NO. 5-99-0837

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

JUSTICE HOPKINS delivered the opinion of the court:

On June 8, 1998, John Blankley (defendant) pled guilty to one count of first-degree murder (720 ILCS 5/9-1(a)(3) (West1998)) and one count of concealment of homicidal death (720 ILCS 5/9-3.1(a) (West 1998)). Prior to sentencing,defendant filed a pro se motion to withdraw his guilty plea. At the sentencing hearing on August 26, 1999, before hissentences were imposed, defendant asked the court to consider his motion to withdraw his guilty plea, but the courtdeclined, as defendant had not yet been sentenced. The court sentenced defendant to 35 years' incarceration for the first-degree-murder conviction and five years' incarceration on the concealment-of-homicidal-death conviction, with bothsentences to run concurrently; however, the court ordered the two sentences to run consecutively to a five-year prisonsentence defendant received previously for a conviction in Macoupin County. The court appointed defendant new counselto represent him on his motion to withdraw his guilty plea. Defendant filed an amended motion to withdraw his guilty plea,which the court subsequently denied. Defendant appeals.

The issue presented for review is whether the court abused its discretion when it denied defendant's amended motion towithdraw his guilty plea. Defendant's argument is two-pronged: (1) that his guilty plea was not voluntarily or knowinglymade but resulted from his counsel's ineffective assistance because counsel failed to subject the State's case to meaningfuladversarial testing and (2) that his guilty plea was not knowingly and voluntarily entered because the court did notadmonish him that his sentences could be imposed consecutively to a five-year prison sentence defendant was to serve for aconviction from another county. We affirm.

FACTS

Defendant was arrested in Bond County on August 14, 1997. An information charging defendant with one count of first-degree murder and one count of concealment of homicidal death was filed on August 15, 1997. Defense counsel filed amotion for discovery on August 21, 1997, and the record reflects that the State timely complied with defendant's discoveryrequest.

On September 4, 1997, defendant appeared for a preliminary hearing. Defendant indicated that he desired to waive hisright to a preliminary hearing. The court fully admonished defendant as to the rights he would be relinquishing and alsoadmonished defendant as to the possible penalties he could receive if convicted on both counts. The court asked defendantif he understood his rights and his possible penalties, and defendant acknowledged that he did. The court also askeddefendant if he discussed with counsel his waiver of the preliminary hearing, and again defendant acknowledged that hehad. After thorough questioning, the court allowed defendant to waive his right to a preliminary hearing.

Subsequent to the date of the preliminary hearing, defense counsel filed several motions: a motion for substitution of judge,a motion to set bail, and a motion to determine defendant's fitness to stand trial. Defendant's motion to determine fitness tostand trial stated that he was taking psychotropic medication. The court allowed defendant's motion for fitness to stand trialand appointed Dr. Taliana to conduct an examination of defendant. At a hearing held on April 30, 1998, Dr. Taliana'sreport was presented to the court, and based upon the report, the court found defendant fit to stand trial.

On June 8, 1998, defendant appeared before the court and stated he wanted to plead guilty to one count of first-degreemurder and one count of concealment of homicidal death. The State presented the plea negotiations: in exchange fordefendant's plea of guilty to the two counts, the State would recommend a sentencing cap of 50 years' imprisonment on thefirst-degree-murder count. The prosecutor also stated that the sentence on count one would run concurrently to thesentence on count two.

The court advised defendant as to the rights he would relinquish if he pleaded guilty and asked defendant if he understoodthe rights he was giving up. Defendant stated that he understood. The court then admonished defendant as to the penaltieshe could receive if convicted. The court stated as follows:

"Upon conviction for first[-]degree murder, you could be sentenced to prison for a fixed term, anywhere from twenty tosixty years.

Under certain circumstances, you could get an extended sentence. That means you could be sentenced to prison for a fixedterm, anywhere from sixty to one hundred years.

Upon release, there is a three[-]year mandatory supervised release period.

Under this type of charge, you are also eligible, under certain circumstances, for a natural life sentence, without parole. You would also be eligible, under certain circumstances, for the death penalty.

* * *

The concealment of a homicidal death is a Class Three felony. Upon conviction, you could be sentenced to prison for afixed term, anywhere from two to five years.

If you have a prior Class Three or greater felony conviction within the last ten years, you could receive an extendedsentence. This would be a sentence to prison, anywhere from five to ten years.

