NOTICE 2020 IL App (4th) 180715-U FILED This order was filed under Supreme June 23, 2020 Court Rule 23 and may not be cited Carla Bender as precedent by any party except in NO. 4-18-0715 4th District Appellate the limited circumstances allowed under Rule 23(e)(1). Court, IL 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 BRIAN T. KOCHER, ) No. 17CF376 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices DeArmond and Cavanagh concurred in the judgment.
ORDER ¶1 Held: The appellate court remanded for further proceedings in accordance with Illinois Supreme Court Rule 604(d).
¶2 Defendant, Brian T. Kocher, pleaded guilty to predatory criminal sexual assault of
a child as part of a partially negotiated plea agreement in which the State agreed to cap its
sentencing recommendation at 23 years. The trial court subsequently sentenced defendant to 23
years in prison. Within 30 days of being sentenced, defendant pro se filed a letter addressed to
the trial court in which he requested the court “make a ruling of an ineffective council [sic].” A
docket entry indicates that “[c]opies [of the letter were] provided to counsel.” No further
proceedings were had on defendant’s letter. ¶3 On appeal, defendant argues the trial court erred “when it merely forwarded” his
letter to his attorney and the prosecutor, instead of appointing counsel to perfect his postplea
claims as required by Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). We remand for
further proceedings in accordance with Rule 604(d).
¶4 I. BACKGROUND
¶5 In March 2017, the State charged defendant by information with three counts of
predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2016)), alleging he
committed the following acts against the victim, who was under 13 years of age at the time of the
alleged conduct: (1) “placed his penis inside her anus” (count I); (2) made contact “between [his]
sex organ *** and the [victim’s] hand” (count II); and (3) “placed his penis inside her vagina”
(count III).
¶6 Defendant pleaded guilty to count I in exchange for the State’s agreement to
dismiss counts II and III and to cap its sentencing recommendation at 23 years’ imprisonment.
The trial court accepted defendant’s plea and, on June 15, 2018, sentenced him to 23 years in
prison.
¶7 On June 22, 2018, defendant pro se sent a letter to the court with the following
request: “I would like the judge to make a ruling of an ineffective council [sic].” Defendant then
listed ten allegations related to defense counsel’s representation. A docket entry made on June
22, 2018, reads, in its entirety: “Correspondence received from *** [d]efendant this date. Copies
provided to counsel.” The record reveals no further proceedings on defendant’s letter.
¶8 In October 2018, defendant pro se filed a motion to withdraw his guilty plea and
vacate the judgment. The trial court refused to consider defendant’s untimely motion. Defendant
filed a late notice of appeal, which we allowed.
-2- ¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues the trial court erred “when it merely forwarded” his
letter to his attorney and the prosecutor. Specifically, defendant “contend[s] that because he had
the right to counsel to assist him in perfecting a postplea motion, and his letter contained the
rudiments of an ineffective assistance of counsel claim, Illinois Supreme Court Rule 604(d)
required the [trial] court to appoint counsel to perfect a postplea motion consistent with that
rule.” Defendant relies on two cases in support of his argument: (1) People v. Trussel, 397 Ill.
App. 3d 913, 931 N.E.2d 266 (2010), and (2) People v. Barnes, 291 Ill. App. 3d 545, 684 N.E.2d
416 (1997). Before examining these cases, we must determine the proper standard of review.
¶ 12 Defendant acknowledges that this court generally reviews the denial of a postplea
motion under an abuse-of-discretion standard. Nonetheless, he maintains our review in the
instant case should be de novo, as he has raised a question of law—i.e., whether Rule 604(d)
required the trial court to appoint him postplea counsel—that “does not depend on the ***
court’s assessment of facts or evidence.” The State urges us to apply an abuse-of-discretion
standard, noting “the salient facts are the evidence of defendant’s guilt was overwhelming and
the evidence of aggravation at sentencing was overwhelming.” However, as pointed out by
defendant, the State does not explain why the court had to assess these facts in determining
whether Rule 604(d) required the appointment of counsel, nor does the State cite to any authority
in support of this position. Thus, we find the State has forfeited its argument, and we will apply a
de novo standard of review, which we agree is appropriate in this case given the straightforward
and undisputed facts. See Ill. S. Ct. R. 341(i) (eff. May 25, 2018) (providing that failure to fully
explain arguments and cite to authority in the appellee brief results in forfeiture).
