FILED

June 10, 2014 Carla Bender NOS. 4-12-0655, 4-12-0664 cons. th 4 District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. (No. 4-12-0655) ) Champaign County JASON T. McDERMOTT, ) No. 11CF1221 Defendant-Appellant. ) ) Honorable ) Heidi N. Ladd, ) Judge Presiding. ____________________________________________ ) ) Appeal from THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of Plaintiff-Appellee, ) McLean County v. (No. 4-12-0664) ) No. 11CF637 JASON T. McDERMOTT, ) Defendant-Appellant. ) Honorable ) Rebecca Foley, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Pope and Holder White concurred in the judgment and opinion.

OPINION ¶1 These consolidated appeals arise from judgments entered by the Champaign

County circuit court and McLean County circuit court.

¶2 On March 13, 2012, pursuant to a plea agreement, defendant, Jason T.

McDermott, pleaded guilty in Champaign County (No. 11-CF-1221) to aggravated battery (720

ILCS 5/12-4(b)(18) (West 2010)), with an agreed-upon sentence of 5 years' imprisonment and

credit for 222 days served. On April 23, 2012, defendant filed a pro se postconviction petition.

On June 28, 2012, the Champaign County circuit court summarily dismissed defendant's petition as frivolous and patently without merit. On July 13, 2012, defendant filed a notice of appeal.

This court docketed the appeal as No. 4-12-0655.

¶3 On March 22, 2012, pursuant to a plea agreement, defendant pleaded guilty in

McLean County (No. 11-CF-637) to one count of unlawful altering of a title document (625

ILCS 5/4-105(a)(1) (West 2008)), with an agreed-upon sentence of 5 years' imprisonment and

credit for 233 days served. On April 23, 2012, defendant filed a pro se postconviction petition.

On June 28, 2012, the McLean County circuit court summarily dismissed defendant's petition as

frivolous and patently without merit. On July 16, 2012, defendant filed a notice of appeal. This

court docketed the appeal as No. 4-12-0664.

¶4 On defendant's motion, we consolidated these two appeals.

¶5 On appeal, defendant argues the circuit court erred in dismissing his

postconviction petitions. We reverse and remand with directions.

¶6 I. BACKGROUND

¶7 A review of the record indicates defendant is presently serving sentences imposed

between August 18, 2011, and March 22, 2012, by the circuit courts of Henry County (No. 06-

CF-333), Du Page County (No. 07-CF-536), Sangamon County (No. 08-CF-670), Champaign

County (No. 11-CF-1221), and McLean County (No. 11-CF-637), as a result of defendant

engaging in the fraudulent buying and selling of motor vehicles. Relevant to this appeal, on

August 18, 2011, the Henry County circuit court (No. 06-CF-333) sentenced defendant to 2

concurrent 3-year prison terms for two counts of possession of a stolen vehicle plate (625 ILCS

5/4-104(a)(3) (West 2004)), with credit for 51 days served (August 28, 2006; June 19, 2007;

June 30, 2011; and July 1, 2011, through August 17, 2011). On October 12, 2011, the Du Page

County circuit court (No. 07-CF-536) sentenced defendant to 3 years in prison for identity theft

-2- not exceeding $300 (720 ILCS 5/16G-15(a)(1), (d)(1)(A) (West 2004)), to be served

concurrently with Henry County case No. 06-CF-333. The court further found defendant entitled

to "receive credit for time actually served in custody since [January 3, 2011]." The written

sentencing judgment does not state the dates defendant was in custody after January 3, 2011, or

the total number of days defendant served in custody after that date.

¶8 A. Champaign County (No. 4-12-0655)

¶9 On August 2, 2011, the State charged defendant by information in this case with

aggravated battery (720 ILCS 5/12-4(b)(18) (West 2010)), alleging on June 9, 2011, in

Champaign County, defendant struck an officer employed by the Secretary of State with a motor

vehicle.

