People v. Stone

2023 IL App (4th) 220406-U

• Court: Appellate Court of Illinois
• Decided: May 4, 2023
• Docket: 4-22-0406
• Status: Unpublished

Opinion

2023 IL App (4th) 220406-U NOTICE NO. 4-22-0406 FILED This Order was filed under Supreme May 4, 2023 Court Rule 23 and is not precedent Carla Bender IN THE APPELLATE COURT except in the limited circumstances 4th District Appellate allowed under Rule 23(e)(1). Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County ETHAN STONE, ) No. 18CF122 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Turner and Steigmann concurred in the judgment.

ORDER ¶1 Held: (1) Postplea counsel did not fail to strictly comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).

(2) Defendant’s claim that he should be allowed to withdraw his negotiated guilty plea because the trial court allegedly erred in ordering restitution is without merit.

¶2 Defendant, Ethan Stone, appeals from the trial court’s judgment denying his

motion to withdraw his negotiated guilty plea. Defendant argues (1) postplea counsel failed to

strictly comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) and (2) he should be

allowed to withdraw his negotiated guilty plea because the court erroneously entered a restitution

order without any supporting evidence. We affirm.

¶3 I. BACKGROUND

¶4 A. The Charges ¶5 In April 2018, the State charged defendant with one count of armed robbery

(count I) (720 ILCS 5/18-2(a)(1) (West 2016)), two counts of home invasion (counts II and III)

(id. § 19-6(a)(2)), and one count of residential burglary (count IV) (id. § 19-3). The State alleged

defendant entered the dwelling place of Nicholas McDugle and Haley Nichols and intentionally

caused injuries to both.

¶6 B. The Fitness Evaluation

¶7 In August 2018, upon defense counsel’s request, the trial court appointed Dr.

Terry Killian to conduct a psychiatric evaluation of defendant to determine his fitness to stand

trial. Dr. Killian subsequently interviewed defendant and prepared a “Forensic Psychiatric

Evaluation” for the court’s consideration. We will briefly discuss the relevant portions of the

evaluation below.

¶8 According to the psychiatric evaluation, Dr. Killian began the interview speaking

with defendant but, before long, a second persona named Eli Stokes “suddenly appeared.” Dr.

Killian stated he spoke with “Eli Stokes” for the remainder of the interview. Dr. Killian asked Eli

Stokes “how many different personas [defendant] had.” In response, Eli Stokes stated “he was

only aware of a few other personas, and that there might be some personas who are children,

saying that there did seem to be some who were ‘younger versions of ourselves who will watch

cartoons.’ ” Dr. Killian did not speak to any of the other personas during the interview.

Ultimately, Dr. Killian concluded that it was his “very clear belief that [defendant] suffers from a

form of multiple personality disorder in which [defendant] is the primary or host personality and

Eli Stokes is one of [defendant’s] alter personalities, functioning as the protector of [defendant].”

With respect to defendant’s fitness to stand trial, Dr. Killian indicated, “It is my opinion, within a

reasonable degree of psychiatric certainty, that [defendant], despite his very obvious and severe

-2- psychiatric problems, *** is psychiatrically fit to stand trial.” (Emphasis omitted.) Dr. Killian

continued, “Both [defendant] and Eli Stokes demonstrated a more than adequate understanding

of the nature and purpose of the proceedings against him/them, and are capable of assisting in

their own defense.”

¶9 C. The Guilty Plea and Sentencing

¶ 10 On January 10, 2019, defendant pleaded guilty to all of the counts in exchange for

the State’s agreement to cap its sentencing recommendation at 26 years’ imprisonment. The trial

court accepted defendant’s plea after finding it was knowingly and voluntarily made and then

continued the matter for sentencing.

¶ 11 The trial court conducted the sentencing hearing on March 5, 2019. Neither party

objected to the presentence investigation report (PSI) being admitted into evidence. The

restitution section of the PSI indicated, “All victim-related information will be collected and

presented by the State’s Attorney’s office.” In presenting its sentencing recommendation, the

State noted the following with respect to restitution:

“MR. YEDINAK [(STATE’S ATTORNEY)]: *** [T]here is no objection

to the State *** seeking restitution in this matter, the same numbers that are set

forth in the co-defendant’s case. This would be joint and several with ***

[d]efendant, that being $6,389.80 for hospital bills with respect to Miss Nichols

and then $1,028.96; and that’s with respect to hospital bills for Mr. McDugle. So

that’s part of what the State would be seeking today, and I have orders prepared

for Your Honor in that regard.”

