People v. Roe

2023 IL App (5th) 160002-U

• Court: Appellate Court of Illinois
• Decided: December 19, 2023
• Docket: 5-16-0002
• Status: Unpublished

Opinion

NO. 5-16-0002 NOTICE NOTICE Decision filed 12/19/23. The This order was filed under text of this decision may be IN THE 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 APPELLATE COURT OF ILLINOIS limited circumstances allowed the same. under Rule 23(e)(1). FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Union County. ) v. ) No. 00-CF-31 ) BRIAN C. ROE, ) Honorable ) Mark M. Boie, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court. Justices Barberis and McHaney concurred in the judgment.

ORDER

¶1 The defendant, Brian Roe, appeals the denial of his motion to withdraw his guilty

plea, which he filed pursuant to the circuit court’s grant of postconviction relief. The Office

of the State Appellate Defender (OSAD) has been appointed to represent Roe. OSAD has

filed a motion to withdraw as counsel, alleging that there is no merit to the appeal. See

Pennsylvania v. Finley, 481 U.S. 551 (1987); People v. McKenney, 255 Ill. App. 3d 644

(1994). Roe was given proper notice and granted an extension of time to file briefs,

objections, or any other document supporting his appeal. He has filed a response. We have

considered OSAD’s motion to withdraw as counsel on appeal, as well as Roe’s response

thereto. We have examined the entire record and found no error or potential grounds for

1 appeal. For the following reasons, we grant OSAD’s motion to withdraw as counsel on

appeal and affirm the judgment of the circuit court of Union County.

¶2 Roe was charged with two counts of aggravated criminal sexual abuse and six

counts of criminal sexual assault. Patrick J. Cox, the Union County Public Defender, was

appointed to represent him. Cox personally interviewed all of the State’s witnesses. He

filed numerous pretrial motions, including a motion to suppress Roe’s statement to police.

None of these motions were successful. The State filed a motion to disqualify Cox on the

basis that numerous felony charges had been filed against him. The court never ruled on

the State’s motion and Cox continued to represent Roe.

¶3 Shortly before trial Roe entered a negotiated plea of guilty to criminal sexual abuse

in exchange for a sentence of 24 months’ probation. The State further agreed to dismiss

charges in two pending cases and to forego charging or prosecuting Roe based on

allegations in other unrelated incidents. He did not file a motion to withdraw the plea at

that time or take an appeal. The State subsequently filed a petition to revoke Roe’s

probation because he failed to register as a sex offender. Roe admitted the violation. His

probation was revoked, and he was sentenced to 30 months’ imprisonment. Roe did not

appeal the revocation of his probation.

¶4 While still incarcerated Roe filed a postconviction petition. Counsel was appointed

to represent him, and counsel amended the postconviction petition several times. In his

fourth amended postconviction petition Roe argued that the circuit court failed to properly

admonish him of his appeal rights in accordance with Illinois Supreme Court Rule 605 (eff.

Oct. 1, 2001) and that he had been denied his constitutional right to the effective assistance 2 of counsel where Cox (1) failed to fully investigate his case, (2) failed to properly file,

investigate, and ague motions, (3) failed to advise Roe that he would be required to register

as a sex offender or of the consequences of pleading guilty to a sexual offense, and (4) was

facing criminal charges at the time he was representing Roe. The State filed an answer to

Roe’s fourth amended postconviction petition and the postconviction court set the matter

for an evidentiary hearing.

¶5 Following that hearing, the postconviction court found that the circuit court had

failed to substantially comply with Rule 605. The postconviction court then admonished

Roe in accordance with Rule 605, granted Roe leave to file a motion to withdraw the guilty

plea, and appointed counsel to assist him.

¶6 Roe thereafter filed a motion to withdraw his guilty plea reiterating the ineffective

assistance claims that he had pled in his fourth amended postconviction petition.

Specifically, Roe alleged that Cox (1) failed to advise him that he would be required to

register as a sex offender and of the onerous requirements of complying with sex offender

registration, (2) failed to investigate and take photographs of the crime scene, and (3) failed

to interview material witnesses. Roe further alleged that the evidence against him was

“weak” and but for Cox’s deficient performance he would have proceeded to trial.

