People v. Thornton

2024 IL App (1st) 220158-U

Opinion

2024 IL App (1st) 220158-U No. 1-22-0158 Order filed September 20, 2024 Sixth Division

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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 994 (02) ) ) Honorable GAGE THORNTON, ) Paula Daleo and ) Gregory P. Vazquez Defendant-Appellant. ) Judges, presiding.

JUSTICE HYMAN delivered the judgment of the court. Justices C.A. Walker and Gamrath concurred in the judgment.

ORDER

¶1 Held: Circuit court’s denial of motion to withdraw guilty plea reversed and case remanded where plea counsel failed to strictly comply with Rule 604(d).

¶2 Gage Thornton entered a negotiated guilty plea to one count of first degree

murder in exchange for 35 years in prison. Judge Paula Daleo presided over the plea hearing and

sentencing. Judge Gregory P. Vazquez presided over proceedings on remand. Through counsel,

Thornton filed a motion to withdraw his plea, which the circuit court denied. On appeal, this court No. 1-22-0158

allowed an agreed motion to remand the case to the circuit court for counsel to file a certificate

under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) and further post-plea proceedings.

People v. Thornton, No. 1-18-0399 (Jan. 21, 2020) (dispositional order). The same attorney who

represented Thornton at the plea hearing then filed another motion to withdraw his guilty plea and

a Rule 604(d) certificate. The circuit court denied the motion.

¶3 On appeal, Thornton argues that (i) because he has an intellectual disability, the circuit

court failed to adequately admonish him under Illinois Supreme Court Rule 402 (eff. July 1, 2012)

when he entered his guilty plea and (ii) on remand, counsel failed to strictly comply with Rule

604(d) by failing to amend his motion to withdraw the guilty plea. Thornton alternatively argues

that his counsel’s ineffective assistance for failing to inform the circuit court during the plea

hearing that Thornton has an intellectual disability. We reverse and remand for the appointment of

new counsel and further post-plea proceedings.

¶4 Background

¶5 Thornton and Brandon Jackson were charged with multiple offenses, including first degree

murder, related to the fatal shooting of a police officer.

¶6 On August 19, 2016, the State informed the court that the parties prepared a written plea

agreement. Defense counsel stated that she and Thornton “went through the entire plea agreement

[that day],” and Thornton signed it. According to counsel, Thornton did not have further questions

regarding the plea agreement, and “that [was] his understanding and wish.” Thornton confirmed

that he understood the plea agreement and sentence.

¶7 The written plea agreement detailed the charge of first degree murder and that counsel

“fully explained” the charge to Thornton, who understood the “nature, elements, and possible

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sentences” and agreed to plead guilty. The agreement stated that the sentencing range was 35 to

75 years in prison, and the State recommended 35 years. Thornton and counsel agreed that there

were “no threats, promises, or representations” beyond the plea agreement. Thornton

acknowledged that he read and “carefully reviewed” each provision with counsel and understood

and voluntarily accepted the terms. Thornton, his counsel, and the State’s attorneys signed the

agreement.

¶8 The court informed Thornton that he was charged with first degree murder. The court asked

how Thornton pled to that charge, and Thornton stated, “[g]uilty.” Thornton confirmed that (i) he

was giving up his rights to a jury and bench trial, (ii) to hear and see witnesses testify against him,

(iii) to cross-examine witnesses, (iv) to present evidence, (v) to testify on his own behalf, (vi) to

remain silent, and (vii) to require the State to prove him guilty beyond a reasonable doubt. The

court informed Thornton that the sentencing range was 35 to 75 years in prison with three years of

mandatory supervised release. Thornton confirmed that he understood that he was pleading guilty

freely and voluntarily and that no one threatened or promised him anything for pleading guilty.

Additionally, Thornton confirmed that he understood the stipulated factual basis for the charges.

¶9 The court accepted Thornton’s guilty plea, finding that he understood the charge, the

possible penalties, and his rights. The court also found Thornton’s plea was made “freely and

voluntarily,” and a factual basis existed for the plea. The court found Thornton guilty of first degree

murder. The parties and court agreed that sentencing would occur after Jackson’s trial or plea.

