{ "id": 5099027, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee and Cross-Appellant, v. JAMES M. ANDRETICH, Defendant-Appellant and Cross-Appellee", "name_abbreviation": "People v. Andretich", "decision_date": "1993-05-14", "docket_number": "Nos. 3\u201491\u20140706, 3\u201492\u20140047 cons", "first_page": "558", "last_page": "563", "citations": [ { "type": "official", "cite": "244 Ill. App. 3d 558" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "327 N.E.2d 324", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. 2d 379", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414370 ], "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0379-01" ] }, { "cite": "487 N.E.2d 599", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "109 Ill. 2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126839 ], "year": 1975, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0293-01" ] }, { "cite": "507 N.E.2d 830", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "832" } ], "opinion_index": 0 }, { "cite": "116 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543128 ], "year": 1985, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0357-01" ] }, { "cite": "392 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "360" } ], "opinion_index": 0 }, { "cite": "280 N.E.2d 433", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. 2d 39", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391361 ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0039-01" ] }, { "cite": "125 N.E.2d 61", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "5 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2703077 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/5/0176-01" ] }, { "cite": "115 N.E.2d 262", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "pin_cites": [ { "page": "263" } ], "opinion_index": 0 }, { "cite": "1 Ill. 2d 225", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5314716 ], "year": 1954, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/1/0225-01" ] }, { "cite": "72 N.E.2d 827", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "397 Ill. 19", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2464079 ], "year": 1953, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/ill/397/0019-01" ] }, { "cite": "189 N.E. 500", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1953, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "355 Ill. 468", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5285410 ], "year": 1953, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill/355/0468-01" ] } ], "analysis": { "cardinality": 589, "char_count": 11942, "ocr_confidence": 0.785, "pagerank": { "raw": 6.184055466713763e-08, "percentile": 0.38357332802028227 }, "sha256": "82c59a966036bf7d8a6fb27e39a62b9038db68fd9d1f9fd82472744e4517626d", "simhash": "1:bfe04665fef60e14", "word_count": 1939 }, "last_updated": "2023-07-14T19:27:37.423199+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee and Cross-Appellant, v. JAMES M. ANDRETICH, Defendant-Appellant and Cross-Appellee." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nDefendant, James M. Andretieh, was charged with the theft of a 1979 Mercedes-Benz by deception (111. Rev. Stat. 1991, ch. 38, par. 16 \u2014 1(a)(2)). He entered a blind plea of guilty and was sentenced to serve two years\u2019 probation, conditioned upon serving six months of work-release. On July 8, 1991, defendant moved to withdraw his guilty plea on the ground that his plea was based on the advice of trial counsel, and defendant had anticipated that his sentence would be restitution without any jail time. Circuit Judge Thomas Ewert denied defendant\u2019s motion, and defendant appealed (docket No. 3 \u2014 91\u2014 0706).\nWhile this appeal was pending, defendant, represented by different counsel, filed a post-conviction petition seeking to have his guilty plea withdrawn due to the lack of a factual basis for the guilty plea and ineffective assistance of trial counsel. Circuit Judge Patricia Schneider heard the petition and granted it, finding that there was no factual basis for defendant\u2019s plea. The court, accordingly, set aside the judgment of conviction. The State appealed from the judgment granting post-conviction relief (docket No. 3 \u2014 92\u20140047), and the two appeals were consolidated for briefing and consideration in this court.\nBefore addressing the issues raised by the parties, we deem it appropriate to consider our jurisdiction over the State\u2019s appeal. Prior to 1979, our supreme court noted that the State\u2019s right to bring appeals from judgments granting post-conviction relief was premised on section 7 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1951, ch. 38, par. 832) (the Act). The court further noted that \u201cthe remedy afforded by the Post-Conviction Hearing Act is similar in many of its characteristics to that available by motion coram, nobis under section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1951, ch. 110, par. 196.) *** [W]ith respect to review of coram, nobis proceedings, it has been observed that \u2018Since the judgment entered upon such proceeding is final and the proceeding is civil in nature, either the State or the defendant is entitled to a review of the judgment of the court entered on such motion or petition.