2024 IL App (5th) 220566-U NOTICE NOTICE Decision filed 01/29/24. The This order was filed under text of this decision may be NO. 5-22-0566 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, ) Jefferson County. ) v. ) No. 18-CF-399 ) JAMES J. LOMAX, ) Honorable ) Jerry E. Crisel, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE McHANEY delivered the judgment of the court. Justices Moore and Barberis concurred in the judgment.
ORDER
¶1 Held: No per se conflict of interest existed where plea counsel never assumed the status of an attorney for a prosecution witness. The trial court did not abuse its discretion in denying the defendant’s motion to withdraw his guilty plea where the trial court substantially complied with Rule 402 admonishments at the plea hearing.
¶2 The defendant, James J. Lomax, pled guilty to one count of unlawful possession of a
weapon by a felon (720 ILCS 5/24-1.1(a) (West 2016)) in a partially negotiated plea agreement
that included an agreed sentencing cap and the dismissal of an additional charge. Shortly after the
plea hearing, appointed plea counsel notified the trial court that he had become aware after the
plea hearing that he had a per se conflict of interest. The trial court appointed a new attorney to
represent the defendant going forward but did not inquire as to the nature of the conflict or when
it arose. The defendant later filed a motion to withdraw his guilty plea, arguing that plea counsel
1 provided ineffective assistance and that the trial court failed to substantially comply with the
requirements of Illinois Supreme Court Rule 402 (eff. July 1, 2012). The trial court denied his
motion, and the defendant filed an appeal.
¶3 On direct appeal, the defendant argued that (1) his guilty plea was not knowing and
voluntary because the trial court did not substantially comply with Rule 402 when admonishing
him at the plea hearing and (2) because the record did not establish whether the defendant received
conflict-free representation during the plea proceedings, the cause should be remanded to allow
the trial court to make this crucial finding. Because we agreed with the defendant’s second
contention, we remanded the matter to the trial court to allow it to make that finding but elected
not to address the defendant’s argument concerning the trial court’s admonishments. See People
v. Lomax, 2022 IL App (5th) 190407-U.
¶4 On remand, an evidentiary hearing was held. The trial court determined that plea counsel
did, in fact, have a per se conflict of interest, but that at the time of the guilty plea hearing, plea
counsel was not aware of it. Plea counsel did not become aware of the per se conflict until after
the guilty plea hearing, but before the defendant’s sentencing hearing. The trial court, reasoning
that because plea counsel was unaware of the per se conflict there could be no adverse impact to
the defendant requiring automatic reversal, denied the defendant’s motion to withdraw his guilty
plea. The defendant filed a timely appeal. For the reasons that follow, we affirm.
¶5 I. Background
¶6 Substantial portions of the factual background were originally set forth in People v. Lomax,
2022 IL App (5th) 190407-U. Therefore, we will cite only those facts necessary to this disposition.
The defendant was indicted on one count of unlawful possession of a weapon by a felon (720 ILCS
5/24-1.1(a) (West 2016)) and one count of possession of a stolen firearm (id. § 24-3.8). He pled
2 guilty to the charge of unlawful possession of a weapon by a felon in a partially negotiated plea
agreement, pursuant to which the State dismissed the second charge and agreed to a six-year
sentencing cap, which would be binding on the trial court.
¶7 At the November 20, 2018, plea hearing, the trial court admonished the defendant
concerning the rights he would give up by pleading guilty. Specifically, the trial court told the
defendant that he had the right to be proven guilty beyond a reasonable doubt, the right to a jury
trial, the right to be present at his trial, the right to confront and cross-examine witnesses against
him, the right to present witnesses and other evidence in his defense, the right to remain silent, and
the right to a speedy trial. The trial court advised the defendant that by pleading guilty he was
waiving all of these rights, but it did not specifically advise the defendant that he had the right to
plead not guilty. The defendant indicated that he understood these rights.
¶8 The trial court next admonished the defendant concerning the nature of the charge and the
sentencing range for the offense. The trial court explained that the possible sentencing range for
unlawful possession of a weapon by a felon was 2 to 10 years (see id. § 24-1.1(e)). However, the
trial court did not tell the defendant that he would also serve a one-year period of mandatory
supervised release (MSR) and did not ask the defendant whether he understood the sentencing
range as explained.
