People v. Gray

2022 IL App (4th) 190837-U

• Court: Appellate Court of Illinois
• Decided: February 7, 2022
• Docket: 4-19-0837
• Status: Unpublished

Opinion

NOTICE This Order was filed under 2022 IL App (4th) 190837-U FILED February 7, 2022 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-19-0837 th 4 District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County RALPH C. GRAY, ) No. 12CF135 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Harris and Holder White concurred in the judgment.

ORDER ¶1 Held: Defendant waived any challenge to his sentence, other than a jurisdictional challenge, by knowingly and voluntarily pleading guilty pursuant to a plea agreement. As well, defendant failed to allege the gist of any constitutional claim that his attorney’s sentencing argument constituted ineffective assistance of counsel, or that the sentence was illegally imposed for lack of a factual basis. Thus, the trial court’s summary dismissal of defendant’s postconviction petition was appropriate.

¶2 On December 12, 2012, defendant, Ralph C. Gray, pleaded guilty to aggravated

kidnapping (720 ILCS 5/10-2(a)(3) (West 2012)), a Class X felony, pursuant to a negotiated

disposition. At the time of the offense, defendant was 17 years old. The trial court sentenced

defendant to 20 years of incarceration. Defendant did not file a posttrial motion or a direct appeal.

On November 4, 2019, defendant filed a pro se postconviction petition, which the court summarily

dismissed at the first stage as frivolous and without merit. Defendant appeals that dismissal,

submitting his postconviction petition stated the gist of various constitutional claims, including that his guilty plea was obtained under the threat of a now unconstitutional de facto life sentence

and that the 20-year sentence was unconstitutional as he was 17 years old at the time of the offense.

Defendant contends the court should have conducted further proceedings on his postconviction

petition. Because defendant plead guilty and did not allege any misconduct jeopardizing the

voluntary and knowing nature of his plea or any jurisdictional deficiency, and otherwise failed to

state the gist of any other constitutional claim, we affirm.

¶3 I. BACKGROUND

¶4 In the latter half of 2001, when defendant was 17 years old, he and two others

physically attacked an Australian researcher who was visiting Champaign, Illinois. After the initial

attack, defendant and the others forced the victim into their vehicle and drove to a rural location.

They repeatedly beat the victim until he lost consciousness, robbed him, and stripped off his

clothes. Eventually, they dumped him in a farm field. They broke the victim’s nose, an eye socket,

vertebrae, nine teeth, and caused a brain hemorrhage. Defendant had approximately three weeks

earlier been released from the custody of the Department of Juvenile Justice for robbing a couple

who had offered him a ride so he did not have to walk in below-freezing weather.

¶5 The State charged defendant with aggravated kidnapping (720 ILCS 5/10-2(a)(3)

(West 2012)) and robbery (720 ILCS 5/18-1 (West 2012)). On December 12, 2012, defendant

pleaded guilty to aggravated kidnapping, and the State dismissed the robbery count, pursuant to a

plea agreement whereby the State agreed to seek no more than a 20-year sentence. The trial court

sentenced defendant to 20 years in prison, plus 3 years of mandatory supervised release. Defendant

did not file a motion seeking to withdraw his guilty plea or seeking other relief, and did not take a

direct appeal.

-2- ¶6 On November 4, 2019, defendant filed a pro se postconviction petition which

alleged (1) his plea with a negotiated cap of 20 years violated due process because he entered into

the plea due to threats of a now unconstitutional de facto life sentence of 60 years; (2) his plea

violated due process because the court accepted it without a factual basis, his attorney having

stipulated to the factual basis in a codefendant’s case; (3) his counsel was ineffective at sentencing

because the attorney contradicted the mitigating evidence and did not ask for anything less than

the 20-year cap the parties agreed to; and (4) the 20-year sentence violated the eighth amendment

and the proportionate penalties clause of the Illinois Constitution because the trial court did not

account for defendant’s youth and rehabilitative potential.