¶7 At the hearing on the motion Roe testified that he was “unhappy” with counsel’s

investigation of his case because counsel did not view or take pictures of the crime scene,

and because “alleged DNA” evidence was supposed to have been collected but was not.

He further testified that Cox did not advise him that he would have to register as a sex

offender as a result of pleading guilty, of the requirements of registration, or the 3 consequences of being a registered sex offender. Had he known, he claimed, he would

have gone to trial. On cross-examination Roe acknowledged signing the written sentencing

order that included as a term “register as a sex offender w/ ISP,” but claimed that he signed

it at counsel’s direction without reading it. Roe also acknowledged going to Probation

Services the same day he pled guilty and registering as a sex offender.

¶8 A. John Bigler testified that he had been the State’s Attorney for Union County from

2000 to 2004 and had prosecuted Roe. Bigler identified the sentencing order he had

prepared, noting that it required Roe to “[r]egister as a sex offender w/ ISP.” Bigler

testified that immediately before the plea hearing he met with Roe and defense counsel,

and they discussed the terms of the plea. He specifically advised them that Roe would be

required to register as a sex offender.

¶9 Scott Havel, the sheriff of Union County, testified that he had been the lead

investigator in Roe’s case. Havel interviewed Roe twice and during the second interview

Roe admitted fondling the victim’s breasts and vagina.

¶ 10 Attorney Cox did not testify. Postconviction counsel indicated that he had made

numerous unsuccessful attempts to contact Cox.

¶ 11 At the conclusion of the hearing the circuit court granted the parties leave to file

written arguments, which they did. In his written argument submitted to the court Roe

argued that “there was a lack of any physical evidence” and that but for counsel’s alleged

unprofessional errors he “would not have pleaded guilty and instead would have proceeded

to trial.”

4 ¶ 12 The court subsequently denied Roe’s motion to withdraw his plea in a very

comprehensive seven-page order. The court first rejected Roe’s ineffective assistance of

counsel claims. The court found that the record rebutted Roe’s claim that Cox failed to

investigate and litigate his case, noting that Cox had attended numerous pretrial hearings

and had filed numerous motions, including a motion to suppress Roe’s confession, which

had been denied after a lengthy hearing at which Cox called several witnesses on Roe’s

behalf. The court rejected Roe’s claim that he had not been advised prior to pleading guilty

that he would be required to register as a sex offender, finding his testimony to the contrary

“self-serving, not believable, and completely refuted” by the record. Finally, the court

found that the pending criminal charges against Cox had not adversely affected his

representation of Roe.

¶ 13 In denying Roe’s motion to withdraw his guilty plea, the court found that no

meritorious defenses existed at the time of the plea and that Roe had failed to set forth any

plausible defense other than his own “unbelievable” testimony. The court noted that had

Roe gone to trial and been found guilty on all eight charges he was facing he would have

been sentenced to between 15 and 30 years’ imprisonment. The court further noted that a

conviction was likely given that Roe had given a statement in which he admitted molesting

the victim and his motion to suppress this statement had been denied after a lengthy

hearing. The court stated that to characterize the plea agreement as a “sweetheart deal”

was a “complete understatement.”

¶ 14 The court concluded that Roe had failed to establish that he entered his guilty plea

under any misapprehension of the facts or the law, failed to establish that there was any 5 doubt as to his guilt or any meritorious defense, or that the ends of justice would be better

served by allowing him to withdraw his plea and go to trial. Roe appeals.

¶ 15 We begin by clarifying that Roe is not appealing the denial of his postconviction

petition. Rather, he is appealing the denial of his motion to withdraw his guilty plea that

was filed after the circuit court granted relief on his postconviction petition.

¶ 16 It is well-settled that a defendant does not have an absolute right to withdraw his or

her guilty plea. People v. McIntosh, 2020 IL App (5th) 170068, ¶ 36. Withdrawal should

be allowed where (1) the defendant pled guilty because of a misapprehension of the law or

the facts, (2) where there is doubt as to the defendant’s guilt, or (3) the ends of justice

would best be served by a trial. People v. Owens, 2021 IL App (2d) 190153, ¶ 35 (citing

People v. Hughes, 2012 IL 112817, ¶ 32). A circuit court’s ruling on a motion to withdraw

a guilty plea is reviewed for an abuse of discretion (id.).