-3- ¶ 13 As noted above, defendant relies on two cases in support of his argument that he
was entitled to the appointment of postplea counsel.
¶ 14 In Trussel, the defendant pleaded guilty to battery and was sentenced to a term of
probation. Trussel, 397 Ill. App. 3d at 913. Within 30 days of being sentenced, the defendant
pro se sent a letter to the trial court, which read as follows:
“I *** wish I [sic] ap[p]eal my case. I feel I did not g[e]t a fair trial. My lawyer
did not g[e]t the video from Walmart. He told me [I] did not have a chanc[e] and
scared me into taking the plea. I am not guilty. They should have the video. I feel
that the video is key in my defen[se].” Trussel, Id. at 914.
The circuit clerk treated the letter as a notice of appeal. Id. On appeal, the defendant argued his
letter “should have been forwarded to a judge, who could then have appointed counsel for the
purpose of assisting [the] defendant in perfecting his right to direct appeal.” Id. This court agreed
and remanded with directions to appoint postplea counsel “and proceed in accordance with Rule
604(d).” Id. at 915. In doing so, we reasoned that “ ‘because of the strict waiver requirements of
Rule 604(d), fundamental fairness requires that a defendant be afforded a full opportunity to
explain his allegations and that he have assistance of counsel in preparing the motion.’ ” Id.
(quoting People v. Ledbetter, 174 Ill. App. 3d 234, 237-38, 528 N.E.2d 375, 377 (1988)).
¶ 15 In Barnes, the Third District analyzed “the question of whether it was error for the
trial court to fail to appoint [postplea] counsel ***.” Barnes, 291 Ill. App. 3d at 550. There, the
defendant initially pleaded guilty to unlawful acquisition of a controlled substance and received a
sentence of probation. Id. at 546. While on probation, the defendant was charged in a second
case with additional counts of the same offense; she subsequently admitted to violating her
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NOTICE 2020 IL App (4th) 180715-U FILED This order was filed under Supreme June 23, 2020 Court Rule 23 and may not be cited Carla Bender as precedent by any party except in NO. 4-18-0715 4th District Appellate the limited circumstances allowed under Rule 23(e)(1). Court, IL 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 BRIAN T. KOCHER, ) No. 17CF376 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices DeArmond and Cavanagh concurred in the judgment.
ORDER ¶1 Held: The appellate court remanded for further proceedings in accordance with Illinois Supreme Court Rule 604(d).
¶2 Defendant, Brian T. Kocher, pleaded guilty to predatory criminal sexual assault of
a child as part of a partially negotiated plea agreement in which the State agreed to cap its
sentencing recommendation at 23 years. The trial court subsequently sentenced defendant to 23
years in prison. Within 30 days of being sentenced, defendant pro se filed a letter addressed to
the trial court in which he requested the court “make a ruling of an ineffective council [sic].” A
docket entry indicates that “[c]opies [of the letter were] provided to counsel.” No further
proceedings were had on defendant’s letter. ¶3 On appeal, defendant argues the trial court erred “when it merely forwarded” his
letter to his attorney and the prosecutor, instead of appointing counsel to perfect his postplea
claims as required by Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). We remand for
further proceedings in accordance with Rule 604(d).
¶4 I. BACKGROUND
¶5 In March 2017, the State charged defendant by information with three counts of
predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2016)), alleging he
committed the following acts against the victim, who was under 13 years of age at the time of the
alleged conduct: (1) “placed his penis inside her anus” (count I); (2) made contact “between [his]
sex organ *** and the [victim’s] hand” (count II); and (3) “placed his penis inside her vagina”
(count III).
¶6 Defendant pleaded guilty to count I in exchange for the State’s agreement to
dismiss counts II and III and to cap its sentencing recommendation at 23 years’ imprisonment.
The trial court accepted defendant’s plea and, on June 15, 2018, sentenced him to 23 years in
prison.
¶7 On June 22, 2018, defendant pro se sent a letter to the court with the following
request: “I would like the judge to make a ruling of an ineffective council [sic].” Defendant then
listed ten allegations related to defense counsel’s representation. A docket entry made on June
22, 2018, reads, in its entirety: “Correspondence received from *** [d]efendant this date. Copies
provided to counsel.” The record reveals no further proceedings on defendant’s letter.
¶8 In October 2018, defendant pro se filed a motion to withdraw his guilty plea and
vacate the judgment. The trial court refused to consider defendant’s untimely motion. Defendant
filed a late notice of appeal, which we allowed.
