People v. Nagel

2022 IL App (3d) 210089-U

• Court: Appellate Court of Illinois
• Decided: November 30, 2022
• Docket: 3-21-0089
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 210089-U

Order filed November 30, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-21-0089 v. ) Circuit No. 18-CF-389 ) TYLER J. NAGEL, ) Honorable ) Kathy S. Bradshaw-Elliott, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE DAUGHERITY delivered the judgment of the court. Justices McDade and Hettel concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: (1) Defense counsel did not have a per se conflict of interest, (2) counsel did not provide ineffective assistance, and (3) the court did not impose an improper double enhancement at sentencing.

¶2 Defendant, Tyler J. Nagel, appeals his convictions, arguing that he did not receive the

benefit of conflict-free counsel when his attorney previously worked for the State. Defendant

further contends that counsel was ineffective for advising him that he would serve only 50% of

his sentence instead of 85%, and the court imposed an improper double enhancement. We affirm. ¶3 I. BACKGROUND

¶4 The State charged defendant with aggravated arson (720 ILCS 5/20-1.1(a) (West 2018)),

aggravated stalking (id. § 12-7.4(a)(3)), two counts of violation of an order of protection (id.

§ 12-3.4(a)(1)), and criminal damage to property (id. § 21-1(1)(a)). The court appointed the

public defender’s office.

¶5 The public defender’s office later reassigned defendant to a new attorney when his first

attorney left the office. When defendant’s new attorney first appeared, he stated that he needed a

conflict waiver signed by defendant. Counsel stated that before joining the public defender’s

office, he was employed at the Kankakee County State’s Attorney’s Office and had appeared on

defendant’s prior case. The prior case involved the same victim and had resulted in the order of

protection that defendant was now being charged with violating. At the next court date, counsel

told the court that defendant signed a waiver of conflict.

¶6 The potential conflict was discussed again at a later court date when defendant’s attorney

stated that he was working at the state’s attorney’s office when the current case was filed but had

no other involvement in the case. The State clarified that counsel appeared on the first date of

defendant’s misdemeanor case where the order of protection was presented and signed by the

court but did not believe that there was a conflict. Counsel stated that if he had any other

involvement other than the first appearance, he did not remember it. Counsel filed defendant’s

waiver, which stated:

“I, the undersigned, have been apprised by my currently appointed

attorney, [defense counsel], that he was previously assigned to my case in his

prior role as prosecutor or at the very least he was a prosecutor while my case was

pending. He explained to me the extent of his involvement, if any, he had in the

2 case to the best of his memory. He explained to me that this creates a potential

‘conflict of interest’ and that I can have him taken off my case if I wish. He also

explained to me that I can waive this conflict and allow him to continue to

represent me.”

Underneath the acknowledgement was handwritten “and that I can revoke this waiver at any

time.” Defendant signed the waiver. The court asked defendant if he waived the conflict, and

defendant orally confirmed that he did.

¶7 Before trial, defense counsel stated that defendant rejected the State’s plea offer that

included a sentencing cap of 15 years’ imprisonment. The State also rejected defendant’s

counteroffer. Defendant proceeded to a jury trial and was found guilty of all five counts.

¶8 At sentencing, the court acknowledged that defendant had taken several classes while in

jail and stated that he would receive credit in his sentence. The State informed the court that

defendant would only be sentenced on counts I and II, because the criminal damage to property

conviction merged with the aggravated arson conviction and the violations of orders of

protection convictions merged with the aggravated stalking conviction. The State further stated

that aggravated arson was a Class X felony with a sentencing range of 6 to 30 years’

imprisonment where 85% of the sentence must be served. Defense counsel disagreed that

defendant must serve 85%, stating that he believed it should be served at 50%, but that he could

be mistaken. The court reviewed the sentencing statute and confirmed that defendant was

required to serve 85% of his sentence.

¶9 The court sentenced defendant to 15 years’ imprisonment, 85% of which must be served.

The court explained

3 “[T]here’s no more dangerous a crime than stalking. Okay. Stalking is one of the

most dangerous crimes there are in this country. It’s so dangerous that the law has

now set the bond statute showing that if somebody is charged with stalking, that

no bond should be set. So stalking is extremely dangerous. And in this case I—I

believe, [defendant], you are extremely dangerous.”

¶ 10 Defense counsel filed a motion to reconsider, arguing that his sentence should be reduced

by one year. Counsel argued that the court stated that defendant would get credit for the classes

he had taken in jail but the Department of Corrections would not allow it because defendant was

statutorily required to serve 85% of his sentence. The court denied defendant’s motion.

