                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




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




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     ARTHUR McKENZIE, Defendant-Appellant.



District & No.              First District, Sixth Division
                            Docket No. 1-10-2925


Filed                       May 31, 2013


Held                        Defendant’s postconviction petition alleging that his plea agreement was
(Note: This syllabus        void because it included a waiver of his appellate and postconviction
constitutes no part of      rights was properly dismissed at the first stage, notwithstanding his
the opinion of the court    contention that other states have found that such a waiver is against their
but has been prepared       public policy, since the Illinois Appellate Court has upheld such waivers
by the Reporter of          for decades.
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, No. 99-CR-20952-53; the
Review                      Hon. Evelyn B. Clay, Judge, presiding.



Judgment                    Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Todd T. McHenry, all of
Appeal                     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
        subsequently entered a negotiated plea of guilty to second degree murder 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.

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¶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-year sentence 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 order that 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 degree murder 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


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       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 may be 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 by mail 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 may move to dismiss it. 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 “may order the 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

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       (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–actually more–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.



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¶ 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 reply brief, 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.




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