Upon release, there is a one[-]year mandatory supervised release period.

* * *

Since this is all one transaction, the sentence[s] *** will run concurrent [sic]."

During the admonishments, the court asked defendant on at least three occasions if he understood, and each time he wasasked, defendant stated that he understood.

The State's factual basis for the plea was as follows. In July 1997, Deputy Tim Miller was dispatched to "Blue Hole, ShoalCreek," where Deputy Miller discovered a burned automobile. After checking the registration, Deputy Miller learned thatthe car belonged to Joann Wood, who had been reported missing since July 9, 1997. Deputy Miller found human remainsin the trunk of the car, and Dr. James McGiveny, a forensic odontologist, subsequently identified them as the remains ofWood.

The State also asserted that it would produce several witnesses, including Sandy Farmer and Kelly Fuchs, who wouldidentify Wood, defendant, and the codefendant, Susan Eaton. The State's witnesses would testify that they saw defendantat a bar in Troy, Illinois, during the late evening hours of July 9, 1997, and that they saw defendant, Eaton, and Wood leavethe bar together.

Bobby Wayne Smith would testify that defendant and Eaton came to Smith's home in the early morning hours of July 10,1997, in Wood's car. Smith saw a female, whom he did not know, in the trunk of the car. The woman appeared to beinjured and, "at most, semi[]conscious." Smith saw either defendant or Eaton fire a shotgun into the trunk. Smith believedthat they were shooting the woman.

Smith would also testify that the car was taken to Blue Hole. The woman was still in the trunk of the car, and tires wereplaced in the trunk. The car was set on fire and abandoned at Blue Hole.

According to the State, Smith would also testify that defendant told Smith that he and Eaton abducted the woman in thetrunk from a bar in Troy, Illinois, the night before and that they robbed the woman of her jewelry and her credit cards. Defendant also told Smith that he beat the woman and that the woman was later shot and burned to make sure she wasdead. The fire was also to cover up the murder.

Agent Mike Sheeley of the Illinois State Police would testify that he interviewed defendant on August 16, 1997, and thatdefendant made a statement. In defendant's statement, defendant admitted to being at the bar with Wood on July 9, 1997,and he also admitted that he was present when tires were placed in Wood's car and the car was set on fire.

The State also indicated that it had a statement from codefendant Eaton. In Eaton's statement, she admitted that she waspresent at the abduction and beating of Wood; however, Eaton identified defendant as Wood's attacker. Eaton admittedthat she fired the shotgun into the trunk of the car. Eaton was also present when the car was set on fire. Eaton claimed thather involvement was coerced by defendant. Eaton's statement corroborated Smith's statement.

After receiving the factual basis for defendant's guilty plea, the court asked defendant if anyone promised him anythingother than the negotiations stated on the record and if anyone forced or threatened him to plead guilty. Defendantresponded in the negative. The court asked defendant if he was entering his plea freely and voluntarily and if defendantdiscussed his guilty plea with his counsel. Defendant responded in the affirmative.

The court told defendant that it would accept the terms of the plea agreement and advised defendant that after a sentencinghearing, the court would impose a prison sentence in the range of 20 to 50 years as agreed. The court again askeddefendant if he understood, and defendant stated he did. The court asked defendant if he still wished to plead guilty, anddefendant said he did. The court accepted defendant's guilty plea, found defendant guilty, and entered judgment on thecharges.

Defendant was sentenced on August 26, 1999. Before proceeding to sentencing, the court asked defendant if he wished tosay anything, and defendant said no. The presentence investigation report, filed on August 6, 1998, also was presented. According to the report, defendant was charged with committing the offenses of unlawful delivery of cannabis with intentto deliver and unlawful production of cannabis sativa plant, and a warrant was issued for his arrest in Macoupin County onAugust 20, 1997. The presentence investigation report indicated that the Macoupin County case was scheduled for ahearing on August 19, 1998, prior to defendant's sentencing in the case sub judice but after defendant had entered his guiltyplea.

The State recommended, in accord with the plea agreement, that defendant be given a 50-year prison sentence on theconviction for first-degree murder and a concurrent five-year prison sentence for his conviction for concealment ofhomicidal death, but the State asked that the two sentences run consecutively to the five-year prison sentence imposed inthe Macoupin County case. The court imposed a 35-year prison sentence for the first-degree-murder conviction and aconcurrent five-year prison sentence for the concealment-of-a-homicidal-death conviction and ordered the two sentences torun consecutively to the five-year prison sentence imposed in Macoupin County.

