                                                     FIRST DIVISION
                                                      June 28, 2010




No. 1-07-2922


THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
          Plaintiff-Appellee,             )    Cook County.
                                          )
                                          )
          v.                              )    No. 04 CR 9721
                                          )
                                          )    The Honorable
                                          )    Leo E. Holt and
PEDRO CABRERA,                            )    Mary Margaret
                                          )    Brosnahan,
          Defendant-Appellant.            )    Judges Presiding.


     JUSTICE GARCIA delivered the opinion of the court.

     The defendant, Pedro Cabrera, appeals from Judge Mary

Margaret Brosnahan's summary dismissal of his pro se petition for

relief under the Post-Conviction Hearing Act (Act) (725 ILCS

5/122-1 et seq. (West 2006)).    The defendant contends his

petition states the gist of a meritorious claim for ineffective

assistance of appellate counsel based on counsel's failure to

raise a double jeopardy claim on direct appeal.   In his petition,

the defendant alleged that Judge Leo E. Holt, the trial judge,

subjected him to double jeopardy by sua sponte vacating his

negotiated guilty plea and setting his case for trial on all

charges after accepting the defendant's plea of guilty to one

count of armed robbery and granting the State's motion to nol-
No. 1-07-2922


pros the remaining charges.

     On February 16, 2010, we issued an opinion affirming Judge

Brosnahan's summary dismissal because we found jeopardy never

terminated on the armed robbery charge and jeopardy never

attached to the remaining charges.    We granted the defendant's

petition for rehearing pursuant to Supreme Court Rule 367 (210

Ill. 2d R. 367) and heard oral argument on the defendant's

contention that the continuing jeopardy doctrine, which we

applied in rejecting the defendant's claim, was not addressed in

the briefs nor supported by a published opinion in Illinois.    In

the absence of an Illinois case applying the continuing jeopardy

doctrine, the defendant contends his petition cannot be found to

have no arguable basis in law as our supreme court articulated in

People v. Hodges, 234 Ill. 2d 1, 912 N.E.2d 1204 (2009).     After

reconsidering the matter in light of the arguments on rehearing,

we affirm Judge Brosnahan's summary dismissal.

                              BACKGROUND

     The defendant was charged in a six-count indictment with two

counts of armed robbery, two counts of burglary, and two counts

of aggravated unlawful restraint involving an on-the-street

encounter with a husband and wife and their two children as they

were exiting their car.   On March 9, 2004, Judge Holt was

informed by defense counsel that the State had extended an offer

                                  2
No. 1-07-2922


of six years' imprisonment in exchange for the defendant's plea

of guilty to one count of armed robbery.    Judge Holt continued

the matter to the next day for a guilty plea hearing.     On March

10, 2004, Judge Holt began the hearing by making certain

inquiries of the defendant.    In the course of his admonishments

to the defendant, Judge Holt informed the defendant that "when

you plead guilty you say to the court I am guilty and there is

nothing left to try."    The defendant responded that he understood

the process of pleading guilty and was entering his plea of

guilty freely and voluntarily.    Following the admonishments,

Judge Holt entered his findings regarding the defendant's plea:

"[The] Court finds that he understands his rights and that he is

waiving his rights freely and voluntarily."    The State's factual

basis for the defendant's plea of guilty was stipulated to by the

defense.   Following the factual basis, Judge Holt stated:

                "Let the record reflect that there is a

           sufficient factual basis for the plea of

           guilty.   Accordingly the plea of guilty is

           accepted.   There will be a finding of guilty.

           Judgment is entered on the finding."

The State nol-prossed the five remaining counts of the

indictment.

     In aggravation, the State informed Judge Holt that the

                                  3
No. 1-07-2922


defendant had four prior felony convictions; in mitigation, the

defense rested on the agreement reached with the State.    The

defendant was then given the opportunity to address the court.

In response to Judge Holt's question about any prior commitments

to the penitentiary, the defendant stated he previously served

seven years and eight months in the Illinois Department of

Corrections (IDOC) with this being his third IDOC sentence.

The following exchange, central to this appeal, then occurred.

                "THE COURT: Mr. Cabrera, you can't

          imagine how lucky you are.   I don't even

          understand the sentence and the agreement

          that was made between your attorney and the

          state's attorney.   It boggles my mind that

          you are a five time convicted felon and you

          committed an armed robbery which endangers

          the life of the people that you were robbing

          and you come out with a six year sentence.

          It just boggles my mind that you come out

          with the minimum.   I don't understand it.

                THE DEFENDANT: I hate to tell you the

          truth, Your Honor, you know what I'm saying,

          I plead guilty because of my background.     I

          can't show my innocence.   That's the only

                                 4
No. 1-07-2922


          thing wrong with my life.    Can't show my

          innocence because of my background.

                THE COURT: Are you telling me that you

          are innocent of this charge?

                THE DEFENDANT: Yes, Your Honor. Yes,

          Your Honor.

                THE COURT: Well Mr. Cabrera, you're

          going to get a chance to prove your

          innocence.    I don't take guilty pleas from

          people who are innocent of the crimes that

          they are charged with.

