People v. Evans

2023 IL App (5th) 220313-U

• Court: Appellate Court of Illinois
• Decided: April 17, 2023
• Docket: 5-22-0313
• Status: Unpublished

Opinion

2023 IL App (5th) 220313-U NOTICE NOTICE Decision filed 04/17/23. The This order was filed under text of this decision may be NO. 5-22-0313 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, ) Macon County. ) v. ) No. 15-CF-1120 ) DARION EVANS, ) Honorable ) Thomas E. Griffith, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

¶1 Held: Cause affirmed where defendant’s guilty plea waived any constitutional challenge to his sentence.

¶2 Defendant, Darion Evans, appeals from the Macon County circuit court’s denial of his

petition for postconviction relief following a third-stage evidentiary hearing. On appeal, defendant

argues that postconviction counsel provided unreasonable assistance during the third-stage

hearing. For the reasons that follow, we affirm.

¶3 I. Background

¶4 On September 16, 2015, the State charged defendant by seven count information. Relevant

to this appeal, count IV alleged that defendant committed the offense of first degree felony murder

(720 ILCS 5/9-1(a)(3) (West 2014)). The State thereafter amended count IV charging defendant

1 with the offense of first degree murder (id.), wherein defendant, without lawful justification, while

committing or attempting to commit a forcible felony, armed robbery, used a dangerous weapon

upon Cesley Taylor and thereby caused the death of Cesley Taylor. 1 Defendant was 16 years old

at the time of the offense.

¶5 On August 30, 2017, the parties advised the circuit court that defendant would plead guilty

to amended count IV, first degree felony murder (id.). The State noted that it would strike the “gun

language” from that count. The State advised the court that this was a fully negotiated plea, wherein

defendant would receive a sentence of 45 years in prison followed by 3 years of mandatory

supervised release. All other counts would be dismissed. At the guilty plea hearing, the court noted

that People v. Reyes, 2016 IL 119271, was pending before the Illinois Supreme Court, and the

court expressed concern related to whether the juvenile sentencing statute could be applied

retroactively. As such, the parties continued the proceedings to investigate the specifics related to

juvenile sentencing rules.

¶6 On October 12, 2017, the parties appeared before the circuit court. The court admonished

defendant pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012). Relevant to this appeal,

the court admonished defendant that the “minimum sentence on the murder and attempt murder

charges would have been” 76 years. Following a conference off the record, the court indicated that

it needed “some time to think about the situation” where there were questions as to “whether or

not the Juvenile Sentencing Statute would apply.”

1 The original seven count information additionally charged defendant with three counts of first degree murder (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2014)), one count of attempted first degree murder (720 ILCS 5/8-4(a), (c)(1)(D); 9-1(a)(1) (West 2014)), and two counts of armed robbery (720 ILCS 5/18- 2(a)(4) (West 2014)). 2 ¶7 On November 17, 2017, the circuit court held a disposition hearing. Defendant waived a

trial by jury. The State advised that the parties entered into a fully negotiated plea agreement,

wherein defendant would plead guilty to first degree felony murder in exchange for the State’s

dismissal of all other charges. The State also recommended a sentence of 45 years in prison with

3 years of mandatory supervised release. The court accepted defendant’s guilty plea and dismissed

all other charges. The court entered a judgment of conviction and sentenced defendant to 45 years

in prison followed by 3 years of mandatory supervised release. Defendant did not move to

withdraw his plea, nor did he pursue a direct appeal.

¶8 On June 9, 2020, defendant filed a postconviction petition, arguing that the 45-year

sentence imposed upon him for an offense committed when he was 16 years old violated the eighth

amendment of the United States Constitution (U.S. Const., amend. VIII) as well as the

corresponding provisions of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). He also argued

that he received a de facto life sentence without consideration of his youth and attendant

circumstances.

¶9 The circuit court appointed counsel, moving the petition to the second stage. Appointed

counsel amended the petition, arguing that the Illinois Supreme Court’s decision in People v.

Buffer, 2019 IL 122327, impacted the constitutionality of defendant’s guilty plea. Specifically, the

amended petition argued that defendant’s 45-year sentence constituted a de facto life sentence.

The State responded, arguing, relevant to this appeal, that defendant’s guilty plea waived any issue

of whether defendant’s sentence was constitutional, pursuant to People v. Jones, 2021 IL 126432,

which at the time was pending before the Illinois Supreme Court.

