People v. Bell

2023 IL App (5th) 230011-U

Opinion

2023 IL App (5th) 230011-U NOTICE NOTICE Decision filed 10/31/23. The This order was filed under text of this decision may be NO. 5-23-0011 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jefferson County. ) v. ) No. 21-CF-349 ) DEMARIO D. BELL, ) Honorable ) Jerry E. Crisel, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justices Cates and Moore concurred in the judgment.

ORDER

¶1 Held: Where defendant’s sentencing counsel complied with Rule 604(d), and the circuit court did not abuse its discretion in denying defendant’s motions to reconsider his sentence and withdraw his guilty plea, and any argument to the contrary lacks merit, we grant defendant’s appointed counsel on appeal leave to withdraw and affirm the circuit court’s judgment.

¶2 Defendant, Demario D. Bell, appeals the circuit court’s order denying his motions to

withdraw his guilty plea and reconsider his sentence. His appointed appellate counsel, the Office

of the State Appellate Defender (OSAD), concluded the appeal lacked arguable merit and filed a

motion to withdraw along with a supporting memorandum. See Anders v. California, 386 U.S. 738

(1967). OSAD notified defendant of its motion. Defendant was provided an opportunity to respond

to OSAD’s memorandum and he timely filed his response. After considering the record on appeal,

1 OSAD’s supporting memorandum, and defendant’s response, we conclude this appeal lacks merit.

Therefore, we grant OSAD leave to withdraw and affirm the circuit court’s judgment.

¶3 BACKGROUND

¶4 Defendant was charged with armed violence in violation of section 402(a)(2)(A) of the

Illinois Controlled Substances Act (720 ILCS 570/402(a)(2)(A) (West 2020)) and section 33A-

2(a) of the Criminal Code of 2012 (720 ILCS 5/33A-2(a) (West 2020)), being an armed habitual

criminal (AHC) in violation of section 24-1.7(a) of the Criminal Code of 2012 (720 ILCS 5/24-

1.7(a) (West 2020)), and possession of between 15 and 100 grams of a controlled substance with

intent to deliver in violation of section 401(a)(2)(A) of the Illinois Controlled Substances Act (720

ILCS 570/401(a)(2)(A) (West 2020)), all Class X felonies. The charges arose after police executed

a search warrant at defendant’s home and found drugs and a gun. Defendant moved to challenge

the veracity of the statements used to obtain the search warrant and sought suppression of the

seized evidence. See Franks v. Delaware, 438 U.S. 154 (1978). Following a hearing, the court

denied the motion.

¶5 On March 7, 2022, defendant pled guilty to the AHC and possession charges in exchange

for the State’s dismissal of the armed violence charge. The State further agreed to not pursue

consecutive sentences for two remaining charges.

¶6 The State’s factual basis showed that officers executing a search warrant at defendant’s

home discovered crack cocaine, evidence of intent to deliver, and a firearm. The factual basis

further indicated that following defendant’s arrest, and receipt of Miranda warnings (see Miranda

v. Arizona, 384 U.S. 436 (1966)), defendant admitted in a recorded statement that he owned the

firearm and that he possessed and sold cocaine. Defendant agreed the State could produce this

evidence if the case went to trial.

2 ¶7 The court confirmed that defendant understood he was not required to plead guilty but that,

by doing so, he was giving up certain rights including requiring the State to overcome the

presumption of innocence by proving him guilty beyond a reasonable doubt, the rights to a jury

trial, to counsel, to confront witnesses, to see the evidence against him, to be present, to present a

defense, and to testify or remain silent. The court further confirmed defendant had sufficient time

to discuss the terms and consequences of the plea with his trial counsel, defendant was satisfied

with counsel’s services, and his medication did not affect his ability to understand the proceedings.

Defense counsel also advised the court of her belief that defendant was coherent, comprehended

their discussions, and was entering the plea knowingly, intelligently, and voluntarily. The court

accepted defendant’s plea and ordered a presentence investigation report (PSI).