\u2019 People ex rel. Courtney v. Green, 355 Ill. 468, 473[, 189 N.E. 500, 502]; cf. People v. Touhy, 397 Ill. 19, 26[, 72 N.E.2d 827].\u201d People v. Joyce (1953), 1 Ill. 2d 225, 227, 115 N.E.2d 262, 263; see also People v. Hryciuk (1954), 5 Ill. 2d 176, 125 N.E.2d 61; People v. Thomas (1972), 51 Ill. 2d 39, 280 N.E.2d 433.\nAt the time Joyce was decided, the Act provided for the supreme court\u2019s review of \u201c[a]ny final judgment entered upon *** a [post-conviction] petition.\u201d (Ill. Rev. Stat. 1951, ch. 38, par. 832.) Subsequent to Joyce, Supreme Court Rule 27 \u2014 1 was adopted. That rule, effective from January 1, 1964, to January 1, 1967, likewise provided for direct appeal to the supreme court of final judgments in post-conviction proceedings. In 1968, Rule 27 \u2014 1 was replaced by Supreme Court Rule 651, effective January 1, 1967. Section (a) of the rule provided that \u201c[a]n appeal from a final judgment of the circuit court in any post-conviction proceeding lies to the Appellate Court in the district in which the circuit court is located.\u201d (58 Ill. 2d R. 651(a).) Section (d) of the rule provided further that procedure for such appeals \u201cshall be in accordance with the rules governing criminal appeals, as near as may be.\u201d 58 Ill. 2d R. 651(d).\nIn People v. Andson (1979), 73 111. App. 3d 700, 702, 392 N.E.2d 358, 360, the court ruled that, notwithstanding the \u201cprocedural\u201d rule in Rule 651(d), the principle of Joyce continued to govern the State\u2019s \u201csubstantive\u201d right of appeal from judgments granting post-conviction relief. Subsequent to the filing of defendant Andson\u2019s post-conviction petition in 1974, section 122 \u2014 7 of the Post-Conviction Hearing Act (formerly section 832) was amended. It now provides that \u201c[a]ny final judgment entered upon *** [a post-conviction] petition shall be reviewed in a manner pursuant to the rules of the Supreme Court.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 122\u20147.\nDefendant takes the position on appeal that since Supreme Court Rule 604(a) (134 Ill. 2d R. 604(a) (as amended effective Nov. 30, 1972)), which governs State appeals in criminal cases, does not permit the State to appeal from interlocutory rulings which do not effectively result in the dismissal of charges, the State has no right to appeal from the post-conviction judgment in this case. The State counters with the argument that the court\u2019s grant of relief on the post-conviction petition is a final judgment on the civil matter. Ergo, the argument continues, the State\u2019s substantive right to appeal from the trial court\u2019s ruling is unaffected by Rule 604(a), which on its face applies to criminal proceedings. We agree.\nIn our opinion, the application of criminal procedural rules on appeal from final civil proceedings does not detract from the State\u2019s substantive right to appeal from the grant of relief on a defendant\u2019s post-conviction petition. Accordingly, we hold that this court does have jurisdiction of the State\u2019s appeal in this case.\nIn defendant\u2019s appeal from Judge Ewert\u2019s ruling denying his motion to withdraw his guilty plea (No. 91 \u2014 0706), defendant argues: (1) that his right to due process of law was denied by the court\u2019s judgment of a conviction for which there was no factual basis to support defendant\u2019s plea of guilty; (2) that the court failed to give defendant adequate admonishment as to the consequences of his guilty plea; and (3) that the court erred in accepting defendant\u2019s guilty plea because he had a worthy defense to the State\u2019s charges. The State responds that defendant waived any contention regarding the sufficiency of the factual basis for his plea; that the trial court\u2019s admonishments were adequate; and that the court did not err in accepting defendant\u2019s plea even if he had a defense worthy of consideration.\nSupreme Court Rule 402 (134 Ill. 2d R. 402) requires that the trial court substantially comply with the conditions as set forth in the rule upon which a guilty plea may be accepted, i.e., that defendant be admonished as to the nature of the charge and the consequences of his plea; that the plea is determined to be voluntary and that there is a factual basis for it; and that the provisions for plea discussions and agreements be complied with.\nDefendant asserted in his post-judgment motion to withdraw his plea that he had not been admonished that a period of incarceration could be imposed as a condition of a sentence of probation. The court duly considered defendant\u2019s arguments, and on August 12, 1991, the court ruled that it had substantially complied with supreme court rules and that there was a knowing and intelligent waiver of defendant\u2019s rights and a voluntary plea of guilty. Accordingly, the court denied defendant\u2019s motion to withdraw.