People v. Humphries

2021 IL App (5th) 170249-U

• Court: Appellate Court of Illinois
• Decided: February 19, 2021
• Docket: 5-17-0249
• Status: Unpublished

Opinion

NOTICE 2021 IL App (5th) 170249-U NOTICE Decision filed 02/19/21 The text This order was filed under of this decision may be NOS. 5-17-0249, 5-17-0254 cons. Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for Rehearing or the disposition of IN THE limited circumstances allowed under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) Nos. 15-CF-1364 ) 15-CF-1365 ) MARLON M. HUMPHRIES, ) Honorable ) Robert B. Haida, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

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

ORDER

¶1 Held: The circuit court’s order denying defendant’s amended motion to withdraw guilty plea is affirmed where the record sufficiently demonstrates substantial compliance with Illinois Supreme Court Rule 402(a). Defendant’s argument that his partially negotiated guilty plea was not made knowingly and voluntarily is without merit, given that the court properly admonished defendant at the time the sentence was imposed, and the guilty plea resulted in a sentence within the negotiated range. Counsel’s failure to advise defendant that accepting the negotiated plea agreement with a 45-year sentencing cap precluded defendant from appealing his sentence did not prejudice defendant.

¶2 This appeal concerns a partially negotiated plea agreement entered into by

defendant, Marlon M. Humphries, in which he pled guilty to two counts of aggravated

1 criminal sexual assault (720 ILCS 5/11-1.30(a)(2) (West 2012)) against his victim, K.R.,

and one count of criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2012)) against

his victim, M.W. In exchange, the State recommended a combined sentencing range of 25

to 45 years’ imprisonment. Defendant was subsequently sentenced to 45 years in the

Illinois Department of Corrections (IDOC) followed by the extended term of mandatory

supervised release (MSR) of 3 years up to natural life, as determined by the Prisoner

Review Board.

¶3 On appeal, defendant asserts that his guilty plea was not knowing and voluntary. In

support, he contends that the circuit court failed to properly admonish him pursuant to

Illinois Supreme Court Rule 402(a)(3) (eff. July 1, 2012) and Illinois Supreme Court Rule

402(a)(4) (eff. July 1, 2012). Defendant also contends that neither the court nor defense

counsel admonished him that he could not challenge only his sentence on appeal as a

consequence of agreeing to a sentencing cap in the partially negotiated plea agreement.

Accordingly, he claims he was deprived of his right to effective assistance of counsel

during plea negotiations. For the following reasons, we affirm.

¶4 I. Background

¶5 On March 30, 2020, the State filed a motion to consolidate appeals for argument

and decision. This court entered an order on April 3, 2020, indicating that the oral

arguments for the appeals in cases 5-17-0249 and 5-17-0254 would be scheduled on the

same day before the same panel of judges. Because the report of proceedings and common

law records are identical in both cases, we determined on June 3, 2020, that the issuance

2 of one decision on appeal would be appropriate. We will now address the merits of this

consolidated appeal.

¶6 On November 20, 2015, defendant was charged by indictment with two counts of

aggravated criminal sexual assault, both Class X felonies, in 15-CF-1364 (720 ILCS 5/11-

1.30(a)(2) (West 2012)) in St. Clair County, Illinois. The indictment alleged that on

October 18, 2014, defendant, by the use of force, placed his penis in the vagina of K.R.,

born on March 18, 1963 (count I), and, in doing so, caused bodily harm to K.R. by dragging

her body on the ground. The indictment also alleged that defendant placed his penis in the

mouth of K.R. (count II), and, in doing so, caused bodily harm to K.R. by dragging her

body on the ground. Defendant was also charged by indictment with one count of criminal

sexual assault, a Class 1 felony, in 15-CF-1365 (720 ILCS 5/11-1.20(a)(1) (West 2012)) in

St. Clair County, Illinois. The indictment alleged that on November 8, 2015, defendant

committed an act of sexual penetration when he, by the use of force, placed his penis in the

vagina of M.W., born on June 8, 1959.

¶7 On November 25, 2015, defendant was arraigned before the circuit court. After

receiving copies of the indictments in cases 15-CF-1364 and 15-CF-1365, defendant

waived a reading of the charges and entered pleas of not guilty on all counts.

¶8 On April 4, 2016, the State filed a motion for joinder claiming that the facts

underlying the charges in both above-referenced cases were part of the same

comprehensive transaction. Specifically, the State asserted that defendant’s victims, K.R.

and M.W., had both reported that they did not know their assailant. Following the sexual

assaults, both victims reported to a hospital where a sexual assault examination was

3 completed. Following defendant’s arrest on November 11, 2015, the Belleville Police

Department received forensic lab results from K.R.’s sexual assault kit, confirming that

defendant’s DNA profile matched the profile collected from K.R.’s vaginal swabs. During

a subsequent interview with the Belleville Police Department, defendant confessed that he

had sexually assaulted both K.R. and M.W. Shortly thereafter, forensic lab results from

M.W.’s sexual assault kit confirmed that defendant’s DNA profile also matched the profile

collected from M.W.’s vaginal swabs. Additionally, the State argued that the offenses in

both cases occurred approximately 0.7 miles apart in St. Clair County, Illinois, in the early

morning hours. Moreover, defendant’s victims were of similar age, race, and physical

condition, and defendant’s common method of perpetrating “involved *** pushing the

victim down and then assaulting her in a secluded, but public, area” while “restrain[ing]

the victim by the throat and also verbally threaten[ing] her.”

¶9 On April 25, 2016, the circuit court held a hearing on the State’s motion for joinder.