¶ 10 At a hearing on May 19, 2021, the circuit court expressed concern that it would issue a

ruling on the petition that might conflict with the supreme court’s later decision. Therefore, the

3 court intentionally continued the case until it received guidance from the Illinois Supreme Court.

The court suggested that the parties proceed with the third-stage hearing after the Illinois Supreme

Court issued its decision in Jones. 2

¶ 11 Ultimately, on May 12, 2022, the circuit court held a third-stage hearing on defendant’s

amended petition for postconviction relief. Following a hearing wherein guilty plea counsel and

defendant testified, the court determined that defendant’s claim was waived pursuant to Jones,

where defendant entered into a fully negotiated guilty plea. In rendering its decision, the court

stated, “if Jones was not the current status of the law, I don’t believe I could probably make a

finding that the defendant was irreparably incorrigible with no hope of rehabilitation, and I

probably would have reduced the sentence to 40 years or shortly under the 40 years guideline.”

However, the court noted that “based on Jones, I don’t believe I have that option. That case is

exactly on point. They found waiver applied. I have to find that waiver applied here ***.”

¶ 12 This timely appeal followed.

¶ 13 II. Analysis

¶ 14 On appeal, defendant argues that postconviction counsel provided unreasonable assistance

during the third-stage evidentiary hearing where she failed to amend the petition to allege that

guilty plea counsel was ineffective when he advised defendant to plead guilty based on the

misapprehension that a 76-year sentence was the mandatory minimum sentence when it constituted

a de facto life sentence that could not be imposed without considering several factors in mitigation.

The State responds that pursuant to the Illinois Supreme Court’s holding in People v. Jones, 2021

IL 126432, defendant waived his challenge to his sentence, where he entered into a fully negotiated

2 The Illinois Supreme Court ultimately rendered its decision on December 16, 2021. 4 guilty plea and failed to timely challenge the plea. For the reasons that follow, we agree with the

State.

¶ 15 “It is well established that a voluntary guilty plea waives all non-jurisdictional errors or

irregularities, including constitutional ones.” People v. Townsell, 209 Ill. 2d 543, 545 (2004). In

determining whether a legal claim has been waived, courts should examine the particular facts and

circumstances of a case, and waiver principles should be construed liberally in favor of the

defendant. People v. Phipps, 238 Ill. 2d 54, 62 (2010). Further, “ ‘ “[w]aivers of constitutional

rights not only must be voluntary but must be knowing, intelligent acts done with sufficient

awareness of the relevant circumstances and likely consequences.” ’ ” People v. Stroud, 208 Ill.

2d 398, 403 (2004) (quoting People v. Johnson, 75 Ill. 2d 180, 187 (1979), quoting Brady v. United

States, 397 U.S. 742, 748 (1970)).

¶ 16 Waiver applies to a defendant’s claim pursuant to recent changes in the law set forth in

People v. Jones, 2021 IL 126432, and People v. Sophanavong, 2020 IL 124337. According to

Jones, 2021 IL 126432, ¶ 20, “[i]t is well established that a voluntary guilty plea waives all non-

jurisdictional errors or irregularities, including constitutional ones.” (Emphasis in original and

internal quotation marks omitted.) Sophanavong, 2020 IL 124337, ¶ 33 (quoting Townsell, 209 Ill.

2d at 545). “[P]lea agreements are contracts, and principles of waiver apply equally to them.”

Jones, 2021 IL 126432, ¶ 21 (citing People v. Absher, 242 Ill. 2d 77, 87 (2011)).

¶ 17 Recently, in Jones, the Illinois Supreme Court considered whether a defendant’s guilty plea

precluded a sentencing challenge under Miller v. Alabama, 567 U.S. 460 (2012). Jones, 2021 IL

126432. There, the defendant was charged with multiple offenses, including first degree murder,

arising from the deaths of an elderly couple during a 1999 home invasion. Id. ¶ 3. The defendant

was 16 years old at the time he committed the offenses. Id. In 2000, the defendant, then age 17,

5 entered into a fully negotiated plea agreement with the State in which the defendant would plead

guilty to one count each of first degree murder and residential burglary and two counts of armed

robbery in exchange for the dismissal of the remaining charges and concurrent sentences of 50

years for murder, 30 years for each armed robbery count, and 15 years for residential burglary. Id.