¶8 The PSI was filed with the court on April 13, 2022. On April 20, 2022, defense counsel

submitted a supplement to the PSI addressing defendant’s medical condition and related physical

infirmities for consideration at the sentencing hearing. Counsel also moved to withdraw alleging

defendant continued to demand she “make certain false statements to the court,” threatened her

with nonpayment and withdrawal of his plea if she withdrew, and an irretrievably broken attorney-

client relationship. Following a hearing on April 28, 2022, in which defendant declined to present

any objection, the court granted defense counsel’s motion to withdraw and appointed the public

defender to represent defendant.

¶9 The sentencing hearing was held on September 8, 2022. After confirming the possible

minimum and maximum sentences, addressing whether concurrency of the sentences was required

or discretionary, and considering the evidence and arguments in aggravation and mitigation, the

court sentenced defendant to concurrent, 15-year terms. The court, believing defendant’s plea was

3 “open” or non-negotiated, admonished defendant that he could file a motion to withdraw the plea,

a motion to reconsider the sentence, or both. See Ill. S. Ct. R. 605(c) (eff. Sept. 18, 2023).

¶ 10 On September 9, 2022, postplea counsel filed a motion to withdraw plea of guilty and

vacate judgment alleging defendant’s plea was not knowingly, intelligently, and voluntarily made.

In support, defendant alleged his trial counsel (1) did not afford him the opportunity to review

discovery materials to assess whether he should go to trial or seek a negotiated plea, (2) threatened

or coerced him to plead guilty, (3) misled and induced him to plead guilty, and (4) threatened to

withdraw if defendant opted to go to trial. Postplea counsel also filed a motion to reconsider

defendant’s sentence. On October 20, 2022, postplea counsel filed a Rule 604(d) certificate

affirming that he consulted with defendant regarding possible errors in the guilty plea and sentence,

examined the court file and transcript from guilty plea and sentencing hearings, and made any

necessary amendments to the motions to raise those issues.

¶ 11 A hearing on defendant’s postplea motions was held on January 5, 2023. Defendant

testified consistent with the allegations in his motion to withdraw guilty plea. On cross-

examination, defendant denied lying to the court at the plea hearing when he said that his decision

to plead guilty was voluntary and that he was satisfied with defense counsel’s services. He

acknowledged, though, that in light of his current testimony, his previous answers could be

considered “incorrect.” He testified that he previously gave those answers because he was under

the influence of a powerful medication that rendered him unable to understand what was going on

at the hearing. He explained that he told the court he was not under the influence of drugs at the

time of his plea because he believed the court was asking only about narcotics and he did not think

the medication he was taking was a narcotic.

4 ¶ 12 His prior trial counsel provided testimony stating she reviewed discovery with defendant

multiple times. She recalled a specific instance at the jail where they reviewed statements made by

defendant and his girlfriend. Other times, they went over discovery on the phone or by Zoom.

Counsel testified that, while she did discuss the possibility of withdrawing from the case,

defendant’s decision to plead guilty or go to trial was never a basis for her potential withdrawal.

¶ 13 After considering the testimony presented, the court found defendant was not credible and

denied the motion to withdraw his guilty plea. No additional argument or evidence was presented

on defendant’s motion to reconsider defendant’s sentence and the court found it previously applied

the sentencing factors appropriately and denied the motion.

¶ 14 ANALYSIS

¶ 15 Defendant appeals from the circuit court’s orders denying his motions to withdraw his

guilty plea and reconsider his sentence. His court-appointed appellate attorney, OSAD, moved for

leave to withdraw and filed a supporting memorandum listing three potential arguments on appeal

but ultimately concluded the arguments had no merit. Defendant filed a response disputing

OSAD’s conclusion and adding additional claims for consideration.

¶ 16 The first potential issue raised by OSAD was whether postplea counsel complied with

Illinois Supreme Court Rule 604(d) (eff. Sept. 18, 2023). Rule 604(d) requires counsel appointed

to represent a defendant on a postplea motion to

“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

5 necessary for adequate presentation of any defects in those proceedings.” Ill. S. Ct. R.

604(d) (eff. Sept. 18, 2023).

¶ 17 Here, counsel filed a certificate of compliance that closely tracked the rule’s language.