After arguing the factors previously filed in its motion for joinder, the State also asserted

that it “would seek to introduce evidence of both offenses in a trial of either offense on its

own” under section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

5/115-7.3 (West 2016)) if the motion for joiner was denied. In response, defense counsel

argued against joinder because the crimes were disparate in time and differed in many

respects, including different class offenses, possible minimum and maximum sentences,

and elements to prove guilt. Following argument, the court denied the State’s motion and

refrained from making a ruling regarding section 115-7.3 of the Code. The State elected to

proceed to trial on the charges in 15-CF-1364. The court allowed the parties to file

4 procedural motions until May 20, 2016, including the State’s motion to admit other sex

crimes evidence under section 115-7.3 of the Code and defendant’s motion to suppress.

¶ 10 On April 27, 2016, the State filed a notice of intent to introduce other-crimes

evidence in 15-CF-1364 pursuant to section 115-7.3 of the Code. Relying on the same

information contained in the State’s motion for joinder, the State requested the circuit court

to make a pretrial ruling to allow the introduction of evidence and testimony regarding

evidence of the other offense committed by defendant in 15-CF-1365. Specifically, the

State argued that the evidence would demonstrate defendant’s “intent, motive, identity,

absence of mistake, and course of conduct,” given the allegations in both cases involved a

common method of perpetration with “similar instances of sexual penetration to female

victims that are similar in age, race, and physical stature.” Following a hearing on June 15,

2016, regarding the State’s notice of intent, the court took the matter under advisement and

set both cases for a status hearing.

¶ 11 On July 1, 2016, the circuit court denied the State’s request to introduce other-

crimes evidence in 15-CF-1364. The court, however, allowed the State in 15-CF-1364,

pursuant to the common law, to introduce evidence of defendant’s criminal sexual assault

against M.W. in 15-CF-1365 “for the purpose of showing the defendant’s motive and intent

or the existence of a common scheme or plan.” In so ruling, the court determined that the

evidence of defendant’s sexual assault of M.W. would be probative of his motive and intent

and would show evidence of a common scheme or plan. The court determined that the

probative value of this evidence outweighed the prejudicial effect.

5 ¶ 12 On November 21, 2016, the circuit court held a status hearing. Defendant,

represented by counsel, indicated that he was not under any drugs, alcohol, or prescription

medication, and he was not receiving treatment from a doctor while in the county jail. After

the court addressed defendant, the State affirmed its understanding that “defendant would

be entering a plea of guilty in both cases today.” The State then detailed the specific facts

underlying the charges against defendant in both cases and the terms of the plea agreement.

In exchange for defendant’s plea in 15-CF-1364, the State would recommend, and

defendant would agree, to a consecutive sentence of 10 years on each count for a total of

20 years’ imprisonment. In exchange for the defendant’s plea in 15-CF-1365, the State

would recommend, and defendant would agree, to a sentence of 10 years to run

consecutively to the sentences in 15-CF-1364. Thus, under the plea agreement, defendant’s

collective sentences would total 30 years.

¶ 13 The circuit court then admonished defendant of the statutory ranges of punishment

regarding each charge. In 15-CF-1364, the combined charges carried a minimum sentence

of 12 years and a maximum sentence of 60 years, and in 15-CF-1365, the charge carried a

minimum sentence of 4 years and a maximum sentence of 15 years. Given the statutory

mandate that all three charges run consecutively, the statutory sentencing range was 16 to

75 years. In addition, all charges were nonprobational and defendant would be required to

serve 85% of the sentences, followed by an extended MSR on the Class X felonies. The

following colloquy took place between the court and defendant:

“THE COURT: *** Mr. Humphries, *** [y]ou understand that I did not participate in those negotiations? THE DEFENDANT: Yes, sir.

6 THE COURT: And I’m not bound by those negotiations. THE DEFENDANT: Yes, sir. THE COURT: Do you understand that? THE DEFENDANT: (Nodding.) THE COURT: So that means I can sentence you *** to up to 75 years in the Illinois Department of Corrections if you plead guilty to these charges. I’m not agreeing to the 30 years.”

Following a short recess to allow discussion between defendant and defense counsel, the

court reiterated that it would not be conditionally concurring with the recommended 30-

year sentence set forth by the State in the presented plea negotiations. Accordingly, defense

counsel requested additional time to discuss with defendant, which the court granted.

¶ 14 On December 8, 2016, the circuit court held guilty plea proceedings in both 15-CF-

1364 and 15-CF-1365. At the outset of the proceedings, the court addressed defendant

regarding his use of medications. After admitting that he was currently taking Zoloft and

Vistaril for major depressive disorder, defendant acknowledged that the use of the

medications did not affect his ability to understand the proceedings.

¶ 15 The State then provided the terms of the plea negotiations. With regard to 15-CF-

1364 (the offenses of aggravated criminal sexual assault against K.R.), the State informed

the circuit court that both counts were subject to mandatory consecutive sentencing, an

extended term of MSR of three years up to natural life and required defendant to report as

a violent sex offender for life upon his release from IDOC. The State announced that the

parties had reached a partially negotiated sentence, in exchange for defendant’s guilty plea,

whereby defendant would request no less than 10 years on each count, and the State would

request no more than 15 years on each count. Thus, the total sentencing range in 15-CF-

7 1364 would be 20 to 30 years’ imprisonment to be served at 85%, followed by an extended

term of MSR of 3 years up to natural life.

