People v. Atchison

2021 IL App (4th) 200226-U

• Court: Appellate Court of Illinois
• Decided: March 15, 2021
• Docket: 4-20-0226
• Status: Unpublished

Opinion

NOTICE 2021 IL App (4th) 200226-U This Order was filed under FILED Supreme Court Rule 23 and is not NO. 4-20-0226 March 15, 2021 precedent except in the limited Carla Bender circumstances allowed under Rule IN THE APPELLATE COURT 4th District Appellate 23(e)(1). Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) De Witt County THOMAS J. ATCHISON, ) No. 17CF3 Defendant-Appellant. ) ) Honorable ) Karle Eric Koritz, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court. Justices DeArmond and Steigmann concurred in the judgment.

ORDER ¶1 Held: We grant the Office of the State Appellate Defender’s motion to withdraw as appellate counsel and affirm the trial court’s judgment where no meritorious issue can be raised on appeal.

¶2 This case comes to us on the motion of the Office of the State Appellate Defender

(OSAD) to withdraw as counsel, asserting no meritorious issues can be raised in this case. For

the reasons that follow, we grant OSAD’s motion to withdraw and affirm the trial court’s

judgment.

¶3 I. BACKGROUND

¶4 On January 9, 2017, the State charged defendant, Thomas J. Atchison, by

information with nonconsensual dissemination of private sexual images (720 ILCS

5/11-23.5(b)(1) (West 2016)). At the arraignment hearing, the trial court admonished defendant regarding the nature of the charge against him and his right to counsel. Defendant waived his

right to counsel and indicated he wished to plead guilty. After being fully admonished by the

court, defendant entered a plea of guilty.

¶5 On February 28, 2017, the trial court conducted defendant’s sentencing hearing.

Defendant declined counsel at the sentencing hearing, and the court sentenced defendant to 30

months in prison, consecutive to the sentence imposed in De Witt County case No. 16-CF-101.

The court admonished defendant on his right to appeal.

¶6 On March 29, 2017, defendant filed a pro se motion to withdraw his plea of guilty

and vacate judgment, alleging he pleaded guilty because he assumed the court would be lenient

and he was overwhelmed by his multiple court cases. He further alleged the image was posted in

self-defense, with consent, and was not actually an image of his wife. Finally, defendant alleged

he was unclear about the charge because the law books in the De Witt and Piatt County jails

were 20 years old. Defendant did not attach an affidavit or exhibit to his motion.

¶7 On April 13, 2017, the trial court held a hearing on defendant’s motion to

withdraw his guilty plea, at which defendant appeared pro se. After hearing the parties’

arguments, the court denied defendant’s motion. Defendant appealed.

¶8 On appeal, this court determined the trial court failed to strictly comply with the

requirements of Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016) where the court failed to

determine if defendant was represented by counsel, appoint counsel, or obtain a knowing and

intelligent waiver of his right to counsel. See People v. Atchison, 2019 IL App (4th) 170300-U.

We remanded for further proceedings in compliance with Rule 604(d).

-2- ¶9 On October 28, 2019, the trial court held a hearing to admonish defendant

pursuant to Rule 604(d) in accordance with our decision. Defendant requested court-appointed

counsel, and counsel was appointed to assist defendant with his motion.

¶ 10 On March 11, 2020, appointed counsel filed an amended motion to withdraw

defendant’s guilty plea. In the amended motion, defendant alleged he was prescribed Xanax but

did not have access to this medication while in custody. Defendant also alleged his “mental

stability at the time of his plea is questionable.” Defendant explained his “children had been

taken by [the Department of Children and Family Services (DCFS)], he had been threatening

suicide and was in mental anguish.” Because of the foregoing, defendant alleged he failed to

understand the possible consequences of his plea. Defendant did not attach an affidavit or exhibit

to his motion.

¶ 11 Also on March 11, 2020, appointed counsel filed a certificate pursuant to Rule

604(d), stating she had consulted with defendant to ascertain the contentions of error, examined

the trial court file and report of proceedings, and made any amendments necessary for adequate

presentation of the motion.

