights in the proceedings which resulted in his conviction.

725 ILCS 5/122-1 (West 2012). Here, defendant's petition was dismissed at the first stage of the

postconviction proceeding. At the first stage, the trial court independently reviews the petition,

taking the allegations as true, and determines if it is frivolous or patently without merit. People

v. Hodges, 234 Ill. 2d 1, 10, 912 N.E.2d 1204, 1208-09 (2009). A court may summarily dismiss

a pro se postconviction petition "as frivolous or patently without merit only if the petition has no

arguable basis either in law or in fact." Id. at 11-12, 912 N.E.2d at 1209. A petition has no

arguable basis in law or fact if it is based on an indisputably meritless legal theory or a fanciful

factual allegation. Id. at 16, 912 N.E.2d at 1212. To avoid dismissal at this stage, the petitioner

need only present the gist of a constitutional claim. People v. Edwards, 197 Ill. 2d 239, 244, 757

N.E.2d 442, 445 (2001). At this point in the proceedings, all well-pleaded allegations in the

petition are taken as true and liberally construed in favor of the petitioner. People v. Brooks, 233

Ill. 2d 146, 153, 908 N.E.2d 32, 36 (2009). We review the summary dismissal of a

postconviction petition de novo. People v. Tate, 2012 IL 112214, ¶ 10, 980 N.E.2d 1100.

¶ 18                        B. Due Process and Benefit of the Bargain

¶ 19           As stated, defendant contends his constitutional right to due process and

fundamental fairness was violated because he pleaded guilty in exchange for a specific sentence,

but he received a different, more onerous sentence than the one to which he agreed. The State

challenges defendant's efforts to reduce his sentence. The State argues defendant was aware he

would not receive double credit for time served and he persisted in his plea; thus, he was not

denied the benefit of his bargain. We agree with the State.




                                                 -9-
¶ 20             Initially, we note the parties do not dispute, pursuant to the plea agreement in this

case, defendant would receive a 2-year prison sentence, with credit for 384 days served, and his

sentence would run consecutively to the sentence he received in Douglas County (No. 11-CF-

70). The parties also agree defendant received 268 days' credit in Douglas County (No. 11-CF-

70), which results in him receiving double credit for time served, which is not permissible. See

People v. Latona, 184 Ill. 2d 260, 271, 703 N.E.2d 901, 907 (1998) ("to the extent that an

offender sentenced to consecutive sentences had been incarcerated prior thereto on more than

one offense simultaneously, he should be given credit only once for actual days served").

Nevertheless, the parties dispute whether defendant received the benefit of his plea bargain.

¶ 21             A defendant may challenge the constitutionality of his guilty plea by claiming

"(1) that the plea of guilty was not made voluntarily and with full knowledge of the

consequences, and (2) that defendant did not receive the benefit of the bargain he made with the

State when he pled guilty." People v. Whitfield, 217 Ill. 2d 177, 183-84, 840 N.E.2d 658, 663

(2005). " '[W]hen a plea rests in any significant degree on a promise or agreement of the

prosecutor, so that it can be said to be part of the inducement or consideration, such promise

must be fulfilled.' " (Emphasis omitted.) Id. at 185, 840 N.E.2d at 664 (quoting Santobello v.

New York, 404 U.S. 257, 262 (1971)). A defendant's constitutional right to due process and

fundamental fairness is violated if he pleads guilty in exchange for a specific sentence, but

receives a different, more onerous sentence than the one to which he agreed. Id. at 189, 840

N.E.2d at 666.

¶ 22             Our supreme court has repeatedly held fully negotiated guilty pleas are governed

by principles of contract law. People v. Absher, 242 Ill. 2d 77, 87, 950 N.E.2d 659, 666 (2011).

Accordingly, where a defendant enters a negotiated plea of guilty in exchange for specified



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benefits, "both the State and the defendant must be bound by the terms of the agreement."

(Emphasis in original.) Whitfield, 217 Ill. 2d at 190, 840 N.E.2d at 666. Thus, to allow a

defendant to unilaterally modify the terms of a fully negotiated plea agreement while holding the

State to its part of the bargain " 'flies in the face of contract law principles.' " Absher, 242 Ill. 2d

at 87, 950 N.E.2d at 666 (quoting People v. Evans, 174 Ill. 2d 320, 327, 673 N.E.2d 244, 248

(1996)). Similarly, "when a specified amount of sentence credit is included within the terms of a

defendant's plea agreement with the State, the defendant is entitled to the amount of sentence

credit promised." People v. McDermott, 2014 IL App (4th) 120655, ¶ 27, 12 N.E.3d 148. "This

is true even if applying the credit *** would violate the rule set forth in [Latona]." Id.