-3- Ultimately, after merging certain counts, the trial court sentenced defendant to concurrent terms

of 26 years’ imprisonment on counts I and II. The court also entered a restitution order requiring

defendant to pay $6389.80 to Nichols and $1028.96 to McDugle.

¶ 12 D. The Initial Motion to Withdraw Guilty Plea

¶ 13 In March 2019, defendant pro se sent a letter to the trial court requesting to

withdraw his guilty plea and raising several allegations of ineffective assistance of counsel. The

court conducted a hearing on defendant’s letter, at which defendant and defense counsel were

present. The court noted it was treating the letter as a motion to withdraw guilty plea and

discussed the allegations with defendant and counsel. The court denied the motion, and

defendant subsequently appealed.

¶ 14 On appeal, defendant argued “he was effectively denied his right to counsel at the

hearing on his pro se motion to withdraw his guilty plea because counsel had not fulfilled his

obligations under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).” People v. Stone, 2021

IL App (4th) 190332-U, ¶ 18. This court agreed with defendant and remanded for further

proceedings in strict compliance with Rule 604(d). Id. ¶ 25.

¶ 15 E. The Instant Motion to Withdraw Guilty Plea

¶ 16 In February 2022, following this court’s remand, defendant filed the instant

motion to withdraw guilty plea. Defendant alleged the following, in relevant part:

“5. That [d]efendant moves the Court to allow the defendant to withdraw

his guilty plea.

6. That [d]efendant denies the allegations of the information and states that

he is not guilty of the charges brought against him.

-4- 7. That [d]efendant did not properly comprehend his rights and the waiver

of his rights that he was executing and desires to proceed to trial. Defendant

believes that he did not exercise reasoned and knowing judgment as one of his

multiple personalities, Elijah[,] entered the guilty plea.”

Defense counsel attached a Rule 604(d) certificate of compliance to the motion but did not attach

any additional documentation.

¶ 17 On April 11, 2022, the trial court conducted a hearing on the motion to withdraw

guilty plea. In support of defendant’s contention that one of his multiple personalities entered the

guilty plea, defense counsel stated as follows:

“MS. METOYER [(DEFENDANT’S ATTORNEY)]: So I really don’t

have much to add. [Defendant] provided additional information that’s addressed

in paragraph 7. Dr. Killian in his report indicated that my client suffered from

multiple personalities and that he actually interviewed two of them including my

client Ethan Stone and—I’m sorry.

THE COURT: Yep.

(Pause)

MS. METOYER: Eli Stokes was [who] he identified as a person that Dr.

Killian actually got to observe while interviewing my client Ethan Stone.

However, unfortunately my client I believe upon further reflection realized

that it was neither Ethan nor Eli Stokes but instead it was actually Elijah and that

if it had been my client Ethan Stone because he believes he’s not guilty of this

offense he never would have agreed to enter into that open plea.”

-5- At the conclusion of the hearing, the trial court denied the motion to withdraw guilty plea. In

doing so, the court reasoned as follows:

“THE COURT: Okay. Well, the, as the State has indicated, the Court was

aware of [defendant’s multiple personality disorder] at the time of the sentencing

in this matter; and I believe this was discussed at that time. Just let me—The

sentencing took place on March 5th I believe, the original sentencing of 2019; and

at that point I did have the forensic psychiatric evaluation; and I was able to take

that into consideration. But there’s nothing in that report that would indicate that

this was not a knowing and voluntary plea of guilty to the charges at the time that

the plea was made and accepted by the Court and more importantly at the time of

sentencing.”

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 On appeal, defendant argues (1) postplea counsel failed to strictly comply with

Rule 604(d) and (2) he should be allowed to withdraw his negotiated guilty plea because the trial

court erroneously entered a restitution order without any supporting evidence.

¶ 21 A. Rule 604(d)

¶ 22 Defendant argues that although postplea counsel filed a facially compliant Rule

604(d) certificate, she nonetheless failed to strictly comply with Rule 604(d) by failing to attach

an affidavit or other documentation to the motion in support of the contentions raised therein.

Specifically, defendant asserts the following two claims were based on facts not contained in the

record, yet counsel failed to attach any documentation to adequately present them to the court:

(1) the claim of actual innocence and (2) the claim that defendant did not knowingly plead guilty

-6- because one of his multiple personalities, Elijah, pleaded guilty. The State argues postplea

counsel strictly complied with Rule 604(d) because, despite defendant’s assertion to the contrary,

neither of the claims listed above are based on facts outside of the record, and therefore counsel

had no duty to attach an affidavit or any additional documentation to the motion. “The question

of whether defense counsel complied with Rule 604(d) is subject to de novo review.” People v.

