People v. Karmatzis

2016 IL App (4th) 140641-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS O. KARMATZIS, Defendant-Appellant.

NO. 4-14-0641

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

July 28, 2016

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Champaign County

No. 09CF464

Honorable Thomas J. Difanis, Judge Presiding.

JUSTICE POPE delivered the judgment of the court.

Justices Turner and Appleton concurred in the judgment.

ORDER

¶ 1 Held: The trial court did not err in dismissing defendant's postconviction petition at the first stage where he failed to set forth the gist of a constitutional claim he was provided insufficient Rule 402 admonishments at the time he entered his guilty plea. Any fees and assessments entered by the circuit clerk are vacated and the case is remanded with directions.

¶ 2 Defendant, Thomas O. Karmatzis, appeals the trial court's first-stage dismissal of his postconviction petition, arguing the court erred in finding the petition frivolous and patently without merit where he raised the gist of a meritorious claim he did not knowingly and voluntarily plead guilty because the court failed to provide sufficient Illinois Supreme Court Rule 402 (eff. July 1, 1997) admonishments. We affirm in part, vacate in part, and remand with directions.

¶ 3 I. BACKGROUND

¶ 4 On March 12, 2009, the State charged defendant in Champaign County case No. 09-CF-464 with one count of burglary (720 ILCS 5/19-1(a) (West 2008)). Because of defendant's criminal history, he was eligible for Class X sentencing.

¶ 5 On November 30, 2010, defendant agreed to plead guilty to burglary, and the State agreed to cap its sentencing recommendation at 12 years' imprisonment. During that hearing, the trial court admonished defendant pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997) regarding the nature of the charge, the sentencing range, and the period of mandatory supervised release. The court also ascertained defendant understood he was giving up his right to a jury or bench trial. Finally, the court confirmed defendant's guilty plea was voluntary. Defendant was released on bond pending sentencing.

¶ 6 On December 18, 2010, while out on bond, defendant was arrested and charged with four additional counts of burglary in Champaign County case No. 10-CF-2126.

¶ 7 On January 3, 2011, defendant filed a letter with the trial court asking to withdraw his guilty plea.

¶ 8 During the January 18, 2011, sentencing hearing, the trial court reiterated the details of the plea agreement and noted the terms of the agreement had changed as a result of the additional charges. Under the terms of the modified deal, defendant would agree to a sentence of 18 years' imprisonment, with one day of sentence credit. In exchange, the State agreed to dismiss the new burglary charges.

¶ 9 The trial court then addressed defendant's letter asking to withdraw his guilty plea. The court asked defendant if he wanted his guilty plea back and defendant indicated he did not.

When the court asked defendant if he "want[ed] to go along with the agreement now," defendant indicated he did.

¶ 10 The trial court went on to confirm no one forced or threatened defendant to accept the terms of the agreement. The court then concurred with the agreement, sentenced defendant to 18 years, and admonished him of his appeal rights. The court also ordered defendant to pay all fines, fees, and costs as authorized by statute, including "a fine in the amount of $0," a Violent Crime Victims Assistance Fund assessment, and a $200 genetic marker grouping analysis fee unless defendant had previously been assessed that fee.

¶ 11 On February 16, 2011, defendant again moved to withdraw his guilty plea. However, at the hearing on the motion, defendant withdrew his request to withdraw his guilty plea.

¶ 12 On August 19, 2011, defendant filed a pro se motion for additional sentence credit, which the trial court denied. Thereafter, defendant appealed the court's denial of his motion.

¶ 13 On September 3, 2013, this court dismissed defendant's appeal for lack of appellate jurisdiction where the trial court lacked jurisdiction to hear defendant's motion for additional sentence credit because that motion was filed more than 30 days after sentencing. See People v. Karmatzis, 2013 IL App (4th) 120010-U, ¶ 21 (petition for leave to appeal denied at No. 116785, 3 N.E.3d 799 (table) (Jan. 29, 2014)).

¶ 14 On June 11, 2014, defendant pro se filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2012)), arguing the trial court violated Illinois Supreme Court Rule 402 (eff. July 1, 1997). According to defendant, although he was so admonished at the November 2010 plea hearing, the court shouldhave readmonished him during the January 18, 2011, hearing because his plea agreement had changed.

¶ 15 On June 23, 2014, the trial court summarily dismissed defendant's petition, finding it was frivolous and patently without merit. According to the court, defendant "was properly admonished at each step" of the case.

