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
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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
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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. ________________________________________________________________
Appellate Court of Illinois First District, First Division
Filed: June 28, 2010 _________________________________________________________________
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