Neal, 403 Ill. App. 3d 757, 760 (2010).

¶ 23 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) governs appeals from

convictions entered on pleas of guilty. It provides a defendant must file the appropriate postplea

motion within 30 days of the imposition of sentence and, in conjunction with the motion, the

defendant’s attorney must:

“file with the trial court a certificate stating that the attorney has

consulted with the defendant either by phone, mail, electronic

means or in person to ascertain defendant’s contentions of error in

the sentence and the entry of the plea of guilty, has examined the

trial court file and both the report of proceedings of the plea of

guilty and the report of proceedings in the sentencing hearing, and

has made any amendments to the motion necessary for adequate

presentation of any defects in those proceedings.” Id.

¶ 24 “Rule 604(d) is designed to ensure that any potential errors in the entry of a guilty

plea are brought to the trial court’s attention prior to the filing of an appeal.” People v. Easton,

2018 IL 122187, ¶ 29. “[T]he rule’s certificate requirement is meant to enable the trial court to

ensure that counsel has reviewed the defendant’s claim and considered all relevant bases for the

motion to withdraw the guilty plea or to reconsider the sentence.” (Emphasis in original.) People

-7- v. Tousignant, 2014 IL 115329, ¶ 16. “It is firmly established that the certificate filed by counsel

must strictly comply with the requirements of Rule 604(d). [Citation.] If the certificate fails to

meet this standard, a reviewing court must remand the case to the trial court for proceedings that

strictly comply with Rule 604(d).” Easton, 2018 IL 122187, ¶ 26.

¶ 25 Generally, to determine compliance with the rule, a court need only look to the

face of the certificate itself. See, e.g., Neal, 403 Ill. App. 3d at 760. However, a facially

compliant certificate may be found in violation of the rule where it is undermined by the record.

Id. (“[W]e may consider the record where it undermines the certificate filed.”); see also People v.

Herrera, 2012 IL App (2d) 110009, ¶ 13 (“Unless the record undermines the certificate, *** the

only thing we consider in determining compliance with Rule 604(d) is the certificate itself.”);

People v. Love, 385 Ill. App. 3d 736, 739 (2008) (“Where *** the record impeaches the Rule

604(d) certificate, a remand for further proceedings is necessary.”). “When the motion is based

on facts that do not appear of record it shall be supported by affidavit ***.” Ill. S. Ct. R. 604(d)

(eff. July 1, 2017); see also People v. Bridges, 2017 IL App (2d) 150718, ¶ 9 (“As seen, under

Rule 604(d), facts that do not appear of record must be supported by an affidavit. Thus, to fulfill

her duty to amend defendant’s motion, counsel had to attach an affidavit substantiating the new

allegations.”).

¶ 26 Here, as noted above, defendant argues the claims raised in his motion were based

on facts not found in the record and, therefore, needed to be supported by affidavit or other

evidentiary support. We disagree. First, defendant’s “actual innocence” claim—“That

[d]efendant denies the allegations of the information and states that he is not guilty of the charges

brought against him”—amounts to nothing more than a bare denial of the charges and an

expression of defendant’s desire to withdraw his guilty plea and plead anew. He did not include

-8- any specific factual allegations that could have been supported by affidavit or otherwise. Second,

the claim related to Elijah was not based on facts outside of the record. The record, i.e., Dr.

Killian’s forensic psychiatric evaluation, contained evidence of “alter personalities” other than

Eli Stokes. It did not matter that defendant later attached the name “Elijah” to one of those other

alter personalities. The court indicated it was aware of defendant’s multiple personality disorder

and had considered Dr. Killian’s report, which referred to multiple “different personas.” In the

end, obtaining an affidavit from defendant or Dr. Killian that the persona that entered the guilty

plea was named Elijah would have done nothing to assist the court in its decision. Thus, counsel

did not need to obtain additional evidentiary support in order to have met her burden under

Rule 604(d), and we find she strictly complied with the rule.

¶ 27 B. Restitution

¶ 28 Defendant also argues he should be allowed to withdraw his guilty plea because a

manifest injustice occurred after he entered the plea in that the court entered a restitution order

without any supporting evidence. He acknowledges he forfeited this argument by failing to

object at the sentencing hearing and include it in a motion to withdraw guilty plea but

nonetheless contends we may address it because second-prong plain error occurred. See People

v. Davis, 145 Ill. 2d 240, 250 (1991) (“Generally, under Illinois Supreme Court Rule 604(d), any

issue not raised by the defendant in his motion to withdraw the plea of guilty shall be deemed

[forfeited] upon appeal.”). However, we find it unnecessary to conduct plain error review, as

defendant’s claim is meritless irrespective of forfeiture.