¶ 10 On March 13, 2012, defendant appeared before the Champaign County circuit

court on writ from the Jacksonville Correctional Center where he was serving sentences imposed

by Henry County (No. 06-CF-333), Du Page County (No. 07-CF-536), and Sangamon County

(No. 08-CF-670). The State advised the court of the terms of the parties' plea agreement, stating

that, in exchange for defendant's guilty plea, he would receive a five-year sentence of

imprisonment. His sentence would be consecutive to his sentences in his Henry and Du Page

County cases and concurrent with the sentences imposed in his Sangamon and McLean County

cases. The State detailed the various financial obligations defendant would pay, including

$13,992 restitution. Finally, the State asserted defendant "would be entitled to 222 days['] credit

for time served."

¶ 11 Upon inquiry by the court, defendant stated he understood everything the

attorneys said about the agreement and confirmed that the State's recitation accurately reflected

their agreement. He denied being promised anything other than what had been stated in court.

-3- Following the State's factual basis, defendant pleaded guilty to aggravated battery, and the court

sentenced him to the agreed-upon, five-year sentence. The court orally advised defendant his

sentence had to be served consecutively to his sentences in his Henry and Du Page County cases

and that he would receive credit for 222 days previously served.

¶ 12 At the close of the plea hearing, defense counsel stated the following:

"And my client just wants me to stress because he said he's had

issues with this before, that he is getting the 222 days['] credit as

part of his plea. He wanted to make sure that that is part of the

sentence. I've told him it was. He wanted me to ask the Court to

confirm to my client that that's part of the plea."

The circuit court responded, stating: "All right. I've corrected all of the judgment orders to

reflect 222 days, sir. We will also make sure that's included in the mittimus, the order of

commitment that's entered, and forward it to the [Illinois] Department of Corrections [(DOC)]."

Defendant did not file a motion to withdraw his guilty plea or a direct appeal.

¶ 13 On April 23, 2012, defendant filed a pro se petition for postconviction relief

pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)).

He argued his negotiated guilty plea was based upon credit for 222 days in presentence custody

which he did not receive. According to defendant, DOC "assumed, when calculating [his]

sentence in this matter, that the 222-days granted in this case was included in the 284-days

granted in the consecutive Du Page County sentence, and, as such, [he] is not entitled to 'Double

Credit' on a consecutive sentence." Thus, defendant claimed he was denied the benefit of his

plea bargain. Defendant made clear he did not wish to withdraw his plea but sought an amended

sentencing judgment reducing his 5-year prison term by 444 days, twice the amount of

-4- presentence credit earned to account for good-conduct credit he would earn. Defendant attached

to his petition the Henry County sentencing judgment (No. 06-CF-333), the Du Page County

sentencing judgment (No. 08-CF-637), and three sentence-calculation worksheets prepared by

DOC on March 9 and 27, 2012. On June 28, 2012, the circuit court dismissed defendant's

petition, finding it frivolous and patently without merit, and ordered defendant to pay the

associated filing fees and court costs.

¶ 14 B. McLean County (No. 4-12-0664)

¶ 15 On August 1, 2011, the State charged defendant by information in this case with

five counts of unlawful altering of a title document (625 ILCS 5/4-105(a)(1) (West 2008)) and

five counts of misdemeanor odometer fraud (720 ILCS 5/17-11 (West 2008)). The State later

charged defendant with an additional count of odometer fraud.

¶ 16 On March 22, 2012, defendant appeared before the McLean County circuit court

on writ from the Jacksonville Correctional Center where he was serving sentences imposed by

Henry County (No. 06-CF-333), Du Page County (No. 07-CF-536), Sangamon County (No. 08-

CF-670), and Champaign County (No. 11-CF-1221). Defendant confirmed he had reached a

fully negotiated agreement with the State. According to the written agreement, defendant agreed

to plead guilty to one felony count of unlawful altering of a title document and six misdemeanor

counts of odometer fraud. With respect to the felony count, the parties agreed defendant would

receive a five-year prison sentence, to be served consecutively with his sentences in the Henry

and Du Page County cases. The written plea agreement also stated defendant would receive

"[c]redit for 233 days served."