¶ 16 With regard to 15-CF-1365 (the offense of criminal sexual assault against M.W.),

the State informed the circuit court that the charge carried a mandatory consecutive

sentence with case 15-CF-1364, an extended term of MSR for a period of three years up to

natural life and required defendant to report as a violent sex offender for life upon his

release from IDOC. The State announced that the parties had reached a partially negotiated

plea agreement, whereby, in exchange for defendant’s guilty plea, defendant would request

a sentence of no less than 5 years, and the State would request no more than 15 years. Thus,

under the terms of the plea agreement for all three charges, the total sentencing range was

25 to 45 years’ imprisonment to be served at 85%, followed by 3 years up to natural life of

MSR. Following the State’s presentation of the plea negotiations, defense counsel agreed

that the plea negotiations had been properly presented.

¶ 17 The circuit court subsequently addressed defendant in open court. First, the court

stated the nature of the charge in count I of 15-CF-1364. Defendant acknowledged that he

understood the charge and the allegations against him. Next, defendant affirmatively

acknowledged that he understood the range of punishment, including the minimum and

maximum sentences that could be imposed, and that the sentences carried an extended term

of MSR of at least three years up to natural life. Defendant also understood that he would

be pleading guilty to a nonprobational offense that would run consecutively to any other

sentence that was imposed in 15-CF-1364 and 15-CF-1365. Defendant acknowledged that

he understood how consecutive sentencing worked.

8 ¶ 18 Next, the circuit court stated the nature of the charge in count II of 15-CF-1364.

Defendant acknowledged that he understood the charge and the allegations against him for

the additional act of sexual penetration in count II. Defendant affirmatively acknowledged

that he understood the range of punishment, including the minimum and maximum

sentences that could be imposed, and that the sentences carried an extended term of MSR

of at least three years up to natural life. Similar to count I, defendant also understood that

he would be pleading guilty to a nonprobational offense that would run consecutively to

any other sentence that was imposed. The court addressed that the plea and conviction on

counts I and II required defendant to report as a violent sex offender for the rest of his life

upon his release from IDOC.

¶ 19 The circuit court then stated the nature of the charge in count I of 15-CF-1365.

Defendant acknowledged that he understood the charge and the allegations against him.

Defendant affirmatively acknowledged that he understood the range of punishment,

including the minimum and maximum sentences that could be imposed, and that the

sentences carried an extended term of MSR of at least three years up to natural life.

Defendant also understood that he would be pleading guilty to a nonprobational offense

that would run consecutively to the sentences imposed in counts I and II of 15-CF-1364.

In addition, the court admonished defendant that the plea and conviction on count I of 15-

CF-1365 required defendant to report as a violent sex offender for the rest of his life upon

his release from IDOC. The defendant acknowledged that he understood.

9 ¶ 20 The court further admonished defendant that, as a further consequence of his guilty

plea, he would be required to submit to DNA profiling and sexually transmitted disease

testing. The defendant acknowledged that he understood.

¶ 21 The circuit court continued to admonish defendant. The court cautioned defendant

that he did not have to plead guilty. After explaining to defendant that counts I and II in

15-CF-1364 had been docketed and set for trial, the court, again, stated: “I want to make

sure you understand you don’t have to plead guilty.” Defendant acknowledged that he

understood. The court also informed defendant that he had “a constitutional right to a trial.”

The court proceeded to state to defendant that “if you don’t plead guilty today, then we will

proceed with your constitutionally protected trial right on January 23rd of 2017.” Before

continuing with the admonishments, the following colloquy took place between the court

and defendant:

“THE COURT: *** I’m going to go over with you what would happen if we do go to trial, and your alternative to pleading guilty is going to trial. First of all, *** I want to emphasize if you have any questions about anything that I’m saying or you want to take some time to talk with [your attorney] or if you want to ask me any questions about anything that I’m talking about with regard to your trial right, I want to make sure that you interrupt me. And I will not be offended if you do that. I want to make sure that you understand everything before we finish up here today— THE DEFENDANT: Okay.”

¶ 22 Next, the circuit court provided defendant with a detailed overview of “what would

happen if we do go to trial,” which included jury selection followed by the State’s

presentation of evidence and witness testimony. The court informed defendant that,

following the State’s questioning of each witness, defendant “would [then] have the right[,]

through [his attorney,] to ask questions.” The court informed defendant that he had the

10 right to cross-examine “every witness,” including “every witness that [the State] *** would

call, you would have the right through [your attorney] to question them and cross examine

them and test their credibility, test their believability.” The court instructed defendant that

he would be able to use a “notepad” to “write down questions that [you] want [your]

attorney to ask.” Defendant acknowledged that he understood and was able to follow along

with the court’s detailed description. After the State finished calling its witnesses, the court

informed defendant that he would then have the right to call his own witnesses, although

he did not have to call witnesses. Furthermore, the court informed defendant that a trial

would allow defendant a full opportunity to present any evidence he wanted to present.

Defendant acknowledged that he understood.

¶ 23 Defendant then asked the circuit court: “If I were to go to trial, would *** it be a

chance that like charges could be reduced or anything?” The court informed defendant that

there was a possibility, but the jury would decide between the greater and lesser charges.

The court, again, informed defendant that “if you plead guilty, that’s over,” a jury trial

would not take place. The court further informed defendant that by pleading guilty he

would give up his right to challenge the way the scientific evidence in the case was obtained

and evaluated, as well as the opinions and judgments of the testifying experts. Defendant

indicated that he understood. In addition, defendant understood that if he pled guilty to all

three charges, the court was bound by the plea agreement to impose a sentence between 25

to 45 years.

