People v. Rhoades
State: Illinois
Court: 3rd District Appellate
Docket No: 3-96-0493, 0494 cons.
Case Date: 06/23/1997
No. 3--96--0493
(Consolidated with 3--96--0494)
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois
Plaintiff-Appellee, )
)
v. ) Nos. 93--CF--445 &
) 93--CF--301
)
MARK L. RHOADES, ) Honorable
) Richard Grawey,
Defendant-Appellant. ) Judge Presiding
_________________________________________________________________
JUSTICE HOMER delivered the opinion of the court:
_________________________________________________________________
The defendant entered guilty pleas to two counts of burglary
and one count of theft. 720 ILCS 5/19--1, 16--1 (West 1994).
The trial court sentenced the defendant to concurrent prison
terms of eight and nine years on the burglary counts and to a
consecutive seven-year term for theft.
On appeal, the defendant contends that this court should
vacate his sentence and allow him to withdraw his guilty pleas
due to the trial judge's failure to properly admonish him of the
potential penalties for his offenses. We affirm.
FACTS
Initially, the defendant was charged with residential
burglary and burglary in two separate Tazewell County incidents,
and with felony theft in Peoria County. The Peoria case was
transferred to Tazewell County for disposition.
On November 22, 1993, the parties presented a partially
negotiated plea to the court with respect to all three cases.
The State agreed to reduce the residential burglary charge to
simple burglary in exchange for the defendant's agreement to
enter open pleas to all three charges.
The trial judge admonished the defendant that he faced a
Class 2 sentence of three to seven years for each burglary count,
with the possibility of an extended-term of seven to fourteen
years for each. The court also informed the defendant that he
faced a consecutive sentence of two to five years, with the
possibility of an extended-term of five to ten years for the
Class 3 theft charge. A consecutive sentence was required
because the defendant was on pre-trial release on the felony
theft charge at the time he committed the burglaries. 730 ILCS
5/5--8--4(h)(West 1994). Finally, the trial judge advised the
defendant that he was eligible for probation on all three
charges.
While there was no agreement as to sentence, it appears that
the prosecutor and defense attorney mistakenly believed that the
amendment of the residential burglary charge made the defendant
eligible for probation through the program commonly known as TASC
(Treatment Alternatives for Special Clients). 20 ILCS 301/40--5,
40--10 (West 1994), formerly 20 ILCS 305/10--101, 10--102 (West
1992). In actuality, the defendant was ineligible for TASC
probation due to a prior residential burglary conviction.
Further, due to his criminal history, the defendant was also
ineligible for standard probation since the trial court had to
impose Class X sentences for the burglary convictions.
At the sentencing hearing, the defendant testified that he
was an alcoholic and asked to be sentenced to TASC probation.
The prosecutor pointed out that the defendant had to be sentenced
as a Class X offender for the burglaries. Additionally, he asked
for a consecutive extended-term sentence for the defendant's
theft conviction. The prosecutor agreed that the defendant was
eligible for TASC probation, but argued that the court should
reject that alternative due a lack of evidence that the
defendant's crimes were alcohol related and because of the
defendant's extensive criminal history.
Defense counsel concurred with the prosecutor's statements
relative to the sentencing alternatives available to the court,
but asked the court to sentence the defendant to TASC probation.
He pointed out that the State had allowed the defendant to remain
eligible for TASC by reducing his residential burglary offense to
simple burglary.
Without specific reference to the defendant's request for
TASC probation, the trial judge determined that a sentence of
probation would have deprecated the seriousness of the
defendant's conduct, and that imprisonment was necessary for the
protection of the public. The court imposed concurrent prison
terms of eight and nine years on the two burglaries, to run
consecutively with an extended-term sentence of seven years on
the Class 3 theft conviction, the equivalent of a 16-year
sentence.
Thereafter, the defendant filed a motion to set aside his
plea of guilty alleging that the sentence was excessive and that
the trial court had erred in refusing to sentence him to TASC
probation. At the hearing on this motion, defense counsel noted
that the purpose of the defendant's guilty plea was to give him
an opportunity to receive TASC probation.
The trial court denied the motion, and the defendant
appealed to this court. In an order dated July 5, 1995, this
court remanded the cause for new post-plea proceedings because
defendant's trial counsel had failed to file a proper Rule 604(d)
certificate. On remand, defense counsel filed a new post-plea
motion entitled "Supplemental Motion to Reduce Sentence" in which
he argued that: (a) the sentence was excessive; (b) the trial
court failed to properly admonish the defendant at the time of
his plea of the "possibility" of a Class X sentence; and (c) the
trial court erred in refusing to grant the defendant's request
for TASC probation.