¶ 11 After the court’s ruling, defense counsel stated he wanted to make a record regarding his

mistake that defendant would only have to serve 50% of his sentence. Counsel stated that he told

defendant after the trial that he was required to serve 50% but could not remember if he told

defendant this before trial.

¶ 12 Defense counsel then filed a “Motion for Specific Performance/New Sentence,” asking

the court to impose a new sentence of 15 years’ imprisonment to be served at 50%. Counsel

argued he advised defendant he would only have to serve 50% of his sentence, and when the

State first submitted its 15-year offer, counsel projected defendant would only have to serve 7½

years, in addition to the good-conduct credit defendant earned taking classes in jail. Defendant

only learned he would have to serve 85% of his sentence at sentencing. Defendant argued that he

would not have proceeded to trial if he had known he would have to serve 85% of his sentence.

The State argued that a sentence served at 50% would constitute an illegal plea, and if the State

had realized its error during plea negotiations, it would have adjusted its original offer to reflect a

4 more appropriate offer. The court denied defendant’s motion finding that defendant had not been

prejudiced and could not support ineffective assistance of counsel claims. Defendant appeals.

¶ 13 II. ANALYSIS

¶ 14 A. Conflict of Interest

¶ 15 Defendant contends his counsel labored under a conflict of interest, and that he never

validly waived this conflict. The parties dispute whether a conflict exists when defense counsel

represented the State during a pretrial court proceeding in defendant’s prior case.

¶ 16 Every defendant has a constitutional right to effective assistance of counsel, which

includes the right to counsel free from conflicting interest or inconsistent obligations. U.S.

Const., amends. VI, XIV; Ill. Const., art. I, § 8; People v. Hernandez, 231 Ill. 2d 134, 142

(2008). Illinois courts have recognized two categories of conflicts of interest: per se and actual.

People v. Fields, 2012 IL 112438, ¶ 17. “A per se conflict of interest exists where certain facts

about a defense attorney’s status, by themselves, engender a disabling conflict.” Id. That is, “a

per se conflict arises when a defendant’s attorney has a tie to a person or entity that would

benefit from an unfavorable verdict for the defendant.” Id. Our supreme court has reasoned that

“the knowledge that a favorable result for the defendant would inevitably conflict with the

interest of [counsel’s] client, employer or self might ‘subliminally’ affect counsel’s performance

in ways difficult to detect and demonstrate.” People v. Spreitzer, 123 Ill. 2d 1, 16 (1988). Also,

such a conflict may “unnecessarily subject the attorney to ‘later charges that his representation

was not completely faithful.’ ” Id. at 16-17 (quoting People v. Stoval, 40 Ill. 2d 109, 113 (1968)).

¶ 17 A per se conflict exists: “(1) where defense counsel has a prior or contemporaneous

association with the victim, the prosecution, or an entity assisting the prosecution; (2) where

defense counsel contemporaneously represents a prosecution witness; and (3) where defense

5 counsel was a former prosecutor who had been personally involved with the prosecution of

defendant.” Fields, 2012 IL 112438, ¶ 18. If a per se conflict is found, the defendant is not

required to show that the conflict affected the attorney’s actual performance. Id. A per se conflict

is automatic grounds for reversal unless the defendant waives the conflict. Id. Such a waiver

must be knowing, and defendant must be adequately informed of the existence of the conflict and

its significance before the waiver may be accepted. People v. Olinger, 112 Ill. 2d 324, 339

(1986).

¶ 18 In this case, counsel appeared at defendant’s first court date on a prior case and was not

involved in the instant case when he was a prosecutor. After the first court date on defendant’s

prior case, a different attorney prosecuted the case. This appearance alone is not enough to create

a per se conflict. See People v. Franklin, 75 Ill. 2d 173, 179-80 (1979) (an attorney’s prior work

as a prosecutor does not preclude the attorney from representing defendant when he was not

directly involved in the current prosecution); see also People v. Alexander, 2019 IL App (4th)

170425, ¶ 23 (counsel did not have a conflict when he prosecuted defendant on a previous case

but was not involved in the current case against defendant). Defense counsel’s involvement in

defendant’s prior case merely created a “fairly tenuous” tie to the prosecution that would not

affect his interests in representing defendant in his current case. Spreitzer, 123 Ill. 2d at 22. Thus,

defense counsel’s employment history did not create a conflict of interest.

¶ 19 B. Ineffective Assistance of Counsel

¶ 20 Defendant next argues that he received ineffective assistance where counsel advised him

that he would only have to serve 50% of his sentence, when, in fact, it was to be served at 85%.

