People v. Briseno-Guzman

2022 IL App (2d) 210112-U

• Court: Appellate Court of Illinois
• Decided: March 22, 2022
• Docket: 2-21-0112
• Status: Unpublished

Opinion

2022 IL App (2d) 210112-U No. 2-21-0112 Order filed March 22, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 19-CF-1094 ) ROMAN BRISENO-GUZMAN, ) Honorable ) Liam C. Brennan and ) Ann Celine O. Walsh, Defendant-Appellant. ) Judges, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices Hutchinson and Birkett concurred in the judgment.

ORDER

¶1 Held: Although, on the second remand for compliance with Rule 604(d), defense counsel did nothing but adopt former counsel’s insubstantial motion challenging defendant’s sentence as excessive, a third remand for Rule 604(d) compliance was unnecessary. The excessiveness claim would have no practical chance of success on remand even with additional development, and defendant did not identify any additional sentencing challenges that counsel might have raised.

¶2 Defendant, Roman Briseno-Guzman, entered an open plea of guilty to aggravated driving

with a blood-alcohol concentration (BAC) of more than 0.08 (DUI) (625 ILCS 5/11-501(a)(1),

(d)(1)(C) (West 2018)) and was sentenced to five years’ imprisonment. The trial court denied his 2022 IL App (2d) 210112-U

motion to reconsider his sentence. On appeal, we vacated the denial of the motion and remanded

the cause for compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). After yet

another appeal and remand, the trial court denied his motion to reconsider sentence. Defendant

appeals, arguing that a third remand is necessary. We affirm.

¶3 I. BACKGROUND

¶4 The State filed a five-count indictment against defendant. All the charges were based on

the same criminal conduct. Count II, to which defendant pleaded guilty, alleged that, on or about

May 5, 2019, he drove a motor vehicle while the alcohol concentration in his blood (BAC) was

0.08 or more and that he was involved in a motor vehicle accident that resulted in great bodily

harm, i.e., mesenteric injuries and a devitalized ileum, to Shaun Harris. Count II was punishable

by probation or 1 to 12 years’ imprisonment (see id. § 11-501(d)(2)(F)) with no more than 15%

credit for time served (see 730 ILCS 5/3-6-3(a) (West 2018)).

¶5 On October 23, 2019, the parties announced that defendant would enter an open plea of

guilty to count II, with the remaining charges being dismissed. The trial court admonished

defendant of the charge and the possible sentences, including that the sentence, “whatever it would

be, would be served at 85 percent.” Defendant stated that he wanted to plead guilty.

¶6 The State then provided the following factual basis for the plea. On May 5, 2019, at

approximately 9:30 p.m., defendant was driving south in a northbound lane of Route 83 and

collided head-on with a vehicle driven by Harris. Witnesses who pulled defendant from his vehicle

described him as having an odor of alcohol. Later, he told police that he believed that he was on

Interstate 294 when he fell asleep, and he awoke when he was struck by the other vehicle. He

stated that, on the previous day, he visited a friend, Ramberto Manzano, in Round Lake. There,

he drank 10 to 12 beers, then slept overnight. Defendant said that, on May 5, he felt shaky and

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hung over, but he drove away with his friend at approximately 7 p.m. Two members of the medical

staff at Loyola Medical Hospital would testify that Harris was treated between May 5 and May 13,

2019. He required multiple surgeries. Staff members who treated defendant would testify that a

blood draw revealed a serum alcohol result of 0.257, which converts to a BAC of over 0.08.

¶7 The trial court accepted defendant’s guilty plea. The presentencing investigation report

(PSIR) stated in part as follows. Defendant was 33 years old. He was a Mexican citizen and entered

the United States legally in either 2009 or 2010. He was present in the United States illegally

because his work visa expired in November 2016. Defendant told the probation officer that he

stayed in the country because he could work and help his family pay medical bills incurred when

his nephew was hit by a car. Defendant had worked as a marble installer from September 2016

through May 3, 2019, and reportedly as a dishwasher in 2018 and 2019. Before May 5, 2019, he

had been earning enough to pay his monthly expenses and send money to his family in Mexico.

¶8 Defendant told the probation officer that he believed that he slept two or three hours before

he drove away from Manzano’s house. He could not remember how many beers he had drunk the

previous evening. He expressed regret for his actions because he had hurt his lifelong friend, but

he “seemed to have limited awareness of the harm he caused Mr. Harris.”