On May 29, 1996, the trial judge conducted a re-hearing on
the defendant's original motion to set aside his plea and
considered the supplemental motion to reduce sentence. The trial
judge denied both motions stating that he had not imposed Class X
sentences but rather Class 2 extended-term sentences on the
burglaries and a Class 3 extended-term sentence on the theft. On
appeal, the defendant argues that he should have been allowed to
withdraw his guilty pleas because the trial court did not
properly admonish him of the potential penalties for his
offenses.
ANALYSIS
It is well settled that a defendant has no absolute right to
withdraw his guilty plea. People v. Thurmond, 262 Ill. App. 3d
200, 203, 634 N.E.2d 1180, 1182 (1994). Whether to grant a
defendant leave to withdraw a guilty plea is a matter within the
sound discretion of the trial judge. His decision will not be
disturbed on appeal unless there has been an abuse of that
discretion. People v. DuBuisson, 136 Ill. App. 3d 305, 307, 483
N.E.2d 659, 661 (1985).
The United States Supreme Court, in Boykin v. Alabama, 395
U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), addressed the
issue of a defendant's need to understand the consequences of his
entering a guilty plea. In that case, it was held that it is a
violation of due process for the court to accept a guilty plea in
State criminal proceedings without an affirmative showing, placed
on the record, that the defendant voluntarily and understandingly
entered his plea of guilty.
Illinois Supreme Court Rule 402(a)(2), enacted in response
to Boykin, states:
"The court shall not accept a plea of guilty without
first, by addressing the defendant personally in open
court, informing him of and determining that he
understands the following:
***
(2) the minimum and maximum sentences prescribed by
law, including, when applicable, the penalty to which
the defendant may be subjected because of prior
convictions or consecutive sentences." (Emphasis
added.) 134 Ill. 2d R. 402(a)(2).
A trial judge's failure to state the penalty to which a
defendant may be subjected may render a plea involuntary.
Whether reversal is required depends upon whether real justice
has been denied or the defendant has been prejudiced by the
inadequate admonishment. People v. Clark, 276 Ill. App. 3d 1002,
659 N.E.2d 421 (1995).
Because of the defendant's criminal history, the trial court
was required by statute to impose Class X prison sentences for
the burglaries. 730 ILCS 5/5--5--3(c)(8) (West 1994), formerly
730 ILCS 5/5--5--3(c)(2) (West 1992). In addition, the court was
precluded from sentencing the defendant to TASC probation due to
his prior conviction for residential burglary. 20 ILCS 301/40--
5(7) (West 1994), formerly 20 ILCS 305/10--101(g) (West 1992).
Because the trial judge, in the instant case, failed to inform
the defendant that he was ineligible for probation and the
sentencing range for Class X offenses, the admonishments were
incorrect as they applied to this defendant. In addition,
defense counsel had mistakenly advised the defendant that the
plea agreement had made him eligible for TASC.
Our supreme court had occasion to consider a similar factual
situation in People v. Davis, 145 Ill. 2d 240, 582 N.E.2d 714
(1991). As in the instant case, the defendant in Davis entered
into a plea agreement whereby the State reduced a pending
residential burglary charge to simple burglary in exchange for
the defendant's agreement to plead guilty to the lesser charge.
The trial court admonished the defendant as to the minimum and
maximum penalties for a Class 2 felony, including the possibility
of the defendant receiving a sentence of probation. The trial
judge then granted the defendant's request to undergo a TASC
evaluation and continued the matter for sentencing. As in the
instant case, due to his criminal history, the defendant was
eligible for neither standard probation nor TASC probation.
Prior to sentencing, the defendant's attorney requested a
continuance upon learning that the defendant was not eligible for
TASC probation. The trial court denied the motion and imposed a
10-year prison sentence. Thereafter, the defendant filed a
motion to withdraw his guilty plea arguing that his motivation in
pleading guilty to the lesser charge was to establish TASC
probation as an additional sentencing option, and that the trial
court should have allowed him to withdraw his plea once it was
discovered that he was not eligible for TASC probation.
The Davis court noted that failure to properly admonish a
defendant does not automatically establish grounds for vacating a
plea, nor does a defendant's misapprehension as to TASC
eligibility, standing alone. However, the court found that at
the time of his plea, there was "no evidence which indicate[ed]
that defendant knew that he was ineligible for TASC, probation,
or conditional discharge." Davis, 145 Ill. 2d at 250, 582 N.E.2d
at 719. Therefore, the court reasoned that the defendant had
been prejudiced by the inadequate admonishments, and that the
trial judge abused his discretion in not allowing the defendant
to withdraw his plea. Davis, 145 Ill. 2d at 250, 582 N.E.2d at
719.