¶ 10 At a hearing before sentencing, counsel acknowledged that Thornton sent a letter to the

court requesting to withdraw his guilty plea. Thornton’s letter stated that it was not his decision to

“take that plea bargain,” and his family told him to take the plea because “they feared that [he

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would] lose trial and get life.” According to Thornton’s letter, counsel told him that he had “know

[sic] chance and that [he would] get found guilty if [he] went to trial.” Thornton asserted his

innocence, stating that he “took 35 years for something [he] didn’t do because [he] was scared.”

He requested a court date to “dismiss that plea bargain.”

¶ 11 Counsel informed the court that she reviewed the plea hearing transcript and did not find

errors. Instead, Thornton was “correctly” informed of the sentencing range and the consequences

of being found guilty. The court then asked Thornton how he wished to proceed. Thornton stated

that he wanted to “withdraw [his] plea.”

¶ 12 On the same day, counsel filed a motion to withdraw Thornton’s guilty plea “for the reasons

stated in [Thornton’s] letter,” including that his family “forced” him to accept the plea. The motion

stated that counsel reviewed the transcript of the plea hearing and “was unable to find any

additional legal reasons for [Thornton] to withdraw his plea.” Counsel attached a certificate under

Rule 604(d), stating that counsel consulted with Thornton to “ascertain [his] contentions of error

in the entry of the plea of guilty,” examined the trial court file and report of proceedings of the

guilty plea, and made “any amendments to the motion necessary for the adequate presentation of

any defects in those proceedings.” Counsel also attached Thornton’s letter to the court.

¶ 13 In its response to Thornton’s motion to withdraw his guilty plea, the State maintained that

there was no misapprehension of law or fact, Thornton did not have a valid defense, and his plea

and sentence were just. The State also emphasized that the written plea agreement detailed the

charges, sentencing range, and the State’s recommended sentence.

¶ 14 After the court denied Thornton’s motion to withdraw his guilty plea, the court informed

the parties that it received another letter from Thornton, which it copied and gave to counsel.

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Thornton’s letter again asserted his innocence. According to his letter, counsel convinced

Thornton’s family to tell him to take the plea, and he feared what could happen if he went to trial.

The letter stated that Thornton did not have the opportunity to present motions and wanted to

“throw that plea bargain away.” He stated that he did not understand the plea and that he had proof

of a learning disability. He “didn’t really hear when [his] lawyer *** was reading [the plea

agreement] to [him]” and “didn’t have the chance to read the plea deal [himself].” Also, when he

was attempting to withdraw his plea, the court “told [him] that [he] underst[ood] when [he] didn’t.”

¶ 15 Counsel filed a motion to reconsider the denial of the motion to withdraw the guilty plea

“based on *** [Thornton’s] letter; and meeting with [him].” Thornton’s letter was not attached to

the motion to reconsider. The State objected, arguing that the motion was untimely and without

merit. The court denied the motion, finding that the plea was “appropriate and well-articulated.”

At sentencing, defense counsel submitted a psychological evaluation of Thornton conducted by a

licensed clinical psychologist. The court sentenced Thornton to 35 years in prison.

¶ 16 Thornton appealed, and this court allowed an agreed motion to remand to the circuit court

for the filing of a Rule 604(d) certificate and further post-plea proceedings. Thornton, No. 1-18-

0399 (Jan. 21, 2020) (dispositional order). As a basis for the motion, Thornton argued, and the

State agreed, that counsel’s Rule 604(d) certificate was premature and insufficient, as it was filed

before his sentencing hearing and did not certify that counsel had reviewed the transcripts of the

sentencing hearing.

