Court of Appeals of Illinois, First District, Sixth Division
Appeal from the Circuit Court of Cook County, No. 99 CR 20952-53 Honorable Evelyn B. Clay, Judge Presiding.
JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Lampkin and Justice Reyes concurred in the judgment and opinion.
¶ 1 Defendant Arthur McKenzie appeals from the summary dismissal of his postconviction petition at the first stage. His convictions and sentences are described in the Background section, below.
¶ 2 On this appeal, defendant's initial brief argued that his plea agreement was void because (1) it originally included a void sentence, in excess of the statutory maximum; and (2) it included a waiver of appellate and postconviction rights, which he asked us to find was void against public policy. However, in his reply brief, defendant "concedes that People v. Donelson, 2013 IL 113603, forecloses his first argument that his plea agreement is void solely on the basis that it included a void sentence." However, his reply brief stated that he "continues to maintain that the agreement is void because the appellate and postconviction waivers are against public policy."
¶ 3 First, although the plea agreement originally included a void sentence in excess of the statutory minimum, this sentence was subsequently reduced by the Illinois Supreme Court, in response to defendant's request to do so in his petition for leave to appeal. Second, although defendant argues that other states have found that a waiver of appellate and postconviction rights is against public policy, he acknowledges that the Appellate Court of Illinois has upheld this type of a waiver for decades. For the following reasons, we affirm.
¶ 4 BACKGROUND
¶ 5 Following a jury trial, defendant Arthur McKenzie was found guilty of first degree murder and sentenced to 60 years in the Illinois Department of Corrections (IDOC). He subsequently entered a negotiated plea of guilty to second degree murder in an unrelated case and was sentenced, pursuant to the agreement, to a consecutive term of 40 years in IDOC. As part of that plea, defendant agreed to waive his rights to appellate and post-conviction relief in both cases.
¶ 6 Defendant's motion to vacate his guilty plea was denied by the trial court, and the appellate court dismissed defendant's appeal from that ruling. People v. McKenzie, No. 1-05-3821 (2008) (unpublished order under Supreme Court Rule 23). Defendant then filed a petition for leave to appeal to the Illinois Supreme Court in which he argued, among other things, that his 40-year sentence for second degree murder exceeded the statutory maximum by 10 years and that the supreme court had the power to reduce it pursuant to its supervisory authority. Defendant stated: "Even if this [Illinois Supreme] Court denies leave to appeal, therefore, it should exercise its supervisory authority and order that McKenzie's sentence be reduced from 40 years to 30 years." The Illinois Supreme Court denied defendant's petition for leave to appeal but, pursuant to defendant's request, it remanded the case to the circuit court, pursuant to its supervisory authority, with instructions to reduce defendant's sentence for second degree murder from 40 to 30 years in IDOC. People v. McKenzie, 329 Ill.2d 684 (2008).
¶ 7 On June 11, 2010, defendant filed a pro se postconviction petition which was dismissed on August 31, 2010, as frivolous and patently without merit.
¶ 8 ANALYSIS
¶ 9 Defendant acknowledges that, as part of his negotiated plea agreement, he agreed to waive all appeal and postconviction challenges to both his first degree murder conviction and his second degree murder conviction. Nonetheless, he requests the court to hear this postconviction appeal on the ground that this agreement is void.
¶ 10 In his initial brief on this appeal, he argued that the plea agreement was void on two grounds: first, because it originally included a void sentence, in excess of the statutory maximum; and, second, because it included a waiver of appellate and postconviction rights, which he requests that we find is void against public policy. However, in his reply brief, he conceded that the first argument was foreclosed by our supreme court's decision in People v. Donelson, 2013 IL 113603, and ...