¶ 24 The circuit court proceeded to ask defendant if he had been promised anything, other

than the plea agreement, to plead guilty. Defendant responded no. The court then asked

11 defendant if he had been threatened to plead guilty. Again, defendant responded no. The

court also asked defendant why he was choosing to plead guilty. Defendant, in part,

responded: “I just want to be able to have a chance to be back with my family.” The court

further asked defendant if he was pleading guilty because the possibility of a maximum

punishment of 75 years existed if he went to trial. Defendant answered yes. The defendant

then stated, “I understand the situation. I just feel like it would be better for me to plead

guilty and, you know, take responsibility.”

¶ 25 The State then provided the following factual basis for the charged offenses.

According to the State, after defendant waived his Miranda rights, he admitted in an

interview that he was a “sex addict and can’t always control it.” With regard to counts I

and II of case 15-CF-1364, defendant admitted that he pushed K.R. off of her bike before

he had forcible, nonconsensual vaginal sex with her for about five minutes. In a second

interview, defendant admitted that he forced K.R., who appeared to be scared during the

encounter, to also perform nonconsensual oral sex on him. In specifically addressing count

I of case 15-CF-1365, defendant, after waiving his Miranda rights, identified himself in a

surveillance video following M.W. in the same direction as the bike path. Once on the bike

path, defendant pushed M.W. off of her bike and engaged in forcible, nonconsensual

vaginal sex with her. Defendant acknowledged that M.W. appeared to be scared and

intoxicated during the encounter.

¶ 26 Following the State’s recitation of the factual basis as to all counts against

defendant, defense counsel and defendant each affirmatively stated that the State would be

12 able to prove the above-mentioned facts at trial. Defendant then pled guilty to all three

counts.

¶ 27 On January 9, 2017, the circuit court held a sentencing hearing in cases 15-CF-1364

and 15-CF-1365. At the outset, the court addressed defendant’s use of medications.

Defendant indicated that he was taking the same medications as he was at the plea

negotiations hearing on December 8, 2016, and he confirmed that his ability to understand

the proceedings was not affected by the use of such medication. The court then heard from

defendant’s victims, K.R. and M.W., who read their victim impact statements before the

court, detailing the predatory nature in which defendant committed the sexual assaults.

Following testimony, the State requested 45 years based on several aggravating factors,

including the serious nature of the offenses in which defendant sexually assaulted two

women in a violent and brutal manner, the serious physical and emotional harm defendant’s

conduct had caused, and the need for deterrence. Defense counsel requested 25 years based

on several mitigating factors, including that defendant had taken responsibility for his

actions, had no prior criminal history as an adult, and that defendant was a father to a young

male child.

¶ 28 In addressing the factors in mitigation, the court considered that defendant had no

prior criminal history. In addressing the factors in aggravation, the court considered that

defendant’s actions had caused and threatened physical and emotional harm to his female

victims. As a result, the court believed it was necessary to incarcerate defendant to deter

him from preying upon innocent people. The court then sentenced defendant to 45 years in

IDOC followed by 3 years up to natural life of MSR. Upon release from IDOC, defendant

13 was required to report as a violent sex offender for the rest of his natural life, provide

samples for genetic marker grouping, and undergo medical testing to determine the

existence of sexually transmittable diseases. The court subsequently certified defendant as

a sexual predator.

¶ 29 Following the imposition of defendant’s sentences, the circuit court admonished

defendant of his appeal rights. The court informed defendant that he had 30 days to file a

motion to withdraw his guilty plea. If defendant filed this motion, the court would hold a

hearing. If defendant proved a substantial error had occurred at the hearing, the court would

start over with defendant’s case. In addition, the court instructed defendant that he could

file a motion to reconsider to ask the court for a lesser sentence. The court clarified that

defendant had to first file the motion to reconsider with the circuit court before he

“appeal[ed] to the Appellate Court that the sentence was excessive.” The court specifically

asked defense counsel to “explain this part of the process” to defendant. Lastly, the court

stated: “Do you have any questions about your rights on appeal?” Defendant responded no,

and the court adjourned.

¶ 30 On February 13, 2017, defendant filed a pro se motion to withdraw guilty plea and

vacate sentence. Defendant claimed ineffective assistance of counsel and coercion, alleging

that his trial attorney “promise[d] Plaintiff that if he took the plea[,] he would receive the

minimum[,] which is 20 years.” Referring to his sentence as “a defecto [sic] life sentence,”

defendant claimed it was excessive. In response to defendant’s pro se motion, the circuit

court appointed new counsel for defendant.

14 ¶ 31 On April 18, 2017, the circuit court held a hearing on defendant’s pro se motion to

withdraw guilty plea and vacate sentence. Before addressing defendant’s motion, the newly

appointed counsel for defendant informed the court that, after speaking with defendant,

defendant did not wish to pursue a claim of inadequate representation against his original

defense counsel. In fact, defendant had expressed his desire to continue working with his

original defense counsel. When asked by the court if this was true, defendant responded in

the affirmative. After allowing counsel to withdraw from the case, the court reappointed

defendant’s original defense counsel and, following defense counsel’s request, the court

granted defendant 30 days to file an amended motion to withdraw guilty plea and vacate

sentence.

¶ 32 On May 17, 2017, defendant filed a motion to reconsider sentence claiming that the

circuit court did not give proper weight to the factors in mitigation or consider all

sentencing alternatives. Defendant also claimed that the court had imposed inconsistent

sentences that were “excessive in comparison with those imposed on persons with similar

charges.” Defendant requested a shorter term of imprisonment.

