People v. Walsh

2023 IL App (4th) 220843-U

• Court: Appellate Court of Illinois
• Decided: September 13, 2023
• Docket: 4-22-0843
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 220843-U This Order was filed under FILED Supreme Court Rule 23 and is September 13, 2023 NO. 4-22-0843 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Mercer County MARLENA K. WALSH, ) No. 20CF30 Defendant-Appellant. ) ) Honorable ) Norma Kauzlarich, ) Judge Presiding.

PRESIDING JUSTICE DeARMOND delivered the judgment of the court. Justices Harris and Zenoff concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, concluding the circuit court substantially complied with Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003) in admonishing defendant before accepting her admission to violations of probation.

¶2 In September 2020, defendant pled guilty to one count of delivery of less than

five grams of methamphetamine (720 ILCS 646/55(a)(1), (2)(A) (West 2020)), a Class 2 felony,

and was sentenced to 30 months’ probation. In February 2022, defendant admitted various

allegations in the State’s fifth amended petition to revoke her probation. In July 2022, the circuit

court revoked defendant’s probation and sentenced her to four years’ imprisonment and one year

of mandatory supervised release (MSR). In September 2022, defendant, through counsel, moved

to withdraw her admission, asserting it was not knowing and voluntary and she was not fully

advised of the potential penalties during the hearing at which she made her admission. The court

denied defendant’s motion. Defendant appeals, arguing the court did not substantially comply with Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003) in admonishing her before accepting

her admission. We affirm.

¶3 I. BACKGROUND

¶4 On September 14, 2020, defendant pled guilty to one count of delivery of less

than five grams of methamphetamine (720 ILCS 646/55(a)(1), (2)(A) (West 2020)), a Class 2

felony, and was sentenced to 30 months’ probation. On February 26, 2021, the Mercer County

Probation Department filed a Violation Report alleging defendant was unsuccessfully discharged

from counseling on February 24, 2021. On March 1, 2021, the State filed a petition to revoke

defendant’s probation. Over the next eight months, the State filed five amended petitions to

revoke.

¶5 The circuit court conducted numerous hearings in connection with these petitions.

At hearings on April 12, 2021, September 20, 2021, November 2, 2021, November 30, 2021, and

February 15, 2022, the court gave admonitions pursuant to Rule 402A. As the instant appeal is

based on the purported deficiencies in these admonitions, we summarize the five hearings as

necessary.

¶6 At the hearing on April 12, 2021, the circuit court informed defendant of (1) the

allegation of the State’s original petition, (2) her right to a hearing at which the State would have

to prove the allegation “more probably than not,” and (3) the potential penalties of three to seven

years’ imprisonment, a two-year period of MSR, fines up to $150,000, and being “subject to

probation, conditional discharge, and periodic imprisonment.” At the hearing, the court

appointed the public defender to represent defendant.

¶7 At the September 20, 2021, hearing, defendant’s counsel acknowledged receipt of

the State’s third amended petition and recited only one of its two new allegations following the

-2- original petition. The circuit court did not recite either of the two new allegations after

defendant’s counsel asked to “waive further reading of the charges and penalties.” The court did,

however, despite counsel’s waiver, explain the potential penalties of 3 to 7 years’ imprisonment,

or a potential “extendable” term of 7 to 14 years, up to 4 years’ probation, and a fine of up to

$25,000. The court then verified defendant’s understanding of the potential penalties.

¶8 At the hearing on November 2, 2021, the circuit court recited each of the four

allegations of the State’s fourth amended petition, including the two new allegations of the third

amended petition, recitation of which was waived by counsel at the hearing on September 20.

The court verified defendant’s understanding of the allegations.

¶9 At the November 30, 2021, hearing, after ascertaining from defendant she had an

opportunity to review the new petition, the circuit court recited each of the six allegations of the

State’s fifth amended petition. The court informed defendant she had a right to a hearing on the

petition at which the State would have to “prove its case.” The court verified defendant’s

understanding of the allegations.