¶9 Defendant’s sole prior conviction was a 2017 misdemeanor, transporting alcoholic liquor

for a minor. He received court supervision, which was revoked in 2018.

¶ 10 On December 2, 2019, the trial court held a sentencing hearing. In aggravation, Jeff

Godfrey, a Du Page County sheriff’s detective, testified on direct examination as follows. On May

5, 2019, at about 9:30 p.m., he was dispatched to northbound Route 83. Medical personnel had

arrived, and three individuals who were placed on the raised median were later transported to

hospitals. Harris told Godfrey that he had been driving in the northbound lane when he suddenly

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saw a car driving head-on towards him; Harris braced himself for the unavoidable impact. Several

days later, Harris said that the next thing he remembered was waking up in a hospital bed. At the

scene, Godfrey learned that the other car had been driven by defendant and that Manzano had been

his passenger. A witness later testified that he saw defendant’s vehicle turn onto Route 83 and

cross over into the northbound lanes while driving south, making no effort to avoid the oncoming

traffic and soon colliding with another vehicle.

¶ 11 Godfrey testified that paramedics said that they smelled a distinct odor of alcohol on

defendant’s breath and that his speech was slurred. He told them that he had drunk four beers. At

the hospital, a draw of defendant’s blood revealed a blood serum of 0.257, which was equivalent

to a BAC of 0.217. Defendant also tested positive for cocaine metabolites.

¶ 12 Godfrey testified that he interviewed defendant the day after the accident. Defendant said

that, on the evening of May 4, 2019, he and his friend watched television, and he drank 10 to 12

beers. Defendant slept a few hours. The next day, at about 7 p.m., he drove away. Defendant said

that at this time, he felt tired, hungover, and shaky, but he denied having used illegal drugs. At the

time of the collision, he did not know in which direction his car was facing.

¶ 13 Defendant’s attorney. Robert Gifford, did not cross-examine Godfrey.

¶ 14 Harris read his victim impact statement. He noted that he had undergone two surgeries,

had had much of his intestine removed, and was limited in what and when he could eat.

¶ 15 Gifford put on no evidence in mitigation.

¶ 16 In argument, the State noted that, when defendant decided to take a long drive home from

his friend’s house, his BAC was nearly three times the legal limit and he had cocaine in his system.

His driver’s license had been suspended. Harris was severely injured in the collision. Moreover,

the PSIR reported that defendant was unreliable about his substance use and tended to minimize

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his consumption of alcohol. The State contended that defendant had been similarly unreliable with

the police. He denied having used cocaine even though metabolites were found in his system. He

told the detective that he had stopped drinking more than nine hours before the collision, which

was incredible given his extremely high BAC at the time. In jail, defendant participated in faith-

based counseling but had done nothing to address his alcohol and drug use. Defendant’s attitude

toward his alcohol and drug abuse showed that he was likely to reoffend. Finally, he had entered

the United States legally but had remained past the legal deadline. The State urged a prison term

of “not less than four years.”

¶ 17 Gifford argued first that the PSIR showed that defendant, whose prior record included a

sole misdemeanor, had “[f]or the most part,” lived a law-abiding life in the United States. Further,

he had been working multiple jobs for much of the time, and he overstayed his work visa only so

that he could pursue employment. He appeared to be financially sound. Gifford recommended a

sentence of one year of prison.

¶ 18 The trial court stated as follows. Defendant had a “negligible” criminal history. However,

he could easily have afforded to call a ride-share service instead of driving when he was “not just

under the influence of alcohol, but two-and-a-half times the legal limit and with cocaine

metabolites in his system.” Also, a substantial sentence could deter others. The court sentenced

defendant to five years in prison.

¶ 19 On December 3, 2019, Gifford filed a motion to reconsider defendant’s sentence. The

contentions of error, in full, read:

“1. The sentence, in this case, is required to be served at 85%.

2. The sentence imposed on Defendant is excessive.

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[3]. The court gave excessive consideration and weight to the aggravating factors in 730

ILCS 5/5-5-3.2.

4. The Court failed to recognize and fairly apply the rule of lenity and construction of

the sentence factors in favor of the Defendant.”

¶ 20 On December 9, 2019, the trial court heard the motion. Gifford stated that he included

paragraph 1 because “the court may have overlooked that the sentence is to be served at 85

percent.” The court responded, “[W]hen the defendant pled guilty, I admonished him as to the 85

percent and I was fully cognizant of that when I did impose the sentence.” Gifford conceded the

point and briefly asserted that the court had improperly weighed the aggravating and mitigating

factors. He noted that defendant had a “very minimal criminal history.”