Defendant filed an amended motion to withdraw his guilty plea. The court heard the motion on December 21, 1999. Asnoted earlier, the court appointed different counsel to represent defendant on his motion to withdraw his guilty plea, sincedefendant's original motion asserted that his attorney provided ineffective assistance. At the hearing on defendant's motion,defendant was the sole witness to testify, and no other evidence was presented.

Defendant testified that he did not understand that he was relinquishing his rights because he was under the influence ofpsychotropic medication. Defendant stated that he had several problems with counsel. Defendant asserted that he neversaw any discovery and that he received no copies of the documents from the State's Attorney; however, defendant statedthat he saw his statement and a statement by "somebody at the bar."

Defendant testified that he wanted counsel to call certain witnesses to testify at the trial: "[f]amily members of people at thebar ***, stating what was supposed to have took place that night." Defendant described what these witnesses would havesaid: "Mrs. Woods came up, and there wasn't supposed to be no robbery. It was supposed to be a lesbian act, it wassupposed to be a sexual act. That's all that was supposed to go[-]to be going on."

Defendant also wanted counsel to call to testify at the trial an individual with whom defendant played pool at the bar. Defendant did not know the individual's name, but he stated that defense counsel never tried to contact the individual.

Defendant testified he wanted defense counsel to call his family members to testify, at least at his sentencing hearing, butaccording to defendant, defense counsel "refused to put them on the stand." Defendant stated that defense counsel told himthat his "sentence would run concurrent [sic], too." Defendant asked the trial court to set aside his guilty plea because hisattorney did not investigate his case, because defendant was on psychotropic medication, and because he did not understandwhat was going on.

The trial court denied defendant's amended motion to withdraw his guilty plea. Defendant appeals.

ANALYSIS

Defendant contends that the court abused its discretion in denying his amended motion to withdraw his guilty plea becausedefendant's plea was not voluntarily or knowingly entered. Instead, defendant claims that his plea resulted from hiscounsel's ineffective assistance. Specifically, defendant argues that counsel did not subject the State's case to meaningfuladversarial testing as counsel (1) did not discuss discovery material or trial strategy with defendant, (2) did not challengethe voluntariness of defendant's confession, (3) did not interview witnesses that defendant told counsel could provideexculpatory testimony, and (4) did not investigate or develop a defense. Defendant relies on People v. Halawa, 291 Ill.App. 3d 373 (1997), to support his argument.

Generally, it is within the trial court's sound discretion whether to allow a guilty plea to be withdrawn, and absent an abuseof discretion, the trial court's decision will not be overturned on review. People v. Davis, 145 Ill. 2d 240 (1991). It is thedefendant's burden to demonstrate that the withdrawal of his plea is necessary to correct a manifest injustice based upon thefacts of the case. People v. Kokoraleis, 193 Ill. App. 3d 684 (1990). Subjective impressions, without substantial objectiveproof, are not sufficient grounds on which to vacate a guilty plea. Davis, 145 Ill. 2d at 244.

The same standard of review for ineffective assistance of counsel at the trial applies to a guilty plea. People v. Correa, 108Ill. 2d 541 (1985). The claim of ineffective assistance of counsel is analyzed under the two-pronged test established inStrickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and was adopted in Illinois in People v.Albanese, 104 Ill. 2d 504 (1984). People v. Orange, 168 Ill. 2d 138 (1995). Under the first prong of the Strickland test, adefendant must show that his counsel's performance was deficient. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S.Ct. at 2064. The second prong requires that a defendant show that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Further, if it is easier to dispose of a defendant's claimof ineffective assistance on the grounds of lack of prejudice, then a court need not examine whether counsel's performancewas deficient. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

In Halawa, the defendant, who was 17 years of age, pleaded guilty to unlawful use of a weapon. The defendant's fathercontacted the police and told the police he had a gun to surrender. The same day the defendant and his father took the gunto the police station, the police telephoned the defendant's father and said that they needed more information but that no onewould be charged with a crime. The following day, the police called and talked to the defendant, who agreed to come tothe police station. The defendant's father was unable to go with the defendant. At the police station, the defendantadmitted to possessing the shotgun, so the police charged the defendant with two offenses. The defendant's father hired hisreal estate attorney to represent the defendant. The defendant's attorney had the defendant plead guilty to one of thecharges. As part of the plea agreement, the defendant waived his preliminary hearing. Defense counsel filed no motionsand sought no discovery from the State. At the guilty plea hearing, the defendant's father advised the court that the policehad taken the defendant's statement without counsel being present. The court accepted the defendant's guilty plea. Onappeal, the defendant claimed that his counsel was ineffective because his guilty plea was neither voluntary nor consensualand that the ends of justice would have been better served by a trial. Halawa, 291 Ill. App. 3d at 374-75.

