THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARYL R. BEAN, Defendant-Appellant, 389 Ill. App. 3d 579

JUSTICE WELCH delivered the opinion of the court: On July 11, 2006, the defendant, Daryl R Bean, was charged by information filed in the circuit court of St. Clair County with the offense of burglary, a Class 2 felony, in that, without authority, he knowingly entered a building owned by another with the intent to commit therein a theft.

At the preliminary hearing on the information, Detective Karl Kraft of the Belleville police department testified that shortly after midnight on July 10, 2006, Tramez Malone, who lived in an apartment in the building which the defendant was charged with entering, came home and heard noises coming from another apartment in the building. He also saw what appeared to be a flashlight in the apartment.

According to Kraft, “Tramez decided to walk past the complex, decided not to go in, walked down the street, [and] turned around.” As Tramez walked back past the apartment building, he heard the front door of the building close and saw the defendant stepping off the front porch. Tramez then called the police and later identified the defendant as the person he had seen standing on the porch of the apartment building. The police discovered that the back door of the building and the door to one of the apartments had been forced open. Inside that apartment the police found papers with the defendant’s name on them.

The defendant denied having been in the building, and Tramez did not actually see the defendant inside the building. The circuit court found probable cause to believe that the defendant had committed an offense and bound him over for trial. On March 29, 2007, a second count was added, charging the defendant with the offense of criminal trespass to a residence with a person present in that, without authority, he knowingly entered a residence and had reason to know that occupant Tramez Malone was present.

On the same date, the defendant entered into a negotiated plea of guilty to this second count, criminal trespass to a residence with a person present, a Class 4 felony. Pursuant to the negotiated plea, the burglary charge was dismissed, as was a misdemeanor charge, and the defendant was sentenced to a term of imprisonment of 18 months with the recommendation that it be served concurrently with any sentence served as a result of his parole revocation.

The following factual basis for the plea was presented to and accepted by the circuit court: “Your Honor, if this case proceeded to trial, Mark Weber, who was the owner of the residence ***, would state that at no time did the defendant have permission to enter that residence. Tramez Malone would state that he is the occupant of that residence, that he saw a person in that residence, notified the police, [and] the police responded. They would testify that they apprehended Mr. Bean close by *** and that a search of the residence revealed an occupancy permit in Mr. Bean’s name, and Mr.

Bean also matched a description given to the police by Tramez Malone as well as the person being inside the residence.” A judgment was entered the same date. On October 2, 2007, the defendant filed a pro se petition for relief from judgment pursuant to

section 2 — 1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2 — 1401 (West 2006)). In this motion the defendant argued that

section 2 — 1401 was the proper forum in which to raise his claim for relief. The motion argued that the defendant should have been convicted of misdemeanor trespass to a residence because, in fact, no person had been present inside the residence at the time of the trespass. The defendant pointed out that the apartment which was entered was, in fact, in the process of being “rehabbed” and was unoccupied and that Tramez Malone actually lived in a different apartment in the same building.

The motion further alleged that the State had “deliberately ‘falsified’ the facts and the evidence, as to the resident [sic] being occupied,” that the court did not know of this deception at the time of sentencing, and that had it known, it would have found the defendant guilty of, and sentenced him for, misdemeanor trespass to a residence. The only relief requested by the defendant was the reduction of his conviction from a felony to a misdemeanor and a reduction in his sentence to time already served. The defendant did not seek to withdraw his guilty plea. The petition was supported by affidavit.

On November 1, 2007, the State filed a motion to dismiss the defendant’s petition, in which it argued that the information charged that Tramez Malone was present in the residence at the time of the trespass and that the factual basis presented at the guilty plea hearing included the fact that Tramez Malone was the occupant of the residence. The motion to dismiss also argued that the petition contained no allegations of newly discovered evidence, as required for petitions filed pursuant to

section 2 — 1401 of the Code of Civil Procedure. Finally, the motion to dismiss argued that, in any event, the circuit court was without authority to reduce the defendant’s conviction from a felony to a misdemeanor and reduce his sentence to time served. The defendant filed a pro se response to the State’s motion to dismiss and a memorandum of law in support thereof. On January 10, 2008, the circuit court entered an order dismissing the defendant’s

section 2 — 1401 petition, stating, “The court having reviewed the pleadings finds that the petition presents no new evidence which was unknown to petitioner and the court at the time that judgment was entered.” The defendant filed his notice of appeal on January 28, 2008. In his brief on appeal, the defendant acknowledges that he erred in filing a petition for relief from judgment pursuant to

section 2 — 1401 of the Code of Civil Procedure and that instead he should have filed a petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122 — 1 et seq. (West 2006)), “as the issues contained in [the petition] are clearly post[ ]conviction issues and not newly[ ]discovered evidence that would be properly presented in a petition for relief from judgment.” In making this argument, the defendant effectively concedes that he did not raise any issues in his petition that were cognizable under

section 2 — 1401 of the Code of Civil Procedure and that the circuit court properly dismissed the petition under that statutory provision. Nevertheless, the defendant argues that the circuit court had the authority to treat his pro se pleading as a petition under the Post-Conviction Hearing Act and that it erred in not doing so. While we agree that the circuit court had the authority to treat the defendant’s pleading as a petition under the Post-Conviction Hearing Act, we do not agree that the court erred in failing to do so.