Defendant claims that reliance on the certificate is undermined because his counsel did not know

the law. In support, defendant relies on the postplea counsel’s motion to reconsider that was filed

despite defendant’s negotiated plea. We agree that defendant’s counsel was precluded from filing

a motion to reconsider sentence based on the negotiated plea. See Ill. S. Ct. R. 605(c) (eff. Sept.

18, 2023). However, even as we confirm the plea as “negotiated,” both the court and the prosecutor

referred to it as an “open” plea. We cannot fault postplea counsel for filing a motion to reconsider,

given the differing classifications of the plea, especially when such motion could potentially

benefit defendant and caused no harm to defendant or his ability to appeal. Thus, we hold that no

meritorious argument exists as to whether counsel complied with the rule.

¶ 18 OSAD’s second potential issue addresses the court’s denial of defendant’s motion to

reconsider sentence. OSAD concludes, citing People v. Axelson, 2015 IL App (2d) 140173, that

defendant was not entitled to challenge his sentence at all. In response, defendant contends the

State failed to expressly agree not to seek consecutive sentences.

¶ 19 Illinois Supreme Court Rule 605(b) (eff. Sept. 18, 2023) provides that the court should

advise a defendant who pleads guilty that in order to appeal he must file either a motion to

withdraw the plea or a motion to reconsider the sentence or both. But a defendant who enters a

negotiated plea must move to withdraw the plea in order to appeal. Ill. S. Ct. R. 605(c) (eff. Sept.

18, 2023). Rule 605(c) applies when “the prosecution has made concessions relating to the

sentence to be imposed and not merely to the charge or charges then pending.” Id. The rationale

for this rule is that a defendant who accepts a sentencing concession implicitly agrees to accept

6 any sentence covered by the concession and allowing such a defendant to seek further sentencing

relief would allow the defendant to escape his part of the agreement while holding the State to its

bargain. People v. Evans, 174 Ill. 2d 320, 332 (1996).

¶ 20 In Axelson, the court held that the State agreeing not to seek consecutive sentences was a

“concession[ ] relating to the sentence” such that the defendant could not move to reconsider the

sentence. Axelson, 2015 IL App (2d) 140173, ¶ 15. While defendant contends the State made no

such agreement, his argument is rebutted by the record which reveals the parties advised the court

that that State “agreed not to seek a consecutive period of incarceration” for the counts at issue.

Here, just as in Axelson, the State provided a concession related to defendant’s sentence. As

defendant was precluded from requesting a reconsideration of his sentence, denial of the motion

cannot be erroneous.

¶ 21 However, even if we considered the motion on its merits, no error is found. A trial court

has broad discretion in imposing a sentence, and its sentencing decisions are entitled to great

deference. People v. Stacey, 193 Ill. 2d 203, 209 (2000). The reason for the deference is “because

the trial judge, having observed the defendant and the proceedings, has a far better opportunity to

consider these factors than the reviewing court, which must rely on the ‘cold’ record.” People v.

Fern, 189 Ill. 2d 48, 53 (1999). “The trial judge has the opportunity to weigh such factors as the

defendant’s credibility, demeanor, general moral character, mentality, social environment, habits,

and age. [Citations.] Consequently, the reviewing court must not substitute its judgment for that

of the trial court merely because it would have weighed these factors differently.” Stacey, 193 Ill.

2d at 209.

¶ 22 Here, the circuit court noted defendant was being sentenced on his sixth and seventh felony

convictions, observed that he was a “professional drug dealer,” and that defendant had a firearm

7 and drugs in a house where children were living. However, the court also noted that none of

defendant’s prior convictions involved violence, that he was cooperative during his arrest and

investigation, and that he suffered from a medical condition. The court’s 15-year sentence was

within the statutory 6-to-30-year statutory range for a Class X felony (see 730 ILCS 5/5-4.5-25

(West 2020)) and the record confirms the court’s consideration of the mitigating factors. We may

only alter such a sentence when it varies greatly from the spirit and purpose of the law or is

manifestly disproportionate to the nature of the offense. People v. Alexander, 239 Ill. 2d 205, 212

(2010). Neither is shown here and, therefore, no meritorious argument exists to support the

contention that the court abused its discretion in rendering defendant’s sentence.