¶ 29 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) provides, “No appeal shall

be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the

defendant *** files a motion to withdraw the plea of guilty and vacate the judgment.” “A

-9- defendant does not have an automatic right to withdraw [his] guilty plea, as [a] plea of guilty is a

grave act that is not reversible at the defendant’s whim.” (Internal quotation marks omitted.)

People v Burge, 2021 IL 125642, ¶ 37. “[F]or a defendant to prevail in a challenge to a sentence

entered pursuant to a negotiated plea agreement, the defendant must (1) move to withdraw the

guilty plea and vacate the judgment, and (2) show that the granting of the motion is necessary to

correct a manifest injustice.” People v. Evans, 174 Ill. 2d 320, 332 (1996). “A defendant should

not be allowed to withdraw his plea when the real basis for his withdrawal is that he is

dissatisfied with the length of his sentence.” People v. Cunningham, 286 Ill. App. 3d 346, 350

(1997).

¶ 30 In People v. Millsap, 2022 IL App (4th) 210192, this court addressed a similar

argument to the one defendant now raises on appeal. In that case, the defendant argued “he

should be allowed to withdraw his negotiated guilty plea because he was denied his right to a fair

sentencing hearing, where the State allegedly requested a longer sentence by implication and the

trial court relied on improper factors before sentencing [the] defendant.” Id. ¶ 16. The defendant

in Millsap, like the defendant here, relied on People v. Johnson, 2019 IL 122956, in support of

his argument. However, we noted that “nothing suggests our supreme court, in Johnson, created

a separate basis for withdrawal on the grounds of manifest injustice, whereby he should be

permitted to withdraw his negotiated guilty plea because he was allegedly denied a fair

sentencing hearing.” Millsap, 2022 IL App (4th) 210192, ¶ 22. Ultimately, we found that,

“[r]egardless of how he frames it, [the] defendant’s motion to withdraw his plea boils down to a

claim that, had the State and trial court not erred at sentencing, he should have received a lesser

sentence.” Id.

- 10 - ¶ 31 Here, the parties agree defendant entered a negotiated plea and restitution is “a

component of the sentence.” People v. Birge, 2021 IL 125644, ¶ 47. Thus, the question on appeal

is whether, assuming, arguendo, the trial court erred in ordering restitution without evidentiary

support, defendant is entitled to withdraw his guilty plea. We find he is not. As was the case in

Millsap, defendant here is attempting to challenge the sentencing hearing as unfair and his

sentence as excessive. Defendant is arguing that the State and the court deprived him of a fair

sentencing hearing by, respectively, failing to present evidence of the actual economic loss

suffered in this case and accepting the amount presented by the State. In effect, he is arguing his

sentence is excessive because had the court not erred, it would have had no basis to impose

restitution. In other words, “[d]efendant attempts to couch his claim in the language of an appeal

of the trial court’s denial of his motion to withdraw his plea, but *** its substance remains the

same—defendant’s dissatisfaction with his sentence and a claim that *** it exceeds what he

should have received.” Millsap, 2022 IL App (4th) 210192, ¶ 22.

¶ 32 Defendant asserts his restitution argument is not one of the “run-of-the-mill

sentencing claims” such as the ones rejected in Millsap and should be viewed differently by this

court. However, he provides no suggested framework for distinguishing between claims that

could result in a defendant’s withdrawal of his guilty plea and those that would not. Indeed, he

acknowledges “it is difficult to pinpoint the type of subsequent sentencing error that would affect

the knowingness of a prior guilty plea.” Further, defendant fails to explain how the trial court’s

restitution order resulted in a “manifest injustice” as contemplated in Evans. Evans, 174 Ill. 2d at

322. While it appears the State did not present evidence in support of its request for restitution

(see Birge, 2021 IL 125644, ¶ 49), the prosecutor’s comments reflect the request was for less

than $7500 and represented the victims’ aggregate hospital bills. On its face, this request does

- 11 - not appear manifestly inappropriate, and we cannot say the court’s restitution order resulted in a

manifest injustice.

¶ 33 Without clear authority establishing a defendant’s ability to withdraw his guilty

plea under circumstances such as those presented here, we adhere to our approach in Millsap.

Accordingly, we reject defendant’s restitution argument.

¶ 34 III. CONCLUSION

¶ 35 For the reasons stated, we affirm the trial court’s judgment.

¶ 36 Affirmed.

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