No. 2--94--1384
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellee, ) No. 93--CF--1012
v. )
KRISTOFFER WENDT, ) Honorable
) Susan F. Hutchinson,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________
PRESIDING JUSTICE McLAREN delivered the opinion of the court:
The defendant, Kristoffer Wendt, appeals the circuit court's
order dismissing without an evidentiary hearing his post-conviction
petition (see 725 ILCS 5/122--2.1 (West 1994)). The defendant
contends that he was denied the effective assistance of counsel
when his trial attorney failed to move to reconsider the sentence
although the defendant requested that he do so. We affirm.
An indictment originally charged the defendant with first-
degree murder (720 ILCS 5/9--1(a)(2) (West 1994)). Extensive
pretrial proceedings ensued, including a Supreme Court Rule 402
conference (134 Ill. 2d R. 402) at which no court reporter was
present. Thereafter, the defendant entered a negotiated guilty
plea to one count of second-degree murder (720 ILCS 5/9--2(a)(1)
(West 1994)) and one count of aggravated battery (720 ILCS 5/12--
4(b)(8) (West 1994)). In exchange for the plea, the State agreed
to nol-pros the first-degree murder charge and recommend an
extended-term sentence of 22 years for murder, with a concurrent
two-year term for aggravated battery.
After hearing the factual basis, the court accepted
defendant's plea. The court requested the respective attorneys to
state briefly any relevant aggravating or mitigating factors.
However, the court heard no formal testimony and no presentence
report was prepared. Following the attorneys' statements, the
court imposed the agreed-upon sentences. The defendant filed
neither a post-plea motion nor a notice of appeal.
The defendant filed a pro se petition pursuant to the Post-
Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West
1994)) alleging that (1) the defendant was denied the effective
assistance of counsel where counsel failed to file a requested
motion to reduce the sentence; (2) the extended-term sentence for
second-degree murder was unjustified; and (3) the defendant pleaded
guilty only because his lawyers "scared" him into it by telling him
he would receive a sentence of at least 30 years if he went to
trial. The court dismissed the petition as patently without merit
(725 ILCS 5/122--2.1(a)(2) (West 1994)), and the defendant appeals.
On appeal, the defendant argues only the first point raised in
his petition: that he was denied the effective assistance of
counsel when his attorney failed to accede to his request to file
a motion to reconsider the sentence. The defendant contends that
his petition adequately states the gist of a constitutional
violation and that, because he was effectively denied his right to
an appeal, he need not establish prejudice resulting from his
counsel's neglect.
The Act provides a remedy to criminal defendants who claim
substantial violations of their constitutional rights during trial
court proceedings. People v. Eddmonds, 143 Ill. 2d 501, 510
(1991); People v. Lemons, 242 Ill. App. 3d 941, 943 (1993). A
post-conviction petition is not an appeal, but a collateral attack
upon a final judgment. Eddmonds, 143 Ill. 2d at 510. The purpose
of such a proceeding is not to determine guilt or innocence, but to
inquire into constitutional issues which have not been, and could
not have been, previously adjudicated. People v. Gaines, 105 Ill.
2d 79, 87 (1984). In a post-conviction proceeding, the petitioner
bears the burden of proving that a substantial constitutional
violation occurred. Eddmonds, 143 Ill. 2d at 510; People v.
Griffin, 109 Ill. 2d 293, 303 (1985).
In addition, section 122--2.1 of the Act permits a trial court
to dismiss without an evidentiary hearing a petition that is
frivolous or patently lacks merit. 725 ILCS 5/122--2.1(a)(2) (West
1994); Lemons, 242 Ill. App. 3d at 944. A post-conviction
petitioner is entitled to an evidentiary hearing only if he makes
a substantial showing of a constitutional violation and the
allegations are supported by the record, affidavits, or some other
evidence. People v. Del Vecchio, 129 Ill. 2d 265, 279 (1989);
People v. Hickox, 229 Ill. App. 3d 454, 456 (1992).
"A 'gist of a meritorious claim' is not a bare allegation
of a deprivation of a constitutional right. Although a
pro se defendant seeking post-conviction relief would not
be expected to construct legal arguments, cite legal
authority, or draft her petition as artfully as would
counsel, the pro se defendant must still plead sufficient
facts from which the trial court could find a valid claim
of deprivation of a constitutional right." (Emphasis in
original.) Lemons, 242 Ill. App. 3d at 946, citing
People v. Porter, 122 Ill. 2d 64, 74 (1988).
