2023 IL App (5th) 220324-U NOTICE NOTICE Decision filed 05/15/23. The This order was filed under text of this decision may be NO. 5-22-0324 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jackson County. ) v. ) No. 21-CF-124 ) JARED L. VARNUM, ) Honorable ) Ralph R. Bloodworth III, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court. Presiding Justice Boie and Justice Moore concurred in the judgment.
ORDER
¶1 Held: Where the circuit court properly admonished defendant prior to accepting his admission to the allegations of a petition to revoke his probation, and he did not file a motion to withdraw the admission or reconsider the sentence, the court did not err in revoking his probation and sentencing him pursuant to the agreement. As any argument to the contrary would lack merit, we grant defendant’s appointed counsel on appeal leave to withdraw and affirm the circuit court’s judgment.
¶2 Defendant, Jared L. Varnum, appeals the circuit court’s orders revoking his probation and
sentencing him to three years in prison. His appointed appellate counsel, the Office of the State
Appellate Defender (OSAD), has concluded that there is no reasonably meritorious argument that
the circuit court erred in dismissing defendant’s petition. Accordingly, it has filed a motion to
withdraw as counsel along with a supporting memorandum. See Anders v. California, 386 U.S.
738 (1967). OSAD has notified defendant of its motion, and this court has provided him with
1 ample opportunity to respond. However, he has not done so. After considering the record on
appeal, OSAD’s memorandum, and its supporting brief, we agree that this appeal presents no
reasonably meritorious issues. Thus, we grant OSAD leave to withdraw and affirm the circuit
court’s judgment.
¶3 BACKGROUND
¶4 In May 2021, defendant pleaded guilty to aggravated battery and threatening a public
official. The State agreed to recommend a sentence of 18 months’ probation and dismiss additional
charges. As conditions of probation, defendant would have to report to the probation office, submit
proof of a substance abuse evaluation and any recommended treatment, as well as proof of a mental
health evaluation and any required treatment.
¶5 Before accepting the plea, the circuit court explained to defendant the charges, the possible
sentences, and the terms of the agreement. The court explained to defendant the rights he would
be giving up by pleading guilty. Defendant assured the court that he understood those rights, that
no one had threatened him or promised him anything, and that his plea was voluntary.
¶6 In September of that year, the State moved to revoke defendant’s probation. It alleged that
he had failed to report to probation or provide proof of completing a substance abuse or mental
health evaluation.
¶7 The parties eventually agreed that defendant would admit to the allegations of the petition
to revoke in exchange for concurrent three-year prison sentences. In response to questioning,
defendant told the court he understood the original charges to which he pleaded guilty, the range
of sentences, and the allegations of the petition to revoke. Defendant assured the court that no one
had forced or threatened him to admit to the allegations. The court admonished defendant that the
State had to prove only one allegation by a preponderance of the evidence, a lesser standard than
2 beyond a reasonable doubt. The court further explained that defendant had the right to present a
defense, to call witnesses, or to remain silent. Defendant stated that he understood. As a factual
basis, probation officer Suzanne Ellison would testify that defendant missed multiple probation
appointments, failed to provide proof of completion of any substance abuse evaluation, and failed
to provide documentation that he received a mental health evaluation and treatment.
¶8 The court found the admission voluntary and imposed the agreed-upon sentence. It
explained to defendant that if he wished to withdraw his admission, he would have to file a written
motion within 30 days explaining the grounds for doing so. Any other grounds would be waived.
Defendant did not move to withdraw his admission but filed a notice of appeal.
¶9 ANALYSIS
¶ 10 OSAD concludes that there is no reasonably meritorious contention of error in the
proceedings below. We agree, as the circuit court properly admonished defendant pursuant to
Illinois Supreme Court Rules and imposed the agreed-upon sentence.
¶ 11 OSAD preliminarily notes that defendant is precluded from challenging the underlying
guilty plea. When no direct appeal is taken from a conviction and sentence of probation, and the
time for appeal has expired, we may not review the underlying judgment in an appeal from a
subsequent probation revocation unless the underlying judgment is void. People v. Gregory, 379
Ill. App. 3d 414, 418 (2008). A judgment is void only “where the judgment was entered by a court
that lacked personal or subject-matter jurisdiction,” or “where the judgment was based on a statute
that is facially unconstitutional and void ab initio.” People v. Price, 2016 IL 118613, ¶ 31. There
is no viable contention that either circumstance applies here. Thus, defendant is limited to
challenging the revocation proceedings.
