People v. Dunkleberger

2024 IL App (3d) 230674-U

• Court: Appellate Court of Illinois
• Decided: October 10, 2024
• Docket: 3-23-0674
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2024 IL App (3d) 230674-U

Order filed October 10, 2024 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) La Salle County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-23-0674 v. ) Circuit No. 22-CF-389 ) BRANDON A. DUNKLEBERGER, ) Honorable ) Howard C. Ryan Jr., Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE PETERSON delivered the judgment of the court. Justice Brennan concurred in the judgment. Presiding Justice McDade specially concurred. ____________________________________________________________________________

ORDER

¶1 Held: Defendant failed to establish that the court committed plain error by accepting his guilty plea without admonishing him as to the elements of the offense or ensuring on the record that defense counsel had done so.

¶2 Defendant, Brandon A. Dunkleberger, appeals his conviction for aggravated domestic

battery. He argues that the court committed plain error by accepting his guilty plea when the court

failed to admonish him as to the elements of aggravated domestic battery and the record did not

affirmatively show that defense counsel explained the elements to him. We affirm. ¶3 I. BACKGROUND

¶4 The State charged defendant with aggravated domestic battery (720 ILCS 5/12-3.3(a-5)

(West 2022)) and domestic battery (id. § 12-3.2(a)(1)). Defendant retained private counsel. On the

date defendant was scheduled to appear in court for a bench trial, the State advised the court that

defendant was going to plead guilty to aggravated domestic battery and that it would dismiss the

domestic battery charge. The State set forth the terms of the plea, including that it was a blind plea

but that the State would cap its sentencing request at four years’ imprisonment.

¶5 The court asked defendant if he understood what was happening and defendant responded

affirmatively. The court stated that it understood that defendant wanted to plead guilty to

aggravated domestic battery which is a Class 2 felony. The court set forth the potential sentencing

range. The court further advised defendant of potential consequences of pleading guilty. It then

asked defendant if he understood everything that the court set forth and defendant replied that he

did. The court continued explaining that defendant did not have to plead guilty and advised

defendant of the rights he was giving up. The court again inquired whether defendant understood,

and defendant confirmed that he did. The court asked if defendant had any questions and defendant

replied that he did not. The court confirmed that defendant had been represented by counsel and

asked if defendant had any complaints about counsel. Defendant responded “No, Your Honor.”

¶6 The State then provided the factual basis. The State advised that Katelynn Buchanan would

testify that she had been in a dating relationship and had a child with defendant. Buchanan and

defendant had resided together. On the relevant date, defendant struck Buchanan, grabbed her by

the throat, and held her down by her throat. While being choked, Buchanan found it difficult to

breathe, her face became hot and flushed, she had difficulty seeing and her vision became blurry.

2 Defendant’s counsel agreed that if the State called witnesses they would testify competently and

substantially as outlined by the State, which would be sufficient to support a conviction.

¶7 The court confirmed that no promises had been made to defendant other than those that

were set forth in court. The court asked if defendant was pleading guilty voluntarily and as a result

of his decision. Defendant responded affirmatively. The court found that defendant understood the

charges against him and the possible punishment. The court further found that there was a factual

basis for the plea and that the plea was voluntary. The court accepted the plea. The matter was set

for sentencing. Following a hearing, the court sentenced defendant to three years’ imprisonment.

The court advised defendant that he had the right to appeal and that prior to noticing an appeal he

must file a motion to withdraw his plea. The court further advised that in the motion he must set

out all of the reasons why he wanted to withdraw his plea and that any reasons not stated would

be waived on appeal.

¶8 Defendant filed, as a self-represented litigant, a motion to withdraw his guilty plea, arguing

that his attorney promised him that he would receive probation if he pled guilty. Defendant’s

private counsel withdrew, and the public defender was appointed to represent defendant. Counsel

filed an Illinois Supreme Court Rule 604(d) certificate and a motion to withdraw guilty plea. The

motion argued that defendant was promised by his attorney that if he entered the blind plea he

would receive probation and that he would not have entered into the plea if his attorney had not

made that promise. The court held a hearing on the motion and the motion was denied. Defendant

appeals.

3 ¶9 II. ANALYSIS

¶ 10 Defendant argues that his plea should be vacated because the court did not properly

admonish him under Illinois Supreme Court Rule 402(a) (eff. July 1, 2012). 1 Specifically, he

argues that pursuant to the Supreme Court’s opinion in Bradshaw v. Stumpf, 545 U.S. 175 (2005),

the court is required to either inform defendant of the elements of the offense or ensure the record

reflects that counsel did so. Defendant acknowledges that he failed to raise this issue in his motion

to withdraw his guilty plea, but argues that the failure to comply with the requirements of Rule

402(a) can be reviewed as second prong plain error. See e.g., People v. Davis, 145 Ill. 2d 240, 250-

51 (1991) (stating that “under Illinois Supreme Court Rule 604(d), any issue not raised by the

defendant in his motion to withdraw the plea of guilty shall be deemed waived upon appeal” but

that the failure to properly admonish a defendant under Rule 402 can amount to plain error).

¶ 11 Under the plain error doctrine, a clear or obvious error may excuse a procedural default.

People v. Hammons, 2018 IL App (4th) 160385, ¶ 17. However,

“under the plain-error doctrine, the existence of an error is not enough to avert a

forfeiture, even if the error is genuinely an error. Not even reversible error is

enough. *** The plain error doctrine is not a backdrop to catch merely arguable

issues that could have been raised in the trial court. The error had to be manifest or

patent.” Id.

