People v. Erby

2023 IL App (3d) 220400, 236 N.E.3d 1079

• Court: Appellate Court of Illinois
• Decided: August 7, 2023
• Docket: 3-22-0400
• Status: Published

Opinion

2023 IL App (3d) 220400

Opinion filed August 7, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-22-0400 v. ) Circuit No. 20-CF-1550 ) WILLIE J. ERBY, ) Honorable ) Carmen J. Goodman, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE ALBRECHT delivered the judgment of the court, with opinion. Justice Hettel concurred in the judgment and opinion. Presiding Justice Holdridge specially concurred, with opinion. ____________________________________________________________________________

OPINION

¶1 After entering a guilty plea, defendant, Willie J. Erby, was convicted of theft. Defendant

was sentenced to 24 months’ conditional discharge and ordered to pay $15,321 in restitution. On

appeal, defendant argues the amount of restitution was unsupported by the evidence. We dismiss

the appeal.

¶2 I. BACKGROUND

¶3 Defendant was charged with theft (720 ILCS 5/16-1(a)(1)(A) (West 2020)) and criminal

damage to property (id. § 21-1(a)(1)). The charging instrument alleged defendant knowingly obtained unauthorized control over property belonging to M & M Mars DHL Supply Chain (DHL),

specifically packs of candy bars, and intended to permanently deprive the company of use or

benefit of the property. As part of a negotiated plea agreement, the State dismissed the criminal

damage to property charge and defendant pled guilty to theft in exchange for a sentence of two

years’ conditional discharge, court costs, and a hearing to determine restitution. Defendant

affirmed his plea of guilty after the circuit court explained he would be agreeing to the imposition

of an unspecified amount of restitution, which would be determined at a separate hearing.

¶4 At the restitution hearing, the State requested $15,321.85. This amount reflected the total

value of nine pallets containing 30-pack cases of Mars candy bars alleged to have been damaged

by defendant due to theft. DHL regional security manager Nicole Strickland testified for the State

that she had reviewed photograph stills taken from video surveillance of the warehouse where

defendant worked. The surveillance video showed that on March 22, 2020, defendant entered the

warehouse with an empty gym bag and then left with the bag full and partially unzipped, revealing

a blue box inside. The blue box was identified as a 30-pack case of Mars candy bars. Subsequent

inventory checks indicated nine pallets loaded with that particular product had recently been

written off as damaged and destroyed due to missing items. Additional surveillance footage from

several other dates showed defendant entered the warehouse with an empty gym bag and left with

the bag appearing to be full. On those occasions, the contents inside the bag were not visible.

¶5 On cross-examination, Strickland confirmed there was no video surveillance showing

defendant at the pallets. Strickland further testified that one pallet was found in the wrong location

in the warehouse a month after it was written off as damaged. Strickland explained that the

warehouse was approximately 1.2 or 1.3 million square feet and with the amount of volume

handled there a pallet could be misplaced within the warehouse and not be discovered for a period

2 of time. After this explanation, the court ended the cross-examination and ordered $15,321 in

restitution.

¶6 Defendant filed a motion to reconsider sentence, arguing the State failed to present

sufficient evidence to support the amount of restitution and the court erred in ruling before defense

counsel finished its cross-examination of Strickland or presented any witnesses, including

defendant. The court denied defendant’s motion, and defendant appealed. We remanded for

compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). People v. Erby, No. 3-21-

0600 (Ill. Apr. 18, 2022) (unpublished minute order). Defendant filed an amended motion to

reconsider sentence, again challenging the restitution order on the same grounds as the previous

motion, which was denied. Defendant appealed.

¶7 II. ANALYSIS

¶8 On appeal, defendant argues that the circuit court erred in ordering a restitution value that

was unsupported by the evidence presented. At the outset, the State argues this appeal should be

dismissed, as defendant’s challenge to the restitution amount is essentially an excessive sentence

challenge and defendant failed to file a motion to withdraw his guilty plea as required under Rule

604(d), thus barring him from contesting restitution on appeal. See Ill. S. Ct. R. 604(d) (eff. July

1, 2017). We review issues regarding proper application of Rule 604(d) de novo. People v.

Robinson, 2021 IL App (4th) 200515, ¶ 11.

¶9 Rule 604(d) provides, in pertinent 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,

3 or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate

the judgment.