¶ 23 OSAD’s final potential issue addresses whether the court erred in admonishing defendant,

accepting his plea, or denying the motion to withdraw. OSAD concludes the argument had no

reasonable merit. Defendant contends that the court’s reliance on his response that he was able to

comprehend the proceedings while taking his medication resulted in the court’s erroneous

acceptance of his plea and further contends that the court’s denial of his motion to withdraw the

plea was erroneous. In support of his latter claim, defendant contends—for the first time on

appeal—that he was unfit to plead guilty, the court’s inquiry regarding his medications required

expert medical testimony.

¶ 24 We start with the court’s admonishments and acceptance of defendant’s guilty plea. Prior

to accepting the plea, the court admonished defendant under Illinois Supreme Court Rule 402 (eff.

July 1, 2012). That rule requires the court—before accepting any guilty plea—to inform the

defendant of, and determine that defendant understands, the nature of the charge, the maximum

and minimum sentences, that he or she has the right to plead not guilty, and that, by pleading

8 guilty, he or she is waiving the rights to a trial and to confront the witnesses. Ill. S. Ct. R. 402(a)

(eff. July 1, 2012).

¶ 25 Here, the circuit court informed defendant of the charges and the sentencing ranges for

each offense and confirmed his understanding. The court informed defendant of the right to plead

not guilty, and that he would be waiving other constitutional rights by entering a plea of guilty,

including his right to a bench or jury trial where he would be presumed innocent unless the State

proved him guilty beyond a reasonable doubt. The court also informed defendant he would be

waiving his rights to counsel, to confront witnesses, to see evidence, to be present, to present a

defense, and to testify or remain silent. Following these admonitions, the court confirmed that

defendant understood the rights he was waiving, and defendant advised the court that he still

wanted to plead guilty. Defendant also assured the court that no one had coerced or threatened him

to induce the plea, he had not been promised anything beyond the plea terms stated, he had

adequate opportunity to consult with his counsel, and he was satisfied with counsel’s

representation. The court asked defendant if he was on any medication that day and defendant

advised that he was. The court asked defendant if he was on any medication that may affect his

ability to reason, and think, and/or talk with this attorney. Defendant replied, “No, sir.” The court

then asked defendant if he believed he had his wits about him that day and defendant replied, “Yes,

sir.” The court then asked defendant’s counsel if she believed defendant was coherent and

understood her. Defense counsel replied “Yes, your Honor” and further advised the court that she

had no issue that she wished to raise regarding defendant’s coherence and believed he was entering

into the plea knowingly, intelligently, and voluntarily. Based on these assurances, the court found

defendant’s plea knowing and voluntary and accepted it. Under the circumstances, we find the

court complied with the rule and no reasonable argument exists that the court’s admonishments

9 were faulty, or the court erred in accepting defendant’s guilty plea based on the statements

provided by defendant, and his counsel, at the plea hearing.

¶ 26 We next consider defendant’s issue regarding his motion to withdraw his guilty plea. A

defendant does not have an absolute right to withdraw his guilty plea. People v. Hughes, 2012 IL

112817, ¶ 32. In order to withdraw a guilty plea, the defendant must establish a manifest injustice

under the facts involved. Id. “Withdrawal is appropriate where the plea was entered through a

misapprehension of the facts or of the law or where there is doubt as to the guilt of the accused

and justice would be better served through a trial.” Id.

¶ 27 We review the trial court’s ruling on a motion to withdraw a guilty plea under the abuse of

discretion standard. People v. Jamison, 197 Ill. 2d 135, 163 (2001). An abuse of discretion occurs

when the court’s ruling is arbitrary, fanciful, or unreasonable, or when no reasonable person would

take the view adopted by the court. People v. Delvillar, 235 Ill. 2d 507, 519 (2009).

¶ 28 Here, defendant’s motion to withdraw his plea alleged that his trial counsel did not allow

him to see the discovery and threatened to withdraw from the case if he wished to proceed to trial.

