People v. Hudson

2022 IL App (5th) 200286-U

• Court: Appellate Court of Illinois
• Decided: August 11, 2022
• Docket: 5-20-0286
• Status: Unpublished

Opinion

2022 IL App (5th) 200286-U NOTICE NOTICE Decision filed 08/11/22. The This order was filed under text of this decision may be NO. 5-20-0286 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, ) Jackson County. ) v. ) No. 18-CF-23 ) TARRIEL HUDSON, ) Honorable ) Ralph R. Bloodworth III, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justices Welch and Wharton concurred in the judgment.

ORDER

¶1 Held: Where the record confirms prior defense counsel did not have a per se conflict of interest, evidence supported revoking defendant’s probation, and no argument was presented to this court regarding sentencing, defendant’s appointed counsel on appeal is granted leave to withdraw, and the judgment of the circuit court is affirmed.

¶2 Defendant, Tarriel Hudson, appeals the denial of his motion to vacate an order revoking

his probation and sentencing him to 78 months’ imprisonment for domestic battery. Defendant’s

appointed attorney on appeal, the Office of the State Appellate Defender (OSAD), concluded this

appeal lacks merit. Accordingly, OSAD filed a motion to withdraw as counsel for defendant (see

Anders v. California, 386 U.S. 738 (1967)) along with a brief in support of the motion. OSAD

provided defendant with a copy of its Anders motion and brief. Defendant did not file a response.

Having read OSAD’s Anders motion and brief, and examined the record on appeal, we too 1 conclude this appeal lacks merit, and no potential ground for appeal exists. Accordingly, we grant

OSAD leave to withdraw and affirm the judgment of the circuit court.

¶3 BACKGROUND

¶4 On January 19, 2018, defendant was charged by information with domestic battery in

violation of section 12-3.2(a)(2) of the Criminal Code of 2012 (720 ILCS 5/12-3.2(a)(2) (West

2018)). The information also noted four previous convictions for domestic battery in Jackson

County. On February 6, 2018, defendant appeared with his attorney, Timothy Ting, and entered a

plea of guilty to domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2018)) as a Class 2 felony, in

exchange for a sentence of 24 months’ probation with various conditions, including an alcohol

evaluation. Defendant also admitted the allegations of a pending petition to revoke his probation

in case No. 15-CF-511 (2015 case).

¶5 On August 15, 2018, the State subsequently filed a petition to revoke defendant’s

probation, alleging that he failed to comply with various conditions thereof. Over the State’s

objection the circuit court agreed to continue probation, noting defendant was “making progress.”

¶6 On April 10, 2019, the State filed an amended petition to revoke defendant’s probation

alleging that defendant violated the trial court’s order for probation in that defendant failed to

complete domestic violence counseling, complete alcohol and substance abuse treatment, pay

various fines and fees, report to his probation officer, complete required drug testing, and comply

with the requirement that he not violate any criminal statute of any jurisdiction, noting that

defendant was charged with resisting a peace officer and criminal trespass to state-supported

property in two new cases.

¶7 The hearing on the State’s petition to revoke probation was held on May 20, 2019. At that

time, Barbara McPhail, defendant’s probation officer, testified that defendant failed to complete

2 treatment at Centerstone for substance abuse or make payments towards his fines. She further

testified that although defendant usually reported to probation as required, he missed twice, once

when he was ill and once when he lacked transportation. Additionally, McPhail testified that

defendant had not completed recommended counseling and tested positive for THC in October

and November 2018.

¶8 Defendant testified that he stopped reporting to probation after he was diagnosed with lung

cancer and became depressed. He stated that he was threatened that if he did not take the 24

months’ probation offered he would do 3 years in the penitentiary for the other case. He further

proclaimed his innocence despite his guilty plea. The court found the State proved defendant failed

to complete substance-abuse treatment, report to probation, complete counseling, and committed

two criminal offenses. Thereafter, the trial court revoked defendant’s probation. Sentencing was

scheduled for August 23, 2019.

¶9 On or about July 9, 2019, defendant sent correspondence to the Attorney Registration and

Disciplinary Commission (ARDC) complaining that attorney Ting, who was still representing

defendant, had previously represented Jessica Dixon, the victim in a prior domestic battery case.

The conflict involved three different cases related to charges filed in 2012, 2015, and 2018. In

2012, defendant pled guilty to battering Jessica Dixon. Ting represented Dixon, who, after

recanting her claim of battery against defendant, was charged with filing a false police report. In

2015, defendant was again charged with battery against Dixon. At that time, defendant was

represented by attorney Moyer and defendant pled guilty to that offense and was sentenced to

probation. On January 19, 2018, defendant was charged with domestic battery against Shaneedra

Cole, and Ting was assigned to represent defendant on this case as well as the State’s petition to

revoke defendant’s probation related to the 2015 case involving Dixon. When the State filed a

3 petition to revoke defendant’s probation related to the 2018 case, Ting was again appointed to

represent defendant.

