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29 August 2000

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JUSTICE STEIGMANN delivered the opinion of the court:

Following a stipulated bench trial in July 1998, thetrial court convicted defendant, Gerald L. Patton, of predatorycriminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 1998))and sentenced him to 20 years in prison. Defendant did not filea direct appeal. In June 1999, defendant filed a pro se postconviction petition under the Post-Conviction Hearing Act (Act)(725 ILCS 5/122-1 through 122-8 (West 1998)), and in July 1999,the court dismissed that petition as frivolous and patentlywithout merit, pursuant to section 122-2.1 of the Act (725 ILCS5/122-2.1 (West 1998)).

Defendant appeals, arguing that the trial court erredby dismissing his pro se postconviction petition because itcontains factual allegations sufficient to state the "gist" ofvalid constitutional claims. We reverse and remand for furtherproceedings.

In April 1998, defendant, then 53 years old, wascharged with two counts of predatory criminal sexual assault of achild for allegedly committing acts of digital-vaginal penetration on two girls under the age of 13.

As defendant's July 1998 trial was about to begin,defense counsel informed the trial court that defendant would beentering a negotiated guilty plea to the State's second count. The court then admonished defendant, along with all of the otherdefendants present in the courtroom on unrelated cases, regardingtheir right to a jury trial and the rights they waive by enteringa guilty plea.

When the trial court turned its attention back todefendant's case, the State's Attorney again informed the courtthat defendant would be entering a negotiated guilty plea. Thecourt asked the State's Attorney for the terms of the agreement,and she explained as follows:

"Your Honor, for a plea of guilty to [c]ount[II], a sentence of 20 years to the Department of Corrections. People will dismiss[c]ount [I], and there has been discovery inthis case alleging other victims and we wouldnot be pursuing any of those victims thatwere disclosed in discovery."

After the trial court and counsel addressed matters notrelevant to this appeal, the State's Attorney briefly stated thefactual basis for the guilty plea by summarizing the testimonythat the State's witnesses would have provided at trial. Thefollowing colloquy then occurred:

"THE COURT: [Defendant], did you hearthe State's Attorney's explanation of thefactual basis to your plea?

DEFENDANT: Yes.

THE COURT: And is what she said substantially true and correct?

MR. BROCH [(Defense counsel)]: YourHonor, we would agree that the State's witnesses would testify substantially, and indicate there would be a factual basis, andthere would be an issue for the jury.

We would also agree, Your Honor---thatI've had discussions with [defendant], and hefeels it is in his best interest, due to theevidence that would be presented against himin this case, and also any evidence presentedwith regard to further allegations and further investigations, that he enter a plea ofguilty.

THE COURT: Okay, but this is a guiltyplea, and it's not a prudent plea? [Apparently, by a 'prudent plea,' the court meant astipulated bench trial at which defendantwould not be contesting the sufficiency ofthe State's evidence to convict him.]

MR. BROCH: This is a prudent plea, YourHonor.

THE COURT: Well, then we have to handlea prudent plea differently. You have to havethe admonitions. Okay, I think I'm going topass this for the moment. I'm not saying I'mrejecting your plea. I'm going to pass itand we will come back to it, and handle it ina little different fashion."

One-half hour later, defendant's case was again beforethe trial court. The following dialogue took place:

"THE COURT: Is there any sentencing caphere, Ms. Sipich (State's Attorney)?

MS. SIPICH: Yes. The People are goingto be recommending 20 years in the Departmentof Corrections.

THE COURT: And any sentence imposed bythe [c]ourt, in the event of a conviction,would not exceed that then, is that correct?

MS. SIPICH: Yes, Your Honor.

THE COURT: Is that right, Mr. Broch?

MR. BROCH: Yes it is, Judge."

The trial court then asked defendant a series ofquestions and concluded that defendant knowingly and voluntarilywaived his right to a jury trial. The State presented thestipulated evidence; the court found defendant guilty and immediately turned to sentencing. The discussion regarding defendant'ssentence follows:

"THE COURT: Now, as I understand it,counsel, then it was your agreement thatthere would be a negotiated sentence, in theevent of a finding [of guilty] of 20 years,is that correct?

MS. SIPICH: That's right, Your Honor.

THE COURT: Is there any evidence youwish to present in aggravation, Ms. Sipich?

MS. SIPICH: No, Your Honor.

THE COURT: Anything in mitigation, Mr.Broch?

MR. BROCH: No, Your Honor.

THE COURT: Based upon your negotiateddisposition, in the event of a finding, doeither of you wish a [presentence] [r]eport?

MS. SIPICH: No, your Honor.

MR. BROCH: No, your Honor."

