People v. Rector

2020 IL App (5th) 170131-U

• Court: Appellate Court of Illinois
• Decided: January 16, 2020
• Docket: 5-17-0131
• Status: Unpublished

Opinion

NOTICE 2020 IL App (5th) 170131-U NOTICE Decision filed 01/16/20. The This order was filed under text of this decision may be NO. 5-17-0131 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party 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, ) Saline County. ) v. ) No. 14-CF-184 ) ROY AUSTIN RECTOR, ) Honorable ) Walden E. Morris, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE BOIE delivered the judgment of the court. Justices Overstreet and Barberis concurred in the judgment.

ORDER

¶1 Held: Appointed appellate counsel for the defendant is granted leave to withdraw, and the judgment of the circuit court is affirmed, where the court properly admonished the defendant at the guilty-plea hearing and did not abuse its discretion in sentencing the defendant, and where the record does not disclose any reason to disturb the judgment.

¶2 Pursuant to a fully negotiated agreement with the State, the defendant, Roy Austin

Rector, pleaded guilty to a felony charge and a misdemeanor charge and was sentenced to

probation. He subsequently violated multiple conditions of his probation, and probation

was revoked. After a hearing, the circuit court sentenced the defendant to incarceration.

The defendant perfected the instant appeal, and the circuit court appointed the Office of

1 the State Appellate Defender (OSAD) to represent him herein. OSAD has concluded that

this appeal lacks merit, and on that basis it has filed a motion to withdraw as counsel,

along with a supporting brief, pursuant to Anders v. California, 386 U.S. 738 (1967).

OSAD has provided the defendant with a copy of its Anders motion and brief. This court

has provided the defendant with ample opportunity to reply to OSAD’s motion by filing a

pro se brief, memorandum, etc., explaining why the motion should not be granted or why

the judgment should not be affirmed, but the defendant has not filed any such document

with this court. After examining OSAD’s motion and brief and the entire record on

appeal, this court has concluded that this appeal does indeed lack merit. Accordingly,

OSAD is granted leave to withdraw as counsel, and the judgment of conviction is

affirmed.

¶3 BACKGROUND

¶4 In July 2014, the State filed an information charging the defendant with criminal

damage to property in excess of $300, a Class 4 felony (720 ILCS 5/21-1(a)(1) (West

2014)), and aggravated assault, a Class A misdemeanor (id. § 12-2(a)).

¶5 On December 9, 2014, the defendant, his public defender, and an assistant State’s

attorney appeared in open court and announced that a plea agreement had been reached.

Under the terms of the agreement, the defendant would plead guilty to both charges in the

instant case in exchange for the State’s recommendation that he be sentenced to probation

for a period of 30 months for the criminal-damage charge and for a period of 24 months

for the aggravated-assault charge. The conditions of probation included, inter alia, that

the defendant not violate any criminal statute, that he not leave Illinois without the prior 2 consent of the court or of the probation office, that he complete a substance-abuse

evaluation and all recommended substance-abuse treatment, that he refrain from having

in his body any illicit drug, and submit to drug testing, and that he serve 15 consecutive

weekends in the county jail. For the criminal-damage charge, probation included

additional conditions, including that the defendant pay a fine of $1000, pay restitution in

the amount of $1129.10, and pay various fees and costs. In addition, an unrelated

misdemeanor charge in a separate case would be dismissed.

¶6 The court admonished the defendant as to the nature of the charges and the

possible penalties, including imprisonment for a term of one year to three years for the

criminal-damage charge and incarceration for up to 364 days for the aggravated-assault

charge, and the defendant indicated his understanding. The court admonished the

defendant as to his right to plead guilty or not guilty, his right to a trial by a judge or by a

jury, the presumption of innocence, the State’s burden of proof, his right to confront and

to cross-examine witnesses against him, his right to call witnesses, and his right to testify

or to remain silent, and the defendant indicated his understanding of these various rights

and legal principles. Finally, the court admonished the defendant that if he pleaded

guilty, he would be “waiving or giving up all of those rights” and no trial would be held,

and the defendant indicated his understanding. The defendant acknowledged signing a

written plea of guilty, and he indicated that nobody had threatened, coerced, or

intimidated him into signing it, and nobody had promised him anything other than the

sentence recommendation and the dismissal of the unrelated misdemeanor charge in the

other case. The assistant State’s attorney provided a factual basis for the plea; essentially, 3 the defendant had threatened another man with a knife and then used the knife to scrape

that other man’s vehicle, causing damage in the amount of $1129.10. The defendant

pleaded guilty to each of the two charges. The court found that a factual basis for the

pleas existed and that the defendant’s pleas were knowing and voluntary. The defendant

waived preparation of a presentence investigation report, and the assistant State’s

attorney informed the court that the defendant did not have any prior criminal conviction.

The court imposed the agreed-upon sentences.