¶7 On November 8, 2019, the trial court summarily dismissed defendant’s petition in

a written order. The court found (1) the petition was “frivolous” and “patently without merit”;

(2) the State had indicated it would seek a jury instruction at trial on the “heinous and brutal

behavior indicative of wanton cruelty” and that the trier of fact could have made such a

determination based on the facts; and (3) that the 20-year cap and sentence was an “excellent

disposition” and defense counsel “did the best he could” given the “overwhelming evidence” of

defendant’s “depravity.”

¶8 From the order summarily dismissing the postconviction conviction, defendant

appealed.

¶9 II. ANALYSIS

¶ 10 A. Review of Summary Dismissals and Standard of Review

¶ 11 The trial court at the first stage of a postconviction proceeding must review the

defendant’s petition and dismiss the petition if the court determines it is frivolous or patently

without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018). Because most often the petition is pro se,

-3- the burden on the defendant is lower in order to give an indigent defendant a meaningful

opportunity to present the claims. People v. Porter, 122 Ill. 2d 64, 73 (1988). A defendant does

not have to cite any authority or construct a legal argument. Id. Construed liberally, the defendant’s

petition must only state the “gist” of a constitutional claim to avoid dismissal at the first stage.

People v. Edwards, 197 Ill. 2d 239, 244 (2001) (quoting People v. Gaultney, 174 Ill. 2d 410, 418

(1996)). This standard presents a “low threshold,” requiring only “a limited amount of detail.”

Gaultney, 174 Ill. 2d at 418. The defendant is not required to flesh the claim out “in its entirety.”

Edwards, 197 Ill. 2d at 244. Further, forfeiture of a defendant’s claims not raised on a direct appeal

does not apply if the claims are based on errors outside the record. People v. Blair, 215 Ill. 2d 427,

451 (2005).

¶ 12 We review a dismissal of a postconviction petition at the first stage de novo.

Edwards, 197 Ill. 2d at 247.

¶ 13 B. Defendant’s Claims Based on His Age at the Time of the Offense

Were Waived by His Guilty Plea

¶ 14 Defendant alleges on appeal the allegations in his postconviction petition satisfied

the first-stage pleading requirements in several manners. We are first concerned with the

contentions that the guilty plea violated due process because it resulted from the threat of what is

now an unconstitutional de facto life sentence, and that the 20-year sentence is unconstitutional

because the trial court failed to adequately consider defendant’s youthful characteristics.

Defendant alleged (1) that his attorney and the trial court “threatened” him with a possible sentence

of 60 years; (2) that such a sentence was a de facto life sentence, and he was 17 years old at the

time of the offense; and (3) that the threat and ensuing sentence violated the eighth amendment as

cruel and unusual punishment of a juvenile offender. Construed liberally, defendant alleged his

-4- guilty plea under the threat of a now unconstitutional sentence, if imposed without consideration

of his youth, and the resulting 20-year sentence for an offense committed when he was 17 years

old, both violated the dictates of Miller v. Alabama, 567 U.S. 460 (2012) and People v. Buffer,

2019 IL 122327.

¶ 15 For the purposes herein, we need only briefly review the jurisprudence relating to

juvenile sentences as it has developed. Miller provided that when imposed on a juvenile offender,

mandatory sentences of lifetime incarceration, without the possibility of supervised release, violate

the eighth amendment of the United States Constitution. 567 U.S. at 470. The court noted the

ruling only requires the sentencing court to follow a prescribed process which considers a

juvenile’s youth and the characteristics associated with such youth prior to imposing sentence. Id.

at 483. The court later held Miller applies retroactively. Montgomery v. Louisiana, 577 U.S. 190

(2016).

¶ 16 Our supreme court subsequently expanded Miller’s application to include

mandatory de facto life sentences of juveniles. People v. Reyes, 2016 IL 119271, ¶ 9. The court

then expanded the Miller’s reasoning to discretionary life sentences. People v. Holman, 2017 IL

120655, ¶ 40.