¶9 After the State presented a factual basis, the prosecutor described the plea agreement. When
the trial court asked the defendant if that was his understanding of the agreement, the defendant
responded in the affirmative. The trial court then asked the defendant whether anyone had
promised him anything in exchange for his plea and whether anyone had threatened or coerced
him. In response to both questions, he replied, “No.”
3 ¶ 10 The defendant’s next court appearance was a status hearing on December 5, 2018. Plea
counsel, Phillip Butler, stated as follows: “Your Honor, in this case I’ve had a per se conflict come
up that I’ve become aware of since his open plea. I did explain that to [the defendant] and his need
for other representation.” The trial court appointed a new attorney to represent the defendant, but
did not inquire into either the nature of the conflict or when it arose.
¶ 11 On March 28, 2019, the defendant’s second attorney was allowed to withdraw as counsel
due to reassignment within the public defender’s office. On April 17, 2019, the trial court
appointed attorney Matthew Vaughn to represent the defendant.
¶ 12 On July 1, 2019, Vaughn filed on behalf of the defendant a motion to withdraw his guilty
plea. He argued that the defendant had received ineffective assistance of counsel during the guilty
plea proceedings and that the trial court failed to substantially comply with the requirements of
Rule 402 in admonishing the defendant at the plea hearing.
¶ 13 The trial court determined that the defendant’s motion to withdraw his plea was premature
and declined to rule on it until after sentencing. At the end of the July 19, 2019, sentencing hearing,
the trial court sentenced the defendant to five years in prison to be followed by one year of MSR.
¶ 14 On August 26, 2019, the trial court held a hearing on the defendant’s motion to withdraw
his plea. Defense counsel Vaughn focused his argument on the trial court’s failure to fully comply
with Rule 402 during the plea hearing. The State acknowledged that the trial court did not fully
comply with the requirements of the rule but argued that the trial court had substantially complied.
The trial court took the matter under advisement. On September 3, 2019, the trial court denied the
defendant’s motion to withdraw his plea. The defendant appealed.
¶ 15 On direct appeal, the defendant argued that (1) his guilty plea was not knowing and
voluntary because the trial court did not substantially comply with Rule 402 when admonishing
4 him at the plea hearing and (2) because the record did not establish whether the defendant received
conflict-free representation during the plea proceedings, the cause should be remanded to allow
the trial court to make this crucial finding. We found that, based on the limited information in the
record, it was impossible for this court to determine whether plea counsel was operating under a
per se conflict of interest while representing the defendant at the plea hearing. Lomax, 2022 IL
App (5th) 190407-U, ¶ 17. Accordingly, we remanded the matter to the trial court to allow it to
make that finding but elected not to address the defendant’s argument concerning the trial court’s
admonishments. Id. Specifically, we concluded:
“On remand, if the court determines that Butler had a per se conflict of interest that
existed at the time of the plea hearing, as stated previously, the defendant will be entitled
to ‘automatic reversal.’ See [People v. Hernandez, 231 Ill. 2d 134, 143 (2008)]. This means
that if the court makes that finding, he must be allowed to withdraw his plea regardless of
whether the plea court’s admonishments are deemed to be in substantial compliance with
Rule 402. As such, we need not address that issue at this time. If, on the other hand, the
court determines that Butler did not have a per se conflict of interest at the time of the plea
hearing, the defendant would not be barred from raising his Rule 402 claim in a subsequent
appeal.” Id. ¶ 18.
¶ 16 On July 21, 2022, an evidentiary hearing was held to determine whether defense counsel
was operating under a per se conflict of interest while representing the defendant at the plea
hearing. The defendant testified that at the status hearing held on December 5, 2018, following his
guilty plea, plea counsel informed him that, due to a conflict in his case, plea counsel could no
longer represent him. When the defendant asked if the conflict had anything to do with plea
counsel’s client Dustin Smith, he indicated to the defendant it did. Smith had been the defendant’s
5 cellmate in the Jefferson County jail in November 2018. The defendant knew plea counsel
represented him and Smith at the same time because of his attendance at the same court
proceedings as Smith. The defendant did not inquire about the nature of the conflict, and plea
counsel did not provide the defendant with any additional information.