¶ 4. The defendant waived the preparation of a presentence investigation report and a hearing on

mitigating and aggravating factors, and the trial court entered judgment and sentence consistent

with the plea agreement. Id. ¶ 5.

¶ 18 Before our supreme court, the defendant argued that the sentencing scheme in place at the

time of his guilty plea violated the eighth amendment under Miller because if he had gone to trial

and been convicted of committing two murders, he would have been subject to a mandatory life

sentence. Id. ¶ 15. He further argued that in order to comply with Miller, the trial court was required

to use its discretion before imposing a life sentence upon a juvenile offender. Id. Since the

mandatory life sentence precluded any discretion by the trial court, the defendant maintained that

his sentence violated the eighth amendment as applied to him. Id. The defendant conceded that he

was not sentenced under that statutory scheme, but maintained that “when he entered into the plea

agreement with the State, he did not anticipate that the 50-year prison term stipulated in it would

later be declared to be a de facto life sentence that required the trial court’s use of discretion and

consideration of his youthful characteristics and rehabilitative potential.” Id. ¶ 19.

¶ 19 Our supreme court rejected the defendant’s arguments, noting that the parties all

understood the law applicable at the time of the plea, and thus, “[t]he crux of [the defendant’s]

claim is that none of [the parties] knew that the Supreme Court would later change the criteria for

reviewing the constitutionality of the applicable law.” Id. The supreme court then considered the

defendant’s plea agreement and pointed out that a voluntary guilty plea waives “all non-

6 jurisdictional errors or irregularities, including constitutional ones.” (Emphasis in original and

internal quotation marks omitted.) Id. ¶ 20 (quoting Sophanavong, 2020 IL 124337, ¶ 33, quoting

Townsell, 209 Ill. 2d at 545). The court further noted that plea agreements are a contract and the

principles of waiver apply equally to them. Id. ¶ 21. The court reasoned that guilty pleas allow

defendants to gain a present benefit in exchange for the risk of losing out on future favorable legal

developments. Id.

¶ 20 In rejecting the defendant’s claims, our supreme court pointed out that the trial court was

not required to accept the parties’ fully negotiated plea agreement, which “necessarily constituted

an exercise of its discretion” with respect to the defendant’s sentence. Id. Therefore, the Jones

court held that the defendant’s constitutional claims were not cognizable under Miller and the trial

court did not err in denying the defendant’s motion for leave to file a successive postconviction

petition. Id. ¶ 28. We find our supreme court’s holding in Jones dispositive to defendant’s claim

before us. Based on this recent precedent, defendant’s claim is waived.

¶ 21 Here, defendant voluntarily entered into a negotiated plea agreement in exchange for the

dismissal of serious additional charges against him. In addition, the State agreed to recommend a

sentence of 45 years’ imprisonment. Defendant failed to file a motion to withdraw a guilty plea,

nor did he file a direct appeal. See Sophanavong, 2020 IL 124337, ¶ 22 (“Moreover, ‘[u]pon appeal

any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea

of guilty and vacate the judgment shall be deemed waived.’ ” (quoting Ill. S. Ct. R. 604(d) (eff.

July 1, 2017))); see also People v. Evans, 174 Ill. 2d 320, 329 (1996) (“Any issue not raised in the

motion to reconsider or to withdraw the plea shall be deemed waived.”).

¶ 22 Defendant argues that his claim is viable, “regardless of Jones.” Specifically, defendant

argues that he was prejudiced, particularly where the circuit court stated that it may have reduced

7 defendant’s sentence to “40 years or shortly under the 40 years guideline.” We disagree, as this

case presents precisely the type of collateral claim our Illinois Supreme Court intends to decline

to extend relief, where a defendant knowingly entered into a negotiated plea and failed to raise the

issue in either a motion to reconsider or to withdraw the plea. Thus, defendant’s knowing and

voluntary guilty plea waived any constitutional challenge, as envisioned in recent supreme court

precedent set forth in Sophanavong, 2020 IL 124337, ¶ 33, and Jones, 2021 IL 126432, ¶ 21.

¶ 23 For these reasons, we affirm the circuit court’s denial of defendant’s third-stage

postconviction petition, where defendant’s claim is waived.

¶ 24 III. Conclusion

¶ 25 For the foregoing reasons, the judgment of the circuit court of Macon County is affirmed.

¶ 26 Affirmed.