¶ 17 The circuit court reviewed the terms of the written plea agreement with defendant

in open court. Defendant acknowledged the court's recitation accurately reflected his agreement

-5- with the State and that he understood the agreement. He confirmed no one had made any

promises about the case other than what was contained in the written plea agreement.

Defendant then pleaded guilty to one count of unlawful altering of a title document in exchange

for the agreed-upon, five-year sentence. The court dismissed the remaining felony charges

against defendant and ordered his sentence to run consecutively with the sentences in defendant's

Henry and Du Page County cases.

¶ 18 At the close of the plea hearing, the following colloquy occurred between the

circuit court and defendant:

"[DEFENDANT]: I just have two questions. I wanted to

clarify the 233 days of jail time credit. It was part of the plea?

THE COURT: Yes, sir.

[DEFENDANT]: So when I go to DOC, the 233 days will

be subtracted [from] or credited to the five-year sentence?

THE COURT: Yes. That should be reflected in your DOC

order and you should get a copy of that, from August 2 to March

21. I didn't do the mental calculations in my head, but I would

trust the attorneys did.

[DEFENDANT]: So credit towards the five-year sentence.

THE COURT: Yes."

Defendant did not file a motion to withdraw his guilty plea or a direct appeal.

¶ 19 On April 23, 2012, defendant filed a (1) motion to amend mittimus, i.e.,

sentencing judgment, and (2) petition for postconviction relief. The claims he asserted in his

motion to amend sentencing judgment were identical to those set forth in his postconviction

-6- petition. Defendant argued his negotiated guilty plea was based upon credit for 232 days (the

actual number of days from August 2, 2011, to March 21, 2012) in presentence custody, which

he did not receive. According to defendant, DOC "assumed, when calculating [his] sentence in

this matter, that the 232-days granted in this case was included in the 284-days granted in the

consecutive Du Page County sentence, and, as such, [he] is not entitled to 'Double Credit' on a

consecutive sentence." Thus, defendant claimed he was denied the benefit of his plea bargain.

He made clear he did not wish to withdraw his plea but sought an amended sentencing judgment

reducing his 5-year prison term by 464 days, double the presentence credit earned to account for

good-conduct credit defendant would earn. Defendant attached to his postconviction petition the

Henry County sentencing judgment (No. 06-CF-333), the Du Page County sentencing judgment

(No. 08-CF-637), and three sentence-calculation worksheets prepared by DOC on March 9 and

27, 2012. On June 20, 2012, the circuit court dismissed defendant's motion to amend sentencing

judgment and his postconviction petition, finding the postconviction petition frivolous and

patently without merit.

¶ 20 These appeals followed.

¶ 21 II. ANALYSIS

¶ 22 On appeal, defendant argues both the Champaign County (No. 4-12-0655) and

McLean County (No. 4-12-0664) cases should be remanded for second-stage postconviction

proceedings because he stated arguable constitutional claims that DOC "refused to honor the

terms of the plea agreements" and "the State's failure to honor the terms of the plea

agreement[s]" deprived him of the benefit of his plea bargains, in violation of his due process

rights. In response, the State concedes that defendant's sentences should be reduced to give him

the benefit of his bargain. We accept the State's concession.

-7- ¶ 23 The Act provides a procedural mechanism through which a defendant may assert

a substantial denial of his constitutional rights in the proceedings which resulted in his

conviction. 725 ILCS 5/122-1 (West 2010). At the first stage of a postconviction proceeding,

the circuit court independently reviews the petition, taking the allegations as true, and determines

if it is frivolous or patently without merit. People v. Hodges,

,

(2009). To survive dismissal at this initial stage, the postconviction petition "need only

present the gist of a constitutional claim," which is "a low threshold" that requires the petition to

contain only a limited amount of detail. People v. Gaultney,

,

(1996). In analyzing the petition, courts are to take the allegations of the petition as

true, as well as liberally construe them. People v. Brown,

,

(2010).