¶ 33 Additionally, on May 17, 2017, defendant filed an amended motion to withdraw

guilty plea and vacate judgment. Defendant asserted that, at the time of his plea, the circuit

court had failed to properly admonish defendant of his rights under Illinois Supreme Court

Rule 402 (eff. July 1, 2012), including but not limited to: (1) the nature of the charges

against him; (2) the minimum and maximum sentences; (3) his right to plead not guilty or

persist in that plea; and (4) his right to a trial and that by pleading guilty he waived that

right, as well as his right to confront the witnesses against him. Defendant also asserted

15 that his plea was not made knowingly and voluntarily, and the State had failed to provide

a factual basis for the plea negotiations. Moreover, defendant claimed that the circuit court

had failed to properly admonish him of his rights under Illinois Supreme Court Rule 605

(eff. Oct. 1, 2001), including but not limited to: (1) his right to an appeal and (2) his right

to file a motion asking to have the judgment vacated and for leave to withdraw his guilty

plea. Lastly, defendant, again, asserted that his sentence was excessive.

¶ 34 On June 12, 2017, the circuit court granted defense counsel leave to file an Illinois

Supreme Court Rule 604(d) (eff. Feb. 6, 2013) certificate, which defense counsel

subsequently filed on June 14, 2017.

¶ 35 On June 19, 2017, the circuit court held a hearing on defendant’s May 17, 2017,

motion to reconsider sentence and amended motion to withdraw guilty plea and vacate

judgment. In addressing defendant’s amended motion to withdraw guilty plea and vacate

judgment, defense counsel directed the court to reference the filed motion by stating, “I

would stand solely on what’s contained in the written motion.”

¶ 36 In response, the State objected to defendant’s motion, arguing that defendant’s

pleading did not show a misapprehension of the facts or law. The State also argued that

defendant was present at the guilty plea proceedings when the State presented the factual

basis. As such, defendant’s argument that no factual basis was provided to the court was

refuted by the record. Moreover, the State asserted that defendant was specifically advised

that he did not have to plead guilty and could proceed to a jury trial. Defendant was also

properly admonished as to sentencing ranges, and he confirmed that his plea of guilty was

being made knowingly and voluntarily. The State further argued that defendant had been

16 admonished of his appeal rights at the time of sentencing, including his right to file a

motion to withdraw guilty plea within 30 days. According to the State, defendant was

advised of the “trial process, all of the procedures that he was waiving and what would

happen if he chose not to waive those procedures.” Lastly, the State asserted that the

transcript of proceedings demonstrated that defendant was not confused. In support, the

State pointed out that defendant had “said he understood everything,” and defendant had

confirmed that his plea was being made knowingly and voluntarily.

¶ 37 Following argument by the parties, the circuit court, in reviewing the transcript of

the guilty plea and sentencing proceedings, found compliance with Illinois Supreme Court

Rule 402 (eff. July 1, 2012) and confirmed that defendant had been advised of his appellate

rights consistent with Illinois Supreme Court Rule 605 (eff. Oct. 1, 2001) at the time of

sentencing. The court denied defendant’s amended motion to withdraw guilty plea and

vacate judgment “for those reasons stated.” The court refrained from ruling on defendant’s

contention that his sentence was excessive until the court heard argument on defendant’s

motion to reconsider sentence.

¶ 38 Next, the circuit court heard argument on defendant’s motion to reconsider sentence.

First, defense counsel, in arguing that defendant’s sentence was excessive, asserted that the

court had failed to give enough weight to the factors in mitigation, including that defendant

had no prior criminal history and was a father. Defense counsel requested a reduction in

defendant’s sentence to 25 years. In response, the State argued that a motion to reconsider

sentence was not a proper remedy under Illinois case law, given defendant entered into a

partially negotiated plea. According to the State, by accepting the partially negotiated plea

17 agreement, defendant agreed “not to challenge any sentence imposed within that range

because he [is], in fact, agreeing to receive a sentence within that range.” In the alternative,

if the court were to consider the motion, the State argued that, in addressing defendant’s

first argument in the motion, the sentence was appropriate, given that the court had given

proper weight to the mitigating factors and considered all available sentences. Next, with

regard to defendant’s second argument that the sentence was inconsistent, the State, citing

to People v. Fern, 189 Ill. 2d 48, 56 (1999), argued that a court’s imposition of a lesser

sentence in another case had no bearing on whether the sentence in the instant case was

excessive. The State requested the court to uphold defendant’s sentence of 45 years.

¶ 39 Following argument by the parties, the circuit court denied defendant’s motion to

reconsider sentence. Although the court considered that defendant had no prior criminal

history, “what drove” the court’s sentencing decision “were the facts and circumstances of

the two cases and how they were carried out [in a] predatory nature.” The court informed

defendant that he had 30 days to file a notice of appeal. Defendant acknowledged that he

understood. On June 27, 2017, defendant filed a timely notice of appeal.

¶ 40 II. Analysis

¶ 41 A. Plea Admonishments

¶ 42 Pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012), every defendant

who enters a plea of guilty has a due process right to be properly and fully admonished.

People v. Whitfield, 217 Ill. 2d 177, 188 (2005). The goal of Rule 402 is to ensure that a

defendant understands his plea, the rights he has waived, and the consequences of his

actions. People v. Dougherty, 394 Ill. App. 3d 134, 138 (2009) (citing People v. Johns, 229

18 Ill. App. 3d 740 (1992)). The rule requires “substantial, not literal, compliance with its

provisions.” People v. Kranz, 58 Ill. 2d 187, 192 (1974) (citing People v. Mendoza, 48 Ill.