No appeal shall be taken upon a negotiated plea of guilty challenging the

sentence as excessive unless the defendant, within 30 days of the imposition of

sentence, files a motion to withdraw the plea of guilty and vacate the judgment. For

purposes of this rule, a negotiated plea of guilty is one in which the prosecution has

bound itself to recommend a specific sentence, or a specific range of sentence, or

where the prosecution has made concessions relating to the sentence to be imposed

and not merely to the charge or charges then pending.” Ill. S. Ct. R. 604(d) (eff.

July 1, 2017).

Compliance with Rule 604(d) is a condition precedent to an appeal from a plea of guilty, and

dismissal is proper when this condition is not met. People v. Wilk, 124 Ill. 2d 93, 107 (1988). In

challenging a sentence pursuant to a negotiated plea agreement, a defendant must first move to

withdraw the guilty plea and vacate the judgment. People v. Evans, 174 Ill. 2d 320, 332 (1996).

¶ 10 The State relies on People v. Johnson, 2019 IL 122956, to reinforce its assertion that

defendant’s challenge to the restitution amount as unsupported by the evidence is an excessive

sentence claim. In Johnson, defendant argued his challenge based on improper sentencing factors

was “one of constitutional dimension that implicates due process and fundamental fairness” and

thus was distinctive from an excessive sentence claim. Id. ¶ 36. The supreme court rejected this

distinction for the purposes of Rule 604(d), holding that, if sentencing challenges were allowed to

be reframed as constitutional due process issues to avoid the rule, its requirements would

consequently be rendered superfluous. Id. ¶ 41. The Johnson court noted its prior decisions only

4 exempted application of Rule 604(d) to negotiated pleas in limited instances where sentences were

challenged as statutorily unauthorized or void ab initio as facially unconstitutional. Id. ¶ 35.

¶ 11 Similar to Johnson, we find defendant’s attempt to reframe his sentencing challenge

unpersuasive. It is clear that restitution is a sentencing issue. See People v. Birge, 2021 IL 125644,

¶ 47 (“[a]s a component of the sentence, a trial court may order a defendant to pay restitution for

an economic loss caused by his criminal conduct”); People v. Higgins, 2014 IL App (2d) 120888,

¶ 6. Here, based on the circuit court’s admonishment, defendant knowingly and voluntarily entered

a negotiated plea of guilty that included, as a component of his sentence, an undetermined amount

of restitution. See People v. Odio, 2023 IL App (3d) 220184-U, ¶ 51 (where the plea hearing

clearly indicated the terms of the agreement, defendant was fully aware the negotiated plea

included an unknown amount of restitution to be determined at a hearing). In an effort to

circumvent the requirements for contesting his negotiated plea sentence under Rule 604(d),

defendant denies the characterization of his appeal as an excessive sentence claim and instead

unequivocally challenges the fairness of the restitution hearing. He argues that the restitution

ordered was unsupported by the State’s evidence and that the court improperly concluded the

hearing before defense counsel finished presenting evidence through cross-examination of the

State’s witness or calling his own witnesses. However, defendant’s assertion that the circuit court

erred in ordering restitution without sufficient evidentiary support is ultimately indistinguishable

from an excessive sentence argument because its premise asserts that, had the court not erred, the

amount of restitution would have been lower. See People v. Stone, 2023 IL App (4th) 220406-U,

¶ 31. As the court in Stone explained:

“Defendant is arguing that the State and the court deprived him of a fair

sentencing hearing by, respectively, failing to present evidence of the actual

5 economic loss suffered in this case and accepting the amount presented by the

State. In effect, he is arguing his sentence is excessive because had the court not

erred, it would have had no basis to impose restitution. In other words,

‘[d]efendant attempts to couch his claim in the language of an appeal of the trial

court’s denial of his motion to withdraw his plea, but *** its substance remains

the same—defendant’s dissatisfaction with his sentence and a claim that *** it

exceeds what he should have received.’ ” Id. (quoting People v. Millsap, 2022 IL

App (4th) 210192, ¶ 22).