¶ 10 At the hearing on February 15, 2022, defendant’s counsel informed the circuit

court his client was going to admit the violation of probation and the court asked defendant if she

was admitting the allegations in the State’s fifth amended petition. Defendant’s counsel tendered

a document entitled “Admission of Violation of Probation/Court Supervision/Conditional

Discharge and Waiver of Hearing” signed by defendant, and defendant admitted all but one of

the allegations contained in the revocation petitions. The court informed defendant of her right to

a hearing where the State would have to prove her violations of probation “more probably than

not” and verified her understanding of this right. The court then verified defendant’s

understanding she would be “giving up that hearing” and her right to require the State to

-3- establish the violation of probation by admitting the allegations in the State’s petition. The court

also engaged in a colloquy with defendant in which she stated she was not being forced or

threatened into admitting the probation violations.

¶ 11 When asked whether she was admitting the specific allegation from February 24,

2021, defendant initially answered, “Yeah, kind of.” This precipitated the circuit court’s further

inquiry to determine whether defendant was, in fact, admitting the allegation, which she

confirmed. When asked about each of the remaining allegations, other than the September 23,

2021, allegation of refusing a drug test because she would test positive for methamphetamine,

defendant’s admissions were all verbalized as “I guess,” “yeah,” or “I guess that’s what they

said.” The court found defendant’s admission was entered “knowingly and voluntarily.”

¶ 12 On July 18, 2022, the circuit court sentenced defendant to four years’

imprisonment to be followed by one year of MSR. A week later, defendant filed, pro se, a

request for the court to reconsider sentence, listing various defendants who, upon resentencing

on probation violations, were given lighter sentences. Defendant’s claim was merely that her

sentence was “too harsh.” Her appointed counsel then filed a motion to withdraw her admission

on August 15, contending “[t]he Defendant’s plea was not knowing[ ] and voluntary” and “[t]he

Defendant believes she was not fully advised of the consequences of her admission.”

¶ 13 On September 14, 2022, defendant, through counsel, filed her “Amended Motion

to Withdraw Admission.” In pertinent part, defendant asserted “she was not fully advised of the

consequences of her admission” because she “was not admonished of the potential penalties at

the hearing where she made her admission and did not understand the range of penalties that

could have been imposed.” Additionally, defendant asserted her admission “was not knowing[ ]

and voluntary.” Counsel noted defendant “acknowledges that on April 19, 2022[,] at the time of

-4- her original sentencing date, she was advised of the maximum and minimum term of

incarceration.”

¶ 14 The circuit court conducted a hearing on defendant’s motion on September 19,

2022. Defendant did not testify and presented no further evidence. Counsel referenced

defendant’s pro se motion/letter and advised the court he explained to defendant her observation

of other defendants receiving probation instead of prison for probation violations was not “valid

grounds for a withdrawal.” Counsel also reminded the court that defendant acknowledged in her

amended motion she was advised of the maximum and minimum terms of incarceration for the

underlying offense at her “original sentencing date” of April 19, 2022. After hearing argument

from both sides, the court held the basis for defendant’s attempt to withdraw her admission was

“buyer’s remorse.” The court found, “She voluntarily admitted to violating the terms of

probation, she knowingly did so, and so for those reasons the Court is going to deny the Motion

to Withdraw the admission. The sentence stands.”

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 Defendant argues the circuit court erred in accepting her admission to the

probation violation where the court failed to substantially comply with Rules 402A(a) and

402A(b). Specifically, defendant contends there was no affirmative showing she understood the

rights she was waiving. We disagree.