¶ 17 Our supreme court subsequently held that for a juvenile offender to prevail on an

eighth amendment claim as above, the defendant must demonstrate (1) that the defendant was

subject to a de facto or natural, mandatory, or discretionary life sentence and (2) the sentencer did

not consider the offender’s youth and youthful characteristics. Buffer, 2019 IL 122327, ¶ 27. The

court also held a de facto life sentence is one in excess of 40 years. Id. ¶ 42.

¶ 18 Thus, it was sufficient to allege the gist of a constitutional violation, at the first

stage of a postconviction proceeding, if an offender who was a juvenile at the time of the offense

-5- urged the guilty plea was secured under the threat of a de facto life sentence if Miller’s dictates

were not considered by the sentencing court prior to accepting the plea. People v. Robinson, 2021

IL App (1st) 181653, ¶ 32. Robinson was 17 years old at the time of the murder to which he plead

guilty, pursuant to a negotiated plea for a 35-year sentence. Id. ¶¶ 3, 6. He was advised by the

sentencing court the range for murder was 20 to 60 years at his plea hearing. Id. ¶ 8. The offender

did not file a motion to withdraw his guilty plea, but did seek postconviction relief alleging the

court’s failure to consider the Miller factors before imposing a de facto life sentence. Id. ¶ 9-10.

The trial court dismissed the postconviction petition at the first stage, noting the petition did not

allege a constitutional claim. Id. ¶ 12. The appellate court concluded the defendant’s allegation

that the plea was obtained under threat of a de facto life sentence and that the sentencing court did

not consider the Miller factors articulated a claim that was arguably constitutional. Id. ¶ 34.

Therefore, the offender stated the gist of a claim sufficient to survive first-stage dismissal of his

postconviction petition. Id. ¶ 36.

¶ 19 Most recently, however, our supreme court, in considering a petition to file a

successive postconviction petition to challenge a fully negotiated 50-year sentence of a juvenile

offender, concluded that a knowing and voluntary guilty plea waives all non-jurisdictional errors,

including constitutional challenges, and specifically those due to subsequent changes in the law.

People v. Jones, 2021 IL 126432, ¶¶ 20, 26. Such a plea is not unknowing or involuntary simply

because the law at the time of sentencing is later determined to be illegal, unless the State engaged

in misrepresentation or other wrongful conduct. Id. ¶ 23. Further, the exercise of discretion, that a

successful Miller claim requires a petitioner to demonstrate was lacking at sentencing, is satisfied

by the trial court having the option to accept or reject a plea agreement. Id. ¶ 27. Thus, the supreme

court held the protections of Miller and its progeny apply to juveniles “only when a trial court

-6- lacks, or refuses to use, discretion in sentencing a juvenile offender to a life, or de facto life,

sentence.” Id. ¶ 28. The trial court’s refusal to permit the petitioner to file a successive

postconviction petition was proper, as the petitioner had no valid constitutional claims pursuant to

Miller. Id. We find Jones dispositive.

¶ 20 Because defendant herein knowingly and voluntarily plead guilty pursuant to a plea

agreement and understood the trial court’s sentencing options as they then existed, he waived any

challenge to his 20-year sentence imposed prior to Miller. Defendant does not allege any

shortcoming relating to the court’s jurisdiction, or any misrepresentation or malfeasance by the

State in securing defendant’s plea. Defendant’s 20-year sentence is neither a life sentence, nor a

de facto life sentence. Defendant received the benefit of his bargain, as the State recommended a

20-year sentence pursuant to its agreement to request no more than 20 years. Finally, the court

exercised discretion in imposing sentence because it had the ability to either accept or reject the

recommendations of the parties and was not required to impose the 20-year sentence.

¶ 21 Thus, defendant’s postconviction petition does not state the gist of a constitutional

claim that the sentencing court violated the dictates of Miller and Buffer. As to defendant’s claims

based on his age at the time of the offense, the court did not commit error by summarily dismissing

those.

