People v. Wendt

• Decision Date: 25 September 1996
• Docket Number: No. 2-94-1384,2-94-1384
• Citation: 219 Ill.Dec. 342,670 N.E.2d 1230,283 Ill.App.3d 947
• Parties: , 219 Ill.Dec. 342 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kristoffer WENDT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1230

670 N.E.2d 1230

283 Ill.App.3d 947, 219 Ill.Dec. 342

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kristoffer WENDT, Defendant-Appellant.

No. 2-94-1384.

Appellate Court of Illinois Second District.

Sept. 25, 1996.

G. Joseph Weller, Deputy Defender, Paul Alexander Rogers, Office of the State Appellate Defender, Elgin, for Kristoffer A. Wendt.

Gary W. Pack, McHenry County State's Attorney, Woodstock, William L. Browers, Deputy Director, David A. Bernhard, State's Attorneys Appellate Prosecutors, Elgin, for the People.

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, 161 Ill.Dec. 306, 578 N.E.2d 952 (1991); People v. Lemons, 242 Ill.App.3d 941, 943, 184 Ill.Dec. 642, 613 N.E.2d 1234 (1993). A post-conviction petition is not an appeal, but a collateral attack upon a final judgment. Eddmonds, 143 Ill.2d at 510, 161 Ill.Dec. 306, 578 N.E.2d 952. The purpose of such a proceeding is not to determine guilt or innocence, but to inquire into constitutional issues that have not been, and could not have been, previously adjudicated. People v. Gaines, 105 Ill.2d 79, 87, 85 Ill.Dec. 269, 473 N.E.2d 868 (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, 161 Ill.Dec. 306, 578 N.E.2d 952; People v. Griffin, 109 Ill.2d 293, 303, 93 Ill.Dec. 774, 487 N.E.2d 599 (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, 184 Ill.Dec. 642, 613 N.E.2d 1234. 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, 135 Ill.Dec. 816, 544 N.E.2d 312 (1989); People v. Hickox, 229 Ill.App.3d 454, 456, 170 Ill.Dec. 847, 593 N.E.2d 736 (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, 184 Ill.Dec. 642, 613 N.E.2d 1234, citing People v. Porter, 122 Ill.2d 64, 74, 118 Ill.Dec. 465, 521 N.E.2d 1158 (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, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (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, 104 S.Ct. at 2069, 80 L.Ed.2d at 699; Eddmonds, 143 Ill.2d at 512, 161 Ill.Dec. 306, 578 N.E.2d 952.

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 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, 155 Ill.Dec. 821, 570 N.E.2d 334 (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, 168 Ill.Dec. 782, 590 N.E.2d 104 (1992); see also People v. Goodbrake, 255 Ill.App.3d 833, 837, 194 Ill.Dec. 442, 627 N.E.2d 779 (5th Dist.1994); People v. Terneus, 239 Ill.App.3d 669, 674, 180 Ill.Dec. 499, 607 N.E.2d 568 (4th Dist.1992); People v. Beller, 54 Ill.App.3d 1053, 1063, 12 Ill.Dec. 771, 370 N.E.2d 575 (5th Dist.1977), aff'd, 74 Ill.2d 514, 25 Ill.Dec. 383, 386 N.E.2d 857 (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, 194 Ill.Dec. 442, 627 N.E.2d 779; Terneus, 239 Ill.App.3d at 669, 180 Ill.Dec. 499, 607 N.E.2d 568; see also Beller, 54 Ill.App.3d at 1063, 12 Ill.Dec. 771, 370 N.E.2d 575, aff'd, 74 Ill.2d 514, 25 Ill.Dec. 383, 386 N.E.2d 857 (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, 168 Ill.Dec. 782, 590 N.E.2d 104 (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, 168 Ill.Dec. 782, 590 N.E.2d 104. 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, 194 Ill.Dec. 442, 627 N.E.2d 779 ("The defendant did not give one good reason for the reduction of his sentence"). Accordingly, under...