People v. Lacey

2024 IL App (5th) 231065-U

• Court: Appellate Court of Illinois
• Decided: May 20, 2024
• Docket: 5-23-1065
• Status: Unpublished

Opinion

2024 IL App (5th) 231065-U NOTICE NOTICE Decision filed 05/20/24. The This order was filed under text of this decision may be NO. 5-23-1065 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of 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, ) Madison County. ) v. ) No. 22-CF-1571 ) ORLANDUIS LACEY JR., ) Honorable ) Ronald R. Slemer, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Boie and Sholar concurred in the judgment.

ORDER

¶1 Held: Because the defendant did not file his motion to withdraw guilty plea within 30 days after sentencing, this court cannot consider the instant appeal on the merits, and therefore the defendant’s appointed appellate attorney is granted leave to withdraw, and this appeal must be dismissed.

¶2 The defendant, Orlanduis Lacey Jr., pleaded guilty to escape and unlawful possession of a

weapon by a felon, as well as a felony crime in a separate case, and was sentenced to imprisonment.

Nearly four months after sentencing, the defendant filed a motion to withdraw plea. The circuit

court noticed the motion’s late filing and entered an order finding that it had lost jurisdiction over

the case. In an attempt to appeal from that order, the defendant filed a notice of appeal, which was

untimely. The defendant’s appointed attorney on appeal, the Office of the State Appellate Defender

(OSAD), has concluded that this appeal must be dismissed, due to a lack of jurisdiction. On that

1 basis, OSAD has filed a motion to withdraw as counsel and a supporting brief. See Anders v.

California, 386 U.S. 738 (1967). OSAD properly served the defendant with a copy of its Anders

motion and brief. This court granted the defendant an opportunity to file a pro se brief,

memorandum, etc., showing cause why the judgment should not be affirmed or why OSAD should

not be allowed to withdraw as counsel. However, the defendant has failed to file any type of

response to OSAD’s Anders motion. This court has thoroughly examined OSAD’s Anders motion

and brief, as well as the entire record on appeal. This court concludes that OSAD must be granted

leave to withdraw as counsel, and that this appeal must be dismissed.

¶3 BACKGROUND

¶4 In this case, the defendant was charged with escape (720 ILCS 5/31-6(c) (West 2022)), two

counts of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2022)), and

resisting a peace officer (720 ILCS 5/31-1(a) (West 2022)).

¶5 On April 28, 2023, the defendant, his private attorney, and an assistant State’s attorney

appeared in court. The attorneys informed the judge that the parties had negotiated an agreement

that encompassed four Madison County criminal cases—the instant case (No. 22-CF-1571) and

case numbers 20-CF-3125, 20-CF-2843, and 21-CF-572. They described the agreement’s terms.

In the instant case, the defendant would plead guilty to escape and unlawful possession of a weapon

by a felon; he would be sentenced to 12½ years of imprisonment for each offense, at a truth-in-

sentencing rate of 50%, with the two sentences to run concurrently. In case number 20-CF-3125,

the defendant would plead guilty to aggravated domestic battery; he would be sentenced to three

years of imprisonment, at a truth-in-sentencing rate of 85%, with the sentence to run consecutively

with the two sentences imposed in case number 22-CF-1571. In case number 21-CF-572, the

felony crime would be amended to a Class A misdemeanor; the defendant would be sentenced to

2 time served. In case number 20-CF-2843, the charge (or charges) would be dismissed. (The two

latter cases—case numbers 21-CF-572 and 20-CF-2843—were not mentioned again during the

plea hearing.)

¶6 The judge then questioned the defendant. Responding to the judge’s queries, the defendant

stated that he was 26 years old, had a GED, understood English, was not under the influence of

alcohol or drugs, had been in jail for five or six months, and understood the parties’ negotiations.