¶ 21 The State stood on its arguments from the sentencing hearing.

¶ 22 The court noted that it had considered all of the pertinent sentencing factors in imposing

sentence and it denied defendant’s motion to reconsider the sentence.

¶ 23 On appeal, we vacated the order denying defendant’s postjudgment motion, based on

Gifford’s failure to follow Rule 604(d)’s certification requirement. We remanded for (1) the filing

of a valid Rule 604(d) certificate; (2) the opportunity to file a new postjudgment motion, should

counsel conclude that a new motion was necessary; and (3) a new motion hearing. People v.

Briseno-Guzman, No. 2-19-1080 (March 25, 2020) (unpublished minute order).

¶ 24 On remand, Jennifer Sroka was appointed to represent defendant and the case was

reassigned to Judge Ann Celine O. Walsh. On July 6, 2020, Sroka filed a certificate of compliance

with Rule 604(d). On July 6, 2020, Sroka appeared in court and stated that defendant did not wish

to withdraw his plea but only to challenge his sentence. On that day, without any hearing on a

motion to reconsider sentence, Sroka filed a notice of appeal. On October 8, 2020, we granted

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defendant’s motion to withdraw the appeal, and we again remanded the cause “so that the trial

court may comply with this court’s mandate in [the previous appeal], including a new motion

hearing (and a ruling on the motion).” People v. Briseno-Guzman, No. 2-20-0423 (Oct. 8, 2020)

(unpublished minute order).

¶ 25 On the second remand, Sroka stood on Gifford’s motion to reconsider the sentence. She

filed a Rule 604(d) certificate, the body of which read as follows:

“1. I have consulted with the Defendant via telephone to ascertain the Defendant’s claim

of error in the entry of the plea of guilty and in the sentence;

2. I have consulted with the Defendant regarding his plea of guilty—he does not wish to

withdraw his plea of guilty, only to contest his sentence;

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

and the sentencing; and

4. I have made any amendments to the motion necessary for the adequate presentation of

any defects in those proceedings.”

¶ 26 On March 4, 2021, the trial court held a hearing on the motion to reconsider. Sroka stated

defendant had told her that he did not wish to withdraw his plea but only to contest his sentence.

Sroka adopted Gifford’s arguments from the original sentencing hearing, his motion to reconsider

sentence, and the hearing on the motion. She then argued briefly that defendant’s sentence should

be reduced. The State tersely argued that the record did not bear out defendant’s arguments.

¶ 27 Judge Walsh stated that she had not presided over the plea hearing, sentencing, or the

hearing on the motion to reconsider sentence. She continued:

“I’ve reviewed all the transcripts that were referenced as well as [the PSIR]. *** So just

for purposes of the record I’ve read the transcripts from October 23rd of 2019, December

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9th of 2019, December 2nd of 2019 *** and *** I’ve had an opportunity to review the

[PSIR] ***. And with that comes the fact that the Court reviewed the sentencing

parameters. I also reviewed what was presented in aggravation and mitigation, the

arguments of counsel, the *** the Victim Impact Statement and *** Judge Brennan’s

ruling.

Based on everything that’s been presented before the Court I am denying the

Defendant’s motion to reconsider the five[-]year sentence.”

¶ 28 Defendant appealed.

¶ 29 II. ANALYSIS

¶ 30 On appeal, defendant contends that (1) despite her certificate of compliance with Rule

604(d), Sroka’s performance shows that she did not fulfill her responsibilities to defendant; and

(2) in part for this reason, the hearing on the motion to reconsider sentence was essentially an

empty ritual. Both contentions raise questions of law that we review de novo. See People v.

Johnson, 2019 IL 122956, ¶ 22. We consider them in turn.

¶ 31 Defendant contends first that, although Sroka filed a facially valid certificate of compliance

with Rule 604(d), the record refutes her averments in part. He notes that we may consult the record

to determine whether she actually fulfilled her obligations under the rule. See People v. Bridges,

2017 IL App (2d) 150718, ¶ 8. Defendant argues that Gifford’s motion to reconsider sentence did

not adequately raise any claim of error and Sroka merely stood on it instead of amending it. He

argues further that, because nothing from the original proceedings showed that Gifford fulfilled

his obligations under Rule 604(d), we may not presume that, by standing on the arguments that

Gifford had raised at the original hearing, Sroka fulfilled her obligations either.