¶ 12 On March 12, 2020, the trial court held a hearing on defendant’s amended motion

to withdraw his guilty plea. Defendant testified he was prescribed Lisinopril, Norvasc, Xanax,

and Zoloft but he was denied Xanax at the De Witt County jail. Defendant described the effects

of being off the Xanax as follows: “It affects my decision-making. It affects cognitive behavior,

thought process. It makes me very paranoid. I have lots of anxiety. My depression goes sky-high

as well as my anxiety.” He agreed he was experiencing those symptoms when he pleaded guilty.

Defendant explained his mental stability and ability to make knowing and intelligent decisions

were affected by his children’s placement with DCFS and his discovery his then wife was

-3- cheating. He also stated he was suicidal and considered “drink[ing] [him]self to death.”

Defendant testified he was under the impression he would get probation if he pleaded guilty, and

although he attempted to research the elements of the offense, the law books in the De Witt

County jail were over 20 years old, so he did not understand the charge.

¶ 13 The State did not cross-examine defendant or call any witnesses but did ask the

court to take judicial notice of the transcripts of the prior proceedings. During closing arguments,

the State focused on the transcript from the plea hearing, stating, “I think the transcript speaks for

itself.” The State highlighted the admonishments the court gave defendant during the plea

hearing.

¶ 14 The trial court denied defendant’s motion to withdraw his guilty plea, noting the

thorough admonishments by the court at the plea hearing and that, at the time of the plea, “it

appeared to the [c]ourt he was of sound mind. The [d]efendant indicated he was of sound mind,

indicated that the medications he was taking at that time didn’t affect his ability to enter into a

decision of this magnitude.”

¶ 15 On March 30, 2020, defendant filed a timely pro se notice of appeal, and OSAD

was appointed to represent defendant on appeal. In September 2020, OSAD filed a motion for

leave to withdraw as defendant’s counsel on appeal. OSAD filed a proof of service indicating it

mailed a copy of the motion to defendant by United States mail, with postage prepaid. On its

own motion, this court granted defendant leave to respond to the motion for leave to withdraw on

or before October 23, 2020. Defendant did not do so. After examining the record, we grant

OSAD’s motion and affirm the trial court’s judgment.

¶ 16 II. ANALYSIS

-4- ¶ 17 OSAD outlines the following potential issues for review in its motion to

withdraw: (1) whether the trial court and post-plea counsel complied with the requirements of

Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) and (2) whether the trial court erred in

dismissing the motion to vacate defendant’s plea.

¶ 18 A. Rule 604(d)

¶ 19 Rule 604(d) provides, in relevant part:

“No appeal from a judgment entered upon a plea of guilty shall be taken

unless the defendant, within 30 days of the date on which sentence is imposed,

files in the trial court a motion to reconsider the sentence, if only the sentence is

being challenged, or, if the plea is being challenged, a motion to withdraw the

plea of guilty and vacate the judgment.

***

The motion shall be presented promptly to the trial judge by whom the

defendant was sentenced ***. The trial court shall then determine whether the

defendant is represented by counsel, and if the defendant is indigent and desires

counsel, the trial court shall appoint counsel.

*** The defendant’s attorney shall file with the trial court a certificate

stating that the attorney has consulted with the defendant either by phone, mail,

electronic means or in person to ascertain defendant’s contentions of error in the

sentence and the entry of the plea of guilty, has examined the trial court file and

both the report of proceedings of the plea of guilty and the report of proceedings

in the sentencing hearing, and has made any amendments to the motion necessary

-5- for adequate presentation of any defects in those proceedings. Ill. S. Ct. R. 604(d)

(eff. July 1, 2017).

¶ 20 On remand, the trial court complied with our order to determine if defendant was

indigent and desired counsel in compliance with Rule 604(d). Defendant informed the court he

desired counsel, and counsel was appointed. Any argument the trial court failed to comply with

Rule 604(d) on remand would be meritless.

¶ 21 “The question of whether defense counsel complied with Rule 604(d) is subject to

de novo review.” People v. Grice, 371 Ill. App. 3d 813, 815, 867 N.E.2d 1143, 1145 (2007).

“[S]trict compliance with Rule 604(d) is required and a reviewing court must remand in any case

where counsel failed to strictly comply.” People v. Prather, 379 Ill. App. 3d 763, 768, 887

N.E.2d 44, 47 (2008). “While strict compliance does not require that the language of the rule be

recited verbatim in the certificate, some indication must be presented that counsel performed the

duties required under the rule.” People v. Richard, 2012 IL App (5th) 100302, ¶ 10, 970 N.E.2d

35; see also People v. Dryden, 2012 IL App (2d) 110646, ¶ 11, 980 N.E.2d 203 (noting Rule

604(d)’s “purpose is to eliminate the need for guesswork about the ‘core’ of a defendant’s

contentions”).