¶ 17 Plea counsel also testified at the hearing. On November 20, 2018, he was employed as a
public defender in Jefferson County; he was appointed to represent the defendant and was in court
with him on that date. To the best of his recollection, the defendant’s case had been called before
Smith’s case that day. At the time of the defendant’s plea, plea counsel was not aware of any
conflict with respect to either the defendant or Smith. The first time plea counsel recalled being
aware of any conflict between the two men was on November 20, 2018, after he spoke with Smith.
Plea counsel’s recollection was that the defendant entered into his partially negotiated plea before
plea counsel spoke to Smith.
¶ 18 Plea counsel testified that he was also appointed to represent Smith for “part of that day”
and was with him in court on November 20, 2018. Prior to Smith’s case being called, plea counsel
learned that Smith intended to turn over information on the defendant to the police to try to get
himself a better sentence. Plea counsel informed the court that he had a per se conflict the same
day he learned of it and was removed from Smith’s case at his request on November 20, 2018.
¶ 19 After hearing the arguments of counsel, the court took the matter under advisement. In its
written order dated August 31, 2022, the trial court found that plea counsel did, in fact, have a
per se conflict of interest concerning his representation of the defendant and another defendant
client at the time of the plea hearing. However, plea counsel did not become aware of the existence
of the per se conflict until several days after the plea hearing. The trial court framed the issue on
remand as: “should the defendant be entitled to ‘automatic reversal’ under People v. Hernandez,
6 231 Ill. 2d 134, 143 (2008) as cited and relied upon by the Appellate Court in its aforesaid remand,
even though his attorney during the guilty plea hearing was completely unaware of any per se
conflict of interest at the time of that hearing?”
¶ 20 The trial court noted that “[n]either Hernandez nor any of the cases cited in [the Rule 23
order] involved a defense attorney who was completely unaware of the per se conflict during his
or her representation of a defendant during the hearing in question.” The trial court then posed the
following rhetorical questions: “If an attorney is unaware of a conflict in the representation of that
attorney’s client, how, then, could the client waive it? Further, how could [the per se conflict]
affect the representation of that client?” The trial court then reasoned that the holding in Hernandez
“implies knowledge of the conflict on defense counsel’s part. Without knowledge, there can be no
‘adverse impact’ and thus no conflict per se requiring an ‘automatic reversal.’ ” The trial court
further reasoned that “to hold that it doesn’t matter whether defense counsel knew of the per se
conflict of interest would result in a standard impossible to meet, particularly in a public defender’s
office with a heavy case load.” On that basis, the trial court once again denied the defendant’s
motion to withdraw his guilty plea based on defense counsel’s per se conflict of interest at the time
of the plea hearing. The defendant timely filed the instant appeal.
¶ 21 II. Analysis
¶ 22 A. Per se Conflict of Interest
¶ 23 The defendant contends that because the trial court held that plea counsel had a per se
conflict of interest at the time of his plea hearing, it erred in denying his motion to withdraw his
guilty plea as directed by this court on remand. He maintains that the record clearly reflects that
plea counsel contemporaneously represented him and Smith at the time of the defendant’s guilty
plea. The State argues that the trial court’s finding of a per se conflict was incorrect as a matter of
7 law where evidence presented at the hearing conducted pursuant to this court’s instructions on
remand established that no per se conflict of interest existed at the time of the plea hearing.
¶ 24 It is a matter of well-settled law that the sixth amendment guarantees a defendant the right
to counsel at all “critical phases” of the criminal process. Maine v. Moulton, 474 U.S. 159, 170
(1985). Embedded within this right is the right to counsel who does not labor under a conflict of
interest. People v. Hardin, 217 Ill. 2d 289, 299 (2005). Illinois distinguishes attorney conflicts of
interest by placing them in one of two categories: per se and actual. People v. Fields, 2012 IL
112438, ¶ 17.