2d 371, 373-74 (1971)). “ ‘Substantial compliance’ means that although the trial court did

not recite to the defendant, and ask defendant if he understood, all the components of Rule

402(a), the record nevertheless affirmatively and specifically shows that the defendant

understood them.” Dougherty, 394 Ill. App. 3d at 138 (citing People v. Walker, 109 Ill. 2d

484, 499 (1985)). Illinois courts have found substantial compliance with Rule 402 where

the record indicates a defendant understandably and voluntarily entered his plea, even if

the circuit court failed to admonish defendant of a specific provision. Dougherty, 394 Ill.

App. 3d at 139 (citing People v. Sutherland, 128 Ill. App. 3d 415, 417 (1984)).

¶ 43 Failure to properly admonish a defendant does not automatically establish grounds

for reversing judgment or vacating a guilty plea. People v. Davis, 145 Ill. 2d 240, 250

(1991) (citing People v. Cohn, 91 Ill. App. 3d 209, 213 (1980)). Whether reversal is

required depends on whether real justice has been denied or whether defendant had been

prejudiced by the inadequate admonishment. People v. Dudley, 58 Ill. 2d 57, 60-61 (1974).

It is the defendant’s burden to establish prejudice. Dougherty, 394 Ill. App. 3d at 139 (citing

Dudley, 58 Ill. 2d at 57). We review a circuit court’s decision to deny a defendant’s motion

to withdraw guilty plea for an abuse of discretion. People v. Delvillar, 235 Ill. 2d 507, 519

(2009). We review de novo whether the circuit court properly admonished defendant and

complied with Illinois Supreme Court Rule 402. People v. Dismuke, 355 Ill. App. 3d 606,

608 (2005).

19 ¶ 44 1. Rule 402(a)(3): Defendant’s Right to Persist in His Plea of Not Guilty

¶ 45 Defendant first argues that his guilty plea should be vacated where the circuit court

violated Illinois Supreme Court Rule 402(a)(3) (eff. July 1, 2012) by failing to properly

admonish him that he had the right to persist in his plea of not guilty. In response, the State

argues that the court substantially complied with Rule 402(a)(3) before defendant pled

guilty, thus, the court did not abuse its discretion in denying defendant’s amended motion

to withdraw guilty plea and vacate sentence. We agree with the State.

¶ 46 On November 25, 2015, at defendant’s arraignment, he entered pleas of not guilty

to all three counts alleged in 15-CF-1364 and 15-CF-1365, which were followed by more

than a year of continuances, disputed pretrial hearings, and delays. Eventually,

approximately six weeks before the January 23, 2017, trial setting, defendant entered into

a plea agreement with the State.

¶ 47 On December 8, 2016, pursuant to the plea negotiations, defendant pled guilty to

all three counts. During the plea proceedings, the circuit court acknowledged its

understanding of defendant’s “intention to plead guilty today”; however, the court also

explicitly cautioned defendant in open court that “you don’t have to plead guilty.” In fact,

after explaining to defendant that counts I and II in 15-CF-1364 had been previously

docketed and set for trial, the court alerted defendant with the following statement: “I want

to make sure you understand you don’t have to plead guilty.” Defendant acknowledged

that he understood. Moreover, the court informed defendant that the “alternative to

pleading guilty” was to “proceed with your constitutionally protected trial right on January

23rd of 2017.”

20 ¶ 48 Although the circuit court did not explicitly state verbatim that defendant had a right

to “persist in his plea of not guilty,” the court substantially complied with Illinois Supreme

Court Rule 402(a)(3) where the record affirmatively and specifically demonstrates that

defendant understood he could plead guilty pursuant to the terms of the plea negotiations

with the State, or, alternatively, persist in his pleas of not guilty and proceed to a jury trial.

Accordingly, the court did not abuse its discretion in denying defendant’s motion to

withdraw guilty plea and vacate sentence.

¶ 49 2. Rule 402(a)(4): Right to be Confronted With the Witnesses Against Him

¶ 50 Defendant also argues that his guilty plea should be vacated where the circuit court

violated Illinois Supreme Court Rule 402(a)(4) (eff. July 1, 2012) by failing to admonish

him that by pleading guilty he was waiving his right to be confronted with the witnesses

against him. In response, the State asserts that the court substantially complied with Rule

402(a)(4) before accepting defendant’s guilty plea. We agree with the State.

¶ 51 Similar to the above admonishment, the circuit court did not explicitly state

verbatim to defendant “that by pleading guilty [defendant] waives *** the right to be

confronted with the witnesses against him.” Despite this, the court substantially complied

with Rule 402(a)(4) before accepting defendant’s guilty plea. The circuit court specifically

provided defendant with a detailed overview of “what would happen if we do go to trial,”

which included jury selection followed by the State’s presentation of evidence and witness

testimony. The court informed defendant that, following the State’s questioning of each

witness, he would have the right to cross-examine “every witness,” including “every

witness that [the State] *** would call, you would have the right through [your attorney]

21 to question them and cross examine them and test their credibility, test their believability.”

The court instructed defendant that he would be able to use a “notepad” to “write down

questions that [you] want [your] attorney to ask.” Defendant acknowledged that he

understood.

¶ 52 Accordingly, the record affirmatively and specifically demonstrates that defendant

understood that if he persisted in his pleas of not guilty, he would proceed to a jury trial

where he would be confronted with the witnesses against him and be permitted to cross-

examine each of the witnesses. Because the record demonstrates substantial compliance

with Illinois Supreme Court Rule 402(a)(4), the circuit court did not abuse its discretion in

denying defendant’s motion to withdraw guilty plea and vacate sentence.

