People v. McPherson

2025 IL App (5th) 240055-U

• Court: Appellate Court of Illinois
• Decided: February 6, 2025
• Docket: 5-24-0055
• Status: Unpublished

Opinion

NOTICE 2025 IL App (5th) 240055-U NOTICE Decision filed 02/06/25. The This order was filed under text of this decision may be NO. 5-24-0055 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Franklin County. ) v. ) No. 20-CF-397 ) GERALD McPHERSON, ) Honorable ) Thomas J. Tedeschi, Defendant-Appellant. ) Judge presiding. ______________________________________________________________________________

JUSTICE SHOLAR delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

¶1 Held: Judgment revoking defendant’s probation and resentencing him to six years’ imprisonment is affirmed where we lack jurisdiction to review the circuit court’s failure to conduct a Krankel hearing in connection with the underlying guilty plea and defendant cannot establish prejudice from an incorrect statutory citation in the petition to revoke.

¶2 Defendant, Gerald McPherson, admitted violating probation. After the circuit court

resentenced him to six years’ imprisonment, defendant filed a notice of appeal.

¶3 Defendant’s appointed appellate counsel, the Office of the State Appellate Defender

(OSAD), concludes that there is no reasonably meritorious argument that the court erred in doing

so. Accordingly, it has filed a motion for leave to withdraw as counsel on appeal and a supporting

memorandum. See Anders v. California, 386 U.S. 738 (1967). OSAD has notified defendant of its

motion. This court has provided him with an opportunity to respond and he has filed a response. 1 However, after considering the record on appeal, OSAD’s motion and supporting memorandum,

and defendant’s response, we agree that there is no issue that could support an appeal. Accordingly,

we grant OSAD leave to withdraw and affirm the trial court’s judgment.

¶4 BACKGROUND

¶5 On February 25, 2021, defendant pleaded guilty to aggravated criminal sexual abuse. On

April 8, 2021, he filed a pro se motion to withdraw the plea. He stated, “I was not getting the help

needed by Mr. Popit, my pd.” 1 Defendant asserted that he had cancer and a serious eye injury, was

not guilty, and, apparently, that he had been forced into pleading guilty. Defense counsel noted

that the motion was premature as defendant had not yet been sentenced.

¶6 Following a hearing, the court sentenced defendant to four years’ probation. Defendant did

not renew his motion to withdraw the plea, nor did he pursue a direct appeal.

¶7 In 2022, the State moved to revoke defendant’s probation. Count I alleged that defendant

failed to register a Facebook account. Count II alleged that he failed to register a telephone number.

Both counts alleged that defendant’s acts violated “Chapter 730 Illinois Compiled Statutes Act

154, Section 10(a).” The body of each count referred to the Sex Offender Registration Act.

¶8 At a hearing, the court reviewed the charges and possible penalties and gave the other

admonitions and made the other inquiries required by Illinois Supreme Court Rule 402A(a) (eff.

Nov. 1, 2003). Defendant admitted the petition’s allegations.

¶9 The court reviewed the new charges and again reviewed the possible penalties for the

underlying offense. It explained that a petition to revoke would be decided by a bench trial and

that a preponderance of the evidence was the burden of proof. Defendant said that he understood.

Defendant told the court that his admission was voluntary. The court thus accepted the admission.

1 Kevin Popit was defendant’s public defender. 2 The State provided a factual basis for the new charges, which entailed defendant going to the

library to use the internet and using a phone to upload nude photos of himself to a new Facebook

account. At the same hearing, defendant entered an open plea to a new charge of failing to register.

¶ 10 Following a hearing, the court sentenced defendant to six years’ imprisonment for the

underlying offense. This court granted defendant leave to file a late notice of appeal.

¶ 11 ANALYSIS

¶ 12 OSAD concludes that there is no issue that could support an appeal. It suggests two

possible issues: (1) whether the court erred in failing to conduct a Krankel hearing 2 when

defendant complained about his public defender in connection with the underlying plea and

(2) whether defendant could successfully challenge the probation revocation where it was based

on a statute that was clearly inapplicable. Counsel concludes, however, that neither issue is viable,

and we agree.

¶ 13 The first issue fails because when probation is revoked following a guilty plea, the

defendant cannot challenge the underlying plea proceedings. “An appeal from a sentence entered

upon revocation of probation does not revive voidable errors in the guilty plea proceeding.” People

v. Speed, 318 Ill. App. 3d 910, 915 (2001). The possible ineffective assistance of defendant’s plea

counsel did not render the judgment void. Thus, because defendant did not appeal the underlying

judgment, he cannot challenge it now.

¶ 14 The second potential issue also fails. In the revocation petition, the State alleged that

defendant violated “Chapter 730 Illinois Compiled Statutes Act 154, Section 10(a).” That

provision is found in the Murderer and Violent Offender Against Youth Registration Act (730

2 People v. Krankel, 102 Ill. 2d 181 (1984), requires a court to conduct a preliminary inquiry when a defendant makes a pro se allegation that counsel was ineffective. 3 ILCS 154/1 et seq. (West 2022)). Counsel notes that nothing in defendant’s criminal background

would require him to register under that statute.

¶ 15 Counsel also notes, however, that the same failures to register a social media account and

a telephone number, as charged in the petition, would violate section 3(a) of the Sex Offender

Registration Act (730 ILCS 150/3(a) (West 2022)), which the petition also cites, and that defendant

plainly qualifies as a “sex offender” required to register under that Act. Defendant admitted

committing the acts in question and failing to register that information.

¶ 16 Defendant thus cannot challenge the court’s order revoking his probation solely because

the State cited the wrong statute. “ ‘Where the language of the indictment sufficiently informs a

defendant of the charges against him, and defendant cannot demonstrate any prejudice from an

incorrect statutory citation, the defect is formal and does not warrant reversal.’ ” People v. Burke,

362 Ill. App. 3d 99, 103 (2005) (quoting People v. Witt, 227 Ill. App. 3d 936, 944 (1992)). “Only

where the defendant demonstrates prejudice will the mere fact that a criminal complaint contains

an incorrect citation to the criminal statute be grounds for dismissal of the conviction.” People v.

Melton, 282 Ill. App. 3d 408, 415 (1996). As defendant admitted committing the underlying acts,

never indicated that he was confused by the statutory citation, and the petition actually refers to

the correct statute, he cannot establish prejudice.

¶ 17 Defendant filed a response to the Anders motion. Unfortunately, the handwritten document

is virtually indecipherable. He appears to state at one point that he no longer wishes to pursue the

appeal. In the absence of a clearer indication of an intent to abandon the appeal, we will not dismiss

it. On the other hand, defendant makes no cogent argument for denying the Anders motion, which

we have already found is well-taken.

4 ¶ 18 CONCLUSION

¶ 19 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and

affirm the circuit court’s judgment.

¶ 20 Motion granted; judgment affirmed.