¶7 The judge admonished the defendant that under the negotiated agreement, he would plead

guilty in case number 20-CF-3125 to aggravated domestic battery, and the judge described the

conduct alleged in that count. The defendant indicated his understanding of that charge and his

desire to plead guilty to it. Next, the judge admonished the defendant that in the instant case, i.e.,

in No. 22-CF-1571, he was charged with escape and unlawful possession of a weapon by a felon,

respectively, and the judge described the conduct alleged in those counts. The defendant indicated

his understanding of those two charges.

¶8 The judge admonished the defendant that he had a right to plead guilty or not guilty, that

he had a right to a trial, whether jury or non-jury, and that by pleading guilty, there would be no

trial, that the State had the burden of proving guilt beyond a reasonable doubt and that he, the

defendant, had the presumption of innocence, that he had a right to testify or not testify, that he

had a right to subpoena and cross-examine witnesses, and that he had a right to an attorney. The

defendant indicated that he understood all of these rights and concepts.

¶9 The judge then explained the possible sentences for aggravated domestic battery, as it was

charged in case number 20-CF-3125, and for escape and unlawful possession of a weapon by a

felon, as they were charged in case number 22-CF-1571. These possible sentences included the

possible terms of imprisonment under statute, the terms of mandatory supervised release (MSR),

3 and monetary fines. The defendant indicated his understanding of the possible sentences under

law. The judge also reviewed the specific, agreed-upon sentences for those three offenses,

including the appropriate truth-in-sentencing rates—85% for aggravated domestic battery, 50%

for escape and unlawful possession of a weapon by a felon. The defendant indicated his

understanding of the agreed-upon sentences. The State provided factual bases for these pleas, and

defense counsel stipulated that the evidence would be as the State had recounted.

¶ 10 The defendant entered pleas of guilty as to each of the three counts, i.e., aggravated

domestic battery, escape, and unlawful possession of a weapon by a felon. In response to the

court’s queries, the defendant indicated that no one had forced him or threatened him to plead

guilty and that no one had promised him anything, apart from the negotiations, to persuade him to

plead guilty, and that he was pleading guilty freely and voluntarily. The judge said that he would

bind himself to the negotiations and impose the negotiated sentences, as previously described. The

judge found that the defendant understood the charges and the penalties that he faced, understood

his rights, and that he “freely, voluntarily, and knowingly” waived his rights and entered pleas of

guilty. The judge also found sufficient factual bases for the pleas. The parties waived preparation

of a presentence investigation report, stating that the defendant’s criminal history was accurately

stated in the record. The judge accepted the defendant’s guilty pleas and entered judgment thereon.

In response to the judge’s queries, the defendant indicated that he did not have any questions about

his sentences and that he did not have any questions to ask his attorney. Finally, the judge fully

admonished the defendant about his right to appeal under Illinois Supreme Court Rule 605(c) (eff.

Oct. 1, 2001), including the necessity of filing in the circuit court a written motion to withdraw the

guilty plea “within 30 days of today’s date” and the necessity of including in that motion all of the

issues or claims of error, and the judge also described the consequences of having the motion

4 granted, including the vacation of the imposed sentences, the reinstatement of any dismissed

charges, and the setting of trial.

¶ 11 Immediately after the appeal admonishment, the defendant requested a 30-day furlough.

After some discussion, the court granted his request. So ended the guilty-plea hearing and

sentencing.

¶ 12 In a written order entered on the same day as the plea and sentencing, the circuit court

ordered that the defendant was to be released from the county jail on May 1, 2023, and that the

defendant was to turn himself in to the county sheriff on May 30, 2023, at 9 a.m. The court also

entered a written order sentencing the defendant, as agreed, to 12½ years for escape and 12½ years

for unlawful possession of a weapon by a felon, with the sentences to run concurrently with one

another, but consecutive to the 3-year sentence imposed in case number 20-CF-3125, to be

followed by the statutorily-mandated term of MSR. The written order also noted the defendant’s

30-day furlough.

¶ 13 Apparently, the furlough ended as the court had hoped. The defendant reported to the jail

as instructed, and he was sent to the Department of Corrections to begin serving his sentences.