¶ 18 A. Rule 402A(a)

¶ 19 Rule 402A provides the admonitions a circuit court must give a criminal

defendant before the court can accept a defendant’s admission to the allegations of a petition to

revoke probation. Under Rule 402A(a), the court must admonish the defendant and determine the

-5- defendant understands (1) the specific allegations of the petition, (2) the defendant’s right to a

hearing with counsel present and the right to appointed counsel if indigent, (3) the right to

confront and cross-examine witnesses and present evidence in her behalf at the hearing, (4) the

State’s burden to prove the allegations by a preponderance of the evidence, (5) admission of the

violation will eliminate the need for a hearing on the allegations in the petition, and (6) the range

of sentences possible for the underlying offense. Ill. S. Ct. R. 402A(a) (eff. Nov. 1, 2003).

¶ 20 A defendant in a probation revocation proceeding has fewer, rather than more,

procedural rights than one awaiting trial. People v. Hall, 198 Ill. 2d 173, 177, 760 N.E.2d 971,

973 (2001). Rule 402A requires the circuit court’s “substantial compliance,” meaning “a specific

and affirmative showing in the record that the defendant understood each of the required

admonitions.” People v. Ellis, 375 Ill. App. 3d 1041, 1046, 874 N.E.2d 980, 983 (2007).

Substantial compliance can be “achieved in ways other than reciting all of Rule 402A to a

respondent when the respondent admits to violating probation.” In re Westley A.F., 399 Ill. App.

3d 791, 796, 928 N.E.2d 150, 155 (2010). Substantial compliance may occur in a situation where

the court did not recite to the defendant, and ask the defendant if he or she understood, an item

listed in Rule 402A, but the record affirmatively shows the defendant did, in fact, understand.

People v. Dennis, 354 Ill. App. 3d 491, 495, 820 N.E.2d 1190, 1193 (2004). Whether the court

substantially complied with Rule 402A is a question of law, which we review de novo. People v.

Saleh, 2013 IL App (1st) 121195, ¶ 14, 995 N.E.2d 375.

¶ 21 Defendant’s effort to parse each of the admonishments separately is not necessary

to our analysis. By the hearing in February 2022, defendant had been informed of some of the

allegations as many as six times because she continued to accumulate violations. And

“substantial compliance” with Rule 402A merely requires this court to look at everything that

-6- has transpired to determine “ ‘whether, realistically, an ordinary person in defendant’s position

would have understood, from the earlier proceedings, that by admitting’ to a violation, the

defendant was aware of the rights foregone.” People v. Randolph, 2023 IL App (4th) 220603-U,

¶ 27 (quoting Dennis, 354 Ill. App. 3d at 496). “Each case must be considered on its own facts,

‘with the primary focus on the length of time between the admonishments and the admission of

the violation.’ ” People v. Anderson, 2023 IL App (3d) 210558-U, ¶ 13 (quoting Saleh, 2013 IL

App (1st) 121195, ¶ 14). “Whether reversal is required depends on whether defendant has been

denied ‘real justice’ or been prejudiced by the inadequate admonishment.” Anderson, 2023 IL

App (3d) 210558-U, ¶ 13.

¶ 22 Defendant answers that question for us through her pro se motion seeking

reconsideration of her sentence. Defendant did not then seek to withdraw her admission—she

argued her sentence was “too harsh” compared to other petition to revoke (PTR) cases. Her letter

to the circuit court identified this as her only reason for seeking sentence reconsideration. Only

upon being advised by counsel this was not a valid reason for withdrawing her admission was a

formal motion to withdraw defendant’s admission filed claiming her plea was not knowing and

voluntary because “she was not fully advised of the consequences of her admission.” At no time

before or during her sentencing in July 2022, when defendant had an unfettered opportunity to

address the court, did she voice any complaints, concerns, or questions about her admission, the

possible sentences, or the rights she previously waived. While there was a ten-month gap

between the last hearing at which the court specifically admonished defendant as to the MSR

period and her admission hearing, she was not prejudiced or denied real justice by the absence of

this information at her admission hearing. People v. Davis, 145 Ill. 2d 240, 250, 582 N.E.2d 714,

719 (1991). Defendant pled guilty to the underlying offense after the court informed her of a

-7- period of MSR higher than what ultimately applied to her. There is no reason to assume

defendant would not have admitted the probation violations had she been informed at the

admission hearing of the lower period of MSR.