In the instant case, while the defendant believed that he
was eligible for TASC, he knew he was not eligible to receive
standard probation. At the sentencing hearing, defense counsel
acknowledged that the defendant's prior criminal history had made
the defendant ineligible for standard probation and subject to a
Class X sentence. The defendant did not even raise the issue of
the court's failure to give Class X admonishments until he filed
his supplemental motion to reduce sentence on March 22, 1996,
more than two years after the original sentencing hearing. In
addition, the defendant's extensive criminal history, which
included two prior convictions for burglary and one for
residential burglary, negated any objective expectation the
defendant may have had of receiving standard probation even if
that option had been available to the court. See People v. Hale,
82 Ill. 2d 172, 176, 411 N.E.2d 867, 868-69 (1980). At the time
of his plea, it appeared to the defendant that he was facing
either imprisonment or TASC probation.
In imposing sentence, the trial judge explained:
"THE COURT: Given the history of this defendant
and my finding that I believe imprisonment is necessary
for the protection of the public and the further
finding that I believe that probation would deprecate
the seriousness of the offender's repeated criminal
conduct, I believe it would be inconsistent with the
ends of justice to allow probation in this case.
The range of sentences available to me in the
Class 3 felony from Peoria County is two to five years,
and he is eligible for extended term of five to ten
years on that crime. In regard to the burglary in
Tazewell County, the Eller burglary, Class 2 offense,
and the Class 2 offense, burglary in the Hopkins
matter, because of his prior history, he is eligible
for six to thirty years on each of those. My
determination is to whether those should be served
consecutively or concurrently.
I find in aggravation and mitigation, the factors
in mitigation are that the defendant's conduct did not
threaten serious physical harm to anyone or was not
intended to cause serious physical harm. I find no
other factors of mitigation apply.
Factors in aggravation are, of course, the
extensive history, being sentenced here for his fourth,
fifth and sixth felonies, and deterrent factors, and in
addition, the factor that Mrs. Eller was over 60 years
of age when the crime was committed against her
property.
Therefore, considering all the factors, I am going
to sentence Mr. Rhoades to [sic] on the Peoria County
Class 3 to seven years in the Department of
Corrections, extended term, seven years.
And the Tazewell County case, Class 2, the Eller
offense, he is going to be sentenced to eight years on
that offense, and in the Class 2 burglary, Hopkins
matter, nine years, the eight and nine year terms to
run concurrently, meaning that the total sentence of
the Tazewell [sic] of the Peoria County case of seven
years and the longest Tazewell County case of nine
years, Mr. Rhoades would be sentenced to the Department
of Corrections for a term of 16 years. Any questions
about the order, gentlemen?"
Although the trial judge did not specifically reference
TASC, it is clear from the record that it was the defendant's
request for TASC probation that the judge considered and
rejected. The defendant had not requested standard probation.
Therefore, the defendant was not prejudiced in this instance,
because the trial judge considered his request for TASC
probation. The judge rejected the defendant's request after
finding that the defendant's imprisonment was "necessary for the
protection of the public." See 20 ILCS 301/40--10(b)(West 1994),
formerly 20 ILCS 305--10--102(b) (West 1992).
Supreme Court Rule 402 requires only substantial compliance.
People v. Walker, 109 Ill. 2d 484, 498, 488 N.E.2d 529, 535
(1985); People v. Wills, 251 Ill. App. 3d 640, 643, 622 N.E.2d
1271, 1273 (1993). When a trial judge understates the possible
maximum penalty but sentences the defendant within the limits he
had stated to the defendant at the time of the plea agreement no
prejudice results, and the defendant is not entitled to withdraw
his guilty plea. People v. Hoyer, 100 Ill. App. 3d 418, 420, 426
N.E.2d 1139, 1141 (1981); People v. Hrebenar, 131 Ill. App. 2d
877, 266 N.E.2d 733 (1971).
This same reasoning has been applied in a line of cases
considering whether a defendant should be allowed to withdraw his
guilty plea when he was unaware of the possibility of consecutive
sentences. Under those circumstances, courts have found the
failure to mention the possibility of consecutive sentences was
not prejudicial if the defendant did not actually receive
consecutive sentences. People v. Whitlow, 86 Ill. App. 3d 858,
875, 411 N.E.2d 1354, 1364 (1980); People v. Mass, 31 Ill. App.
3d 759, 765, 334 N.E.2d 452, 456 (1975)("[I]t would be absurd to
reverse a conviction because a certain possibility was not
mentioned which had no bearing on the result.").
In the instant case, the trial judge informed the defendant
at the time of his plea that he was eligible for a maximum term
of 38 years in prison. Ultimately, the defendant was sentenced
to the equivalent of 16 years. We find that the trial judge's
incorrect admonishments did not prejudice the defendant in this
case. The defendant's request for TASC probation was considered
by the trial judge, and the sentence issued was well within the
range explained to the defendant at the guilty plea hearing.
Since real justice has not been denied, and the defendant has not
been prejudiced in these proceedings, we find that the trial
judge did not abuse his discretion in refusing to allow the
defendant to withdraw his guilty pleas.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Tazewell County is affirmed.
Affirmed.
LYTTON, P.J., and HOLDRIDGE, J., concur.
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