¶ 14 On August 22, 2023, the defendant placed into the prison mail system a motion to withdraw

his guilty pleas and vacate the sentences. On August 28, 2023, the motion was file-stamped by the

clerk of the circuit court. For his motion, the defendant used a preprinted form with the blanks

filled in. The motion’s gravamen appeared in a hand-written paragraph that addressed both the

timing of the motion’s filing and the grounds for withdrawing the pleas. This paragraph read, in

its entirety, as follows:

“I was unable to file my motion within the 30[-]day deadline [d]ue to not having ac[c]ess

to a library. I left Madison [C]ounty 6/19/22, an[d] [d]ue to my escape I was in

5 Seg[regation] while at [G]raham I filed as soon as I could. First reason I would like to

withdraw my guilty [p]lea is, I wasn[’]t credited for none of the time I served when I got

my 22-CF-1571 on 6/18/22. Also they told me in my plea they was gone [sic] run my 3 at

85% case first which it wasn[’]t [sic]. They [a]lso extended term my possession case which

was 3 to 7 they gave me 12½ yrs. Lastly I felt forced I had just hired my [l]awyer 1 month

before they set a trial date, I haven[’]t even got a[n] offer yet or went over my motion of

[d]iscovery, I was treated unfairly.”

¶ 15 On September 5, 2023, the circuit court entered a written order that ruled on the defendant’s

motion to withdraw his pleas. The order noted the date of the defendant’s pleas of guilty, which

was April 28, 2023, and the date on which the circuit clerk had file-stamped the motion to withdraw

pleas, which was on August 28, 2023. The order then concluded, “The court has no jurisdiction.”

¶ 16 Fifty-five days after the court’s order was entered—that is, on October 30, 2023—the clerk

file-stamped the defendant’s notice of appeal. (Nothing in the record indicates the date the

defendant placed the notice of appeal into the prison mail system.)

¶ 17 ANALYSIS

¶ 18 The defendant is attempting to appeal from the circuit court’s order finding that it lacked

jurisdiction over his motion to withdraw his guilty pleas. As previously noted, the defendant’s

appointed counsel on appeal, OSAD, has filed an Anders motion to withdraw as counsel, on the

basis that this court lacks jurisdiction and this appeal must be dismissed. The defendant has not

filed any type of response.

¶ 19 As to whether this court has jurisdiction to consider the merits of the defendant’s appeal,

that is a legal question subject to de novo review. People v. Salem, 2016 IL 11693, ¶ 11.

6 ¶ 20 On April 28, 2023, the defendant pleaded guilty pursuant to a fully negotiated plea

agreement with the State, and he was sentenced. On August 22, 2023—nearly four months after

sentencing—he mailed to the clerk of the circuit court his motion to withdraw the guilty plea. A

motion to withdraw guilty plea must be filed within 30 days after sentencing. Ill. S. Ct. R. 604(d)

(eff. July 1, 2017). Since the defendant failed to file his motion within 30 days, the circuit court

had lost jurisdiction to rule on that motion, just as the circuit court found in the order that it entered

on September 5, 2023. See People v. Flowers, 208 Ill. 2d 291, 303 (2003) (where a defendant files

his postplea motion more than 30 days after sentence is imposed, the circuit court is divested of

jurisdiction). Compliance with Rule 604(d)’s time requirement is also a condition precedent to an

appeal; if a defendant fails to meet this requirement, the appeal must be dismissed. Flowers, 208

Ill. 2d at 300-01 (failure to file a timely Rule 604(d) motion precludes a court of review from

considering the appeal on the merits). Accordingly, this court cannot consider this appeal on the

merits. Regardless of what else can be said about the defendant and this appeal—such as his failure

to file the notice of appeal within 30 days after the final judgment was entered on September 5,

2023 (see Ill. S. Ct. R. 606(b) (eff. Mar. 12, 2021))—his instant appeal must be dismissed.

¶ 21 CONCLUSION

¶ 22 For the foregoing reasons, OSAD’s motion for leave to withdraw as counsel is granted,

and the instant appeal is dismissed.

¶ 23 Motion granted; appeal dismissed.