¶ 17 On remand, the same attorney who represented Thornton at the plea hearing filed a motion

requesting the court accept the filing of a Rule 604(d) certificate and rule on Thornton’s motion to

withdraw his plea. Counsel reiterated Thornton’s arguments in his motions that his plea was

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involuntary and his family “forced” him to accept the plea. Counsel’s Rule 604(d) certificate stated

that counsel “consulted with *** [d]efendant in person and by phone to ascertain [his] contentions

of error in the entry of the guilty plea and in the sentence,” “examined the trial court file and report

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

“made any amendments to the motion necessary for the adequate presentation of any defects in

those proceedings.”

¶ 18 The court granted leave to file the Rule 604(d) certificate and denied the motion to

withdraw Thornton’s plea.

¶ 19 Analysis

¶ 20 Supreme Court Rule 402

¶ 21 Thornton now appeals, first contending that his plea was not knowing and voluntary

because, given his intellectual disability, he was improperly admonished as required by Supreme

Court Rule 402.

¶ 22 Supreme Court Rule 402 admonishments ensure that the defendant understands the terms

of the plea, the rights being waived, and the consequences of pleading guilty. People v. Lamar,

2015 IL App (1st) 130542, ¶ 18. Rule 402(a) provides that before accepting a guilty plea, the judge

must inform the defendant of and determine if the defendant understands (i) “the nature of the

charge,” (ii) “the minimum and maximum sentence prescribed by law,” (iii) that the defendant

“has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead

guilty,” and (iv) that by pleading guilty or stipulating that the evidence is sufficient to convict, the

defendant waives the right to a trial by jury and the right to be confronted with the witnesses against

him or her. Ill. S. Ct. R. 402(a) (eff. July 1, 2012). Rule 402(b) provides that before accepting a

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guilty plea, the judge must first determine that the plea is voluntary. Ill. S. Ct. R. 402(b) (eff. July

1, 2012). The judge questions the defendant to confirm the plea agreement’s terms and whether

any force, threats, or promises beyond the plea agreement were used to obtain the plea. Id.

¶ 23 Rule 402 requires substantial compliance, which occurs when the record affirmatively and

specifically establishes that the defendant understood the components of Rule 402(a). People v.

Dougherty, 394 Ill. App. 3d 134, 138 (2009). This court considers the entire record in determining

whether the defendant voluntarily pled guilty. Id. at 139. Failure to properly admonish a defendant

does not automatically establish grounds for reversing judgment or vacating a guilty plea. People

v. Fuller, 205 Ill. 2d 308, 323 (2002). Reversal depends on whether real justice has been denied or

the inadequate admonishments have prejudiced the defendant. People v. Torres, 228 Ill. 2d 382,

399 (2008). We review compliance with Rule 402 de novo. People v. Lozada, 323 Ill. App. 3d

1015, 1018 (2001).

¶ 24 The record demonstrates that the circuit court substantially complied with Rule 402.

Thornton signed the written plea agreement that detailed its terms, the sentencing guidelines, and

the consequences of pleading guilty. Thornton’s signature acknowledged that he read and

understood the plea agreement’s terms. Additionally, Thornton confirmed in open court that he

understood the terms of the plea agreement, including that he was being charged with first degree

murder, the sentencing range for the offense, and that by pleading guilty, he was waiving his right

to a jury and bench trial. Thornton also confirmed that he understood the consequences and wished

to plead guilty. Considering the oral admonishments together with the comprehensive written

guilty plea, the record affirmatively and specifically demonstrates that Thornton understood the

components of Rule 402(a). See Dougherty, 394 Ill. App. 3d at 138.

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¶ 25 Thornton argues that the court’s admonishments were improper due to his intellectual

disability, citing People v. Shanklin, 351 Ill. App. 3d 303, 307 (2004) (noting, on appeal from

summary dismissal of postconviction petition, that when defendant may have intellectual

disability, court and counsel for both parties “may not simply rely on affirmative answers to rote

questions to conclude the defendant understands the proceedings and the consequences of his

plea”). Counsel did not present any evidence regarding Thornton’s intellectual disability in the

written plea or during the plea hearing. The court admonished Thornton that, based on the

information presented, Thornton’s intellectual disability was not at issue. And, nothing in the

report of proceedings suggests that Thornton lacked understanding of the proceedings or the

court’s questions. Thus, the court substantially complied with Rule 402, and the admonishments

were proper.