¶ 24 Moreover, a petition should be summarily dismissed as frivolous or patently

without merit only when it has no arguable basis in either fact or law. Hodges,

-

12,

. Our supreme court has held that a petition lacks an arguable basis in

fact or law when it is based on "an indisputably meritless legal theory or a fanciful factual

allegation." Hodges,

,

. Fanciful factual allegations are those

which are "fantastic or delusional," and an indisputably meritless legal theory is one that is

completely contradicted by the record. Hodges,

,

. Our

review of the first-stage dismissal of a postconviction petition is de novo. People v. Dunlap,

,

.

¶ 25 As stated, defendant argues he did not get the benefit of his bargain with the State

in either his Champaign or McLean County cases. He maintains, and the State agrees, the terms

-8- of his plea agreements in those cases required specified amounts of sentence credit but the credit

was not applied to his sentences.

¶ 26 One constitutional challenge that may be made when seeking relief from a guilty

plea is "that defendant did not receive the benefit of the bargain he made with the State when he

pled guilty." People v. Whitfield,

,

(2005). Such a

challenge finds its roots in Santobello v. New York,

(1971), wherein the

Supreme Court held "that when a plea rests in any significant degree on a promise or agreement

of the prosecutor, so that it can be said to be part of the inducement or consideration, such

promise must be fulfilled." "[I]f a defendant shows that his plea of guilty was entered in reliance

on a plea agreement, he may have a due process right to enforce the terms of the agreement."

Whitfield,

,

.

¶ 27 As the parties point out, the First and Second Appellate Districts have held that,

when a specified amount of sentence credit is included within the terms of a defendant's plea

agreement with the State, the defendant is entitled to the amount of sentence credit promised.

People v. Clark,

,

; People v. Lenoir,

,

. This is true even if applying the credit toward the

defendant's sentence would violate the rule set forth in People v. Latona,

,

(1998), that a defendant may not earn two sentence credits for a single day

spent in custody. Clark,

,

; Lenoir,

,

; see also Whitfield,

,

("[A] present inability to fulfill a promise does not mean a breach of the plea

agreement has not occurred.").

-9- ¶ 28 Similarly, under reverse circumstances, this court has held that a defendant may

not seek to have sentence credit applied when he agreed to forgo credit as part of a plea or other

sentencing agreement. People v. Williams,

,

(2008); People v. Evans,

,

(2009). "[W]hen a

defendant enters a negotiated plea of guilty in exchange for specified benefits *** both the State

and the defendant must be bound by the terms of the agreement." (Emphasis in original.)

Whitfield,

,

(citing People v. Evans,

,

(1996)).

¶ 29 Here, in defendant's Champaign County case, the State set forth the terms of the

parties' plea agreement in open court and identified defendant's receipt of 222 days' sentence

credit as one of those terms. Upon inquiry by the circuit court, defendant agreed the State's

recitation accurately reflected the parties' agreement. In defendant's McLean County case, the

written plea agreement stated defendant would receive "[c]redit for 233 days served." The court

recited the terms of the plea agreement in open court, including the requirement that defendant

would receive the specified amount of credit. Upon inquiry by the court, defendant affirmed that

it accurately recited the parties' agreement. Additionally, during the plea hearings in both cases,

defendant attempted to "stress" or "clarify" that his sentence credit was a "part of the sentence"

or "part of the plea." Both circuit courts confirmed that defendant would receive the specified

amount of credit.

¶ 30 As the State points out, this particular case does not turn on the circuit courts'

admonishments with respect to sentence credit, or lack thereof, but on the terms of the plea

agreements defendant entered into with the State. We acknowledge that had defendant been

informed during his plea hearings that his sentence credit would not be calculated as he

- 10 - anticipated and he persisted in his pleas, the result of these appeals could have been different.