3 ¶ 12 OSAD concludes, however, that no reasonably meritorious challenge to those proceedings
exists. Prior to accepting his admission, the court informed defendant of the petition’s allegations.
It admonished him of the minimum and maximum penalties available on resentencing for the
underlying offenses, the right to a hearing where he could confront and cross-examine witnesses
and present a defense, the right to have the State prove the allegations by a preponderance of the
evidence, and that by admitting to the allegations, there would not be a hearing, and that he would
be waiving those rights. See Ill. S. Ct. R. 402A(a) (eff. Nov. 1, 2003). Based on defendant’s
answers to its questions, the court reasonably concluded that his admission was voluntary. Ill. S.
Ct. R. 402A(b) (eff. Nov. 1, 2003). The court also elicited a factual basis for the admission. Ill.
S. Ct. R. 402A(c) (eff. Nov. 1, 2003). As the factual basis, the parties stipulated that Ellison,
defendant’s probation officer, would testify that he missed multiple appointments and had failed
to submit proof of substance abuse or mental health evaluations. The court also admonished
defendant about his appeal rights. See Ill. S. Ct. R. 605(a) (eff. Oct. 1, 2001).
¶ 13 Moreover, defendant never filed a motion to withdraw the admission suggesting that he
did not understand the admonishments, that defense counsel was ineffective, or that any promises
or threats were made to secure his admission. Thus, there is simply no basis to contend on appeal
that the court erred in revoking defendant’s probation.
¶ 14 Defendant also cannot challenge his sentence. The court did not order a presentence
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2023 IL App (5th) 220324-U NOTICE NOTICE Decision filed 05/15/23. The This order was filed under text of this decision may be NO. 5-22-0324 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jackson County. ) v. ) No. 21-CF-124 ) JARED L. VARNUM, ) Honorable ) Ralph R. Bloodworth III, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court. Presiding Justice Boie and Justice Moore concurred in the judgment.
ORDER
¶1 Held: Where the circuit court properly admonished defendant prior to accepting his admission to the allegations of a petition to revoke his probation, and he did not file a motion to withdraw the admission or reconsider the sentence, the court did not err in revoking his probation and sentencing him pursuant to the agreement. As any argument to the contrary would lack merit, we grant defendant’s appointed counsel on appeal leave to withdraw and affirm the circuit court’s judgment.
¶2 Defendant, Jared L. Varnum, appeals the circuit court’s orders revoking his probation and
sentencing him to three years in prison. His appointed appellate counsel, the Office of the State
Appellate Defender (OSAD), has concluded that there is no reasonably meritorious argument that
the circuit court erred in dismissing defendant’s petition. Accordingly, it has filed a motion to
withdraw as counsel along with a supporting memorandum. See Anders v. California, 386 U.S.
738 (1967). OSAD has notified defendant of its motion, and this court has provided him with
1 ample opportunity to respond. However, he has not done so. After considering the record on
appeal, OSAD’s memorandum, and its supporting brief, we agree that this appeal presents no
reasonably meritorious issues. Thus, we grant OSAD leave to withdraw and affirm the circuit
court’s judgment.
¶3 BACKGROUND
¶4 In May 2021, defendant pleaded guilty to aggravated battery and threatening a public
official. The State agreed to recommend a sentence of 18 months’ probation and dismiss additional
charges. As conditions of probation, defendant would have to report to the probation office, submit
proof of a substance abuse evaluation and any recommended treatment, as well as proof of a mental
health evaluation and any required treatment.
¶5 Before accepting the plea, the circuit court explained to defendant the charges, the possible
sentences, and the terms of the agreement. The court explained to defendant the rights he would
be giving up by pleading guilty. Defendant assured the court that he understood those rights, that
no one had threatened him or promised him anything, and that his plea was voluntary.
¶6 In September of that year, the State moved to revoke defendant’s probation. It alleged that
he had failed to report to probation or provide proof of completing a substance abuse or mental
health evaluation.
¶7 The parties eventually agreed that defendant would admit to the allegations of the petition
to revoke in exchange for concurrent three-year prison sentences. In response to questioning,
defendant told the court he understood the original charges to which he pleaded guilty, the range
of sentences, and the allegations of the petition to revoke. Defendant assured the court that no one
had forced or threatened him to admit to the allegations. The court admonished defendant that the
State had to prove only one allegation by a preponderance of the evidence, a lesser standard than
2 beyond a reasonable doubt. The court further explained that defendant had the right to present a
defense, to call witnesses, or to remain silent. Defendant stated that he understood. As a factual
basis, probation officer Suzanne Ellison would testify that defendant missed multiple probation
appointments, failed to provide proof of completion of any substance abuse evaluation, and failed
to provide documentation that he received a mental health evaluation and treatment.