¶ 23            In the case at bar, defendant pleaded guilty pursuant to a negotiated plea

agreement. The terms of the plea agreement, as set forth by defense counsel at the plea hearing,

included a specific sentence of two years' imprisonment, to be served consecutively to No. 11-

CF-70, with credit for time served. The trial court ratified this agreement and reviewed the terms

with defendant several times to ensure he understood. Our review of the record shows defendant

was fully aware of these terms as well as the consequences of consecutive sentencing. When

defense counsel admitted she did not know how DOC would apply the sentence credit, defendant

said, "I understand, Your Honor." He then explained in open court consecutive sentencing

would mean he would not receive double credit—i.e., DOC would not apply all 384 days against

his 2-year prison sentence. Aware of these consequences, defendant asked the court to

unilaterally modify the terms of his agreement by imposing a concurrent sentence. The trial

judge refused, explaining, "I can't do anything other than what the plea agreement [provides]"

and the "State is saying [the] plea [is] contingent upon it being a consecutive sentence. So

without that condition *** there is no plea." Defendant ultimately acquiesced to consecutive



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sentencing and persisted in his guilty plea. He now asks this court to do what the State and trial

court refused—unilaterally reduce his sentence by aggregating his 384 days' credit with the 268

days' credit awarded in Douglas County (No. 11-CF-70). In effect, defendant seeks to hold the

State to its part of the bargain while unilaterally modifying the sentence to which he had agreed.

Such a practice flies in the face of contract law principles. Evans, 174 Ill. 2d at 327, 673 N.E.2d

at 248 (" 'Neither side should be able, any more than would be private contracting parties,

unilaterally to renege or seek modification simply because of uninduced mistake or change of

mind.' " (quoting United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986))). We find it

fundamentally unfair for defendant to accept a negotiated plea agreement, obtain the benefit of

that bargain (especially the dismissed charge and light sentence), and then separately seek a

reduction of his agreed-upon sentence. Defendant's efforts to unilaterally reduce his sentence

while holding the State to its part of the bargain cannot be condoned because it would

"encourage gamesmanship of a most offensive nature." (Internal quotation marks omitted.) Id.

As a result, we find no reason to modify the terms of defendant's negotiated plea agreement.

¶ 24           Defendant cites McDermott, 2014 IL App (4th) 120655, 12 N.E.3d 148, People v.

Clark, 2011 IL App (2d) 091116, 956 N.E.2d 1078, and People v. Lenoir, 2013 IL App (1st)

113615, 987 N.E.2d 1015, in support of his argument he was denied the benefit of his bargain.

We find these cases distinguishable.

¶ 25           In McDermott, the defendant pleaded guilty in Champaign County to aggravated

battery, with an agreed-upon sentence of 5 years' imprisonment and credit for 222 days served.

Thereafter, the defendant pleaded guilty in McLean County to unlawful altering of a title

document, with an agreed-upon sentence of 5 years' imprisonment and credit for 233 days

served. Both sentences were to be served consecutively to sentences imposed in Henry County



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and Du Page County. McDermott, 2014 IL App (4th) 120655, ¶¶ 2-3, 7, 987 N.E.2d 1015.

During the plea hearings in both cases, the defendant attempted to stress or clarify that his

sentence credit was "part of the sentence" or "part of the plea." (Internal quotation marks

omitted.) Id. ¶ 12, 987 N.E.2d 1015. Both circuit courts confirmed the defendant would receive

the specified amount of credit. Id. Thereafter, the defendant filed a postconviction petition,

arguing he was denied the benefit of his bargain because DOC refused to apply the presentence

credit to his sentences. Id. ¶ 13, 987 N.E.2d 1015. On appeal, this court reversed the trial court's

summary dismissal of the defendant's petitions. We reasoned "the record clearly shows the terms

of the parties' agreements included specified amounts of sentence credit and the records in each

case fail to reflect [the] defendant was informed otherwise." Id. ¶ 30, 12 N.E.3d 148. However,

we acknowledged:

               "[H]ad [the] defendant been informed during his plea hearings that

               his sentence credit would not be calculated as he anticipated and he

               persisted in his pleas, the result of these appeals could have been

               different. Under such circumstances, the record would likely show

               the specified amounts of sentence credit were not essential,

               bargained-for terms of [the] defendant's plea agreements." Id.