                THE DEFENDANT: But Your Honor, I prefer

          to take the time, sir.

                THE COURT: I'm not interested in what

          you prefer.    You don't have a right to cause

          me to disgrace myself and the criminal

          justice system by accepting a plea of guilty

          from you when you are in fact not guilty.

          That's what you are telling me, that you

          didn't commit this crime.    I'm not going to

          send you to the penitentiary for a crime you

          didn't commit.    Just because that may be your

          desire.   You don't have a right to impose

                                   5
No. 1-07-2922


          that on me.

                THE DEFENDANT: Sir, I no I'm standing -

          I can't beat it at trial, sir.

                THE COURT: I don't care whether you can

          beat it or not.   You're entitled to a trial

          if you are not guilty of the crime you are

          charged with.

                THE DEFENDANT: I been blessed already,

          you known what I'm saying.    I've been blessed

          in the courtroom already.

                THE COURT: You're going to be blessed

          again because you're going to get a trial.

          Set this case for trial.    The plea is ordered

          vacated.   Waiving his right to trial by jury.

          The previous order vacating his -- waiving

          his right to trial by jury is vacated.    The

          plea of not guilty is reinstated.

The matter was continued from time to time for trial.     At the

time of trial, the defendant elected a bench trial.

     At trial, the State's evidence was that the defendant, armed

with a knife, robbed the couple and removed items from the family

car with the aid of another.   The defendant was arrested nearby

soon after the crimes, with some of the possessions of the

                                 6
No. 1-07-2922


husband and wife.   The defendant did not testify at trial.

     Judge Holt found the defendant guilty of all counts, merging

the two counts of aggravated unlawful restraint with the two

counts of armed robbery.   He sentenced the defendant to 20 years'

imprisonment on the armed robbery counts, which included the

count of armed robbery to which the defendant had entered his

plea of guilty.    A single concurrent seven-year prison term was

imposed for burglary.

     On direct appeal, the defendant presented an issue, based on

plain error, very similar to the one before us now.     People v.

Cabrera, No. 1-04-3297 (1999) (unpublished order under Supreme

Court Rule 23).    He asserted that Judge Holt erred in rejecting

his guilty plea based solely on his professed claim of innocence

without considering the particular facts of his case.    In

affirming, we noted that the United States Supreme Court has held

that a trial court's acceptance of a guilty plea supported by a

strong factual basis is not error, even in the face of the

defendant's proclamation of innocence; however, the states are

free to prohibit their courts from accepting a guilty plea where

a defendant maintains his innocence.    North Carolina v. Alford,

400 U.S. 25, 38 n.11, 27 L. Ed. 2d 162, 172 n.11, 91 S. Ct. 160,

168 n.11 (1970).    Consistent with the language in Alford, we

noted that under Illinois case law a trial court may, but is not

                                  7
No. 1-07-2922


required to, accept a guilty plea from a defendant that maintains

his innocence.   A trial court has discretion to vacate its

acceptance of a defendant's guilty plea if the defendant

proclaims his innocence during the course of the guilty plea

hearing.   We determined that Judge Holt acted within his

discretion in vacating the defendant's plea of guilty in light of

the defendant's proclamation of innocence.   Cabrera, No. 1-04-

3297, citing People v. Peterson, 311 Ill. App. 3d 38, 41-42, 46,

725 N.E.2d 1 (1999) (rejecting the claim based on dicta in a

single case that a court must accept a guilty plea because "every

other case to address the issue specifically holds or states that

it is within the discretion of the trial court to accept or

reject a guilty plea when innocence is proclaimed"), and People

v. Ottomanelli, 153 Ill. App. 3d 565, 566-68, 606 N.E.2d 1078

(1987) (rejection of plea of guilty affirmed where trial judge

stated, "I don't let somebody plead guilty that says [he] didn't

do it").

     On February 7, 2007, the defendant filed a pro se

postconviction petition alleging, in pertinent part, that Judge

Holt improperly subjected him to double jeopardy by accepting the

guilty plea only to later vacate it and force the defendant to

trial on all counts.   He also alleged that appellate counsel was

ineffective for failing to raise this constitutional claim on

                                 8
No. 1-07-2922


direct appeal.   Judge Brosnahan summarily dismissed the

defendant's petition as frivolous and patently without merit on

March 9, 2007.   However, neither Judge Brosnahan's oral ruling

nor her written order specifically addressed the defendant's

double jeopardy claim.   A timely appeal followed.

                             ANALYSIS

     The defendant contends his petition states the gist of a

constitutional claim that his appellate counsel was ineffective

for failing to raise a double jeopardy issue on direct appeal.

He argues that his double jeopardy claim has an arguable basis in

law because jeopardy attached to all charges when Judge Holt

accepted his guilty plea to armed robbery and granted the State's

motion to nol-pros the remaining charges.   Based on this premise,

the defendant argues his subsequent bench trial improperly placed

him in jeopardy a second time.