Generally, a claim of ineffective assistance of counsel
requires that the defendant establish two elements: (1) that the
attorney's performance fell below an objective standard of
reasonableness; and (2) that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington,
466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068
(1984). However, if the defendant is unable to establish the
second prong of the test, i.e., sufficient prejudice, we need not
consider the first prong of the test, i.e., the reasonableness of
the attorney's conduct. Strickland, 466 U.S. at 697, 80 L. Ed. 2d
at 699, 104 S. Ct. at 2069; Eddmonds, 143 Ill. 2d at 512.
The issue in this case is whether a defendant who agrees to a
specified sentence pursuant to a plea agreement may base a claim of
ineffective assistance of counsel on counsel's failure to request
a reduction of the sentence, without alleging any basis for such a
challenge. In other words, is the prejudice prong of the
Strickland test (466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052)
established where a defendant is denied his right to challenge a
sentence to which he specifically agreed.
A defendant who wishes to challenge his sentence following a
guilty plea must comply with the requirements of Rule 604(d) (145
Ill. 2d R. 604(d)), although he is not required to seek withdrawal
of the plea. People v. Wallace, 143 Ill. 2d 59, 60-61 (1991).
Thus, to preserve his right to appeal, the defendant must file a
motion to reconsider his sentence in the trial court. 145 Ill. 2d
R. 604(d).
However, a defendant may not challenge an agreed sentence
where the trial court exercised no discretion in imposing the
sentence. People v. Soles, 226 Ill. App. 3d 944, 946-47 (1992);
see also People v. Goodbrake, 255 Ill. App. 3d 833, 837 (5th Dist.
1994); People v. Terneus, 239 Ill. App. 3d 669, 674 (4th Dist.
1992); People v. Beller, 54 Ill. App. 3d 1053, 1063 (5th Dist.
1977), aff'd, 74 Ill. 2d 514 (1979). The Appellate Court, Fifth
District, and the Appellate Court, Fourth District, have expressly
held that a defendant who agrees to accept a specific sentence as
part of a negotiated plea may not challenge the length of that
sentence. Goodbrake, 255 Ill. App. 3d at 837; Terneus, 239 Ill.
App. 3d at 669; see also Beller, 54 Ill. App. 3d at 1063, aff'd, 74
Ill. 2d 514 (1979). While this court has never explicitly adopted
the reasoning of Goodbrake and Terneus, in People v. Soles, 226
Ill. App. 3d 944, 946-47 (1992), we held that a defendant who
agreed to plead guilty in exchange for a sentence cap of 20 years
was entitled to file a motion to reduce his sentence. We reasoned
that by agreeing to a 20-year cap, the defendant only "agreed to
accept any sentence *** if the trial court properly exercised its
discretion in imposing it." Soles, 226 Ill. App. 3d at 947. Thus,
it is at least a fair inference from Soles that, if a trial court
exercises no discretion in imposing the sentence, a defendant may
not challenge it.
Here, the trial court did not exercise its discretion in any
meaningful sense. The court imposed the sentences upon which the
parties had agreed, after hearing brief statements from counsel
regarding aggravation and mitigation. However, the court did not
hear any evidence in aggravation or mitigation and did not order a
presentence report. Therefore, we determine that the defendant was
unable to challenge the sentence.
In addition, we agree with Goodbrake and Terneus to the extent
that the cases hold that a defendant may not challenge the sentence
to which he explicitly agreed, absent some structural defect in the
proceedings. On appeal, the defendant does not argue that such a
defect existed. He does not argue, for example, that the sentence
is beyond that statutorily authorized or that he was tricked or
coerced into accepting the sentence. Cf. Goodbrake, 255 Ill. App.
3d at 836 ("The defendant did not give one good reason for the
reduction of his sentence"). Accordingly, under Goodbrake and
Terneus, the defendant was not able to challenge his sentence.
As Goodbrake pointed out, a negotiated guilty plea is really
a bargain, or contract, between the defendant and the State.
Goodbrake, 255 Ill. App. 3d at 836. Plea bargains are in many ways
subject to contract principles. See People v. Starks, 106 Ill. 2d
441, 448-49 (1985). The prosecution must honor the terms of
agreements it makes with defendants. Starks, 106 Ill. 2d at 449.