¶ 10 After defendant filed the claim with the ARDC, Ting moved to withdraw, and the motion

was subsequently granted. On August 5, 2019, Celeste Korando was appointed to represent

defendant at the sentencing hearing. At the August 23, 2019, sentencing hearing Korando

explained the conflict to the court. Additionally, McPhail testified that defendant had not complied

with his probation conditions, and she did not expect that to change. She acknowledged on cross-

examination that there were periods during which defendant complied with his probation

conditions.

¶ 11 In requesting a maximum extended-term sentence of 14 years, the State argued that

defendant had several prior convictions and prison disciplinary tickets. It further argued that

defendant’s offense “threatened serious harm.” Korando argued that defendant’s prior convictions

did not make him eligible for an extended-term sentence, a point which the State conceded and

then asked for seven years’ imprisonment. In allocution, defendant continued to proclaim his

innocence, claiming that Dixon had provided a notarized statement recanting her allegations

related to the 2015 case and that his attorney told him it did not matter, and he should take the 24-

month plea bargain.

¶ 12 When imposing the sentence, the circuit court considered the presentence investigation

report and addendum, the testimony at the petition to revoke, and the “arguments and

recommendations in this case ***, including factors in aggravation, how they should or should not

apply in this particular situation, as well as factors in mitigation under the relevant statutory

section.” Thereafter, the court sentenced defendant to 78 months’ imprisonment to be followed by

4 years of mandatory supervised release (MSR) and admonished defendant of his appeal rights.

4 ¶ 13 On September 18, 2019, defendant appealed from the August 23, 2019, judgment based on

the conflict of interest between Ting and his representation of the victim, Dixon, in one of

defendant’s prior cases. Defendant’s appeal was also based on Ting’s refusal to present evidence

in defendant’s 2018 case, alleged coercion in pleading guilty, and admission of the conflict to the

ARDC. On September 19, 2019, defendant’s counsel moved to strike the appeal and filed a motion

to vacate the judgment and reconsider sentence on the same basis. On September 26, 2019, the

trial court granted the motion to strike the appeal.

¶ 14 The hearing on the motion to vacate the judgment and reconsider sentence was held on

October 22, 2019. At that time, defendant’s counsel argued that defendant’s sixth amendment right

to counsel included the right to conflict-free representation pursuant to People v. Hernandez, 231

Ill. 2d 134 (2008), as well as other cited cases. Defense counsel argued that since there was no

question Ting had a conflict when defendant pled guilty on February 6, 2018, the original judgment

and the judgment revoking defendant’s probation should be vacated. In response, the State called

Ting as a witness. Ting testified that he had received a letter from the ARDC about defendant’s

complaint to which he responded. He was later advised that no investigation was required and

testified that he considered the matter resolved. He explained his representation of Dixon in 2012

and stated that when he was appointed to represent defendant on the 2015 probation-revocation

petition and the new 2018 charges, Ting’s office “missed” his former representation of Dixon.

Ting testified that no possibility of antagonistic defenses existed, as the 2018 revocation was based

solely on “technical” matters.

¶ 15 Ting and defendant agreed that Ting likely told defendant that if he did not accept the offer

of two years’ probation on the 2018 case, he would likely be sentenced to three years in prison on

5 the earlier 2015 case. Defendant insisted that his plea in 2018 had “everything to do” with Dixon.

The court denied the motion to vacate and reconsider the sentence. Defendant appealed.

¶ 16 ANALYSIS

¶ 17 OSAD suggests three potential issues defendant could raise but concludes none of them

has arguable merit. We agree.

¶ 18 OSAD first contends that there is no arguable claim that attorney Ting labored under a

conflict of interest. The sixth amendment right to the effective assistance of counsel includes the

right to conflict-free counsel. People v. Green, 2020 IL 125005, ¶ 20. “Generally, a per se conflict

arises when defense counsel has a connection to a person or entity that would benefit from an

unfavorable verdict for the defendant.” People v. Yost, 2021 IL 126187, ¶ 39. A per se conflict

requires automatic reversal of the conviction unless the defendant waives the conflict. Green, 2020

IL 125005, ¶ 24.

¶ 19 Illinois courts recognize three situations that create a per se conflict: “(1) where defense

counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity

assisting the prosecution; (2) where defense counsel contemporaneously represents a prosecution

witness; and (3) where defense counsel was a former prosecutor who had been personally involved

in the prosecution of defendant.” People v. Taylor, 237 Ill. 2d 356, 374 (2010). However, in Yost,

the court narrowed the first category, holding that a per se conflict of interest arises only where

“defense counsel has a contemporaneous association with the victim, the prosecution, or an entity

assisting the prosecution.” Yost, 2021 IL 126187, ¶ 66.

¶ 20 As OSAD initially points out, defendant may not challenge the initial guilty plea in this

proceeding. See In re T.E., 85 Ill. 2d 326, 333 (1981) (where no direct appeal was taken from the

original probation order, a court may not collaterally review that initial order in an appeal from the

6 revocation of that probation). Although defendant may still appeal the revocation of his probation,

during which Ting still represented him, under Yost no per se conflict existed. Ting’s brief

representation of Dixon ended before defendant pled guilty in the 2018 case—in which Dixon was

not the victim—and before the revocation petition was filed in the 2015 case. Ting therefore did

not have a contemporaneous association with Dixon when he represented defendant.