     Initially, we observe that the defendant appears to have

recast his direct appeal challenge to Judge Holt's rejection of

his guilty plea into a postconviction claim of ineffective

assistance of appellate counsel founded on an alleged double

jeopardy violation.   Generally, the recasting in constitutional

terms of an issue decided on direct appeal is barred by res

judicata.   People v. Flores, 153 Ill. 2d 264, 277-78, 606 N.E.2d

1078 (1992) ("a petitioner cannot obtain relief by 'rephrasing

                                 9
No. 1-07-2922


previously addressed issues in constitutional terms' in his

petition"), quoting People v. Gaines, 105 Ill. 2d 79, 90, 473

N.E.2d 868 (1984).

     However, where the reviewing court's failure to address a

constitutional issue is alleged to be the fault of appellate

counsel in failing to raise a meritorious claim, such a claim may

be examined to prevent a fundamental miscarriage of justice.

Flores, 153 Ill. 2d at 279.   "[W]here a defaulted claim stems

from the incompetency of appellate counsel and results in

prejudice to the defendant, there can be no doubt that the

proceeding on the first [review] was deficient in a fundamental

way."   Flores, 153 Ill. 2d at 278.   Accordingly, we review the

facts and circumstances present in this case to determine whether

appellate counsel's failure to raise the double jeopardy claim

makes a sufficient showing of ineffective assistance.

                        Standard of Review

     We review de novo the summary dismissal of a postconviction

petition.   Hodges, 234 Ill. 2d at 9.   Prior to Hodges, at the

first stage of postconviction proceedings, we looked to whether a

defendant alleged the gist of a constitutional claim to avoid

summary dismissal.   The term "gist" is not, however, the standard

by which the petition is to be evaluated; rather, under the Act,

a circuit court is to allow a postconviction petition raising

                                10
No. 1-07-2922


constitutional claims to proceed to the second-stage proceeding,

where counsel is appointed to an indigent defendant, when it

cannot be determined that the petition is frivolous or patently

without merit.     Hodges, 234 Ill. 2d at 9; 725 ILCS 5/122-4 (West

2006).   Though only a limited amount of detail need be presented

in a pro se petition, the petition must " 'clearly set forth the

respects in which petitioner's constitutional rights were

violated.' "     Hodges, 234 Ill. 2d at 9, quoting 725 ILCS 5/122-2

(West 2006).     In other words, the trial court may summarily

dismiss a postconviction petition "as frivolous or patently

without merit only if the petition has no arguable basis either

in law or in fact."     Hodges, 234 Ill. 2d at 11-12.   A frivolous

or patently without merit petition "is one *** based on an

indisputably meritless legal theory or a fanciful factual

allegation."     Hodges, 234 Ill. 2d at 16.

     To determine whether appellate counsel was ineffective in

the assistance he provided to a defendant, we apply the two-prong

test established in Strickland v. Washington, 466 U.S. 668, 80 L.

Ed. 2d 674, 104 S. Ct. 2052 (1984).     Hodges, 234 Ill. 2d at 17.

"A defendant who claims that appellate counsel was ineffective

for failing to raise an issue on appeal must allege facts

demonstrating such failure was objectively unreasonable and that

counsel's decision prejudiced defendant."     People v. Rogers, 197

                                  11
No. 1-07-2922


Ill. 2d 216, 223, 756 N.E.2d 831 (2001), citing People v. Enis,

194 Ill. 2d 361, 377, 743 N.E.2d 1 (2000).    "If the underlying

issue is nonmeritorious, the defendant has suffered no

prejudice."     Rogers, 197 Ill. 2d at 223, citing Enis, 194 Ill. 2d

at 377.   Thus, we turn to the merits of the defendant's

underlying double jeopardy claim.

     We note that the underlying facts in this case are not in

dispute; the dispositive question as to the sufficiency of the

defendant's postconviction petition is whether the defendant's

legal theory, that the guilty plea hearing triggered double

jeopardy protections, has an arguable basis in law.       Hodges, 234

Ill. 2d at 9.    Because this appeal presents a question of law,

that Judge Brosnahan dismissed the defendant's postconviction

petition at the first stage of proceedings under the Act has

little impact on our review.    Had the same postconviction claim

been dismissed after appointment of counsel at the second-stage

review, we would employ the same standard: de novo review.      See

People v. Coleman, 183 Ill. 2d 366, 375, 701 N.E.2d 1063 (1998)

(standard of review for second-stage dismissal of postconviction

petition is plenary).    A petition that is based on an

indisputably meritless legal theory is frivolous and cannot make

a substantial showing of a constitutional violation.

     The double jeopardy clauses of the Illinois and United

                                  12
No. 1-07-2922


States Constitutions provide the same protection.    People v.