¶ 26 Supreme Court Rule 604(d)

¶ 27 Next, Thornton contends that his counsel’s Rule 604(d) certification on remand did not

strictly comply with the rule by failing to amend Thornton’s motion to withdraw his guilty plea.

¶ 28 Rule 604(d) governs the procedure for when a defendant wants to appeal from a judgment

entered on a guilty plea. Ill. S. Ct. R. 604(d) (eff. July 1, 2017). As a prerequisite to appeal, within

30 days of sentencing, the defendant must file a motion to withdraw the guilty plea and vacate the

judgment, supported by affidavit when it is based on facts that are not in the record. Id.

¶ 29 Additionally, Rule 604(d) requires that plea counsel file with the circuit court a certificate

stating that counsel “consulted with the defendant *** to ascertain defendant’s contentions of error

in *** the entry of the plea of guilty,” “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

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“made any amendments to the motion necessary for adequate presentation of any defects in those

proceedings.” Id. Rule 604(d) requires strict compliance. People v. Taylor, 2023 IL App (1st)

171631, ¶ 12. Failure to strictly comply results in remand. Id. We review compliance with Rule

604(d) de novo. People v. Gorss, 2022 IL 126464, ¶ 10.

¶ 30 Here, counsel certified on remand that she consulted with Thornton to ascertain his

contentions of error in the entry of the plea of guilty, examined the trial court file and reports of

proceedings from the plea and sentencing hearings, and made “any amendments to the motion

necessary for the adequate presentation of any defects in those proceedings.” Counsel’s certificate

facially complied with the requirements. But, Thornton contends counsel’s certificate failed to

strictly comply with the requirements of Rule 604(d) because counsel failed to support the motion

with affidavits, argue its merit, and amend to allege that Thornton has an intellectual disability.

¶ 31 Where counsel filed a facially compliant Rule 604(d) certificate and Thornton contends a

lack of strict compliance, this court may consult the entire record to ascertain whether counsel

strictly complied with Rule 604(d). People v. Bridges, 2017 IL App (2d) 150718, ¶ 8.

¶ 32 Here, the record refutes counsel’s certification that she amended the motion necessary to

present Thornton’s claim adequately. The motion alleged that Thornton was “forced” by his family

to accept the plea, but the record did not support that allegation. Rule 604(d) requires that where a

motion to withdraw a guilty plea is premised on facts that do not appear in the record, the motion

must be supported by an affidavit. Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Counsel did not include

an affidavit or other evidence to support the motion.

¶ 33 The State, citing People v. Shirley, 181 Ill. 2d 359, 369 (1998), argues that while counsel’s

failure to attach an affidavit technically violated Rule 604(d), Thornton received a full and fair

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hearing. See also People v. Brown, 2023 IL App (4th) 220573; People v. Kocher, 2021 IL App

(4th) 200610-U; People v. Jones, 2021 IL App (4th) 180497-U; People v. Jackson, 2022 IL App

(5th) 200042. We find these cases distinguishable. In each, the defendant had an evidentiary

hearing and either testified or had counsel develop their claims through argument. So, the court

found that each defendant had a full and fair hearing. In contrast, Thornton did not testify, and his

counsel did not develop his claim through argument during the hearing. Accordingly, we do not

conclude that Thornton had a full and fair hearing of his claim, and counsel failed to comply with

Rule 604(d) strictly. We must remand.

¶ 34 Thornton alternatively contends that plea counsel was ineffective during the plea hearing

for failing to inform the court that he has an intellectual disability. Since the same counsel

represented Thornton during the plea hearing and post-plea proceedings, counsel would have to

argue her own ineffectiveness. Considering this, we instruct the circuit court on remand to appoint

new counsel to represent Thornton, and we need not decide whether counsel was ineffective.

People v. Jones, 2024 IL App (1st) 221506, ¶¶ 27-33.

¶ 35 Vacated and remanded with instructions.

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