To establish a claim of ineffective assistance of counsel, defendant must meet the two-prong test

in Strickland v. Washington, 466 U.S. 668, 688 (1984). Under Strickland, a defendant must show

6 that his counsel’s performance fell below an objective standard of reasonableness and that he

was prejudiced by the deficient performance. Id. The State concedes that counsel’s performance

was deficient but argues that defendant has not established prejudice. Claims of ineffectiveness

of counsel may be rejected on prejudice grounds alone, “for lack of prejudice renders irrelevant

the issue of counsel’s performance.” People v. Coleman, 183 Ill. 2d 366, 397-98 (1998).

¶ 21 To show prejudice, defendant must demonstrate a reasonable probability that, but for

counsel’s erroneous advice, he would not have proceeded to trial and would have accepted the

plea offer. People v. Hale, 2013 IL 113140, ¶ 18. When it comes to a plea, defendant must

provide objective evidence that the rejection of the offer was based on counsel’s erroneous

advice. Id. Defendant must provide more than just his “self-serving” testimony to determine

whether there was prejudice. Id.

¶ 22 Defendant argues that, had he known he would have to serve 85% of his sentence, he

would likely have accepted the State’s final plea offer of 50% of 15 years’ imprisonment.

However, the only evidence defendant offered to support this argument was his own self-serving

testimony that he would most likely have accepted the State’s offer. Defendant has not provided

any “independent, objective” evidence to suggest he would have accepted the plea if he was fully

informed. See id.

¶ 23 Further, defendant could not have received the sentence the State offered because the

court does not have the authority to impose a sentence that does not conform to statutory

guidelines. See People v. White, 2011 IL 109616, ¶ 29 (finding that where a sentence fails to

include mandatory conditions, it is not valid, and any plea agreement for such a sentence is

void). Specifically, the parties’ intent that defendant serve 50% of his sentence would not

control, as the court may not impose a sentence that is not authorized by law. Id. ¶ 23. Moreover,

7 defendant rejected the State’s offer and was subsequently sentenced to a 15-year term by the

court. Defendant cannot show prejudice when the sentence he received was equivalent to the

term he would have been required to serve if he had accepted the State’s offer. Because we find

that defendant has failed to show prejudice, we hold that defendant did not establish that he

received ineffective assistance of counsel.

¶ 24 C. Sentencing

¶ 25 Defendant argues he was subjected to an improper sentence double enhancement when

the court considered whether he threatened or caused harm as an aggravating factor when it was

implicit in the offense. Defendant acknowledges that he did not raise this issue with the circuit

court but argues it can be reviewed under the second prong of the plain error doctrine.

¶ 26 The plain error doctrine allows a reviewing court to consider an unpreserved sentencing

error where: (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was

so egregious that defendant was denied a fair sentencing hearing. People v. Hall, 195 Ill. 2d 1, 18

(2000). Defendant has the burden of persuasion under both prongs. People v. Naylor, 229 Ill. 2d

584, 593 (2008). To obtain relief under this doctrine, a defendant must first show that a “clear or

obvious error” occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

¶ 27 Double enhancement occurs when a single factor is used both as an element of the

offense and as a basis for imposing a harsher sentence, or when the same factor is used twice to

elevate the severity of the offense. People v. Phelps, 211 Ill. 2d 1, 11-13 (2004). Here, defendant

argues that the court’s statement that his actions were “extremely dangerous” and that stalking is

“one of the most dangerous crimes there are” amounts to a double enhancement, because it

considers that defendant threatened or caused harm to the victims—an inherent element in the

offenses of aggravated arson (720 ILCS 5/20-1.1(a) (West 2018)) and aggravated stalking (id.

8 § 12-7.4(a)(1)). However, defendant here was convicted of aggravated stalking under section 12-

7.4(a)(3) of the Code rather than section 12-7.4(a)(1), and bodily harm is not an inherent element

of aggravated stalking under subsection (a)(3). Id. § 12-7.4(a)(3). Moreover, a circuit court may

consider the nature of the circumstances and the seriousness of the offense during sentencing.

People v. Hunter, 101 Ill. App. 3d 692, 695 (1981). The court’s statement that defendant’s

actions were “extremely dangerous” alone is insufficient to show that it improperly subjected

defendant to a double enhancement. Therefore, we find no error, and thus no plain error, in the

court’s sentencing decision.

¶ 28 III. CONCLUSION

¶ 29 The judgment of the circuit court of Kankakee County is affirmed.

¶ 30 Affirmed.