Bellmyer, 199 Ill. 2d 529, 536-37, 771 N.E.2d 391 (2002).    In

addition, section 3-4(a)(3) of the Criminal Code of 1961 (the

Code) codifies the constitutional double jeopardy rules.    720

ILCS 5/3-4 (West 2004); People v. Mueller, 109 Ill. 2d 378, 383,

488 N.E.2d 523 (1985).   The prohibition against double jeopardy

is designed to prevent the State from engaging in more than one

attempt to convict an individual, thereby subjecting him to

embarrassment, expense, continuing anxiety and insecurity, and

increasing the possibility that he may be found guilty even if

innocent.   People v. Henry, 204 Ill. 2d 267, 282-83, 789 N.E.2d

274 (2003).   It also furthers the constitutional policy in favor

of finality for the benefit of the defendant.    Brown v. Ohio, 432

U.S. 161, 165, 53 L. Ed. 2d 187, 194, 97 S. Ct. 2221, 2225

(1977).   However, double jeopardy analysis should not be applied

mechanically if the interests the clause seeks to protect are not

endangered or where its mechanical application would frustrate

society's interest in enforcing criminal laws.     People v. Knaff,

196 Ill. 2d 460, 468-69, 752 N.E.2d 1123 (2001).    "The

prohibition against double jeopardy 'protects against three

distinct abuses: (1) a second prosecution for the same offense

after acquittal; (2) a second prosecution for the same offense

after conviction; and (3) multiple punishments for the same

                                13
No. 1-07-2922


offense.' "     Henry, 204 Ill. 2d at 283, quoting People v. Placek,

184 Ill. 2d 370, 376-77, 704 N.E.2d 393 (1998).    We understand

the defendant's contention here to put the latter two protections

at issue.

     To determine whether a subsequent prosecution would violate

a defendant’s right to avoid being placed in double jeopardy, a

reviewing court must initially determine whether jeopardy

"attached" in the first proceeding.     Bellmyer, 199 Ill. 2d at

537-38.   There are three settings in which jeopardy may attach:

(1) at a jury trial when the jury is empaneled and sworn; (2) at

a bench trial when the first witness is sworn and the court

begins to hear evidence; and (3) at a guilty plea hearing "when

the guilty plea is accepted by the trial court."     Bellmyer, 199

Ill. 2d at 538.    The defendant contends the constitutional rule

against double jeopardy barred the subsequent trial on the

offenses the State nol-prossed and the armed robbery charge to

which the defendant pleaded guilty, but which was rejected and

vacated by the circuit court.    We address each contention

separately.

                         Offenses Nol-prossed

     In a guilty plea setting, whether jeopardy attaches to

offenses to which no guilty pleas have been entered turns on when

the State's motion to nol-pros those charges is entered.      "If the

                                  14
No. 1-07-2922


allowance of a motion to nol-pros is entered before jeopardy

attaches, the nolle prosequi does not operate as an acquittal,

and a subsequent prosecution for the same offense could legally

proceed. [Citation.]    Conversely, the granting of a motion to

nol-pros after jeopardy attaches has the same effect as an

acquittal, and the State may not pursue those charges in a

subsequent trial.    [Citation.]"    People v. Daniels, 187 Ill. 2d

301, 312, 718 N.E.2d 149 (1999), citing People v. Watson, 394

Ill. 177, 179, 68 N.E.2d 265 (1946), and People v. Blake, 287

Ill. App. 3d 487, 491, 678 N.E.2d 761 (1997).     "The starting

point in any double jeopardy analysis, of course, is determining

whether or not jeopardy had attached."      People ex rel. Mosley v.

Carey, 74 Ill. 2d 527, 534, 387 N.E.2d 325 (1979).

     The defendant offers little in his main brief to support his

implicit claim that jeopardy attached to the nol-prossed charges

except his assertion that "after jeopardy attached, the court

accepted a State motion to nol-pros the remaining five charges."

As support, the defendant offers this quote: "[T]he granting of a

motion to nol-pros after jeopardy attaches has the same effect as

an acquittal, and the State may not pursue those charges in a

subsequent trial."     Daniels, 187 Ill. 2d at 312.   The quoted

language from Daniels, however, provides no answer to the

starting-point question of whether jeopardy attached to the

                                    15
No. 1-07-2922


offenses that were nol-prossed.    As our supreme court made clear

in Daniels, the mere granting of the State's motion to nol-pros

charges does not operate as an acquittal; rather, to operate as

an acquittal, jeopardy must attach before the charges are nol-

prossed.

     At a guilty plea hearing, jeopardy only attaches to those

offenses to which the defendant pleads guilty and only "when the

guilty plea is accepted by the trial court."    Bellmyer, 199 Ill.

2d at 538.   "Jeopardy attached only at the time the guilty plea

was accepted by the court [citation] and logic dictates that

jeopardy would attach only to the crime pleaded to since there

has been no finding of any sort [as to the charge nol-prossed]."

People v. McCutcheon, 68 Ill. 2d 101, 106, 368 N.E.2d 886 (1977);

see Ohio v. Johnson, 467 U.S. 493, 494, 501-02, 81 L. Ed. 2d 425,

430, 435, 104 S. Ct. 2536, 2538, 2542 (1984) (where a defendant

pleads guilty to only some of the charges and pleads not guilty

to the more serious charges, the pleas of guilty do not resolve

all charges brought by the State and the principles of finality

are not implicated to bar prosecution on the remaining charges

based on double jeopardy).