The Post-Conviction Hearing Act specifically provides that a circuit court is under no obligation to treat a postconviction pleading as one brought under that Act unless the pleading so specifies: “A person seeking relief by filing a petition under this

Section must specify in the petition or its heading that it is filed under this Section. A trial court that has received a petition complaining of a conviction or sentence that fails to specify in the petition or its heading that it is filed under this

Section need not evaluate the petition to determine whether it could otherwise have stated some grounds for relief under this Article.” (Emphasis added.) 725 ILCS 5/122 — 1(d) (West 2006). This statutory provision was added to the Post-Conviction Hearing Act by amendment in 1997 in order to undo the line of cases (see, e.g., People v. Sturgeon, 272 Ill.

App. 3d 48 (1995)) holding that a trial court was required to recharacterize a defendant’s pleading as a post-conviction petition if that recharacterization could fairly be done based upon the contents of the pleading, even though the pleading made no reference to the Post-Conviction Hearing Act. See People v. Holliday, 369 Ill. App. 3d 678, 681 (2007). While the statutory provision does not prohibit a court from recharacterizing a petition, it removes any obligation on the part of the circuit court to even consider doing so.

In accordance with the statute, the supreme court has held that while a circuit court has the authority to recharacterize a petition for relief from judgment as a petition brought under the Post-Conviction Hearing Act, a circuit court is not required to even consider or evaluate the petition to determine whether it could have been brought under the Post-Conviction Hearing Act. People v. Shellstrom, 216 Ill. 2d 45, 53 n.1 (2005).

The supreme court was quite explicit about this in Shellstrom, where it stated, “[I]f a pro se pleading alleges constitutional deprivations that are cognizable under the [Post-Conviction Hearing] Act, *** a trial court is under no obligation to treat the pleading as a postconviction petition.” 216 Ill. 2d at 53 n.1. We acknowledge that line of appellate court cases which holds that a circuit court’s decision on whether to recharacterize a petition is reviewable under the abuse-of-discretion standard. See, e.g., People v. Smith, 386 Ill. App. 3d 473 (2008) (and cases cited therein).

However, even if we review for an abuse of discretion, it is clear from the statutory language and the supreme court’s decision in Shellstrom that a circuit court’s failure to recharacterize a petition would not constitute an abuse of discretion. Circuit courts have unfettered discretion to decline to consider even whether a petition could qualify as one filed pursuant to the Post-Conviction Hearing Act and unfettered discretion to refuse to so recharacterize a petition.

To hold otherwise would effectively require every circuit court to evaluate petitions to determine whether they should be recharacterized as having been brought under the Post-Conviction Hearing Act, in direct contravention of the plain language of

section 122 — 1(

d) of that Act (725 ILCS 5/122 — 1(d) (West 2006)). As we have stated, the defendant does not argue that the circuit court erred when it determined that he was not entitled to relief under

section 2 — 1401 of the Code of Civil Procedure. We will not review the merits of the defendant’s claim regarding an inadequate factual basis for his guilty plea under the standards of the Post-Conviction Hearing Act where the circuit court did not do so. Accordingly, we affirm the circuit court’s dismissal of the defendant’s petition for relief from judgment under

section 2 — 1401 of the Code of Civil Procedure. In any event, the relief which the defendant seeks in his brief on appeal is not relief which we can grant. In his brief on appeal, the defendant argues that the factual basis presented at the guilty plea hearing does not support a felony conviction for criminal trespass to a residence with a person present but supports only a misdemeanor conviction.

He asks this court to reduce his conviction from a felony offense to a misdemeanor offense: “Where a defendant pleads guilty upon an insufficient factual basis, he has a colorable defense to the charge[ ] and thus must be allowed to withdraw his plea of guilty and enter a plea of not guilty. [Citations.] However, in this case, it would be more appropriate to enter a conviction for the misdemeanor charge of simply criminal trespass to property, since it is a lesser-included charge of criminal trespass to property with a person presentí ] and all of the elements of the misdemeanor charge are established by the factual basis.” He does not ask to withdraw his guilty plea or to have that plea withdrawn.

We note that the defendant entered into a fully negotiated guilty plea with the State pursuant to which the State reduced the charged offense from a Class 2 felony to a Class 4 felony and dismissed an additional misdemeanor charge, while recommending an agreed-upon sentence. It has been held that a circuit court has no authority to enter a finding of guilty to a lesser offense to which the defendant has not entered a plea, even when that court determines that there is an insufficient factual basis for the defendant’s guilty plea. People v. Provenzano, 265 Ill. App. 3d 33, 37 (1994).

Furthermore, the review of fully negotiated guilty pleas such as the one at bar is governed to an extent by contract law principles. People v. Evans, 174 Ill. 2d 320, 326 (1996). To allow a defendant to unilaterally modify the terms of a plea agreement while holding the State to its part of the bargain flies in the face of contract law principles. Evans, 174 Ill. 2d at 327. It is also inconsistent with constitutional concerns of fundamental fairness. Evans, 174 Ill. 2d at 327.

Consequently, a defendant may not seek to unilaterally reduce his conviction or sentence while holding the State to its part of the bargain. Evans, 174 Ill. 2d at 327. Yet that is precisely what the defendant seeks to do in the case at bar. A defendant may only seek to modify the terms of a negotiated guilty plea by withdrawing that plea and returning the parties to the status quo ante, in this case allowing the State to recharge the defendant with burglary and the dismissed misdemeanor charge. The relief sought by the defendant in his brief on appeal cannot be granted by this court.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is hereby affirmed. Affirmed.