¶ 22 In this case, appointed counsel filed a Rule 604(d) certificate certifying as

follows:

“1. I have consulted in person, by mail, or by electronic means to ascertain

the defendant’s contentions of error in the entry of the plea of guilty and in the

sentence;

2. I have examined the trial court file and report of proceedings of the plea

of guilty and the report of proceedings in the sentencing hearing; and

-6- 3. I have made any amendments to the motion necessary for the adequate

presentation of any defects in those proceedings.”

Counsel’s certificate strictly complies with the requirements of Rule 604(d). Therefore, any

argument counsel failed to comply with Rule 604(d) would be meritless.

¶ 23 B. Defendant’s Amended Motion to Vacate His Guilty Plea

¶ 24 There is no absolute right to withdraw a guilty plea; rather, a defendant must

show a manifest injustice in his or her circumstances, such as a denial of due process. People v.

Hughes, 2012 IL 112817, ¶ 32, 983 N.E.2d 439. “Due process requires that the court accept [a]

defendant’s guilty plea only upon an affirmative showing that [the] defendant entered his plea

voluntarily and knowingly.” People v. Haywood, 2016 IL App (1st) 133201, ¶ 36, 50 N.E.3d

1237. “We review the trial court’s decision to deny a defendant’s motion to withdraw guilty plea

for an abuse of discretion.” People v. Chavez, 2013 IL App (4th) 120259, ¶ 14, 998 N.E.2d 143.

¶ 25 Here, in his amended motion to withdraw his guilty plea, defendant alleged his

plea was not entered into voluntarily and knowingly because he was not taking his prescribed

medication, Xanax, and his mental state was “questionable” because his children had been

placed with DCFS. However, as the trial court noted at the hearing on defendant’s amended

motion, this allegation is completely contradicted by the record. During the court’s

admonishments to defendant at the guilty-plea hearing, the following exchange occurred:

“THE COURT: [Defendant], the concern I have is that you might be under

emotional duress from the arrest itself and might be rushing into a decision, but

you appear to be of sound mind this morning so I just want to verify for the record

that you’re not under emotional duress or anything right now; is that correct?

THE DEFENDANT: That’s correct, your Honor.”

-7- In addition, at the hearing on defendant’s amended motion to withdraw his guilty plea, defendant

testified that his failure to take his prescribed medication, Xanax, negatively affected his mental

state. However, in his statement in allocution at his sentencing hearing, defendant stated,

“Due to everything I was on some very dangerous medications that definitely had

an impact on my judgment. I was on Xarelto, Warfarin, Lisinopril, Flexeril,

Hydroxyzine, Zoloft, Xanax, and Valium. Today I am only on Zoloft and

Lisinopril. I’m more clear-minded and am happy for once, even though I’m

currently incarcerated. But sobriety is good.”

No other evidence was presented to support defendant’s claims of emotional distress or the

impact of his lack of medication. See People v. Bryant, 2016 IL App (5th) 140334, ¶ 34, 54

N.E.3d 309 (Finding although the defendant testified “that [the witness’s] testimony had

‘destroyed’ him *** there is no credible evidence that the defendant’s alleged emotional state

impacted his ability to make a knowing and voluntary guilty plea.”).

¶ 26 At the hearing on defendant’s amended motion to withdraw his guilty plea,

defendant also testified he did not understand the consequences of pleading guilty and was under

the impression he would receive probation if he pleaded guilty. He also testified he did not

understand the charge because the law books in the De Witt County jail were over 20 years old.

This is, again, contradicted by the record. The trial court thoroughly admonished defendant as to

the nature of the charge against him and the applicable sentencing range both when defendant

waived counsel and when he pleaded guilty. Defendant confirmed he understood the charge and

sentencing range on both occasions.

-8- ¶ 27 Accordingly, because nothing in the record supports defendant’s allegation that

his plea was not entered voluntarily and knowingly, we agree with OSAD that no meritorious

argument can be made that the trial court abused its discretion in denying defendant’s motion.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm the trial court’s judgment.

¶ 30 Affirmed.

-9-