¶ 23 The record reveals repeated admonishments over the eight-month period, even at

hearings during which counsel waived reading of the allegations and penalties. Defendant was

fully represented by counsel throughout, and she signed a waiver of hearing at the time of her

February 2022 admission. Even when moving to withdraw her admission, defendant

acknowledged having been previously advised of the range of sentences at the April 19, 2022,

hearing, approximately three months before her sentencing. This record supports the circuit

court’s conclusion—defendant had “buyer’s remorse” once she learned her sentence. There was

substantial compliance with Rule 402A and there is nothing in this record supporting the claim

that defendant entered her admissions involuntarily or without knowledge of her rights. Aside

from substantial compliance with Rule 402A in a particular proceeding, we also note counsel, on

more than one occasion, waived further reading of the allegations and penalties and had

defendant sign and submit a written waiver of hearing. Having done so, it is reasonable to

conclude defendant, represented by counsel, recognized all the rights and procedures she was

giving up by waiving a hearing on her PTRs. “ ‘Affirmative representations that a party has no

objection to the proceedings fall within the scope of the invited error doctrine because such

representations reassure the trial court and encourage it to proceed without further consideration

of the issues.’ ” People v. Aquisto, 2022 IL App (4th) 200081, ¶ 54, 205 N.E.3d 812 (quoting

State v. Winfield, 128 P.3d 1171, 1176 (Utah 2006)). “Under the doctrine of invited error, a

defendant may not request to proceed in one manner at trial and then later argue on appeal that

the course of action was in error.” People v. Coan, 2016 IL App (2d) 151036, ¶ 23, 57 N.E.3d

-8- 1282. “To permit a defendant to use the exact ruling or action that he or she procured in the trial

court as a means for reversal on appeal would offend notions of ‘fair play’ and encourage

duplicitous behavior.” Coan, 2016 IL App (2d) 151036, ¶ 23.

¶ 24 B. Rule 402A(b)

¶ 25 Although defendant did not so argue in her pro se motion to reconsider her

sentence, nor in the first or amended motions to withdraw her admission filed through counsel,

she now argues the circuit court did not substantially comply with Rule 402A(b) because the

record contains no affirmative showing that she understood there was no agreement regarding

her sentence. Defendant contends that failure deprived her of due process. We disagree.

¶ 26 Rule 402A(b) provides:

“The court shall not accept an admission to a violation, or a stipulation

sufficient to revoke without first determining that the defendant’s

admission is voluntary and not made on the basis of any coercion or

promise. If the admission or tendered stipulation is the result of an

agreement as to the disposition of the defendant’s case, the agreement

shall be stated in open court. The court, by questioning the defendant

personally in open court, shall confirm the terms of the agreement, or that

there is no agreement, and shall determine whether any coercion or

promises, apart from an agreement as to the disposition of the defendant’s

case, were used to obtain the admission.” Ill. S. Ct. R. 402A(b) (eff. Nov.

1, 2003).

¶ 27 As stated above, the circuit court determined the voluntariness of defendant’s

admission as required by Rule 402A(b). In any case, the language of Rule 402A(b) is clear, if the

-9- admission were the result of an agreement as to the disposition of the case, then the judge must

inquire about the specific terms of the agreement. See People v. Bailey, 2021 IL App (1st)

190439, ¶ 17, 196 N.E.3d 197. In the written admission and waiver of hearing defendant signed

and tendered at the admission hearing, she expressly “consent[ed] that the Court may fix [her]

punishment under [her] admission [t]herein.” This refutes the newly raised claim defendant

failed to understand there was no agreement as to her sentence. Accordingly, the court

substantially complied with Rule 402A(b).

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm the circuit court’s judgment.

¶ 30 Affirmed.

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