To permit a defendant to agree to a particular sentence, then later
claim that the sentence is excessive, would render the defendant's
obligation under the contract wholly illusory. The State would not
be permitted to recommend anything longer than the agreed-upon
sentence, but the defendant would remain free to argue for a
shorter sentence. For this reason, Goodbrake concluded that a
defendant who wishes to renege on his bargain should be required to
file a motion to withdraw the plea. Goodbrake, 255 Ill. App. 3d at
837.
The defendant contends, however, that Goodbrake's reasoning
has been rejected by the supreme court. He notes that the
Appellate Court, Fifth District, applied and expanded upon the
rationale of Goodbrake in People v. Maltimore, 268 Ill. App. 3d 532
(1994). The supreme court, in a supervisory order, vacated the
appellate court opinion in that case. People v. Maltimore, 161
Ill. 2d 535 (1995). The defendant contends that this evidences the
supreme court's repudiation of Goodbrake. We disagree.
A critical distinction exists between Goodbrake and Maltimore.
In the latter case, the appellate court took Goodbrake one step
further, holding that the trial court was not required to appoint
counsel for an indigent defendant who wanted to file a motion to
reduce the sentences imposed pursuant to negotiated pleas.
Maltimore, 268 Ill. App. 3d at 534. The supreme court vacated the
appellate court's opinion and remanded the cause to the trial court
so that the defendant could file a motion to reduce the sentence.
Maltimore, 161 Ill. 2d 535. The supreme court's order does not
explain the reasons for vacating the appellate court's opinion.
However, we do not view the supreme court's action as a repudiation
of Goodbrake and Terneus. It may be, for example, that a defendant
actually has grounds to withdraw his plea, but needs the assistance
of counsel to make this determination. See People v. Velasco, 197
Ill. App. 3d 589, 591 (1990). Here, the defendant, who has the
burden to establish a constitutional violation, does not allege
that he was not permitted to consult with counsel and has not given
any indication that he has a valid basis to withdraw his plea.
In addition, the cases on which the defendant relies are
distinguishable. In People v. Swanson, 276 Ill. App. 3d 130
(1995), there is no indication that the defendant agreed to accept
a particular sentence under a plea agreement. Thus, under Soles,
the defendant had a presumptive right to challenge the court's
discretion in imposing the sentence. In People v. Moore, 236 Ill.
App. 3d 990 (1992), the defendant properly filed a motion to
reconsider his sentence, but the trial court refused to hear it.
Citing Soles, this court merely held that the trial court was
required to hold a hearing on a properly filed motion. Moore, 236
Ill. App. 3d at 992-93. Moreover, as in Swanson, it does not
appear that the defendant agreed to a particular sentence as a
condition of his plea.
The defendant makes two additional arguments which require
minimal discussion. He contends that the trial court did not
actually concur in the parties' plea agreement and, therefore, a
binding agreement as to the sentence never existed. See 134 Ill.
2d R. 402(d)(3). He contends that, if the agreement was not
binding on either party, he is not prohibited from challenging his
sentence. The record does not support the defendant's contention.
Two days before the defendant entered his plea, the trial
court held a Supreme Court Rule 402 conference (134 Ill. 2d R.
402(d)(2)). Immediately after the conference, defense counsel
announced that the defendant would accept "the Judge's
recommendations." At the guilty plea hearing, the court proceeded
to impose the exact sentence upon which the parties agreed.
Although the trial judge apparently never pronounced the magic
words that she concurred in the plea agreement, the record clearly
establishes that she did. Thus, the agreement was equally binding
on both parties.
We also reject the defendant's contention that "[c]oncerns
about the integrity of the plea bargaining process" are not
implicated by permitting him to challenge his agreed-upon sentence
because the State can protect itself by inserting a provision that
the defendant will not challenge the sentence. Such a provision is
unnecessary. As noted, a plea agreement is essentially a contract
between the parties. Goodbrake, 255 Ill. App. 3d at 836-37.
Parties to a contract are not required to insert provisions
specifically prohibiting either party from breaching the contract.
The law presumes that no one enters into a contract with the
intention of breaching it. A contract permitting one party to
breach would in fact be illusory and would be void for failure of
consideration. See generally 3 R. Lord, Williston on Contracts
§7:7 (4th ed. 1992). We conclude that a defendant who agrees to a
specific sentence as a condition of a guilty plea may not challenge
that sentence absent some defect in the proceedings. Because the
defendant's petition, in the case at bar, does not allege any
specific basis for the reduction of his sentence, he was unable to
challenge his sentence before the trial court. Thus, the defendant
is now unable to establish sufficient prejudice. Accordingly, the
defendant's ineffective assistance of counsel claim fails.
Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at
2069; Eddmonds, 143 Ill. 2d at 512.
The defendant argues that he does not need to establish
prejudice. He states that a motion to reconsider a sentence is a
jurisdictional prerequisite to maintaining an appeal. See 145 Ill.
2d R. 604(d). Thus, where a criminal defendant has been deprived
of his right to appeal because of his attorney's negligence,
prejudice is presumed. Therefore, the defendant concludes, he did
not need to specify which arguments he would have raised had the
appeal been perfected. We are not persuaded by this argument.
It is well established that a defendant who has been deprived
of his right to appeal by counsel's failure to file a Rule 604(d)
motion must establish prejudice by alleging a valid basis for such
a motion. In People v. Wilk, 124 Ill. 2d 93 (1988), our supreme
court applied Strickland where the defendants' appeals were
dismissed by the appellate court because their attorneys failed to
file motions pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R.
604(d)) to withdraw their guilty pleas prior to filing the appeals.
The Illinois Supreme Court declined to reinstate the appeals,
holding that the Act provided the appropriate remedy. Wilk, 124
Ill. 2d at 107. The court assumed that the failure to preserve the
defendants' appeal rights might constitute ineffective assistance
of counsel and considered what a defendant would have to allege to
state grounds for relief under the Act. The court stated:
"[I]n a post-conviction petition, the defendant pro se needs
only to allege a violation of his sixth amendment right to
effective assistance of counsel, due to the attorney's failure
to preserve appeal rights, and allege whatever grounds he or
she would have had to withdraw his or her plea of guilty had
a proper motion to withdraw been filed by defendant's counsel
prior to the filing of a notice of appeal. At the hearing on
the post-conviction petition, the two-pronged test laid down
in Strickland v. Washington will apply to determine if in fact
the defendant has been deprived of effective assistance of
counsel." (Emphasis added.) Wilk, 124 Ill. 2d at 107-08.
The defendant acknowledges Wilk's holding that a defendant who
has been deprived of his right to appeal by counsel's failure to
file a Rule 604(d) motion must establish prejudice by alleging a
valid basis for such a motion. The defendant argues, however, that
Wilk has been effectively overruled.
The defendant notes that two justices partially dissented in
Wilk, arguing that prejudice should be presumed when counsel
incompetently fails to perfect an appeal. Wilk, 124 Ill. 2d at 115
(Clark, J., concurring in part and dissenting in part, joined by
Stamos, J.). The defendant contends that the "dissenters' position
was adopted two years later" in People v. Moore, 133 Ill. 2d 331
(1990). In Moore, relying on two United States Supreme Court
decisions, the court held that a defendant seeking post-conviction
relief for lost appeal rights need not specify the points he would
have raised if his appeal were to be reinstated. Moore, 133 Ill.
2d at 338. The Moore court relied on Evitts v. Lucey, 469 U.S.
387, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985), and Penson v. Ohio,
488 U.S. 75, 102 L. Ed. 2d 300, 109 S. Ct. 346 (1988), for the
proposition that due process rights are implicated where an
attorney's incompetence deprives a defendant of his right to
appeal. Moore stated:
"[I]t would appear that a criminal defendant must at some
point be afforded the equivalent of direct review and an
appellate advocate; a court cannot deny a defendant an
attorney-assisted appeal by examining the record and
determining that defendant would not have succeeded on appeal
in any event." Moore, 133 Ill. 2d at 339, citing Penson, 488
U.S. at 86, 102 L. Ed. 2d at 312-14, 109 S. Ct. at 352-54.
Contrary to the defendant's suggestion, we do not believe that
the Moore court intended to overrule Wilk. Moore does not purport
to overrule Wilk and, in fact, cites it with approval. Rather, we
believe the two cases can be harmonized.
At one point, Moore quotes from Rodriquez v. United States,
395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969), which
sanctioned the use of a post-conviction attack by a defendant
seeking relief for the loss of appellate rights, but determined
that he need not specify the points he would have raised if his
appeal were reinstated. After citing Rodriquez, Moore includes the
citation, "Cf. People v. Wilk (1988), 124 Ill. 2d 93, 107-08, 112-
13." Moore, 133 Ill. 2d at 338. The signal cf. "[d]irects the
reader's attention to another *** case, etc., where contrasted,
analogous, or explanatory views or statements may be found."