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¶ 32 Gifford’s motion was minimally sufficient to raise only one serious claim of error: that the

sentence was excessive. Of the four contentions, the first was based on a misperception, which

Gifford later conceded; the second and third raised the excessiveness issue in bare-bones form,

and the fourth made no sense legally. At the hearing, Gifford made only a minimal effort to argue

that the sentence was excessive. Sroka’s decision to stand on the slight base afforded by Gifford

gives color to defendant’s contention that she did not amend the original motion as needed or argue

in support of it to the degree to which she was obligated.

¶ 33 Nonetheless, even assuming these shortcomings to be genuine, we cannot say that they

merit another remand. Because this is an appeal from a second remand, Sroka’s failure to comply

with Rule 604(d) does not automatically require a third remand and new proceedings. See People

v. Shirley, 181 Ill. 2d 359, 369-70 (1998). Instead, there must be “[a] reason why this court should

remand the cause for a third hearing on defendant’s claim that his sentence [was] excessive.” Id.

at 370. Under the particular facts of this case, that reason is not present. No benefit to defendant

would accrue from even the most scrupulous adherence to Rule 604(d).

¶ 34 On appeal here, defendant does not raise any ground for a motion to reconsider sentence

other than excessiveness. He does not contend that Sroka could have raised any other issues, such

as a mistake of law or the use of an improper factor in sentencing. (Although defendant faults

Sroka for calling no witnesses at the hearing on the motion, motions to reconsider sentence do not

routinely include the introduction of new evidence. More important, defendant does not suggest

what new evidence Sroka could have introduced or how it might have affected the court’s

decision.)

¶ 35 The excessiveness argument had no realistic chance of prevailing even with more thorough

presentation. After considering all of the pertinent factors in aggravation and mitigation, Judge

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Brennan imposed a sentence of five years’ imprisonment, four years more than the minimum but

seven years less than the maximum. Defendant contends that the five-year sentence was “a year

more than even the State recommended at the original sentencing hearing.” That is not accurate.

The State recommended a sentence of “not less than four years” in prison. (Emphasis added.)

That does not translate into recommending only four years, as defendant’s assertion implies. Thus,

defendant’s sentence was no more than what the State recommended.

¶ 36 Sroka raised only the excessiveness claim. Defendant does no more on appeal. Moreover,

the facts on which defendant relies are, in substance, no different from those cited by Sroka—and

firmly rejected by both trial judges. Defendant now relies on his slight prior record and his

employment history. However minimally, Sroka also argued that defendant’s slight criminal

record and his employment history militated against the five-year sentence. And, however

minimally, she (and Gifford before her) raised these grounds for reducing defendant’s sentence.

The court considered them seriously and rejected them. The facts of record that relate to

sentencing have never been complicated or seriously in dispute. There is no reason to entertain a

serious belief that remanding the cause again, based on Sroka’s performance, would make a

substantive difference. Therefore, we reject defendants first ground for reversal.

¶ 37 We turn to defendant’s second ground for reversal. He argues that the hearing on Sroka’s

motion was so perfunctory as to require a third remand. Defendant relies on our statement that “a

defendant seeking to withdraw his plea is entitled to a hearing that is meaningful, but only in the

very limited sense that it is not a mere charade performed for the purpose of reinstating an appeal.”

(Emphasis in original.) People v. Tejada-Soto, 2012 IL App (2d) 110188, ¶ 14. Here, we cannot

say that the hearing on remand was a mere charade. Again, we note that the facts of record that

were pertinent to whether the sentence was excessive were neither extensive nor seriously in

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dispute. Although Sroka’s presentation of the excessiveness argument was terse, to say the least,

the trial court’s consideration of the issue was far from perfunctory. The judge read the record,

including the transcripts of the sentencing hearing and the original motion to reconsider sentence

and the PSIR. The judge also considered the pertinent factors in aggravation and mitigation and

the range of available sentences. See id. (trial court’s review of entire file militated against

conclusion that “hearing was *** purely formal exercise”); People v. Whitmore, 313 Ill. App. 3d

117, 119 (2000) (similar). Thus, the narrowly tailored rule that defendant invokes does not apply

here. We reject defendant’s second ground for reversal.

¶ 38 III. CONCLUSION

¶ 39 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.

¶ 40 Affirmed.

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