-2- ¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues the trial court erred “when it merely forwarded” his
letter to his attorney and the prosecutor. Specifically, defendant “contend[s] that because he had
the right to counsel to assist him in perfecting a postplea motion, and his letter contained the
rudiments of an ineffective assistance of counsel claim, Illinois Supreme Court Rule 604(d)
required the [trial] court to appoint counsel to perfect a postplea motion consistent with that
rule.” Defendant relies on two cases in support of his argument: (1) People v. Trussel, 397 Ill.
App. 3d 913, 931 N.E.2d 266 (2010), and (2) People v. Barnes, 291 Ill. App. 3d 545, 684 N.E.2d
416 (1997). Before examining these cases, we must determine the proper standard of review.
¶ 12 Defendant acknowledges that this court generally reviews the denial of a postplea
motion under an abuse-of-discretion standard. Nonetheless, he maintains our review in the
instant case should be de novo, as he has raised a question of law—i.e., whether Rule 604(d)
required the trial court to appoint him postplea counsel—that “does not depend on the ***
court’s assessment of facts or evidence.” The State urges us to apply an abuse-of-discretion
standard, noting “the salient facts are the evidence of defendant’s guilt was overwhelming and
the evidence of aggravation at sentencing was overwhelming.” However, as pointed out by
defendant, the State does not explain why the court had to assess these facts in determining
whether Rule 604(d) required the appointment of counsel, nor does the State cite to any authority
in support of this position. Thus, we find the State has forfeited its argument, and we will apply a
de novo standard of review, which we agree is appropriate in this case given the straightforward
and undisputed facts. See Ill. S. Ct. R. 341(i) (eff. May 25, 2018) (providing that failure to fully
explain arguments and cite to authority in the appellee brief results in forfeiture).
-3- ¶ 13 As noted above, defendant relies on two cases in support of his argument that he
was entitled to the appointment of postplea counsel.
¶ 14 In Trussel, the defendant pleaded guilty to battery and was sentenced to a term of
probation. Trussel, 397 Ill. App. 3d at 913. Within 30 days of being sentenced, the defendant
pro se sent a letter to the trial court, which read as follows:
“I *** wish I [sic] ap[p]eal my case. I feel I did not g[e]t a fair trial. My lawyer
did not g[e]t the video from Walmart. He told me [I] did not have a chanc[e] and
scared me into taking the plea. I am not guilty. They should have the video. I feel
that the video is key in my defen[se].” Trussel, Id. at 914.
The circuit clerk treated the letter as a notice of appeal. Id. On appeal, the defendant argued his
letter “should have been forwarded to a judge, who could then have appointed counsel for the
purpose of assisting [the] defendant in perfecting his right to direct appeal.” Id. This court agreed
and remanded with directions to appoint postplea counsel “and proceed in accordance with Rule
604(d).” Id. at 915. In doing so, we reasoned that “ ‘because of the strict waiver requirements of
Rule 604(d), fundamental fairness requires that a defendant be afforded a full opportunity to
explain his allegations and that he have assistance of counsel in preparing the motion.’ ” Id.
(quoting People v. Ledbetter, 174 Ill. App. 3d 234, 237-38, 528 N.E.2d 375, 377 (1988)).
¶ 15 In Barnes, the Third District analyzed “the question of whether it was error for the
trial court to fail to appoint [postplea] counsel ***.” Barnes, 291 Ill. App. 3d at 550. There, the
defendant initially pleaded guilty to unlawful acquisition of a controlled substance and received a
sentence of probation. Id. at 546. While on probation, the defendant was charged in a second
case with additional counts of the same offense; she subsequently admitted to violating her
probation, entered a negotiated plea of guilty, and was sentenced to four-year terms of
-4- imprisonment in each case, with the sentences to be served consecutively. Id. at 546-47. Within
30 days of sentencing, and “[b]y way of a handwritten letter addressed to the trial judge ***, the
defendant requested a modification of her sentence ***.” Id. at 547. In the letter, the defendant
mostly discussed her sentence but “also explained that when she agreed to the plea, ‘I was
having bad withdrawals from the prescription drugs I had been calling in and I wasn’t thinking
very clearly at the time. I’m not trying to make any excuses, it’s the truth.’ ” Id. The trial court
summarily denied the defendant’s request without a hearing due to the negotiated nature of the
plea. Id.