In Halawa, the appellate court applied the Strickland test and determined that when counsel entirely fails to subject theState's case to meaningful adversarial testing, a defendant has been denied his right to counsel under the sixth amendmentand prejudice to the defendant is presumed. Halawa, 291 Ill. App. 3d at 377. The court in Halawa found that counsel'srepresentation amounted to no representation at all because counsel filed no motion for discovery, filed no motion to quasharrest or suppress the defendant's statement, and waived the defendant's right to a probable cause determination. Halawa,291 Ill. App. 3d at 377. The Halawa court determined that counsel's inaction did not subject the prosecution's case tomeaningful adversarial testing and that the defendant was prejudiced by counsel's failure. Halawa, 291 Ill. App. 3d at 377.

The case sub judice is inapposite to Halawa. While it is true that defendant waived his right to a preliminary hearing, therecord reflects that defendant was fully and thoroughly admonished about the rights he was relinquishing and the penaltieshe could receive if convicted. Defendant was not 17 years of age but was at least 33 years of age at the time of his waiver. Defendant appeared to recognize fully what he was doing in waiving his rights to a preliminary hearing.

Defense counsel also filed a motion for discovery, and the record reflects that the State responded to the motion in a timelyfashion. Defendant stated at his hearing on his amended motion to withdraw his guilty plea that he saw his statement and astatement from a witness from the bar. The fact that defendant remembers those statements gives rise to the inference thathe was provided with discovery and that his statements to the contrary were self-serving. Also, while defendant may havenot "seen" all of the discovery, there is nothing in the record to reflect that his counsel did not advise defendant about theevidence the State had against him.

Defendant claims that his counsel did not file a motion to suppress his statement to the police. His statement, according tothe factual basis for defendant's plea, was that he had contact with Wood at the bar and that he was present later when tireswere placed into the trunk of a car and the car was burned. The statement does not incriminate defendant as the perpetratorof Wood's death but merely places him at the scene of the crime. The other evidence presented during the State's factualbasis was overwhelming regarding defendant's guilt. There is no evidence that defendant suffered any prejudice by hiscounsel's failure to file a motion to suppress. Accordingly, we do not find that defense counsel's failure to file a motion tosuppress defendant's statement was deficient representation, because defendant did not demonstrate that he suffered anyprejudice and because there would have been no different outcome had counsel successfully challenged defendant'sstatement to the police. See Orange, 168 Ill. 2d at 153-54.

Similarly, defense counsel's representation is not deemed deficient because he failed to call unnamed and unknownwitnesses on defendant's behalf. Even if counsel were to find these unnamed witnesses, the witnesses, as defendanttestified, would have merely negated the fact that a robbery was to take place, i.e., that there was no robbery motive at thetime of the crime. Further, defendant never explained how his family's testimony would have changed the outcome of thesentencing. The evidence was overwhelming that defendant and Eaton abducted Wood and that Wood died because shewas beaten, shot, and burned by defendant and Eaton. This evidence was sufficient to convict defendant of first-degreemurder. Counsel is not ineffective when he forgoes additional investigation if there appears to be a sound basis for his notdoing so. Orange, 168 Ill. 2d at 150. It is a reasonable inference that defendant's counsel had no reason to investigateunnamed, unknown witnesses to testify who might have testified to facts that would not exonerate defendant. "To prevailon a claim of ineffective assistance of counsel based on a failure to investigate, defendant must show that substantialprejudice resulted and that there is a reasonable probability that the final result would have been different had counselproperly investigated." Orange, 168 Ill. 2d at 151 (citing Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at2068, and People v. Kluppelberg, 257 Ill. App. 3d 516, 527, 628 N.E.2d 908 (1993)). Defense counsel's representation wasnot deficient for failing to call the witnesses defendant described at his hearing.