Under such circumstances, the record would likely show the specified amounts of sentence credit

were not essential, bargained-for terms of defendant's plea agreements. Here, however, the

record clearly shows the terms of the parties' agreements included specified amounts of sentence

credit and the records in each case fail to reflect defendant was informed otherwise. Given the

facts presented, defendant was entitled to the agreed-upon amounts of credit and failed to receive

the benefit of his bargains with the State when the credit was not applied to his sentences.

¶ 31 Since the record reflects defendant failed to receive the benefit of his bargain in

both his Champaign and McLean County cases, we next turn to the appropriate remedy. In

Whitfield,

,

(quoting Santobello,

), the

supreme court held that when a defendant fails to receive the "benefit of the bargain," there are

two possible remedies: "either the 'promise must be fulfilled' or [the] defendant must be given

the opportunity to withdraw his plea." It then described the remedy it provided a defendant

under such circumstances, stating as follows:

"[I]n People ex rel. Ryan v. Roe,

(2002), this

court exercised its discretion and fashioned an appropriate remedy

in a situation where a guilty plea had been induced by a legally

unfulfillable promise. *** In Roe, the State brought a mandamus

complaint, seeking to have a sentencing order amended on the

grounds that the sentence was illegal. After finding that the

sentence, which had been imposed pursuant to a plea agreement,

violated the law and, therefore, was void, we held that an 'equitable

solution' would be to modify the sentence to one which [the]

- 11 - defendant proposed and which would approximate the penal

consequences contemplated by the original plea agreement."

Whitfield,

,

.

¶ 32 In his postconviction petitions, defendant clearly asserted that he did not wish to

withdraw his fully negotiated pleas of guilty. Further, on appeal, the State concedes that

reducing defendant's sentence in his Champaign County case to 3 years and 286 days with no

sentence credit and the sentence in his McLean County case to 3 years and 264 days with no

sentence credit would most closely approximate the terms of the parties' plea agreement in each

case. We accept the State's concession. In each case, we reverse the circuit court's dismissal of

defendant's postconviction petition, vacate the sentence imposed, and remand to the circuit court

with directions that the court impose a sentence of 3 years and 286 days with no sentence credit

in Champaign County case No. 11-CF-1221 and 3 years and 264 days with no sentence credit in

McLean County case No. 11-CF-637.

¶ 33 Finally, on appeal, defendant also challenges the Champaign County circuit

court's refusal to waive the filing fee associated with his postconviction petition and its order that

defendant pay the fee and actual court costs. Defendant argues that, because his postconviction

petition was neither frivolous nor patently without merit, this portion of the court's order should

also be reversed. The State also concedes this issue.

¶ 34 If a DOC inmate files a postconviction petition and the circuit court deems the

filing frivolous, the inmate "is responsible for the full payment of filing fees and actual court

costs." 735 ILCS 5/22-105(a) (West 2012)). For the reasons stated, defendant's postconviction

petition was not frivolous and he raised a meritorious claim. Again, we accept the State's

- 12 - concession and vacate the Champaign County circuit court's order that defendant pay the filing

fee and court costs associated with his postconviction petition.

¶ 35 III. CONCLUSION

¶ 36 For the foregoing reasons, we reverse the circuit courts' judgments in case Nos. 4-

12-0655 and 4-12-0664, vacate the sentences imposed in those cases, vacate the Champaign

County circuit court's order that defendant pay the filing fee and costs associated with his

postconviction petition, and remand to the Champaign and McLean County circuit courts with

directions that the Champaign County circuit court impose a sentence of 3 years and 286 days'

imprisonment with no sentence credit in case No. 11-CF-1221 and the McLean County circuit

court impose a sentence of 3 years and 264 days' imprisonment with no sentence credit in case

No. 11-CF-637.

¶ 37 No. 4-12-0655, Reversed and remanded with directions.

¶ 38 No. 4-12-0664, Reversed and remanded with directions.

- 13 -