The trial court then sentenced defendant as stated. After doing so, the court advised defendant of his right toappeal. In part, the court advised defendant as though he hadentered a guilty plea.

Defendant did not file a direct appeal. In June 1999,defendant filed the present pro se postconviction petition. Thetrial court dismissed that petition as frivolous and patentlywithout merit, and this appeal followed.

The Act (725 ILCS 5/122-1 through 122-8 (West 1998))provides a three-step process for adjudication of petitions forpostconviction relief. At the first stage, the trial courtshould not decide the petition on the merits; instead, withoutinput from the State or further pleadings from the defendant, thecourt should simply determine if the petition is frivolous orpatently without merit. 725 ILCS 5/122-2.1 (West 1998). If thetrial court does not dismiss the petition at this first stage, inthe second stage, the court will appoint counsel to represent anindigent defendant who requests counsel, and counsel will have anopportunity to amend defendant's postconviction petition. TheState may then file a motion to dismiss, and the trial court willdetermine whether an evidentiary hearing on the merits of thedefendant's petition is warranted. That evidentiary hearing isthe third and final stage of postconviction proceedings. Peoplev. Frieberg, 305 Ill. App. 3d 840, 846-47, 713 N.E.2d 210, 215(1999).

Defendant argues that his pro se postconviction petition should not have been dismissed at the first stage of postconviction proceedings because it is not frivolous or patentlywithout merit. According to defendant, when considered inconjunction with the record, his petition sufficiently allegesthat he was deprived of his due process rights and the right toeffective assistance of counsel. Specifically, defendant contends that the trial court's admonitions and his attorney'sacquiescence confused and misled him regarding the following: (1)what rights he waived and retained by submitting to a stipulatedbench trial; (2) whether he consented to a sentencing cap of 20years or an agreed-upon sentence of 20 years; and (3) the procedural steps that he was required to take to preserve his right toappeal. In response, the State argues that the trial courtproperly dismissed defendant's pro se postconviction petitionbecause defendant did not sufficiently allege the constitutionalviolations that he now articulates on appeal. We agree withdefendant.

To withstand dismissal at the first stage of postconviction proceedings, a pro se petition for postconvictionrelief need only contain a simple statement that presents the"gist of a claim for relief" when nothing in the trial recordcontradicts that claim. People v. Hernandez, 283 Ill. App. 3d312, 316, 669 N.E.2d 1326, 1329 (1996). To state the "gist of aclaim," the pro se petitioner need not construct legal argumentsnor even understand what legal arguments the facts presented inthe petition might support. At the first stage, the trial courtshould determine whether the petition contains sufficient factsupon which a meritorious constitutional claim could be based. Trial courts are encouraged to closely scrutinize supportingdocuments, including the record, at this stage of the process. People v. Lemons, 242 Ill. App. 3d 941, 946-47, 613 N.E.2d 1234,1238 (1993). We review de novo a first-stage dismissal of a prose postconviction petition. People v. Coleman, 183 Ill. 2d 366,388-89, 701 N.E.2d 1063, 1075 (1998) (referring to review asplenary).

In his pro se postconviction petition, defendantalleges, albeit inartfully, that he was denied effective assistance of counsel because, prior to sentencing, his lawyer failedto (1) discuss matters related to sentencing with him, (2) seekmitigating evidence, and (3) request a presentence investigationreport. In its order dismissing defendant's postconvictionpetition, the trial court concluded that this portion of defendant's claim was patently without merit because defendant hadnegotiated an agreed sentence and "got what he bargained for."

The record belies the trial court's characterization ofwhat took place during defendant's plea proceedings. Instead, itevinces a series of miscommunications between the court, defensecounsel, and the State's Attorney. At one point in the proceedings, the court, defense counsel, and the State's Attorney appearto agree that the parties had agreed to a sentencing cap. Later,the court, defense counsel, and the State's Attorney appear toagree that the parties had agreed to a sentence of 20 years. Noone ever attempted to clarify the parties' sentencing agreementfor the record by explaining, for example, that at one point orthe other, the court or one of the parties misspoke.

The differences between a sentencing cap and an agreed-upon sentence are significant. If a sentence has been agreedupon, then when a defendant pleads guilty, all the trial courtneed do is hear representations and make a finding as to thedefendant's record of delinquency or criminality (see 730 ILCS5/5-3-1 (West 1998)) and impose the agreed-upon sentence. On theother hand, if the parties have agreed only to a sentencing cap,then when the defendant pleads guilty, section 5-3-1 of theUnified Code of Corrections mandates the court to order apresentence investigation conducted and a presentence reportprepared for use at a sentencing hearing to be held on somefuture date (730 ILCS 5/5-3-1 (West 1998)). Further, the partiesare each permitted to present their respective evidence inaggravation and mitigation, with the State typically arguing thatthe court should impose the maximum sentence permitted by thecap, while the defendant urges the court to impose somethingless. Clearly, if a defendant and his counsel believe the pleaagreement has the defense agreeing to a specific sentence and notmerely a cap, then no effort will be made to present eitherevidence or argument as to why some sentence less than thesentencing cap should be imposed.