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 On appeal, defendant argues the trial court erred in dismissing his postconviction petition at the first stage of the postconviction proceedings where he sufficiently set forth the gist of a constitutional claim he did not knowingly and voluntarily enter his plea where the court failed to provide Rule 402 admonishments at the time the plea was taken. Defendant also contends the circuit clerk (1) improperly imposed fines, (2) erroneously assessed a $200 genetic marker grouping analysis fee, and (3) failed to apply defendant's per diem credit to his eligible fines.

¶ 19 A. First-Stage Dismissal

¶ 20 The Act establishes a three-stage process for adjudicating a postconviction petition. People v. Beaman, 229 Ill. 2d 56, 71, 890 N.E.2d 500, 509 (2008). At the first stage, the trial court must review the postconviction petition and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2012). "[A] pro se petition seeking postconviction relief under the Act for a denial of constitutional rights may be summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill. 2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). Apetition lacks an arguable basis either in law or in fact where it "is based on an indisputably meritless legal theory" "which is completely contradicted by the record." Hodges, 234 Ill. 2d at 16, 912 N.E.2d at 1212.

¶ 21 In the first stage of a postconviction proceeding, the allegations of the petition, liberally construed and taken to be true, need only state "the gist of a constitutional claim." (Internal quotation marks omitted.) People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001). The term "gist" means the essence, the main point or part (Merriam-Webster's Collegiate Dictionary 492 (10th ed. 2000)), as opposed to a factually complete statement of the claim (Edwards, 197 Ill. 2d at 244, 757 N.E.2d at 445). Allegations of fact are treated as true so long as those allegations are not affirmatively rebutted by the record. People v. Bethel, 2012 IL App (5th) 100330, ¶ 10, 975 N.E.2d 616. "We review de novo a trial court's first-stage dismissal of a postconviction petition." People v. Shipp, 2015 IL App (2d) 131309, ¶ 7.

¶ 22 B. Sufficiency of Rule 402 Admonitions

¶ 23 Rule 402 provides "every defendant who enters a plea of guilty has a due process right to be properly and fully admonished." People v. Whitfield, 217 Ill. 2d 177, 188, 840 N.E.2d 658, 665 (2005). The purpose of Rule 402 is to guarantee the defendant understands the plea, the rights he is waiving by pleading guilty, and the consequences thereto. People v. Louderback, 137 Ill. App. 3d 432, 435, 484 N.E.2d 503, 505 (1985). "Before a trial court can accept a guilty plea, Rule 402(a) requires that the defendant be admonished concerning the nature of the charge, the minimum and maximum sentences, the right to plead guilty or not guilty, and the rights that are waived by pleading guilty." People v. Sharifpour, 402 Ill. App. 3d 100, 114, 930 N.E.2d 529, 543 (2010); Ill. S. Ct. R. 402(a) (eff. July 1, 1997). If the guilty plea is the result of a pleaagreement, Rule 402(b) further requires the court to "determine whether any force or threats or any promises, apart from [the] plea agreement, were used to obtain the plea." Ill. S. Ct. R. 402(b) (eff. July 1, 1997).

¶ 24 "In order to satisfy due process, a guilty plea must be affirmatively shown to have been made voluntarily and intelligently." People v. Fuller, 205 Ill. 2d 308, 322, 793 N.E.2d 526, 537 (2002). "Rule 402 [citation] was adopted to ensure compliance with these due process requirements." Fuller, 205 Ill. 2d at 322, 793 N.E.2d at 537. However, it is well settled Rule 402 requires substantial, not strict, compliance with its provisions. People v. Dougherty, 394 Ill. App. 3d 134, 138, 915 N.E.2d 442, 446 (2009) (citing People v. Burt, 168 Ill. 2d 49, 64, 658 N.E.2d 375, 382 (1995) (substantial compliance satisfies due process)).

¶ 25 In this case, the allegations in defendant's postconviction petition are affirmatively rebutted by the record. Defendant pleaded guilty to burglary at the November 30, 2010, guilty plea hearing. It is undisputed the trial court properly admonished defendant pursuant to Rule 402 at that time. As such, the plea was fully informed. Thereafter, the matter was set for sentencing. At the January 18, 2011, hearing, defendant was provided an opportunity to withdraw his guilty plea, which he declined. (We note defendant also later withdrew a second motion to withdraw his guilty plea.) A review of the transcript further reveals defendant never repleaded guilty on ...