¶ 53 B. Defendant’s Right to Challenge Only His Sentence on Appeal

¶ 54 Next, defendant argues that he is entitled to withdraw his guilty plea because the

circuit court failed to inform him at the guilty plea hearing that he could not challenge only

his sentence on appeal as a consequence of agreeing to a sentencing cap. Because he lacked

“all of the information which was of consequence to his plea of guilty,” he claims his guilty

plea was not knowing and voluntary. We note at the outset that defendant has conceded

that his arguments are not supported by statute or case law but grounded on “principles of

fair play.” We disagree with the defendant for several reasons.

¶ 55 In instances where the defendant has agreed to plead guilty to certain charges in

exchange for the State’s recommendation of a sentencing cap, a defendant is required to

file a motion to withdraw his plea of guilty in the circuit court before challenging his

22 sentence on appeal. People v. Linder, 186 Ill. 2d 67, 74 (1999). In addition, Illinois

Supreme Court Rule 604(d) states:

“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.” Ill. S. Ct. R.

604(d) (eff. Feb. 6, 2013).

“Where the sentence imposed is within the agreed upon cap, [as the sentence here was,]

allowing the defendant to seek reconsideration of his sentence without also moving to

withdraw his guilty plea unfairly binds the State to the terms of the plea agreement while

giving the defendant the opportunity to avoid or modify those terms.” Linder, 186 Ill. 2d

at 74. “In summary, for a defendant to prevail in a challenge to a sentence entered pursuant

to a negotiated plea agreement, the defendant must (1) move to withdraw the guilty plea

and vacate the judgment, and (2) show that the granting of the motion is necessary to

correct a manifest injustice.” People v. Evans, 174 Ill. 2d 320, 332 (1996).

¶ 56 First, in determining the voluntariness of a guilty plea, the circuit court looks to the

requirements of Illinois Supreme Court Rule 402 (eff. July 1, 2012). As we have previously

determined, the record demonstrates that the court substantially complied with Rule 402(a)

prior to accepting defendant’s guilty plea. Additionally, and most importantly, Rule 402

does not require courts to admonish defendants “as to the ramifications of a sentencing

cap” at the guilty plea hearing. See People v. Johnson, 2018 IL App (3d) 150679, ¶ 22.

Despite defendant’s request, we refuse to conclude that the circuit court had a duty to

inform defendant as to the effect of the sentencing cap on his ability to appeal his sentence.

23 ¶ 57 Second, the circuit court also looks to the requirements of Illinois Supreme Court

Rule 402(b) (eff. July 1, 2012) in determining the voluntariness of a guilty plea. Rule

402(b) requires the court to have the terms of the plea agreement stated in open court and,

in questioning the defendant personally, (1) confirm the terms of the plea agreement and

(2) determine whether any force or threats or any promises apart from a plea agreement

were used to obtain the plea. Ill. S. Ct. R. 402(b) (eff. July 1, 2012). Again, here, the record

demonstrates that defendant’s plea of guilty, which was made under the terms of the plea

agreement, was voluntary and was not made as the result of force, threats, or promises

other than the plea agreement. Consequently, the circuit court complied with Illinois

Supreme Court Rule 402(b) before accepting defendant’s guilty plea.

¶ 58 Lastly, Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001) provides the

admonishments a circuit court must give when imposing sentence on a defendant who has

pled guilty pursuant to a negotiated plea agreement. Rule 605(c) requires the following:

“(1) that the defendant has a right to appeal;

(2) that prior to taking an appeal the defendant must file in the trial court,

within 30 days of the date on which sentence is imposed, a written motion asking to

have the judgment vacated and for leave to withdraw the plea of guilty, setting forth

the grounds for the motion; [and]

(3) that if the motion is allowed, the plea of guilty, sentence and judgment

will be vacated and a trial date will be set on the charges to which the plea of guilty

was made[.]” Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001).

24 Here, the court, again, had no duty at the time of sentencing to advise defendant as to the

effect of the sentencing cap on his ability to appeal his sentence. Instead, the record

demonstrates that the circuit court properly admonished defendant as to the steps he needed

to take in order to timely file a motion to withdraw guilty plea and vacate judgment in

compliance with Illinois Supreme Court Rule 605(c)(2).

¶ 59 Accordingly, based on the aforementioned, we find defendant’s argument meritless

where defendant has failed to prove that the granting of his motion to withdraw the guilty

plea and vacate the judgment was necessary to correct a manifest injustice. Because the

record establishes that defendant’s plea of guilty was entered knowingly and voluntarily,

we conclude that the circuit court did not abuse its discretion in denying defendant’s motion

to withdraw guilty plea and vacate sentence.

¶ 60 C. Ineffective Assistance of Counsel

¶ 61 Lastly, defendant asserts that he was deprived of his right to effective assistance of

counsel during plea negotiations when counsel failed to explain, and clearly did not

understand, 1 that the sentencing cap precluded defendant from appealing his sentence. For

that reason, defendant, again, claims that his guilty plea was not entered knowingly and

voluntarily. We disagree.