We therefore held, under the facts presented, the defendant did not receive the benefit of his

bargains with the State because the record failed to show he was informed he would not receive

double credit. Id.

¶ 26           Likewise, in Clark and Lenoir, the defendants were never advised their sentence

credit would not be applied as they anticipated. See Clark, 2011 IL App (2d) 091116, ¶¶ 5-6,

956 N.E.2d 1078 (neither the State nor the trial court clarified the defendant would, in fact,



                                               - 13 -
receive a total credit of only 339 days—not 650—toward his aggregate sentence); Lenoir, 2013

IL App (1st) 113615, ¶ 12, 987 N.E.2d 1015 (the trial court never informed the defendant he

could not receive double credit for time served in custody prior to his plea). Since the records in

Clark and Lenoir contained no evidence showing the specified amounts of credit were not

essential, bargained-for terms of the plea agreement, the court held the defendants were entitled

to the specified amounts of credit promised by the State. Clark, 2011 IL App (2d) 091116, ¶¶ 7-

12, 956 N.E.2d 1078; Lenoir, 2013 IL App (1st) 113615, ¶ 13, 987 N.E.2d 1015.

¶ 27           Unlike the defendants in McDermott, Clark, and Lenoir, defendant in this case

was clearly aware of the consequences of his plea. He explained in open court he would not

receive the full 384 days of credit because DOC treats consecutive sentences as one sentence.

Since defendant persisted in his plea of guilty, the record contains evidence which clearly shows

he knew he would not receive double sentencing credit by accepting the State's offer.

Defendant's decision to agree to consecutive sentencing amounted to him agreeing to credit for

actual time served, not double credit. Thus, the sentence credit was not an essential, bargained-

for term of his plea agreement and he is not entitled to an additional 368 days' credit.

¶ 28           We similarly find Whitfield distinguishable from the case at bar. Contrary to

defendant's assertion, Whitfield, which granted the defendant a reduction in his sentence because

he received a different, more onerous sentence than the one to which he agreed, has no

application here because the record in this case affirmatively shows defendant was aware of the

consequences of his plea agreement. See Whitfield, 217 Ill. 2d at 200, 840 N.E.2d at 672 (where

the record contains no evidence which affirmatively shows defendant knew he would be subject

to an MSR term, defendant's alleged unawareness must be taken as true).




                                               - 14 -
¶ 29           Finally, the colloquy between the trial court and defendant at the close of the plea

hearing does not change our analysis. Although the trial court indicated defendant would receive

384 days' credit, defendant was already aware his sentence would run consecutively to his

sentence in Douglas County. While the court's admonishment could have been improved by

explicitly stating defendant would not receive "double credit," an imperfect admonishment does

not violate due process where real justice has not been denied or defendant has not shown

prejudice. Id. at 195, 840 N.E.2d at 669. Here, defendant's due-process rights have not been

denied, nor has he demonstrated any prejudice. He knew the effect a consecutive sentence

would have on his presentence credit and he persisted in his plea. Any alleged mistaken

impression defendant may have had about the 384 days' credit was not justified when judged by

objective standards. People v. Davis, 145 Ill. 2d 240, 244, 582 N.E.2d 714, 716 (1991) ("the

burden is on the defendant to establish that the circumstances existing at the time of the plea,

judged by objective standards, justified the mistaken impression").

¶ 30           We conclude defendant received the benefit of his bargain and is not entitled to a

reduced sentence. Accordingly, we hold the trial court properly dismissed defendant's

postconviction petition where the allegations in his petition failed to demonstrate the gist of a

constitutional claim. Because we are affirming the dismissal of defendant's postconviction

petition as frivolous and patently without merit, we need not address defendant's remaining

argument.

¶ 31                                    III. CONCLUSION

¶ 32           For the foregoing reasons, we affirm the trial court's judgment. As part of our

judgment, we award the State its $50 statutory assessment against defendant as costs of this

appeal. 55 ILCS 5/4-2002 (West 2012).



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¶ 33   Affirmed.




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