¶ 17 Claims of ineffective assistance of counsel are evaluated under the two-prong test

set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by the

supreme court in People v. Albanese, 104 Ill. 2d 504, 525-26 (1984). To prevail under

Strickland, a defendant must demonstrate that counsel’s performance was deficient, and

that the deficient performance so prejudiced the defendant that he was denied a fair trial.

People v. Cordell, 223 Ill. 2d 380, 385 (2006). More specifically, the defendant must

demonstrate (1) that counsel’s performance was objectively unreasonable under prevailing

professional norms and (2) that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. People v.

Harris, 225 Ill. 2d 1, 20 (2007). A reasonable probability that the result of the proceeding 6 would have been different is a probability sufficient to undermine confidence in the

outcome of the proceeding. People v. Colon, 225 Ill. 2d 125, 135 (2007). In the context

of a guilty plea, demonstrating prejudice requires a defendant to show that but for counsel’s

errors he or she would not have pleaded guilty and would have insisted on going to trial.

People v. Valdez, 2016 IL 119860, ¶ 29 (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

A conclusory allegation that but for counsel’s deficient representation the defendant would

have insisted on going to trial instead of pleading guilty is insufficient. Id.; People v.

Rissley, 206 Ill. 2d 403, 458 (2003). Instead, the defendant’s claim that counsel’s

performance was deficient must be accompanied by a claim of innocence or the articulation

of a plausible defense that could have been raised at trial. Id. at 459-60. The question of

whether counsel’s deficient representation caused the defendant to plead guilty largely

depends on predicting whether the defendant likely would have prevailed at trial. People

v. Pugh, 157 Ill. 2d 1, 15 (1993) (citing Hill, 474 U.S. at 59).

¶ 18 Because a defendant’s ineffective-assistance-of-counsel claim will fail if either

prong of the Strickland test is not met, a reviewing court need not determine whether

counsel’s performance was deficient before determining whether he was prejudiced.

People v. Perry, 224 Ill. 2d 312, 342 (2007). There is a strong presumption that counsel’s

action or inaction was a matter of trial strategy (People v. Evans, 186 Ill. 2d 83, 93 (1999)),

and matters of trial strategy will not support a claim of ineffective assistance of counsel

unless counsel’s strategy is so unsound that he entirely fails to conduct any meaningful

adversarial testing of the State’s case. People v. Patterson, 217 Ill. 2d 407, 441 (2005).

7 ¶ 19 No meritorious argument can be made that the circuit court abused its discretion in

denying Roe’s motion to withdraw his guilty plea. First, Roe’s ineffective assistance of

counsel claims must fail because there is no reasonable probability that, but for Cox’s

alleged errors, Roe would have gone to trial instead of pleading guilty. Roe was charged

with two Class 2 felonies and six Class 1 felonies. Had he gone to trial and been convicted

he would have undoubtedly faced a lengthy prison sentence. Instead, he pled guilty to one

Class 4 felony and received a sentence of 24 months’ probation. The State also agreed to

dismiss charges in two other cases and to not charge or prosecute Roe based on allegation

in several other unrelated incidents. As the circuit court aptly found, calling this a

“sweetheart” deal is an “understatement.” Moreover, Roe gave a statement to police

admitting that he fondled the victim’s breasts and vagina (acts that were the bases of the

two aggravated criminal sexual abuse charges), and this statement would almost certainly

been admitted at trial given that counsel’s attempt to suppress this statement was

unsuccessful. It is unlikely that he would have prevailed at trial.

¶ 20 Roe’s guilty plea was not based upon a misapprehension of the facts or law. As the

circuit court found, Roe’s claim that he was unaware that pleading guilty would require

him to register as a sex offender is not credible, and there is no doubt as to his guilt given

that he admitted committing the act that was the basis of the offense for which he was

convicted (fondling the victim’s breast).

¶ 21 For the foregoing reasons and pursuant to Illinois Supreme Court Rule 23(c)(2) (eff.

Feb. 1, 2023), we grant OSAD’s motion to withdraw as counsel and we affirm the judgment

of the circuit court of Union County. 8 ¶ 22 Motion granted; judgment affirmed.