¶ 25 “To establish an actual conflict of interest, a defendant must identify an actual conflict that
adversely affected his counsel’s performance.” People v. Yost, 2021 IL 126187, ¶ 38. However,
unlike an actual conflict of interest, a per se conflict does not require a defendant to establish
prejudice. People v. Stoval, 40 Ill. 2d 109, 113 (1968). Where a per se conflict of interest exists, a
defendant is never required to show an adverse impact. Id. A per se conflict of interest exists when
specific facts about the defense attorney’s status, by themselves, create a disabling conflict. Yost,
2021 IL 126187, ¶ 39.
¶ 26 Illinois law “recognizes only three categories of per se conflict of interest: (1) when
defense counsel has a contemporaneous association with the victim, the prosecution, or an entity
assisting the prosecution; (2) when defense counsel contemporaneously represents a prosecution
witness; and (3) when defense counsel was a former prosecutor who was personally involved in
the prosecution of the defendant.” Id. ¶ 66. “When the record shows that the facts are undisputed,
the issue of whether a per se conflict exists is a legal question that this court reviews de novo.”
Fields, 2012 IL 112438, ¶ 19.
8 ¶ 27 In People v. Morales, 209 Ill. 2d 340 (2004), cited by the State, our state supreme court
addressed a similar issue to that before us. In Morales, the defendant was charged with the murder
of a drug courier sent by Jorge Hernandez. Id. at 344. The defendant’s retained counsel represented
the defendant as well as Hernandez who was the defendant’s superior in the drug distribution
organization. Id. at 343. Although Hernandez ultimately did not testify at the defendant’s trial, the
State had identified Hernandez as a witness against the defendant on its witness list. Id. During a
pretrial hearing, the State advised the trial court of the potential conflict of interest in the
defendant’s presence, and the defendant waived the potential conflict. Id. at 344. At trial, no
statement by Hernandez was introduced into evidence against the defendant, but at the sentencing
hearing the State introduced parts of a letter that Herandez wrote from jail to a purported member
of a drug cartel which implicated the defendant as a drug supplier. Id. at 344-45. Although the
defendant had waived the potential conflict, following his conviction, the defendant argued on
appeal that defense counsel’s contemporaneous representation of him and Hernandez created a
conflict of interest that deprived him of effective assistance of counsel. Id. at 345. The Morales
court found that although it was undisputed that defense counsel contemporaneously represented
the defendant and Hernandez, because Hernandez did not testify at trial, he remained a potential
witness. Id. at 346. Thus, because Hernandez was never a witness against the defendant, defense
counsel never assumed the status of an attorney for a prosecution witness, and, therefore, defense
counsel’s simultaneous representation did not constitute a per se conflict of interest. Id.
¶ 28 Here, the undisputed facts reveal that Smith was no more than a potential witness for the
State. Review of the record reveals that at the time of the defendant’s plea hearing, the State had
not yet filed a formal answer to the defendant’s motion for discovery nor provided a list of
witnesses to the defendant. Additionally, Smith was not called as a witness by the State during any
9 proceeding in the case including the defendant’s sentencing hearing or the evidentiary hearing
after remand. As in Morales, because Smith did not testify against the defendant, plea counsel
never assumed the status of an attorney for a prosecution witness, and, thus, no per se conflict
existed.
¶ 29 “Under a de novo standard of review, the reviewing court owes no deference to the trial
court’s judgment or reasoning.” People v. Jackson, 2021 IL App (1st) 190263, ¶ 38. An appellate
court may affirm a lower court’s judgment on any ground found in the record. People v. Johnson,
208 Ill. 2d 118, 129 (2003). A reviewing court can sustain the trial court’s decision for any
appropriate reason found in the record, even if the trial court relied on other grounds and regardless
of whether its reasoning was correct. Id. We find that plea counsel was not operating under a per se
conflict of interest at the time of the plea hearing.
¶ 30 B. Admonishments
¶ 31 The defendant next argues that the trial court did not comply with Illinois Supreme Court
Rule 402 (eff. July 1, 2012) at his plea hearing, and on that basis, the trial court should have granted
his motion to withdraw his guilty plea. Specifically, the defendant contends that the trial court
failed to advise him of the statutorily required one-year term of MSR following any period of
incarceration, failed to admonish him of his right to plead not guilty, and failed to confirm that he
understood that he had the right to plead guilty or not guilty. The State counters that the trial court
substantially complied with Rule 402 admonitions during the defendant’s guilty plea hearing and,
furthermore, that the record establishes that real justice was not denied where the defendant
voluntarily and knowingly entered into the plea agreement and was not prejudiced by the trial
court’s incomplete admonitions.