     As made clear by the record, the defendant never entered

pleas of guilty to counts II through VI of the indictment at the

time the State's motion to nol-pros those offenses was granted by

                                  16
No. 1-07-2922


Judge Holt.   Because nothing transpired below that triggered

jeopardy to attach to the offenses nol-prossed, it necessarily

follows that reinstatement of those offenses did not violate the

defendant's constitutional right against double jeopardy.

McCutcheon, 68 Ill. 2d at 106; Johnson, 467 U.S. at 494, 501-02,

81 L. Ed. 2d at 430, 435, 104 S. Ct. at 2538, 2542.

                  Plea of Guilty to Armed Robbery

     On the other hand, it is clear that under Illinois law,

jeopardy attached to the armed robbery charge at the defendant's

March 10, 2004, guilty plea hearing when Judge Holt accepted the

defendant's plea of guilty and entered "a finding of guilty."

See 720 ILCS 5/3-4(a)(3) (West 2004); Bellmyer, 199 Ill. 2d at

538 (jeopardy attaches to a guilty plea "when [it] is accepted by

the trial court").   That jeopardy attached to the offense the

defendant pleaded guilty to does not, however, determine whether

a second prosecution for that same offense is barred by the

double jeopardy clause.   To trigger the double jeopardy bar,

jeopardy must not only attach, but terminate.   Bellmyer, 199 Ill.

2d at 540-41, citing Richardson v. United States, 468 U.S. 317,

325, 82 L. Ed. 2d 242, 250-51, 104 S. Ct. 3081, 3086 (1984).

"Jeopardy 'terminates' if the trial concludes under conditions in

which the defendant could not be retried without violating the

double jeopardy rule ***."   Daniels, 187 Ill. 2d at 310-11.

                                17
No. 1-07-2922


     The concept of "continuing jeopardy" has been applied to

explain why reprosecution is not barred by the double jeopardy

clause in certain circumstances where the criminal proceeding

against a defendant has not run its full course.       Justices of

Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 80 L. Ed. 2d

311, 325, 104 S. Ct. 1805, 1813 (1984).       "In the parlance of

double jeopardy case law, jeopardy 'continues' if a conviction is

reversed on appeal or if the trial ends in a mistrial."       Daniels,

187 Ill. 2d at 310-11.   "Interests supporting the continuing

jeopardy principle involve fairness to society, lack of finality,

and limited waiver. [Citation.]    Acquittals, unlike convictions,

terminate the initial jeopardy."       Justices of Boston Municipal

Court, 466 U.S. at 308, 80 L. Ed. 2d at 325, 104 S. Ct. at 1813.

The principle of continuing jeopardy is reflected in section 3-

4(a)(3) of the Code, which codifies the constitutional double

jeopardy rules.   Mueller, 109 Ill. 2d at 383.     "A prosecution is

barred if the defendant was formerly prosecuted for the same

offense, based upon the same facts, if such former prosecution:

*** (3) Was terminated improperly ***."      720 ILCS 5/3-4(a)(3)

(West 2004).

     While we are unaware of an Illinois case applying the

continuing jeopardy principle to a guilty plea proceeding, we are

presented with no persuasive argument against its application.

                                  18
No. 1-07-2922


For purposes of barring reprosecution, section 3-4(a)(3) makes no

distinction between a jury or bench trial that terminates

improperly and a guilty plea hearing that terminates improperly.

An improperly terminated guilty plea proceeding, "after a plea of

guilty was accepted by the court," will bar a subsequent

prosecution, no less so than if a jury or bench trial terminated

improperly.   720 ILCS 5/3-4(a)(3) (West 2004).   Inversely stated,

just as a jury or bench trial may terminate properly, allowing

for a retrial when, for example, "manifest necessity" compels

such an outcome (People v. Edwards, 388 Ill. App. 3d 615, 623,

902 N.E.2d 1230 (2009)), by implication, if the original guilty

plea hearing is terminated properly under Illinois law, a

successive prosecution is not barred under section 3-4(a)(3).

     Much like jeopardy that attaches following the impaneling of

a jury or the calling of the first witness in a bench trial,

which "continues" throughout the course of the trial, the

jeopardy that attached following Judge Holt's acceptance of the

defendant's plea of guilty continued throughout the course of his

guilty plea hearing.   Much like a proper declaration of a

mistrial in the course of a trial does not preclude reprosecution

(Daniels, 187 Ill. 2d at 310-11; 720 ILCS 5/3-4(a)(3) (West

2004)), a proper termination of a guilty plea hearing does not



                                19
No. 1-07-2922


trigger a double jeopardy bar to subsequent prosecution.1   Under

the continuing jeopardy principle, if the jeopardy that attached

upon the acceptance of the defendant's plea of guilty did not

terminate before Judge Holt vacated his plea of guilty, then the



     1
         While the mistrial analogy is not exact (see United States

v. Santiago Soto, 825 F.2d 616, 620 (1st Cir. 1987) ("manifest

necessity" is not necessary "to warrant a judicial vacation of a

guilty plea" under the Supreme Court's decision in    Johnson)),

there is a shared societal interest in allowing a retrial after a

proper judicial declaration of a mistrial before a trial

concludes and allowing a full-blown prosecution after a trial

judge vacates a plea of guilty over concerns that a defendant

simultaneously proclaims his innocence.    In both instances the

equivalent of an acquittal has not occurred because " 'society's

interest in giving the prosecution one complete opportunity to

convict those who have violated its laws' " has not been met.