The evidence reveals that counsel's representation subjected the prosecution's case to meaningful adversarial testing so thatthere is no basis for presuming prejudice to defendant. Additionally, defendant's assertions are subjective impressions thatare uncorroborated by substantial objective proof. Defendant's claim for ineffective assistance of counsel at his guilty pleahearing fails. See Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

Defendant's second contention is that his guilty plea was not voluntarily and intelligently made because the trial court failedto adequately admonish him as required under Supreme Court Rule 402(a)(2) (177 Ill. 2d R. 402(a)(2)). Supreme CourtRule 402(a)(2) requires that a court not accept a guilty plea until a defendant has been admonished as to the "minimum andmaximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjectedbecause of prior convictions or consecutive sentences." (Emphasis added.) 177 Ill. 2d R. 402(a)(2). Defendant specificallyargues that he was not admonished that his concurrent sentences for his guilty pleas entered on the two counts could runconsecutively to a five-year prison sentence he was to serve for his conviction in Macoupin County.

The State responds that since defendant failed to raise this issue in his amended motion to withdraw his guilty plea, theissue is waived. Under Supreme Court Rule 604(d), any issue not raised in a motion to withdraw a guilty plea is waived. 145 Ill. 2d R. 604(d). However, a lower court's failure to give a defendant the admonishments required by Rule 402 hasbeen held to be plain error, an exception to the waiver rule under Supreme Court Rule 615 (134 Ill. 2d R. 615). Davis, 145Ill. 2d at 250. Because of the unique situation presented in this case and because of the substantial constitutional rights atstake, we determine that defendant has not waived this issue and apply the plain error doctrine.

The failure to properly admonish does not automatically require a reversal or a vacation of a guilty plea. Davis, 145 Ill. 2dat 250. "Whether reversal is required depends on whether real justice has been denied or whether defendant has beenprejudiced by the inadequate admonishment." Davis, 145 Ill. 2d at 250.

For a guilty plea to be constitutionally valid, the record must reflect that a defendant's guilty plea was intelligently andvoluntarily made. People v. Johns, 229 Ill. App. 3d 740 (1992). Substantial compliance with Rule 402 satisfies theconstitutional requirement. Johns, 229 Ill. App. 3d at 742. Substantial compliance is not found from admonitions given atproceedings prior to the guilty plea proceedings. Johns, 229 Ill. App. 3d at 744. The crucial time for determining whethera plea was intelligently and voluntarily made within the mandates of Rule 402 is the time the plea is taken. Johns, 229 Ill.App. 3d at 744.

Our research has revealed no case similar to the case sub judice. Here, at the time of defendant's guilty plea, he had a casepending in Macoupin County that did not come up for a hearing until after defendant entered his guilty plea. This wasreflected in defendant's presentence investigation report. Therefore, at the time defendant entered his guilty plea, there wasno prior conviction or sentence imposed in the Macoupin County case. For some reason, not apparent of record, defendantdid not have his sentencing hearing in this case until over a year after he entered his guilty plea. During that time,defendant was convicted and received a five-year prison sentence on his conviction in Macoupin County.

What defendant is essentially asking this court to decide is whether a trial court is under an obligation to admonish adefendant that he could receive a consecutive sentence when there is another county's case pending but there is no priorconviction or sentence at the time he enters his plea. This is not a case where there is a parole or probation violation, for inthose cases, there has already been a conviction upon which the parole or probation rests. With a pending case with noconviction or sentence, a trial court would not know whether a consecutive sentence was even possible, especially when thecase is pending in another county. There was no basis for admonishing defendant as to the possibility of consecutivesentences at the time defendant entered his guilty plea. It is a reasonable inference that defendant did not rely on the trialcourt's failure to admonish him as to the possibility of a consecutive sentence when he entered his guilty plea.

At sentencing, the State recommended that defendant's Bond County convictions run consecutively to his MacoupinCounty conviction, and the court agreed. However, the court imposed concurrent sentences on the two Bond Countycharges. We do not find that under the facts of this case defendant suffered any prejudice by the court's failure to admonishhim about hypothetical consecutive sentences. Further, it cannot be said that the court's failure to admonish defendantabout consecutive sentences denied defendant real justice. Defendant received a sentence that, even if served consecutivelyto the Macoupin County charges, was within the cap agreed to by the State-not more than 50 years. The court substantiallycomplied with the requirements of Rule 402. Defendant received the sentences he bargained for under his plea, so thecourt's denial of his amended motion to withdraw his guilty plea was not an abuse of discretion.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of Bond County is affirmed.

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.