Black's Law Dictionary 229 (6th ed. 1990). A Uniform System of
Citation provides that cited authority following the cf. signal
"supports a proposition different from the main proposition but
sufficiently analogous to lend support." (Emphasis in original).
The Bluebook: A Uniform System of Citation §1.2(a) (15th ed.
1991). The citation of Wilk and the use of the cf. signal indicate
that Wilk stands for a slightly different but analogous proposition
from Moore.
The obvious distinction between Wilk and Moore is that the
former applies to defendants who seek to appeal following guilty
plea proceedings while the latter applies to those convicted
following a trial, as was the case in Moore. The reason for such
a distinction is also readily apparent: a defendant who pleads
guilty simply does not have the same right to an automatic appeal
as a defendant convicted after trial (see Ill. Const. 1970, art. 6,
§6). This distinction is embodied in Rule 604(d), which requires
a defendant who seeks to appeal from a conviction following a
guilty plea first to file a motion in the trial court that "shall
state the grounds therefor." 145 Ill. 2d R. 604(d).
A guilty plea represents a break in the chain of events that
has preceded it. Therefore, after pleading guilty, a defendant
generally may not raise claims of the deprivation of constitutional
rights occurring prior to the entry of the plea. See Tollett v.
Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d 235, 243, 93 S. Ct.
1602, 1608 (1973); 2 W. LaFave & J. Israel, Criminal Procedure
§20.6 (1984); see generally S. Saltzburg, Pleas of Guilty and the
Loss of Constitutional Rights: The Current Price of Pleading
Guilty, 76 Mich. L. Rev. 1265 (1978) (discussing which rights may
still be asserted following a guilty plea). With certain
exceptions, a defendant who has pleaded guilty is limited to
structural challenges to the plea proceedings themselves, i.e.,
whether the plea was entered voluntarily and intelligently based on
competent advice from counsel. Tollett, 411 U.S. at 267, 36 L. Ed.
2d at 243, 93 S. Ct. at 1608.
In Hill v. Lockhart, 474 U.S. 52, 57-58, 88 L. Ed. 2d 203,
209-10, 106 S. Ct. 366, 369 (1985), the Supreme Court held that the
prejudice prong of Strickland applies to defendants who seek to
challenge the validity of their guilty pleas on the ground of
ineffective assistance of counsel. Although Hill did not deal with
the issue of lost appeal rights, we see no reason why a different
standard should apply to the failure to file a motion to reconsider
the sentence than to other aspects of the guilty plea proceedings.
The Nebraska Supreme Court, without extended discussion, applied a
prejudice test to a defendant's claim that counsel failed to file
a motion to reconsider his sentence after defendant pleaded guilty.
State v. Portsche, 233 Neb. 839, ___, 448 N.W.2d 173, 174 (1989).
It would be anomalous to hold that a defendant whose counsel
fails to comply with the post-plea motion requirement is in a
better position than one whose attorney scrupulously follows the
rules. A defendant who files a Rule 604(d) motion to withdraw his
plea or reconsider his sentence must allege grounds for such a
motion. 145 Ill. 2d R. 604(d). The defendant, however, contends
that he is entitled to a hearing on his motion to reconsider the
sentence without alleging any grounds for relief. Nothing in the
cases discussed above mandates such a result. We think that Wilk
is still good law and mandates that a defendant who pleads guilty
and alleges the loss of his appeal rights because counsel failed to
file a motion to reconsider the sentence must specify what issues
he would have raised had such a motion been filed.
The defendant has the burden to establish a violation of his
constitutional rights. Here, he alleges merely that he wanted to
file a motion to reconsider his sentence but his counsel failed to
do so. The defendant does not allege any grounds to disturb the
sentence or to withdraw his plea. The defendant does not allege
that he was deprived of an opportunity to consult with counsel to
determine whether such grounds existed. For all that appears, it
may be that counsel declined to file the motion because he judged
that it would not succeed. See Gross v. State, 338 N.E.2d 663, 666
(Ind. App. 1975) ("Defense counsel may have considered any such
motion a useless act"). Since the defendant did not allege any
prejudice resulting from counsel's failure to file the motion, the
trial court properly dismissed his petition as frivolous and
patently without merit.
The judgment of the circuit court is affirmed.
Affirmed.
INGLIS and THOMAS, JJ., concur.