Richardson, 468 U.S. at 324, 82 L. Ed. 2d at 250, 104 S. Ct. at

3085, quoting Arizona v. Washington, 434 U.S. 497, 509, 54 L. Ed.

2d 717, 730, 98 S. Ct. 824, 832 (1978); see Johnson, 467 U.S. at

500 n.9, 81 L. Ed. 2d at 434 n.9, 104 S. Ct. at 2541 n.9 ("the

taking of a guilty plea is not the same as an adjudication on the

merits after full trial").

                                 20
No. 1-07-2922


defendant could be retried without violating the double jeopardy

rule.   Daniels, 187 Ill. 2d at 310-11.   In other words, under the

facts of this case, reprosecution is barred only if Judge Holt

improperly terminated the guilty plea hearing.    720 ILCS 5/3-

4(a)(3) (West 2004).

     Of course, in the defendant's direct appeal, we determined

that Judge Holt acted within his discretion in rejecting the

defendant's plea of guilty.     Cabrera, No. 1-04-3297.   We now go

beyond our reasons set out in our earlier decision to address

why, though jeopardy attached, the finding of guilty entered by

Judge Holt during the guilty plea hearing did not preclude a

trial on the merits.    See People ex rel. Roberts v. Orenic, 88

Ill. 2d 502, 507-08, 431 N.E.2d 353 (1981) ("The facts of each

case must be examined to determine the credibility of a double

jeopardy claim").

     We begin with a fundamental precept in guilty plea

proceedings: "[T]he States may bar their courts from accepting

guilty pleas from any defendants who assert their innocence."

Alford, 400 U.S. at 38 n.11, 27 L. Ed. 2d at 172 n.11, 91 S. Ct.

at 168 n.11 (1970).    We note that the State here "is not

attempting to impose multiple punishments for a single offense.

Nor is it making another attempt to convict [the defendant] after

acquittal."     Justices of Boston Municipal Court, 466 U.S. at 307,

                                  21
No. 1-07-2922


80 L. E. 2d at 324, 104 S. Ct. at 1813.   We take the defendant's

complaint here to be that his guilty plea constituted an initial

prosecution, making his subsequent bench trial an improper

successive prosecution.   In the same sense, his agreement to

accept six years in the IDOC on his guilty plea makes the

sentence imposed subsequent to his conviction after the bench

trial a second punishment for the same offense.

     Although our courts in Illinois are not barred from

accepting guilty pleas from defendants that assert their

innocence, it is long established that a trial court has

discretion to reject such pleas and reinstate a plea of not

guilty.   See People v. Hancasky, 410 Ill. 148, 153, 101 N.E.2d

575 (1951) (" 'The rule has often been announced in this State

that permission to change a plea of guilty to one of not guilty

is a matter within the discretion of the trial court' "), quoting

People v. Jamieson, 387 Ill. 367, 374-75, 56 N.E.2d 790 (1944);

Peterson, 311 Ill. App. 3d at 43-44 and cases cited therein.     We

perceive no constitutional distinction between a state practice

that bars accepting guilty pleas when coupled with protestations

of innocence and allowing a circuit court to accept or reject

such pleas in the exercise of sound judicial discretion; nor does

the defendant put forth an argument that the former passes

constitutional muster but the latter does not.    Nor does the

                                22
No. 1-07-2922


defendant raise again, in the context of his double jeopardy

claim, that Judge Holt abused his discretion in rejecting the

defendant's guilty plea.   Rather, he maintains that as a matter

of constitutional law, the subsequent bench trial was prohibited

by the double jeopardy clause.

     As we determined on direct appeal, the colloquy during the

defendant's allocution gave Judge Holt good reason to doubt the

truth of the defendant's guilty plea.    We reject as disingenuous

the defendant's position that Judge Holt had to disregard the

defendant's claim of innocence.    We repeat: under well-

established Illinois case law, a circuit court has discretion to

accept or reject a guilty plea where the defendant proclaims his

innocence.   A circuit court may set aside or withdraw a guilty

plea on its own motion, that is without a defendant's consent,

where the court has good reason to doubt the truth of the plea.

Hancasky, 410 Ill. at 154-55; compare 177 Ill. 2d R. 402(d)(2)

(where the trial judge "withdraws his concurrence or conditional

concurrence" to a proposed disposition pursuant to a plea

agreement, "he shall *** call upon the defendant either to affirm

or to withdraw his plea of guilty"); see also Ottomanelli, 153

Ill. App. 3d at 569 (Rule 402(c) is based on Rule 11 of the

Federal Rules of Criminal Procedure (Fed. R. Crim. P. 11)).