¶7 On December 15, 2014, six days after the plea and sentencing, the defendant and

the probation office signed a “payment plan agreement” that the defendant would pay a

minimum of $50 per month toward his fine, restitution, etc.

¶8 In March 2015, the State filed a petition charging violations of probation. The

State alleged that the defendant, while on probation in the instant case, committed theft,

failed to make payments according to the payment plan, failed to attend drug- or

alcohol-counseling sessions, and repeatedly either admitted to using marijuana or tested

positive for THC, the main psychoactive compound in marijuana. In February 2016, the

State filed an amended probation-violation petition. The amended petition included all of

the allegations contained in the original petition, plus allegations that on February 8,

2016, the defendant was in Arkansas, without having obtained the court’s or the

probation office’s consent to his leaving Illinois, and there committed two property

crimes.

¶9 On October 18, 2016, the circuit court held a hearing on the probation-violation

petition. The State’s sole witness, a probation officer, testified about the defendant’s 4 failure to make the monthly payments required under the payment plan agreement, his

failure to attend drug-counseling sessions as required, his repeated admissions to using

marijuana and repeated positive tests for that drug, and his traveling to Arkansas without

prior approval. The defendant did not testify or offer any other evidence. The court

found that the State had proved the allegations of nonpayment, failure to attend drug-

counseling sessions, marijuana use, and leaving Illinois without permission. The court

ordered the preparation of a presentence investigation report (PSI) and scheduled a

sentencing hearing.

¶ 10 In December 2016, the probation office submitted its PSI on the defendant.

Attached to the PSI was a written statement from the defendant, wherein he stated that he

“would rather have all weekends and fines [sic] do not want any probation.”

¶ 11 On February 1, 2017, the court held a sentencing hearing. No witness testified.

The defendant made a very brief statement in allocution, telling the court that he did not

attend substance-abuse counseling for the simple reason that he was waiting to hear from

TASC first, and TASC never contacted him. Defense counsel asked the court to readmit

the defendant to probation. The court found that “a sentence of continued probation

would deprecate the seriousness of [the defendant’s] violations and be inconsistent with

the ends of justice.” The court revoked the defendant’s probation and sentenced the

defendant as follows: for the felony offense of criminal damage to property in excess of

$300, imprisonment for a term of three years; and for the misdemeanor offense of

aggravated assault, incarceration in the county jail for 364 days, with the sentences to run

5 concurrently. In explaining these sentences, the court stated that a sentence of probation

would be inappropriate for a defendant who did not want to be on probation.

¶ 12 The defendant filed a timely motion to reduce sentence. Therein he claimed that

his sentences were excessive and that the court had failed to give due consideration to the

imminent birth of his child.

¶ 13 On April 4, 2017, plea counsel filed a certificate of compliance with Illinois

Supreme Court Rule 604(d), and the circuit court held a hearing on the defendant’s

motion to reduce sentence. At that hearing, the defendant testified that his second child

was due to be born in just two months, and he needed to “be there for [his] family.” The

defendant acknowledged that he had “a drug problem” and stated that he had applied for

admission to a “drug class” at his prison. If released from prison and placed on

probation, the defendant testified, he would enroll in a “drug class” at Egyptian Health

and would take all of the steps necessary to end his use of drugs. The defendant

explained that during his initial period of probation, he did not realize that he had a drug

problem, and therefore he did not cooperate with drug treatment. He did not realize until

he was sentenced to prison that he had a drug problem and that he needed to stop using

drugs. During argument, the defendant’s attorney asked the court to resentence the

defendant to probation or, in the alternative, to reduce his prison sentence from three

years to one year.

¶ 14 On April 5, 2017, the court entered a docket-entry order denying the defendant’s

motion to reduce sentence. The defendant filed a timely notice of appeal from that order,

6 thus perfecting the instant appeal. The circuit court appointed OSAD to represent the

defendant herein.

¶ 15 ANALYSIS

¶ 16 As previously mentioned, OSAD has concluded that this appeal lacks merit, and it

accordingly has filed an Anders motion to withdraw as the defendant’s attorney. In its

Anders brief, OSAD presents two potential issues on appeal, viz.: (1) whether the circuit

court properly admonished the defendant at the guilty-plea hearing, and (2) whether the

circuit court erred in denying the defendant’s motion to reduce sentence. Neither issue

has any merit whatsoever.

¶ 17 First, this court notes that in the circuit court, the defendant never asserted that he

was improperly admonished at the guilty-plea hearing, and he never filed a motion to

withdraw his guilty pleas, whether on that basis or on any other basis. (In its Anders

brief, OSAD failed to mention these facts.) The defendant thus forfeited the improper-

admonishments argument for review. See Ill. S. Ct. R. 604(d) (eff. July 1, 2006). This

type of issue can potentially be reviewed as plain error. People v. Fuller, 205 Ill. 2d 308,

322-23 (2002). However, relief under the plain-error rule is impossible unless a clear or

obvious error occurred. People v. Hillier, 237 Ill. 2d 539, 545 (2010). (In its Anders

brief, OSAD failed to discuss forfeiture or the plain-error rule.)