¶ 12 Like in Stone, defendant contends he was deprived of a fair sentencing hearing when the

circuit court accepted the restitution amount presented by the State despite the lack of sufficient

evidence supporting the actual economic loss suffered. See id. This argument, at its core, still

claims dissatisfaction with the sentence, as it exceeds what defendant believes he should have

received. See id. Defendant’s challenge to his sentence as excessive is barred because defendant

did not comply with the Rule 604(d) requirements for negotiated pleas to file a motion to withdraw

his guilty plea within 30 days of the imposition of restitution. Therefore, we must dismiss the

appeal. See Robinson, 2021 IL App (4th) 200515, ¶ 11.

¶ 13 In coming to this conclusion, we reject defendant’s reliance on People v. Hermann, 349

Ill. App. 3d 107, 114 (2004), for the proposition that a postplea motion to reconsider sentence

satisfies the requirements of Rule 604(d) when it does not challenge the sentence as excessive or

attempt to alter the plea agreement. In Hermann, the defendant appealed the imposition of

restitution relating to a charge that had been dismissed as part of the negotiated plea, arguing the

restitution was void as the circuit court exceeded its statutory sentencing authority. Id. at 108. The

Hermann court held that filing a motion to reconsider sentence satisfies Rule 604(d) for void

6 sentencing claims because the issue does not challenge the sentence as excessive and does not seek

to change the terms of the plea agreement. Id. at 113-14. Here, defendant does not dispute the

circuit court’s statutory authority to impose restitution as a component of his sentence. Moreover,

after our supreme court’s decision in People v. Castleberry, 2015 IL 116916, ¶ 19, it is no longer

valid for a defendant to argue that a sentence is void for failing to conform to a statutory

requirement. People v. Thompson, 2015 IL 118151, ¶ 33.

¶ 14 III. CONCLUSION

¶ 15 For the reasons stated, we dismiss the appeal.

¶ 16 Appeal dismissed.

¶ 17 PRESIDING JUSTICE HOLDRIDGE, specially concurring:

¶ 18 I agree with the majority that the outcome here is correct considering the current state of

the law. However, I write separately to point out that the law requires an absurd and unjust result

as (1) the amount of restitution exceeded the charge to which the defendant pled and (2) the

evidence regarding the amount was lacking.

¶ 19 First, the defendant pled guilty to a charge of theft that, per the indictment, alleged the

value of the stolen candy bars exceeded $500 but did not exceed $10,000. The imposition of

restitution in the amount of $15,321 is considerably greater than the maximum amount contained

in the charge to which the defendant pled guilty. See People v. Bradford, 207 Ill. App. 3d 436,

438-39 (1991) (“trial court erred in ordering restitution in excess of the amount appearing in the

indictment”). Based on the inclusion of a dollar range representing the monetary losses in the

charging instrument, the defendant reasonably could have inferred when entering the negotiated

plea that the amount of restitution imposed at the hearing would fall within that range. Putting the

defendant on notice of a range here is relevant because “due process requires that it be evident

7 from the record that a defendant’s plea of guilty is entered with full knowledge of the

consequences.” People v. Whitfield, 217 Ill. 2d 177, 200 (2005). The equitable result would allow

the defendant to solely challenge this restitution amount as it was in excess of the amount appearing

in the indictment for the charge to which the defendant pled.

¶ 20 Second, the evidence in the record was insufficient to support the restitution ordered. In

ordering restitution, “the trial court must evaluate the actual costs incurred by the victim and cannot

rely on conjecture or speculation as to the amount to be awarded.” Birge, 2021 IL 125644, ¶ 48. It

is apparent from the record that the State did not present sufficient evidence to support the

restitution amount imposed. The defendant was definitively seen on surveillance video only once

with one box of candy bars. No other evidence was provided connecting the defendant to each of

the nine pallets alleged to be damaged. Strickland testified that it was normal for pallets to be

misplaced due to the large size of the warehouse. It is fundamentally unfair that the law now

precludes the defendant from challenging restitution when it exceeds the amount alleged in the

indictment and is unsupported by the evidence.

8 People v. Erby, 2023 IL App (3d) 220400

Decision Under Review: Appeal from the Circuit Court of Will County, No. 20-CF-1550; the Hon. Carmen J. Goodman, Judge, presiding.

Attorneys James E. Chadd, Santiago A. Durango, and Andrew J. Boyd, of for State Appellate Defender’s Office, of Ottawa, for appellant. Appellant:

Attorneys James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, for Thomas D. Arado, and Laura Bialon, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.