1 Following defendant’s imposition of sentence, the circuit court informed defendant that he had 30 days to file a motion to withdraw his guilty plea. In addition, the court instructed defendant that he could file a motion to reconsider to ask the circuit court for a lesser sentence before he appealed to the appellate court. The court, although not required to admonish defendant of the effect of the sentencing cap on his ability to appeal his sentence, did not clarify the requirements set forth by Linder. We note, however, that the court specifically asked counsel “to explain this part of the process” to defendant. Defendant now appeals, arguing that counsel’s performance fell below an objective standard of reasonableness when counsel did not attempt to correct the court’s “incorrect admonishments,” and counsel, based on his own mistaken belief that a motion to reconsider the sentence was viable, failed to advise defendant of a critical consequence of his plea.

25 ¶ 62 Claims that trial counsel was ineffective during the guilty-plea process are evaluated

under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984).

People v. Brown, 2017 IL 121681, ¶ 25 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

Where, as here, a defendant asserts a claim of ineffective assistance during the guilty-plea

process, defendant must establish that his counsel’s performance fell below an objective

standard of reasonableness, and also that “ ‘there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to

trial.’ ” Brown, 2017 IL 121681, ¶ 26 (quoting Hill, 474 U.S. at 59). Courts have held that

“ ‘[a] conclusory allegation that a defendant would not have pleaded guilty and would have

demanded a trial is insufficient to establish prejudice’ ” for purposes of an ineffective

assistance of counsel claim brought by a guilty-plea defendant. Brown, 2017 IL 121681,

¶ 26 (quoting People v. Valdez, 2016 IL 119860, ¶ 29 (citing People v. Hughes, 2012 IL

112817, ¶ 64, and People v. Hall, 217 Ill. 2d 324, 335 (2005)). Instead, the defendant

“ ‘ “must convince the court that a decision to reject the plea bargain would have been

rational under the circumstances.” ’ ” Brown, 2017 IL 121681, ¶ 40 (quoting Valdez, 2016

IL 119860, ¶ 29, quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). A defendant may

not “satisfy the requisite prejudice prong based solely on the bare allegation that the

defendant would have rejected the plea if his guilty-plea counsel had provided accurate

advice.” Brown, 2017 IL 121681, ¶ 47; see also Valdez, 2016 IL 119860, ¶ 29 (“[a]

conclusory allegation that a defendant would not have pleaded guilty and would have

demanded a trial is insufficient to establish prejudice” for purposes of the Strickland

analysis (citing Hughes, 2012 IL 112817, ¶ 64)).

26 ¶ 63 Defendant’s allegation of ineffectiveness, which involves his understanding of the

consequences of his guilty plea as it related to his appeal rights, is insufficient to establish

prejudice. Defendant was charged with two counts of aggravated criminal sexual assault,

both Class X felonies, and one count of criminal sexual assault, a Class 1 felony, that

included a sentencing range of 16 to 75 years in prison. Given the predatory nature in which

defendant carried out these crimes, it is entirely possible that he would have received a

sentence on the higher end of the range.

¶ 64 By pleading guilty and agreeing to the negotiated plea agreement, defendant

received a sentencing range of 25 to 45 years. It is important to note that, under the first

proposed plea agreement that the circuit court refused to accept, defendant’s collective

sentences would have been 30 years. Following the court’s refusal to accept this plea

agreement, however, the parties negotiated the current plea agreement at issue where

defendant was willing to accept a higher minimum sentencing range of 25 years, as

compared to the required, mandatory minimum sentence of 16 years that defendant could

have potentially received had he pled not guilty and insisted on going to trial.

¶ 65 Moreover, defendant has failed to present any evidence that the ability to appeal his

sentence played an important role in his decision to accept the negotiated plea agreement.

Instead, ample evidence in the record demonstrates that a sentencing cap of 45 years was

a compelling reason that defendant chose to plead guilty. In particular, defendant vocalized

his desire to avoid a potential 75-year sentence for the opportunity to see his family sooner.

As such, we cannot accept defendant’s bare allegations that he would have persisted in his

plea of not guilty had counsel provided accurate advice, especially given the strong

27 evidence of guilt against defendant, which includes defendant identifying himself on the

surveillance video before he attacked and sexually assaulted M.W., and his confession to

both of the crimes against his victims, K.R. and M.W.

¶ 66 Accordingly, based on these circumstances, defendant has failed to establish the

requisite showing of prejudice where he has failed to show that a decision to reject the

negotiated plea agreement would have been rational under the circumstances. Because a

defendant must satisfy both prongs of Strickland, we may reject a claim of ineffective

assistance without reaching the performance prong if we conclude defendant did not satisfy

the prejudice prong. See People v. Graham, 206 Ill. 2d 465, 476 (2003) (“That is, if an

ineffective-assistance claim can be disposed of because the defendant suffered no

prejudice, we need not determine whether counsel’s performance was deficient.”).

Consequently, we need not address defendant’s argument that defense counsel, based on

his own mistaken belief that a motion to reconsider the sentence was viable, failed to advise

defendant of a critical consequence of his plea.

¶ 67 Thus, the circuit court’s order denying defendant’s amended motion to withdraw

guilty plea is affirmed where the record sufficiently demonstrates substantial compliance

with Illinois Supreme Court Rule 402(a) (eff. July 1, 2012). Defendant’s argument that his

partially negotiated guilty plea was not made knowingly and voluntarily is without merit,

given the court properly admonished defendant at the time of imposing sentence, and the

guilty plea resulted in a sentence within the negotiated range. Lastly, defendant was not

prejudiced where counsel did not advise defendant that he would be precluded from

28 appealing only his sentence if he accepted the negotiated plea agreement with a 45-year

sentencing cap.

¶ 68 III. Conclusion

¶ 69 Based on the foregoing, judgment of the circuit court of St. Clair County is hereby

affirmed.

¶ 70 Affirmed.