¶8 The court found the admission voluntary and imposed the agreed-upon sentence. It
explained to defendant that if he wished to withdraw his admission, he would have to file a written
motion within 30 days explaining the grounds for doing so. Any other grounds would be waived.
Defendant did not move to withdraw his admission but filed a notice of appeal.
¶9 ANALYSIS
¶ 10 OSAD concludes that there is no reasonably meritorious contention of error in the
proceedings below. We agree, as the circuit court properly admonished defendant pursuant to
Illinois Supreme Court Rules and imposed the agreed-upon sentence.
¶ 11 OSAD preliminarily notes that defendant is precluded from challenging the underlying
guilty plea. When no direct appeal is taken from a conviction and sentence of probation, and the
time for appeal has expired, we may not review the underlying judgment in an appeal from a
subsequent probation revocation unless the underlying judgment is void. People v. Gregory, 379
Ill. App. 3d 414, 418 (2008). A judgment is void only “where the judgment was entered by a court
that lacked personal or subject-matter jurisdiction,” or “where the judgment was based on a statute
that is facially unconstitutional and void ab initio.” People v. Price, 2016 IL 118613, ¶ 31. There
is no viable contention that either circumstance applies here. Thus, defendant is limited to
challenging the revocation proceedings.
3 ¶ 12 OSAD concludes, however, that no reasonably meritorious challenge to those proceedings
exists. Prior to accepting his admission, the court informed defendant of the petition’s allegations.
It admonished him of the minimum and maximum penalties available on resentencing for the
underlying offenses, the right to a hearing where he could confront and cross-examine witnesses
and present a defense, the right to have the State prove the allegations by a preponderance of the
evidence, and that by admitting to the allegations, there would not be a hearing, and that he would
be waiving those rights. See Ill. S. Ct. R. 402A(a) (eff. Nov. 1, 2003). Based on defendant’s
answers to its questions, the court reasonably concluded that his admission was voluntary. Ill. S.
Ct. R. 402A(b) (eff. Nov. 1, 2003). The court also elicited a factual basis for the admission. Ill.
S. Ct. R. 402A(c) (eff. Nov. 1, 2003). As the factual basis, the parties stipulated that Ellison,
defendant’s probation officer, would testify that he missed multiple appointments and had failed
to submit proof of substance abuse or mental health evaluations. The court also admonished
defendant about his appeal rights. See Ill. S. Ct. R. 605(a) (eff. Oct. 1, 2001).
¶ 13 Moreover, defendant never filed a motion to withdraw the admission suggesting that he
did not understand the admonishments, that defense counsel was ineffective, or that any promises
or threats were made to secure his admission. Thus, there is simply no basis to contend on appeal
that the court erred in revoking defendant’s probation.
¶ 14 Defendant also cannot challenge his sentence. The court did not order a presentence
investigation or hold a sentencing hearing; it imposed the sentence to which the parties had agreed.
Where an agreed sentence is imposed following a guilty plea, a defendant may not challenge that
sentence without first moving to withdraw the plea. People v. Evans, 174 Ill. 2d 320, 332 (1996).
This is because plea bargains are rooted in contract principles; each party is entitled to the benefit
of his or her bargain. Id. at 326. To allow a defendant to accept the benefits of a plea bargain,
4 then challenge the sentence which formed at least part of the consideration for the agreement,
would violate those principles, holding the State to its bargain while releasing the defendant from
his. Id. at 327-28.
¶ 15 Although we have found no case expressly applying Evans to an admission to a petition to
revoke probation, the contract principles underlying Evans appear to apply with equal force to a
probation-revocation proceeding. Moreover, Illinois Supreme Court Rule 605(a), which governs
probation revocation proceedings as well as convictions entered after a trial, requires a defendant
to file a motion to reconsider the sentence in order to challenge that sentence; any issues not raised
in such a motion are forfeited on appeal. Ill. S. Ct. R. 605(a) (eff. Oct. 1, 2001). Thus, on either
basis, defendant has forfeited the right to appeal the sentence to which he agreed.
¶ 16 CONCLUSION
¶ 17 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and
affirm the circuit court’s judgment.
¶ 18 Motion granted; judgment affirmed.