     Nor has the defendant marshaled a persuasive argument that

                                  23
No. 1-07-2922


because Judge Holt had entered his finding of guilty, Judge Holt

was precluded from considering the defendant's protestations of

innocence that he asserted later.   See Santiago Soto, 825 F.2d at

620 ("The mere acceptance of a guilty plea does not carry the

same expectation of finality and tranquility that comes with a

jury's verdict or with an entry of judgment and sentence as in

Brown[, 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221]").    We

perceive no reason that the entry of a finding of guilty pursuant

to a defendant's plea of guilty is a point beyond which a trial

judge must turn a deaf ear to a defendant's protestation of

innocence else risk leaving the State with no adjudication of the

charge should vacating the guilty plea trigger double jeopardy.

See Johnson, 467 U.S. at 494, 501-02, 81 L. Ed. 2d at 430, 435,

104 S. Ct. at 2538, 2542 (where a defendant's open guilty plea is

to only some of the charges and, thus, does not offer to resolve

all charges, the principles of finality are not implicated and

further prosecution on the remaining charges is permissible); see

also People v. Price, 369 Ill. App. 3d 395, 403-04, 867 N.E.2d

972 (2006) (prosecution of a "pending official-misconduct charge

after defendant entered an open plea of guilty to theft" was not

barred by double jeopardy).

     Though the defendant protested Judge Holt's decision to

reject his guilty plea, to quote Judge Holt, the defendant did

                               24
No. 1-07-2922


not have the right to cause the court to disgrace itself "and the

criminal justice system by accepting a plea of guilty from you

when you are in fact not guilty."    The defendant had no

constitutional right to force Judge Holt to sentence a man

proclaiming his innocence to the Illinois penitentiary.     Alford,

400 U.S. at 38 n.11, 27 L. Ed. 2d at 172 n.11, 91 S. Ct. at 168

n.11 ("A criminal defendant does not have an absolute right under

the Constitution to have his guilty plea accepted by the court").

We conclude that the mere acceptance of a defendant's plea of

guilty did not terminate the jeopardy that attached "when the

guilty plea [was] accepted by the trial court."    Bellmyer, 199

Ill. 2d at 538.

     Thus, consistent with the continuing jeopardy principle, the

subsequent prosecution on the identical offense is not foreclosed

by the double jeopardy clause where the guilty plea hearing

terminated properly.   720 ILCS 5/3-4(a)(3) (West 2004)); see

Santiago Soto, 825 F.2d at 617, 620 (no double jeopardy violation

where the trial court accepted guilty plea to a misdemeanor, then

rejected it sua sponte when the defendant proclaimed his

innocence before a sentence had been imposed, and he was

subsequently convicted following a jury trial of later-filed

felony charges); Gilmore v. Zimmerman, 793 F.2d 564, 566-67, 569-

70 (3rd Cir. 1986) (the Supreme Court in Johnson discounted any

                                25
No. 1-07-2922


double jeopardy implications from the state court's acceptance of

the guilty plea); United States v. Gomez-Gomez, 822 F.2d 1008,

1011 (11th Cir. 1987) ("when a defendant casts doubts upon the

validity of his guilty plea by protesting his innocence or by

making exculpatory statements, the court may resolve such doubts

against the plea"); but compare United States v. Vinyard, 539

F.3d 589, 590-92 (7th Cir. 2008) (where the district court had

accepted the defendant's guilty plea and sentenced him, the

federal rules did not authorize the district court to sua sponte

vacate his plea and sentence), with People v. Cox, 130 Ill. App.

3d 1073, 1076, 475 N.E.2d 248 (1985) (where the Fourth District

approved the circuit court's action in vacating a plea of guilty

and sentence as within the trial court's "jurisdiction over a

judgment for 30 days after its entry for purposes of vacating,

modifying, or setting aside the judgment to correct errors in its

rendition").

     We also note that the guilty plea hearing was terminated by

Judge Holt before he imposed sentence.   "The sentence is a

necessary part of a complete judgment of guilt. [Citation.]     In

the absence of a sentence, a judgment of conviction is not final.

[Citation.]"    People v. Robinson, 267 Ill. App. 3d 900, 907, 642

N.E.2d 1317 (1994).   The absence of a judgment of conviction



                                 26
No. 1-07-2922


further supports our conclusion that the jeopardy that attached

upon the entry of the defendant's plea of guilty never

terminated.   Nor does the defendant suggest a moment during the

proceedings below when jeopardy would have terminated before

Judge Holt vacated the defendant's plea of guilty.    See Justices

of Boston Municipal Court, 466 U.S. at 309, 80 L. Ed. 2d at 325,

104 S. Ct. at 1813 (the defendant "fails to identify any stage of

the state proceedings that can be held to have terminated

jeopardy").