¶ 21 Even in the absence of a per se conflict of interest “a defendant may still establish a

violation of his right to effective assistance of counsel by showing an actual conflict of interest

that adversely affected his counsel’s performance.” People v. Hernandez, 231 Ill. 2d 134, 144

(2008). “To do so, he must show ‘some specific defect in his counsel’s strategy, tactics, or decision

making attributable to [a] conflict.’ ” People v. Morales, 209 Ill. 2d 340, 349 (2004) (quoting

People v. Spreitzer, 123 Ill. 2d 1, 18 (1988)).

¶ 22 Here, the motion to vacate alleged only a per se conflict of interest and alleged no facts

showing an actual conflict. Even if defendant’s motion to vacate could be construed as alleging an

actual conflict of interest, it is unclear from the record how Ting’s representation of Dixon in 2012

could have influenced his representation of defendant in 2018, especially given that the petition to

revoke in the 2015 case alleged easily provable violations of defendant’s probationary conditions.

Defendant argued that Ting urged him to accept the plea agreement to avoid being sentenced to

prison if the 2015 probation were revoked. Ting admitted as much. But that does not prove Ting

had a conflict of interest as Dixon derived no apparent benefit from defendant continuing on

probation.

¶ 23 The second potential issue is whether the evidence was sufficient for the circuit court to

find that defendant violated his probation. The State must prove a violation of probation by

a preponderance of the evidence. 730 ILCS 5/5-6-4(c) (West 2018); People v. Colon, 225 Ill. 2d

7 125, 156-57 (2007). Here, McPhail testified that defendant sometimes failed to report to her and

did not provide evidence that he had completed alcohol and substance abuse treatment. Moreover,

uncontested evidence established that defendant had been convicted of an offense—criminal

trespass to state-supported property. Thus, defendant cannot dispute that sufficient evidence

supported the circuit court’s decision to revoke his probation.

¶ 24 The final potential issue claimed by OSAD was whether any argument could be raised to

challenge defendant’s sentence as excessive or otherwise erroneous. Here, citing People v.

Morger, 2019 IL 123643, ¶¶ 14-15, OSAD alleged that since defendant completed his term of

incarceration, any challenge to the length of his sentence would be moot.

¶ 25 Taking judicial notice of defendant’s incarceration status pursuant to the Illinois

Department of Corrections website (https://www2.illinois.gov/idoc/Offender/Pages/Inmate

Search.aspx (last visited July 26, 2022)), we note defendant’s parole date of March 16, 2022, and

projected discharge date of May 3, 2023. However, as noted by OSAD, defendant remains within

the four-year period of MSR imposed by the court. When a defendant is released but remains on

MSR, the length of the original sentence affects how long a defendant could be reincarcerated for

a violation of the condition of release. People v. Jackson, 199 Ill. 2d 286, 294 (2002). Contrary to

Morger, defendant’s sentence is not complete as he remains on MSR. As such, we disagree that

any challenge to the length of defendant’s sentence is moot.

¶ 26 With regard to the potential underlying sentence issue, in support of its claim that no

argument could be raised, OSAD’s sole argument was that defendant’s 78 months sentence fell

within the statutory range for the Class 2 offense. We agree the sentence falls within the statutory

range and further note that while defendant moved for reconsideration of his sentence, no error

was alleged regarding the length of the sentence, the trial court’s considerations in determining the

8 sentence, or any other potential error related to the sentencing. As such, we find defendant’s

potential contentions of error related to the length of his sentence, or any error related thereto, were

forfeited for purposes of appeal. People v. Hammons, 2018 IL App (4th) 160385, ¶ 14.

¶ 27 Consequently, we may only review any contentions of error related to the sentencing if the

narrow and limited exception provided by the plain-error doctrine is established. People v.

Bannister, 232 Ill. 2d 52, 65 (2008). Under the doctrine, a defendant must first show that a clear

or obvious error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Thereafter, in the

context of sentencing, a defendant must show either that (1) the evidence at the sentencing hearing

was closely balanced or (2) the error was so egregious as to deny the defendant a fair sentencing

hearing. People v. Hall, 195 Ill. 2d 1, 18 (2000). Under either prong, defendant bears the burden

of persuasion. People v. Naylor, 229 Ill. 2d 584, 593 (2008). When a defendant fails to present an

argument on how either of the two prongs of plain error is satisfied, he forfeits plain-error review.

People v. Nieves, 192 Ill. 2d 487, 502-03 (2000). As no plain-error argument was presented, we

find the argument was forfeited.

¶ 28 CONCLUSION

¶ 29 For the foregoing reasons, we grant OSAD’s Anders motion and affirm the judgment of

the circuit court.

¶ 30 Motion granted; judgment affirmed.