¶ 22 C. No Ineffective Assistance of Counsel at Sentencing

¶ 23 Defendant argues he received ineffective assistance of his attorney at the sentencing

hearing because his attorney “completely failed” to seek a sentence below the 20-year cap, argued

defendant should receive a 20-year sentence, and presented no argument or evidence in mitigation.

¶ 24 At the outset we note that defendant’s factual assertions are not accurate. His

counsel did in fact argue for “a sentence less than the suggested sentence of the people.” Thus, his

-7- counsel did not fail, let alone completely fail, to seek a sentence less than the one recommended

by the State. Likewise, his attorney did not agree or advocate defendant receive the term suggested

by the State. As well, defendant’s attorney introduced letters from others in mitigation, and argued

mitigating factors.

¶ 25 It is generally within the purview of defense counsel to determine what arguments

to make, as well as agreements pertaining to the admission of evidence, absent ineffectiveness.

People v. Young, 2013 IL App (4th) 120228, ¶ 25. Defendant’s complaints regard the way his

attorney approached his sentencing argument. Those decisions were for his attorney to make. Id.

¶ 26 Assuming arguendo, defendant’s attorney did any of the things defendant claims

he did, or did not as the case may be, we can dispose of the ineffective assistance of counsel claim

by directly considering whether defendant suffered any prejudice. People v. Hale, 2013 IL 113140,

¶¶ 17-18. The trial court noted it considered the presentence report, the documents defendant

presented, comments of both parties, and the statutory factors. The court also noted there was

mitigation in the record including defendant’s age, that defendant plead guilty, and that defendant

had obtained his GED. Thus, the court was aware of the existence of mitigating factors, and we

cannot say there is a reasonable probability that had counsel argued any differently it would have

changed the outcome. Therefore, we find that defendant did not allege the gist of an ineffective

assistance of counsel claim based on how his attorney handled sentencing.

¶ 27 D. There Is No Error Relating to the Factual Basis for the Plea

¶ 28 Defendant asserts error because the record does not demonstrate that he was present

when the court was presented with the factual basis for the plea, and the record does not reflect the

factual basis. Defendant claims this violates Illinois Supreme Court Rule 402(c) (eff. July 1, 2012).

However, all Rule 402(c) requires is that the court determine there is a factual basis for the plea.

-8- At the plea hearing, the parties agreed, upon inquiry by the court, that the factual basis utilized at

the plea hearing of a codefendant, apparently shortly before defendant’s plea hearing, was the same

factual basis supporting defendant’s plea. Thus, the trial court determined there was a factual basis

for the plea.

¶ 29 Defendant provides no authority for the propositions that he had the right to be

present for the recitation of the factual basis, that such basis itself must be on the record, or that

the process utilized by the court was not proper. Several of the cases defendant cites in fact are

helpful to our analysis. One of these notes “that the absence of a showing of a factual basis for the

plea does not of itself warrant post-conviction relief.” People v. James, 51 Ill. App. 3d 541, 543

(1977). Instead, the existence of a factual basis relates generally to whether the plea was knowing

and voluntary, and to that end the record must be read realistically. Id. at 544. Additionally, the

trial court fulfills the requirement of Rule 402(c) “if there is a basis anywhere in the record up to

the entry of the final judgment from which the judge could reasonably reach the conclusion that

the defendant actually committed the acts with the intent (if any) required to constitute the offense

to which he is pleading guilty.” People v. Vinson, 287 Ill. App. 3d 819, 821 (1997). As noted, the

record demonstrates the court did determine there was a factual basis with which the court was

familiar from a codefendant’s case. More importantly, other than the Miller issues disposed of

above, defendant does not claim the plea was not knowing or voluntary, and there is no suggestion

that defendant did not understand what conduct was the basis for his plea. Defendant, therefore,

fails to state the gist of a claim sufficient to survive summary dismissal.

¶ 30 III. CONCLUSION

¶ 31 For the foregoing reasons, we affirm the circuit court’s judgment summarily

dismissing defendant’s postconviction petition.

-9- ¶ 32 Affirmed.

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