10 ¶ 32 The act of entering a plea of guilty is “grave and solemn.” Brady v. United States, 397 U.S.
742, 748 (1970). If a defendant is allowed to change his mind so that a jury can hear his case, the
guilty plea would become “a temporary and meaningless formality reversible at the defendant’s
whim.” United States v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975). Allowing a defendant to
withdraw his plea is not automatic and should be based on a need to correct a manifest injustice.
People v. Delvillar, 235 Ill. 2d 507, 520 (2009). It is the defendant’s burden to demonstrate that it
is necessary that he be allowed to withdraw his plea. People v. Dougherty, 394 Ill. App. 3d 134,
140 (2009).
¶ 33 A trial court should allow a plea to be withdrawn if (1) the plea was entered on a
misapprehension of fact or law, (2) there is doubt as to the defendant’s guilt, (3) the defendant has
a meritorious defense, or (4) the ends of justice would be better served by submitting the case to a
jury. People v. Davis, 145 Ill. 2d 240, 244 (1991). A trial court’s decision to grant or deny a motion
to withdraw a guilty plea is within the trial court’s sound discretion and will not be reversed unless
the trial court clearly abused its discretion. Delvillar, 235 Ill. 2d at 519. A trial court’s ruling
constitutes an abuse of discretion if it is arbitrary, fanciful, unreasonable, or where no reasonable
person would take the view adopted by the trial court. People v. Patrick, 233 Ill. 2d 62, 68 (2009).
¶ 34 Due process requires that a guilty plea must be knowing and voluntary. People v. Whitfield,
217 Ill. 2d 177, 195 (2005). Illinois Supreme Court Rule 402(a) requires that, prior to accepting a
guilty plea, the trial court admonish the defendant (1) of the nature of the charge; (2) of the
minimum and maximum sentence and whether the defendant is subject to extended-term or
consecutive sentencing; (3) that the defendant has the right to plead not guilty; and (4) that if the
defendant pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives
the right to a trial by jury and the right to be confronted with the witnesses against him. Ill. S. Ct.
11 R. 402(a) (eff. July 1, 2012). The trial court must also determine whether the defendant understands
those provisions. Id. Additionally, if the plea was pursuant to a plea agreement, the agreement shall
be stated in open court, and the trial court shall confirm the terms of the agreement with the
defendant personally. Ill. S. Ct. R. 402(b) (eff. July 1, 2012). The trial court shall also determine
whether a factual basis exists before entering judgment on the guilty plea. Ill. S. Ct. R. 402(c) (eff.
July 1, 2012).
¶ 35 In admonishing a defendant, the trial court must substantially comply with the requirements
of Rule 402. Whitfield, 217 Ill. 2d at 195. Substantial compliance with Rule 402 does not mean
literal compliance. People v. Dismore, 33 Ill. App. 3d 495, 501-02 (1975). Substantial compliance
is determined by the admonishments provided to the defendant at the hearing when the guilty plea
is received. People v. Blankley, 319 Ill. App. 3d 996, 1007 (2001). A defendant’s due process
rights are violated if the trial court does not substantially comply with the required admonishments.
Whitfield, 217 Ill. 2d at 195. However, failure to comply with all the Rule 402 admonishments
does not necessarily establish a due process violation or other grounds that would allow a
defendant to withdraw his guilty plea. Dougherty, 394 Ill. App. 3d at 139. Defendant must establish
that real justice was denied or that he was prejudiced by the inadequate admonishments. Id. We
review the trial court’s compliance with Rule 402(a) on a de novo basis. People v. Chavez, 2013
IL App (4th) 120259, ¶ 14.