¶ 16 On appeal, “the defendant argue[d] that the [court] erred in refusing to entertain
her motion to reconsider sentence without first appointing counsel.” Id. The Third District
agreed, concluding that “upon receiving the defendant’s motion, the trial judge *** should have
ascertained whether the defendant was represented by counsel, and upon a showing of indigence,
appointed counsel to assist with the preparation and presentation of the post-plea motion.” Id. at
550. The Barnes court reasoned that (1) it is “well settled that a defendant has the right to the aid
of an attorney in the preparation and presentation of a motion pursuant to Rule 604(d), and such
a motion should not be denied until that representation has been obtained”; and (2) “trial judges
are under a duty to liberally consider the nature of a pro se defendant’s post-plea motion before
summarily dismissing it.” Id. at 550-51. The Barnes court went on to explain:
“Upon demonstrating a desire to seek relief from the judgment, the
defendant should have been given the opportunity to have the intricacies of the
law explained to her by counsel. Thereafter, with the assistance of counsel, the
defendant would have had the opportunity to file an amended motion *** or, in
the alternative, abandon her efforts entirely.” Id. at 550.
-5- ¶ 17 Here, within 30 days of being sentenced, defendant pro se sent a letter to the trial
court with the following request: “I would like the judge to make a ruling of an ineffective
council [sic].” Defendant then set forth ten allegations describing defense counsel’s ineffective
representation. A docket entry made on June 22, 2018, reads, in its entirety: “Correspondence
received from *** [d]efendant this date. Copies provided to counsel.” The record reveals no
further proceedings on defendant’s letter. Defendant subsequently filed a motion to withdraw his
guilty plea, but the trial court denied that motion as untimely.
¶ 18 Applying Trussel and Barnes to the facts of this case, we agree that the trial court
erred in failing to directly address defendant’s pro se letter. As noted by the Barnes court, it is
well-settled that criminal defendants have “the right to the aid of an attorney in the preparation
and presentation of a motion pursuant to Rule 604(d), and such a motion should not be denied
until that representation has been obtained.” Id. Although defendant’s letter was not labeled as a
motion to withdraw his plea, the court was under a duty to liberally construe the pro se
document. See, e.g., id. at 551. Liberally construed, defendant’s letter—in which he explicitly
raised allegations of ineffective assistance of counsel and requested a ruling on those claims—
demonstrated his desire to seek relief from the judgment entered upon his plea. Because
defendant demonstrated his desire to seek relief, he was entitled, under Rule 604(d), “to the aid
of an attorney in the preparation and presentation of a [Rule 604(d)] motion ***.” Id. at 550.
Moreover, as we noted in Trussel, “because of the strict waiver requirements of Rule 604(d),
fundamental fairness requires that a defendant be afforded a full opportunity to explain his
allegations and that he have assistance of counsel in preparing the motion.” (Internal quotation
marks omitted.) Trussel, 397 Ill. App. 3d at 915. This legal proposition is especially applicable in
the instant case, as defendant’s subsequent motion to withdraw his guilty plea was denied as
-6- untimely. Accordingly, we find the court erred in failing to treat defendant’s pro se letter as a
Rule 604(d) motion and appoint postplea counsel.
¶ 19 The State’s argument for the opposite conclusion is unpersuasive. According to
the State, defendant’s reliance on Trussel and Barnes is misplaced, as the defendants in those
cases raised allegations related to the voluntariness of their guilty pleas, whereas “[h]ere,
defendant made no such allegation that his plea was involuntary or that he was not guilty of the
crime of which he was convicted.” However, the State fails to point to any language in Trussel or
Barnes in support of its position that an allegation of involuntariness or innocence is a necessary
condition to the application of Rule 604(d). Instead, the Trussel court merely noted the
defendant’s letter “contained the rudiments of an ineffective-assistance-of-counsel claim” (id. at
914) while the Barnes court found the defendant had “demonstrate[ed] a desire to seek relief
from the judgment” (Barnes, 291 Ill. App. 3d at 550). Moreover, the State fails to address the
fact that a guilty plea may be rendered involuntary by the ineffective assistance of counsel. See,
e.g., People v. Clark, 386 Ill. App. 3d 673, 676, 899 N.E.2d 342, 345 (2008).
¶ 20 III. CONCLUSION
¶ 21 For the reasons stated, we remand the cause for the appointment of counsel to
assist defendant in the preparation and litigation of a Rule 604(d) motion if defendant wishes to
pursue such a course.
¶ 22 Remanded with directions.
-7-