     We hold that Judge Holt did not improperly terminate the

defendant's guilty plea hearing.     Judge Holt's sound exercise of

discretion to vacate the defendant's guilty plea and set the case

for trial was not an event that terminated the jeopardy that

attached upon the acceptance of the defendant's plea of guilty to

armed robbery.   Of course, because the subsequent bench trial was

part of the same continuous prosecution, placing the defendant in

jeopardy but once, the sentence imposed after the verdict

following the bench trial did not subject the defendant to

multiple punishments under the double jeopardy clause.     That

Judge Holt imposed a harsher sentence after the bench trial than

the sentence agreed upon in the parties' proposed disposition is,

absent more, insufficient to demonstrate that the defendant's

rights were violated.   See People v. Baze, 43 Ill. 2d 298, 302,

                                27
No. 1-07-2922


253 N.E.2d 392 (1969) (heavier sentence is permissible if it is

not a penalty for the exercise of constitutional rights); 730

ILCS 5/5-5-4 (West 2006).2    Under the double jeopardy clause, the

20-year sentence imposed by Judge Holt for armed robbery after

the defendant's conviction following the bench trial did not

constitute a second punishment.

     Finally, we are unpersuaded by the defendant’s reliance on

the federal cases cited in his brief that do not involve

protestations of innocence by the defendant during the course of

a guilty plea hearing.    We expressly disagree with the assertion

in Morris v. Reynolds, 264 F.3d 38 (2d Cir. 2001), that a plea of



     2
         While it may have been Judge Holt's practice not to reject

a proposed disposition agreed upon by the parties, we are aware

of no authority that compelled his concurrence.    As Rule 402

makes clear, the trial court may reject a proposed disposition

even when it gives its concurrence or conditional concurrence

should additional information come to light that causes the trial

judge to reject the defendant's plea of guilty before sentence is

imposed.    177 Ill. 2d R. 402.   Rule 402 "governs the procedure on

pleas of guilty prior to sentencing."     (Emphasis in original.)

Cox, 130 Ill. App. 3d at 1076; 177 Ill. 2d R. 402, Committee

Comments.

                                  28
No. 1-07-2922


guilty is equivalent to a conviction, a case given prominence in

the defendant's list of cases.   "Given that a guilty plea is a

conviction, [citation], and that the Double Jeopardy Clause

'protects against a second prosecution for the same offense after

conviction,' [citation], the Clause prohibits a second

prosecution for the same offense following a guilty plea."

Morris, 264 F.3d at 49; but see Santiago Soto, 825 F.2d at 620

("The mere acceptance of a guilty plea does not carry the same

expectation of finality and tranquility that comes with a jury's

verdict or with an entry of judgment and sentence as in Brown[,

432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1997)]").    Our

disagreement regarding what constitutes a conviction aside,

Morris involved a plea of guilty to a lesser included offense,

which the Federal Court of Appeals for the Second Circuit

concluded barred the reinstatement of the greater offense that

was not pending when the guilty plea was entered.   Morris, 264

F.3d at 49.   The situation present in Morris is not the situation

before us.

     Because the jeopardy that attached to the defendant's plea

of guilty to armed robbery did not terminate, reprosecution of

the same offense in the defendant's subsequent bench trial was

not barred by double jeopardy.   Nor did the imposition of a

harsher sentence following the bench trial implicate double

                                 29
No. 1-07-2922


jeopardy concerns.

                            CONCLUSION

     On the defendant's direct appeal, we found Judge Holt acted

within his discretion in vacating the defendant's plea of guilty

to the charge of armed robbery following the defendant's claim of

innocence; our second review of the defendant's claimed error,

recast in constitutional terms, does not change our view.   A

different result does not obtain based on a different challenge

to the same set of facts.   We also find that jeopardy did not

attach to the charges dismissed pursuant to the State's motion to

nol-pros.   The entirety of the defendant's double jeopardy claim

is based on an indisputably meritless legal theory.   The

defendant was not prejudiced by appellate counsel's failure to

raise a meritless claim on direct appeal.   Accordingly, Judge

Brosnahan properly dismissed the defendant's postconviction

petition as frivolous and patently without merit.

     Affirmed.

     PATTI and LAMPKIN, JJ., concur.




                                30
No. 1-07-2922


           REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
___________________________________________________________________

           PEOPLE OF THE STATE OF ILLINOIS
                 Plaintiff-Appellee,
           v.
            PEDRO CABRERA,
                 Defendant-Appellant.
      ________________________________________________________________

                                   No. 1-07-2922

                             Appellate Court of Illinois
                            First District, First Division

                              Filed: June 28, 2010
      _________________________________________________________________

                JUSTICE GARCIA delivered the opinion of the court.

                       PATTI and LAMPKIN, J.J., concur.
      _________________________________________________________________
                  Appeal from the Circuit Court of Cook County
               Honorable Mary Margaret Brosnahan, Judge Presiding
      _________________________________________________________________
For PLAINTIFF-          Anita Alvarez
APPELLEE                State's Attorney, County of Cook
                        James E. Fitzgerald
                        Tasha-Marie Kelly
                        Shannan McFadden
                        Assistant State's Attorneys, Of Counsel
                        Richard J. Daley Center, Room 309
                        Chicago, IL 60602

For DEFENDANT-          Michael J. Pelletier
APPELLANT               State Appellate Defender
                        Patricia Unsinn
                        Deputy Defender

                        Shawn O'Toole
                        Assistant Appellate Defender

                                         31
No. 1-07-2922


                Office of the State Appellate Defender
                203 N. LaSalle Street, 24th Floor
                Chicago, IL 60601




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