¶ 36 Illinois courts have held that a trial court can be in substantial compliance with Rule 402
even if it omits one or more of the admonitions. In People v. Dougherty, the court found that there
was substantial compliance with Rule 402 even though the trial judge did not admonish the
defendant on every provision. Dougherty, 394 Ill. App. 3d at 139. The Dougherty court found that
the trial judge substantially complied with Rule 402 because the evidence established that the
12 defendant entered his plea voluntarily and with full understanding. Id. The court reasoned that the
purpose of Rule 402 admonishments “is to ensure that a defendant understands his plea, the rights
he has waived by pleading guilty and the consequences of his action.” Id. at 138. Literal
compliance is not mandated. Id. at 139. “ ‘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.” Id. at 138. Whether the standard of “substantial compliance” has been met
depends upon the facts of each case. Id. To determine whether the defendant’s guilty plea was
intelligently and voluntarily given in the absence of full compliance with the Rule 402
admonishments, a reviewing court may consider the entire record. Id. at 139.
¶ 37 The defendant asserts, and the State concedes, that the trial court failed to advise him of
the MSR period following a sentence of incarceration. The defendant cites People v. Whitfield in
support of his position that the trial court’s failure to do so was an error. 217 Ill. 2d at 188. In
entering his guilty plea, the defendant in Whitfield bargained for a specific sentence; however, the
trial court failed to advise him about the MSR term. Id. at 201. With the MSR term added, the
defendant’s sentence was greater than the agreed upon sentence. Id. at 201-02. The Whitfield court
concluded the defendant was prejudiced by the omitted MSR admonition because he received a
more onerous sentence than he had been promised when he pled guilty. Id. Thus, the Whitfield
court found that the defendant’s due process rights were violated, and he was entitled to
postconviction relief as a result. Id. at 202.
¶ 38 In the instant case, during the plea hearing, the trial court informed the defendant that the
minimum sentence he could receive was 2 years’ imprisonment and the maximum sentence was
10 years’ imprisonment. The court did not admonish the defendant about the one-year MSR to
13 follow any prison sentence. However, unlike the defendant in Whitfield, the defendant here did not
bargain for a specific sentence. The plea was not fully negotiated in that the State and the defendant
had not reached an agreement as to the specific sentence he would receive in exchange for his plea.
At the subsequent sentencing hearing on a later date, the defendant was sentenced to five years’
imprisonment with a one-year term of MSR, for a total six-year sentence. This 6-year sentence is
less than the 10-year maximum the court admonished the defendant he could receive. Additionally,
at the plea hearing, the State agreed to cap its recommended sentence at six years and asked that
the six-year cap be binding on the court. Thus, here, the defendant’s sentence was neither more
onerous than the maximum sentence he was admonished by the trial court that he could receive by
law, nor was it more onerous than his partially-agreed bargain—the six-year cap—with the State.
Therefore, because the defendant was not prejudiced by the trial court’s omission of the MSR
admonition, the omission could not reasonably have affected the voluntariness of his plea. See
People v. McCoy, 74 Ill. 2d 398, 403 (1979) (concluding the plea was intelligently and voluntarily
made despite the omitted MSR admonition and the defendant was not prejudiced because the
sentence imposed, together with MSR, was substantially less than the maximum sentence to which
the defendant knew he could be sentenced).
¶ 39 The defendant next asserts that the trial court did not inform him of his right to plead not
guilty or persist in that plea, or to plead guilty, as required by Rule 402(a)(3). The record shows
the trial court did not specifically, in the words provided in the rule, inform the defendant of this
right. However, the object and purpose of a defendant being advised that he has a right to plead
not guilty and persist in that plea is so he will be aware of the alternatives available to him. People
v. Krouse, 7 Ill. App. 3d 754, 757 (5th Dist. 1972); People v. Abel, 10 Ill. App. 3d 210, 213 (4th
Dist. 1973).
14 ¶ 40 The Krouse court, in addressing the defendant’s contention that he was not admonished of
his right to plead not guilty, noted the trial court advised the defendant he was entitled to a trial by
jury. Krouse, 7 Ill. App. 3d at 757. Additionally, the trial court subsequently asked the defendant
if he understood that it would be the responsibility of the State to prove him guilty of the charges
against him beyond a reasonable doubt. Id. The Krouse court concluded the trial court had
substantially complied with Rule 402, and “the deficiencies [were] not sufficient to constitute
reversible error.” Id. at 757-58.