Although defendant failed to articulate a coherentlegal argument incorporating these facts, we are satisfied thathe stated the gist of a constitutional claim that was notcontradicted by the record.

The entering of a guilty plea (or submission to astipulated bench trial) is a serious event--particularly whendoing so results in a 20-year prison sentence. With so much atstake, the parties and the trial court ought to ensure that theyall understand exactly what they are doing and what the terms ofthe plea agreement are. Even after careful scrutiny, this record remains unclear as to (1) whether defendant entered a negotiatedplea or submitted to a stipulated bench trial (and if the latter,exactly what rights he preserved by doing so), and (2) the termsdefendant agreed to regarding his sentence. All of thisuncertainty could have been avoided had the court demanded--orthe attorneys provided--clarity.

Because defendant's pro se postconviction petitionstated the gist of a claim for relief, we reverse the trialcourt's stage-one dismissal of his petition. In doing so, weexpress no opinion regarding the merits of defendant's petitionwhen subjected to further scrutiny (or evidence) at subsequentproceedings. For the reasons that follow, we decline to addressthe merits of defendant's other claims for relief.

on Defendant's Various Claims for Postconviction Relief

Citing People v. Beard, 301 Ill. App. 3d 279, 703N.E.2d 552 (1998), the State requests that we enter separaterulings on each of defendant's claims, reversing the trial courtas to those claims we deem meritorious and affirming thedismissal of those we do not. In Beard, this court reviewed atrial court's dismissal of a pro se postconviction petition atstage one. We concluded that one of the defendant's claims wasproperly dismissed but that the defendant had raised the gist ofa constitutional claim in another. Accordingly, we reversed inpart and affirmed in part. Beard, 301 Ill. App. 3d at 289, 703N.E.2d at 559. For the following reasons, we decline to do inthis case what we did in Beard.

In Beard, the issue the State now raises--namely,whether section 122-2.1 of the Act allows for the parsing ofclaims--was not presented to, or analyzed by, this court. Prompted by the State in this case, we have considered the issueand now conclude that section 122-2.1 of the Act does not allowfor partial dismissals of pro se postconviction petitions atstage one.

Section 122-2.1 of the Act directs the trial court todismiss a postconviction petition if it determines that thepetition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 1998). As written, it is, in essence, an all-or-nothing statute. That is to say, if the petition is in allrespects frivolous or patently without merit, it should bedismissed. On the other hand, if the court determines that thepetition presents any claim that is not frivolous or patentlywithout merit, then the court should "order the petition to bedocketed for further consideration" under the Act, as provided insection 122-2.1(b) of the Act (725 ILCS 5/122-2.1(b) (West1998)). We conclude that the language of section 122-2.1 of theAct does not allow for the partial dismissal of a defendant's prose petition for postconviction relief.

The Third District Appellate Court reached a similarconclusion in People v. Noel, 291 Ill. App. 3d 541, 684 N.E.2d414 (1997), in which the trial court had dismissed one portion ofthe defendant's pro se postconviction petition under section 122-2.1 of the Act and allowed another portion to proceed to stagetwo. The appellate court wrote the following:

"The Post-Conviction Hearing Act does notauthorize partial dismissals of postconviction petitions as frivolous or patentlywithout merit. If some part of the petitionis not frivolous, the trial court shouldappoint counsel, who can appropriately amendthe petition. Allowing partial dismissalraises serious questions about the judicialreview process, since first stage dismissalsare final and appealable judgments. In theinterest of judicial economy, and to avoidpiecemeal litigation, trial judges shouldrefrain from entering partial summarydismissals." (Emphasis in original.) Noel,291 Ill. App. 3d at 544, 684 N.E.2d at 416.

We agree with the Third District Appellate Court. Whether wefocus on the language of section 122-2.1 of the Act or onpertinent matters of public policy and judicial administration,we reach the same result: the legislature did not intend toauthorize partial dismissals of pro se postconviction petitionswhen it enacted section 122-2.1 of the Act. As to the portion ofour decision in Beard that holds otherwise, we decline to followit further.

For the reasons stated, we reverse the trial court'sjudgment and remand for further proceedings.

Reversed and remanded.

MYERSCOUGH and KNECHT, JJ., concur.