¶ 18 Under Illinois Supreme Court Rule 402(a) (eff. July 1, 2012), a circuit court may

not accept a criminal defendant’s guilty plea without first informing the defendant (1) of

the nature of each charge he faces, (2) of the minimum and maximum sentences 7 prescribed by law, (3) that he has a right to plead guilty or not guilty, and (4) that by

pleading guilty, he waives his right to a trial and his right to be confronted with the

witnesses against him, and without also determining that the defendant understands all of

these matters. The purpose of Rule 402(a) is to ensure that the demands of due process

are satisfied in the guilty-plea context. Fuller, 205 Ill. 2d at 322. The circuit court must

substantially comply with Rule 402(a); that is, the record must show affirmatively and

specifically that the defendant understood the enumerated admonishments. People v.

Campbell, 2015 IL App (3d) 130614, ¶ 16. Whether a circuit court has properly

admonished a defendant and has substantially complied with Rule 402(a) is a question

that this court reviews de novo. People v. Chavez, 2013 IL App (4th) 120259, ¶ 14. (In

its Anders brief, OSAD failed to specify a standard of review for this issue.)

¶ 19 In the instant case, the transcript of the plea hearing, summarized supra, makes

clear that the circuit court thoroughly admonished the defendant as to the points

enumerated in Rule 402(a), and the defendant understood the admonishments. The court

fully complied with Rule 402(a). No error, let alone a clear and obvious error, occurred

in the court’s admonishment of the defendant. The record affirmatively and specifically

shows that the defendant’s guilty pleas were made voluntarily, knowingly, and

intelligently. See Boykin v. Alabama, 395 U.S. 238, 243 (1969) (the voluntary-and-

understanding nature of a guilty plea cannot be presumed from a silent record; it must be

affirmatively shown in the record).

¶ 20 As for the circuit court’s denial of the defendant’s motion to reduce sentence,

again no error occurred. A circuit court has broad discretion in imposing a sentence. 8 People v. Stacey, 193 Ill. 2d 203, 209 (2000). If a sentence imposed by a circuit court is

within the statutory range, a reviewing court will presume that the sentence is proper.

People v. Charleston, 2018 IL App (1st) 161323, ¶ 16. Furthermore, a reviewing court

will accord such a sentence “great deference” owing to the circuit court’s superior

position “to consider the defendant’s credibility, demeanor, general moral character,

mentality, social environment, habits, and age.” People v. Etherton, 2017 IL App (5th)

140427, ¶ 15. A reviewing court may not alter a sentence absent an abuse of the circuit

court’s discretion. Stacey, 193 Ill. 2d at 209-10. An abuse of discretion will be found

only where the sentence is “greatly at variance with the spirit and purpose of the law, or

manifestly disproportionate to the nature of the offense.” Id. at 210.

¶ 21 Here, the defendant’s three-year sentence of imprisonment for criminal damage to

property in excess of $300 and his 364-day sentence of incarceration for aggravated

assault are both within the statutory ranges. The former offense was a Class 4 felony

(720 ILCS 5/21-1(d)(1)(F) (West 2014)) punishable by imprisonment for one to three

years (730 ILCS 5/5-4.5-45(a) (West 2014)), and the latter offense was a Class A

misdemeanor (720 ILCS 5/12-2(d) (West 2014)) punishable by incarceration for “a

determinate sentence of less than one year” (730 ILCS 5/5-4.5-55(a) (West 2014)).

Therefore, the sentences are presumed proper.

¶ 22 Furthermore, nothing in the record suggests that the sentences are contrary to the

spirit or purpose of the law, or that they are manifestly disproportionate to the nature of

the offenses. The circuit court was in the best position to evaluate the defendant and his

demeanor, habits, etc. At the first sentencing in December 2014, the court sentenced the 9 defendant to probation, in accordance with his plea agreement with the State. However,

the defendant subsequently violated multiple conditions of his probation, viz.: he failed to

make the required monthly payments toward his fine, restitution, etc., he failed to attend

required drug-counseling sessions, he used marijuana, and he left Illinois without the

prior approval of the circuit court or the probation office. Given the nature of the

offenses and the defendant’s highly unsuccessful performance on probation, this court

cannot find fault with the sentences imposed in February 2017.

¶ 23 CONCLUSION

¶ 24 For all of the foregoing reasons, this court agrees with OSAD that the instant

appeal has no merit. Accordingly, OSAD is granted leave to withdraw as counsel for the

defendant, and the circuit court’s judgment of conviction is affirmed.

¶ 25 Motion granted; judgment affirmed.