\nHaving reviewed the proceedings, we now find no error in the court\u2019s August 12 ruling. Defendant\u2019s arguments on appeal challenging the trial court\u2019s ruling are unrelated to the position he assumed in presenting his motion in the trial court. Those arguments, relating to the factual basis for the plea, the adequacy of admonishments and a worthy defense, were waived for purposes of the motion to withdraw and cannot be revived by asserting them for the first time on review. We therefore affirm Judge Ewert\u2019s denial of defendant\u2019s motion to withdraw his plea.\nIn its appeal, the State takes issue with Judge Schneider\u2019s judgment granting defendant\u2019s petition for post-conviction relief on grounds that issues not raised in defendant\u2019s motion before Judge Ewert to withdraw his plea and vacate his conviction also waived those issues for purposes of post-conviction relief before Judge Schneider; that a decision on defendant\u2019s appeal of the trial court\u2019s ruling on the motion to withdraw is res judicata of all issues which were or could have been raised; and that lack of a factual basis was either a noncognizable basis for granting post-conviction relief or that the factual basis was adequate for purposes of the plea.\nIt is defendant\u2019s burden at a hearing under the Post-Conviction Act to establish a substantial deprivation of rights granted by the United States Constitution or the Constitution of Illinois. On appeal, the trial court\u2019s determination will not be disturbed unless it is manifestly erroneous. People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, 832, citing People v. Griffin (1985), 109 Ill. 2d 293, 303, 487 N.E.2d 599; People v. Moore (1975), 60 Ill. 2d 379, 384, 327 N.E.2d 324.\nIn presenting defendant\u2019s petition for post-conviction relief, defense counsel argued that defendant\u2019s constitutional due process rights were violated by Judge Ewert\u2019s acceptance of a plea for which a factual basis was lacking. We find, according to the affidavits which defendant submitted with his petition for post-conviction relief, that defendant committed no criminal act in connection with the sale of the vehicle in question. John R. Andretich, defendant\u2019s father, stated in his sworn affidavit that he and his wife were co-owners of the Mercedes involved in this case. They asked defendant to sell it for them on consignment. Mark Keith, the complainant, had offered to trade in a 1980 Cadillac toward the purchase price of the Mercedes, which was $10,815.95. John Andretich further averred that he loaned $2,206.81 to Mr. Keith to pay off the balance Keith owed on the Cadillac. According to John Andretich, he had entered into an agreement with Mr. Keith that the transaction for the purchase of the Mercedes would be completed upon Mr. Keith\u2019s full repayment of the $2,206.81 loan. When Mr. Keith subsequently refused to make payment in full pursuant to the agreement, John Andretich stopped payments on the Mercedes. John Andretich\u2019s lender then repossessed the Mercedes from Mr. Keith.\nWe note that the affidavits presented to the court in support of defendant\u2019s post-conviction petition did not demonstrate any error in Judge Ewert\u2019s acceptance of defendant\u2019s guilty plea based on the State\u2019s original presentation of a factual basis. Nor do they demonstrate error in Judge Ewert\u2019s denial of defendant\u2019s motion to withdraw. Nonetheless, we believe that the defendant adequately demonstrated a due process deprivation so fundamental that waiver and res judicata doctrines cannot prevail.\nMoreover, it is apparent from the record and pleadings on appeal that defendant could not have received effective assistance of counsel in entering his plea. Based on the facts presented in the affidavits, defendant committed no theft. In our opinion, the matters presented by counsel on petition for post-conviction relief manifestly demonstrated that trial counsel inadequately represented defendant and may not have been aware of all sentencing alternatives. But for counsel\u2019s deficient performance, defendant would not have pleaded guilty to theft. Accordingly, we find that Judge Schneider\u2019s ruling that defendant demonstrated a substantial denial of his right to due process by the lack of a factual basis to support the plea is not manifestly erroneous and should be affirmed.\nFor the reasons stated, we affirm the judgments of the circuit court of Will County and remand for further proceedings.\nAffirmed; cause remanded.\nMcCUSKEY, P.J., and STOUDER, J., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "Kenneth A. Grey, of McKeown, Fitzgerald, Zollner, Buck, Hutchison & Ruttle, of Joliet (Gary S. Mueller, of counsel), for James Andretich.", "Edward Burmila, Jr., State\u2019s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee and Cross-Appellant, v. JAMES M. ANDRETICH, Defendant-Appellant and Cross-Appellee.\nThird District\nNos. 3\u201491\u20140706, 3\u201492\u20140047 cons.\nOpinion filed May 14,1993.\nKenneth A. Grey, of McKeown, Fitzgerald, Zollner, Buck, Hutchison & Ruttle, of Joliet (Gary S. Mueller, of counsel), for James Andretich.\nEdward Burmila, Jr., State\u2019s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0558-01", "first_page_order": 578, "last_page_order": 583 }