At the hearing on the motion to withdraw, defendant testified consistently with the allegations in

the motion and conceded that his current testimony regarding his trial counsel contradicted his

previous statements at the plea hearing. He contended that, despite his previous representations,

he was under the influence of a powerful medication that made him unable to understand the

proceedings.

¶ 29 Defendant’s prior trial counsel also testified at the motion to withdraw hearing. As to the

discovery, counsel’s testimony directly contradicted defendant’s testimony. As to the defendant’s

testimony about her potential withdrawal, trial counsel conceded that she and defendant discussed

10 her potential withdrawal from the case, but counsel testified that the basis of the potential

withdrawal had nothing to do with defendant’s decision to plead guilty or proceed to trial.

¶ 30 After the hearing, the court found defendant’s trial counsel more credible than defendant.

Such decision was well within the court’s purview. See People v. McIntosh, 2020 IL App (5th)

170068, ¶ 43 (“[T]he determination of witness credibility rests with the trier of fact.”). To the

extent defendant’s statements at the plea hearing conflicted with his testimony at the motion to

withdraw plea hearing, it was also within the purview of the court to determine whether

defendant’s prior or current statements were more credible. People v. Freeman, 55 Ill. App. 3d

1000, 1003 (1977) (“It was proper for the trial court to consider the statements made by defendant

at the plea proceeding in determining the weight and credibility of the defendant’s testimony at

the hearing on the motion.”). As credibility rulings lie within the province of the trial court, we

find no abuse of discretion in the trial court’s denial of the motion to withdraw the guilty plea

based on the testimony provided at the hearing.

¶ 31 Defendant also asserts that the trial court abused its discretion in denying his motion to

vacate his guilty plea because he was unfit to plead guilty at the hearing. It is undisputed that

requiring a defendant to plead guilty when unfit to do so violates due process. See People v.

Hanson, 212 Ill. 2d 212, 216 (2004). A court must order a fitness determination when there is a

bona fide doubt about a defendant’s fitness to stand trial or plead. Id. at 217 (citing 725 ILCS

5/104-11(a), (b) (West 2000)).

¶ 32 A defendant is unfit to stand trial or plead if he or she is “unable to understand the nature

and purpose of the proceedings against him or to assist in his defense.” 725 ILCS 5/104-10 (West

2020). Fitness for trial and overall mental health are not synonymous. “Fitness speaks only to a

person’s ability to function within the context of a trial. It does not refer to sanity or competence

11 in other areas. A defendant can be fit for trial although his or her mind may be otherwise unsound.”

People v. Easley, 192 Ill. 2d 307, 320 (2000); see also People v. Stephens, 2012 IL App (1st)

110296, ¶ 92.

¶ 33 Here, neither the State, defendant, nor the court raised a bona fide doubt of defendant’s

fitness. Defense counsel specifically stated defendant was coherent and understood her advice.

The only evidence defendant cites in support of his claim is counsel’s testimony that at some point

prior to the plea hearing, defendant was “threatening” and “belligerent,” causing her to question

his fitness.

¶ 34 First, the cited portion of the record is taken out of context. Trial counsel was asked why—

if it was not about defendant’s plea of guilty—she was considering withdrawal from the case. In

response, counsel stated, “He was not *** providing information that we would be able to [use to]

build a defense. He was threatening me and belligerent to me, so he was very disrespectful, and

there is also [the fact that] I haven’t been paid.” Nothing in these statements indicates any question

of defendant’s fitness to plead guilty. While defendant’s behavior was disrespectful, it has no

bearing on whether he understood the nature of the proceedings during the guilty plea hearing.

¶ 35 Defendant finds further support in his trial counsel’s testimony that she had one moment

while representing defendant in which she questioned his fitness. She testified that she did not

present her concerns to the trial court. She instead directed her fitness concern directly to

defendant. Thereafter, according to counsel’s testimony, defendant assured her that he “was just

emotional because he wanted to get to his children and [stated] that he could stand trial.” She

agreed that defendant alleviated her concerns about his fitness. As such, contrary to defendant’s

contention, the testimony confirms the lack of any bona fide doubt as to defendant’s fitness by

defendant’s trial counsel.