¶ 41 Similarly, in Abel, the defendant was not explicitly advised that he had a right to plead not
guilty, but he was advised of his right to a trial by jury, a trial by the court, and of the State’s
burden to prove him guilty beyond a reasonable doubt. Abel, 10 Ill. App. 3d at 213. In agreeing
with the Krouse court’s statement that the object and purpose was to make the defendant aware of
the alternatives available to him, the Abel court found it clear that the defendant was given to
understand his available alternatives. Id.
¶ 42 Similarly, the defendant in this case was advised by the trial court that he had a right to a
jury trial and to be proven guilty beyond a reasonable doubt. When the trial court asked him if he
understood he would be waiving those rights by pleading guilty, the defendant indicated he did.
The record demonstrates the defendant was informed he could, as an alternative to pleading guilty,
proceed to a jury trial with his attorney, confront the witnesses against him, remain silent, and
make the State prove him guilty beyond a reasonable doubt. The defendant understood that, as
shown by his answer to the trial court, such alternatives would no longer be available to him if he
pled guilty. He was given to understand, then, that he would be giving up the status quo—that is,
his not guilty plea—by changing his plea to guilty. Thus, the trial court in this case substantially
complied with the requirement of Rule 402(a)(3).
15 ¶ 43 The trial court also informed the defendant of the nature of the charges against him when
it read count I of the bill of indictment to which the defendant was pleading. The defendant
correctly asserts, however, that he was not asked if he understood the charges. Illinois Supreme
Court Rule 402(a)(3) requires the trial court to confirm that the defendant understands that he has
the right to plead guilty or not guilty. Ill. S. Ct. R. 402(a)(3) (eff. July 1, 2012). However, in
determining whether a defendant understood the nature of the charges against him, the entire
record may be considered. People v. Sutherland, 128 Ill. App. 3d 415, 419 (1984). In reviewing
the admonishments provided, “the remarks and advice of the court must be read in a practical and
realistic manner.” Id. (discussing the predecessor to Rule 402 (citing People v. Flathers, 414 Ill.
486 (1953))). “If an ordinary person in the circumstances of the accused would understand them
as conveying the information required by the rule, the essentials have been complied with.” Id. A
review of the record in this case shows the defendant cannot reasonably contend he did not
understand the nature of the charges.
¶ 44 The defendant was advised of the charges at his court appearance on August 28, 2018.
Although the trial court found no probable cause at the preliminary hearing in this case, the
defendant was present and heard the witness testify as to the evidence in the case. At a bond
reduction hearing after the defendant was arrested following a bill of indictment being handed
down, the State introduced, by way of a detailed proffer, additional evidence that came to its
attention after the initial preliminary hearing. When the trial court reminded the defendant that the
bond hearing was not a trial, the defendant responded that the State’s proffer “sounded like a trial
argument he just presented.” The fact that the defendant recognized the presentation of the State’s
evidence as a potential trial argument shows that he understood the nature of the charges against
him. Furthermore, after hearing the State’s recitation of the factual basis to support the charge, the
16 defendant still wished to enter into the agreement that was presented to the court. Review of the
entire record reveals that the defendant clearly understood the nature of the charges.
¶ 45 Having reviewed the admonishments provided by the trial court to the defendant at his plea
hearing, and after considering the entirety of the record on appeal, we conclude that the trial court
substantially complied with the Illinois Supreme Court’s prescribed requirements. We find that the
admonishments provided in this case affirmatively establish “that the defendant voluntarily and
understandingly entered his plea of guilty.” Ill. S. Ct. R. 402, Committee Comments (rev. May 20,
1997) (citing Boykin v. Alabama, 395 U.S. 238 (1969)). For these reasons, we also conclude that
the defendant’s due process rights were not violated and, thus, he was not prejudiced by the
incomplete admonishments. Dougherty, 394 Ill. App. 3d at 139 (citing Davis, 145 Ill. 2d at 244).
Accordingly, we find, on the facts before us, that the trial court’s decision to deny the defendant’s
motion to withdraw his guilty plea did not constitute an abuse of discretion.
¶ 46 III. Conclusion
¶ 47 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 48 Affirmed.