1 Defendant’s argument appears to vacillate between arguing that the court failed to properly admonish him under Rule 402(a) and that his plea was otherwise not knowingly and voluntarily made. Specifically, he seems to make some argument that the record must show that the elements of the offense were explained to him aside from the requirements of Rule 402(a). He also argues that Rule 402(a) requires a showing that the elements were explained to him. However, as defendant sets forth his standard of review based upon compliance with a supreme court rule and makes his plain error argument based upon compliance with Rule 402(a), we frame the issue and consider it as whether the court complied with Rule 402(a).

4 ¶ 12 Under the second prong of the plain error doctrine, if a clear or obvious error occurred, the

court must then determine if the “ ‘error is so serious that its consideration is necessary to preserve

the integrity and reputation of the judicial process.’ ” Id. ¶ 42 (quoting People v. Hampton, 149 Ill.

2d 71, 102 (1992)). The concern is whether defendant has suffered a serious injustice. Id.

“Defendant bears the burden of persuasion in showing both that a clear and obvious error exists

and that one of the prongs is satisfied.” People v. Marcos, 2013 IL App (1st) 111040, ¶ 58.

¶ 13 Illinois Supreme Court Rule 402(a) (eff. July 1, 2012) requires the court, prior to accepting

a guilty plea, to admonish defendant and determine that he understands, inter alia, the nature of

the charge. “[T]he trial court is not required to apprise a defendant of the elements of the crimes

with which he is charged before accepting a guilty plea.” People v. Jackson, 199 Ill. 2d 286, 296

(2002).

¶ 14 Defendant faults the court for failing to explain the elements of the offense to him, in light

of the Supreme Court’s decision in Stumpf. However, based on the plain language of Rule 402(a),

the court is only required to ensure defendant understands the nature of the offense and here, the

court clearly advised the defendant that he was charged with aggravated domestic battery. The

court further asked if defendant understood, and defendant acknowledged he did. Our supreme

court has expressly stated that the court is not required to apprise a defendant of the elements of

the offense prior to accepting a guilty plea. See Jackson, 199 Ill. 2d at 296. Additionally, this court

has rejected a similar argument that Stumpf requires the court to advise defendant of the elements

in People v. Stone, 2018 IL App (3d) 160171, ¶ 17. This court stated that “Stumpf therefore rejects

defendant’s assertion that the court must explain the elements of each charge before accepting a

guilty plea. Instead, Stumpf indicates that this obligation is best left to defense counsel.” Id.

Additionally, we reject defendant’s contention that the court’s failure to ensure that counsel

5 explained the elements of the offense to defendant was somehow a violation of Rule 402(a). Rule

402(a) simply does not contain any such requirement. Thus, defendant has failed to establish any

error in the court’s Rule 402(a) admonishments.

¶ 15 Further, we disagree with defendant’s argument that, based upon the language in Stumpf,

“the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects

that the nature of the charge and the elements of the crime were explained to the defendant by his

own, competent counsel.” Stumpf requires an affirmative showing in the record that counsel

explained the elements of the offense to defendant in order to have a valid guilty plea. (Emphasis

added.) Stumpf, 545 U.S. at 183. The Supreme Court previously stated that “it may be appropriate

to presume that in most cases defense counsel routinely explain the nature of the offense in

sufficient detail to give the accused notice of what he is being asked to admit.” (Emphasis added.)

Henderson v. Morgan, 426 U.S. 637, 647 (1976). This leads to the conclusion that the

constitutional prerequisites may be satisfied in various ways. Based on the foregoing, the court’s

failure to ensure that the record reflected that counsel explained the elements of the offense to

defendant, was not a clear or obvious error. Thus, there was no plain error and defendant’s

arguments remain procedurally defaulted.

¶ 16 III. CONCLUSION

¶ 17 The judgment of the circuit court of La Salle County is affirmed.

¶ 18 Affirmed.

¶ 19 PRESIDING JUSTICE McDADE, specially concurring:

¶ 20 I concur with the majority’s decision to affirm the circuit court’s denial of Dunkleberger’s

motion to withdraw guilty plea. I write separately, however, because I do not join in the majority’s

analysis in paragraph 15. I fail to see how a citation to a case that was decided 30 years before

6 Stumpf somehow provides support for the vague conclusion that “the constitutional prerequisites

may be satisfied in various ways” (supra ¶ 15), especially when the majority makes no attempt to

specify what those “ways” may be or how they apply in this case.

¶ 21 I emphasize that at the hearing on Dunkleberger’s motion to withdraw guilty plea, whether

he was informed by defense counsel of the elements of the charged offenses was not at issue.

Rather, the sole issue addressed at the hearing was whether Dunkleberger pled guilty only after

receiving a promise from counsel that he would receive probation instead of prison time.

Accordingly, when counsel testified, he was not asked whether he informed Dunkleberger of the

elements of the charged offenses. Thus, even if Dunkleberger is correct that the law requires the

record to reflect that defense counsel so informed him, his failure to raise the issue in the circuit

court has deprived this court of being able to determine whether counsel in fact did so. The record

in this case does not show, either way, whether counsel informed Dunkleberger of the elements of

the charged offenses. In the absence of that information, it is impossible to find that error in fact

occurred. See People v. Bannister, 232 Ill. 2d 52, 71 (2008) (holding that when it has not been

shown that error in fact occurred, a defendant is not entitled to relief under the plain-error doctrine).