12 ¶ 36 We also reject defendant’s responsive argument that claims expert testimony was required

to determine whether his medication prevented him from understanding the proceedings. In

support of his argument, defendant cites People v. Steele, 2014 IL App (1st) 121452.

¶ 37 In Steele, the issue was whether the victim was sufficiently competent to address the issues

of causation. Id. ¶ 34. The court held the victim could testify as to his physical condition and any

adverse effects from it but was precluded from testifying about a medical diagnosis, especially one

not contained in the victim’s medical records. Id.

¶ 38 Here, the court did not query defendant about his medical diagnoses. The record establishes

that the court merely wanted to know whether defendant understood the proceedings. Such query

does not require a medical opinion as no one other than defendant could definitively state whether

he understood what was occurring at the plea hearing. Moreover, defendant never expressed

concern to the court that he was unqualified to answer the question.

¶ 39 At the plea hearing, defendant unequivocally stated he was on medication and such

medication did not impair his ability to reason, think, or speak with his attorney. He further

indicated he was capable of comprehending the gravity of the proceedings by confirming he had

his “wits” about him that day. His trial counsel also affirmatively stated that defendant was

coherent and understood the advice she provided defendant prior to the proceedings. In summary,

the statements provided on the issue of defendant’s medication involved defendant’s testimony

regarding his own physical condition and his trial counsel’s perception of his understanding the

advice she provided while defendant was on the medication. As defendant was the most capable

witness to address any physical or mental limitation arising from his medication and his counsel’s

testimony confirmed defendant’s ability to understand the proceedings, we disagree that medical

13 expert testimony was necessary to determine the effects of defendant’s medication on the date of

the plea hearing. Accordingly, we find no support for defendant’s claim.

¶ 40 Defendant’s final claim contends the trial court erred in denying his motion to reconsider

the sentence because his sentence involved improper double enhancement. In support, defendant

claims the trial court referenced his two prior drug convictions that were also the predicate felonies

for the AHC charge. In support, defendant cites People v. Taylor, 2022 IL App (5th) 180192.

¶ 41 An improper double enhancement occurs when either a single factor is used both as an

element of an offense and as a basis for imposing a harsher sentence than might otherwise have

been imposed, or the same factor is used twice to elevate the severity of the offense itself. People

v. Guevara, 216 Ill. 2d 533, 545 (2005). The AHC statute provides that a “person commits the

offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any

firearm after having been convicted a total of 2 or more times of *** a forcible felony as defined

in Section 2-8 of this Code.” 720 ILCS 5/24-1.7(a)(1) (West 2020).

¶ 42 In Taylor, 2022 IL App (5th) 180192, ¶ 55, we held that improper enhancement occurred

where the circuit court specifically cited as aggravating factors the same two felonies that were the

predicates for the defendant’s AHC charge, emphasizing they were serious crimes and some

violent crimes called forcible felonies. We find Taylor distinguishable. Here, the circuit court did

not refer to any specific predicate felony at sentencing. It merely stated that the current convictions

in this case were defendant’s sixth and seventh felony convictions. Such a general statement falls

short of the consideration of the prior offenses seen in Taylor. The court’s mere mention of

defendant’s numerous prior felony convictions was a comment on defendant’s lengthy criminal

history, not an improper double enhancement.

14 ¶ 43 Defendant’s remaining issues were not included in his motions to withdraw the plea and

reconsider the sentence. Any issue not raised in a Rule 604(d) motion is forfeited on appeal. Ill. S.

Ct. R 604(d) (eff. July 1, 2017). Moreover, aside from restating the double-enhancement issue

addressed above, the remaining issues related to the underlying search warrant and subsequent

Franks hearing (see Franks v. Delaware, 438 U.S. 154 (1978)). However, even if the issues were

not forfeited under Rule 604(d), defendant’s voluntary guilty plea waived the issues because a

voluntary guilty plea waives all nonjurisdictional defenses and defects. People v. Horton, 143 Ill.

2d 11, 22 (1991). Therefore, we find these issues forfeited.

¶ 44 CONCLUSION

¶ 45 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and

affirm the circuit court’s judgment.

¶ 46 Motion granted; judgment affirmed.