Opinion
NO. 5-12-0227
11-27-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY A. DeROSA, Defendant-Appellant.
NOTICE
Decision filed 11/27/13. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Randolph County.
No. 10-MR-57
Honorable
Richard A. Brown,
Judge, presiding.
JUSTICE GOLDENHERSH delivered the judgment of the court.
Justices Welch and Stewart concurred in the judgment.
ORDER
¶ 1 Held: Postconviction counsel provided the defendant with a reasonable level of assistance, but the defendant nevertheless failed to make a substantial showing that his guilty pleas were unknowing and involuntary due to ineffective assistance by plea counsel, and therefore the circuit court's denial of the defendant's postconviction petition was not manifestly erroneous. ¶ 2 The defendant, Danny A. DeRosa, appeals from the judgment of the circuit court of Randolph County denying his postconviction petition. The Office of the State Appellate Defender (OSAD) has been appointed to represent the defendant on appeal but has filed a motion for leave to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987); People v. McKenney, 255 Ill. App. 3d 644 (1994). This court gave the defendant an opportunity to submit a pro se brief, memorandum, etc., responding to OSAD's motion and arguing the merits of his appeal, but he has not filed any such document with this court. An examination of the record reveals that this appeal does not present any issue of arguable merit and that the circuit court did not err in denying the amended postconviction petition. Accordingly, OSAD's motion to withdraw as counsel is granted, and the judgment of the circuit court is affirmed.
¶ 3 BACKGROUND
¶ 4 In 2007, the defendant was charged with two counts of home invasion (720 ILCS 5/12-11(a)(2) (West 2006)), a Class X felony (720 ILCS 5/12-11(c) (West 2006)), plus two lesser felonies. One of the home-invasion counts alleged that the defendant entered the home of Ralph and Fleta Gordon and punched Ralph Gordon in the face; the other alleged that the defendant entered the home of Leroy and Shirley Jones and punched Leroy Jones in the face. On December 5, 2007, the defendant, defense counsel, and an assistant State's Attorney appeared before the circuit court and announced the terms of a plea agreement, viz.: the defendant would plead guilty to both counts of home invasion; the sentences, which were to be determined by the court after a hearing, would be concurrent; and the two other felony counts would be dismissed. ¶ 5 In response to the court's queries, the defendant indicated that he was taking three different medications but could not remember their names, he was not under the influence of any drug or alcohol, he felt fit to enter a plea of guilty, he had discussed the case on numerous occasions with his attorney, and he understood the charges and knew what he was doing. The court admonished the defendant that home invasion was a Class X felony, "nonprobational", carrying a minimum prison sentence of 6 years and a maximum of 30 years, or 60 years if he qualified for an extended term, plus a 3-year term of mandatory supervised release. The defendant indicated that he understood all this sentencing information. The court also admonished the defendant as to his right to a trial by jury or by the judge alone, the State's burden of proving guilt beyond a reasonable doubt, his right to cross-examine the State's witnesses, his right to subpoena and to call defense witnesses, his right to remain silent, and the waiver of all trial rights effected by a guilty plea. The defendant indicated his understanding of all these rights. The defendant also indicated that he wished to give up his rights and to plead guilty, and that he was not promised anything beyond the terms of the agreement. The judge told the defendant that a sentencing hearing would be held and "I'm the guy that's going to decide whether you get six years in the penitentiary, 30 years, or 60 years." On this point, too, the defendant indicated his understanding. The State provided a factual basis. The defendant pleaded guilty to both counts of home invasion, and the court accepted the pleas. ¶ 6 The defendant signed a written plea of guilty to the two counts of home invasion. In the written plea, the defendant acknowledged that the court had explained the nature of the charges, the possible penalties, and his rights to be tried by a jury, to be represented by counsel, and to be confronted by the witnesses against him. He also stated that he understood the nature of the charges, the possible punishments, the consequences of pleading guilty, and his rights to counsel, to trial by jury, and to confront the witnesses against him. ¶ 7 A presentence investigation report revealed numerous prior felony convictions for the defendant in both Missouri and Illinois. The Illinois convictions included burglary and possession of a weapon or firearm by a felon in Randolph County case No. 05-CF-102, which resulted in five-year sentences to the Department of Corrections. On July 9, 2006, the defendant was released from the Department of Corrections and began a term of mandatory supervised release, but on September 6, 2007, he was returned to the Department of Corrections due to violation of a condition of mandatory supervised release. The defendant committed the instant crimes while he was on mandatory supervised release in No. 05-CF-102. ¶ 8 On January 3, 2008, the circuit court held a sentencing hearing. Two victims of the home invasions testified. Ralph Gordon, age 70, testified that on August 30, 2007, a man broke through a door at his home, punched him in the eye, demanded his wallet, and struck him "across the eye" with a stick, causing an injury that required 15 stitches. Gordon's wife, who was in her sixties, also was injured, and had "a bruise on her side and a couple spots on top of her head." Leroy Jones, age 77, testified that on August 30, 2007, a man broke into his house, hit the left side of his head, and knocked him to the floor. Jones's head hurt and swelled. The intruder also "push[ed] [Jones's wife] down", causing a bruise. The defendant, too, testified at the sentencing hearing. He testified that he was under the influence of alcohol and crack cocaine at the times of the home invasions and could not recall much about them. ¶ 9 At the end of the sentencing hearing, the court mentioned several of the defendant's prior felony convictions. The court found that the defendant committed the home invasions while he was on mandatory supervised release, and that his conduct caused "serious harm" to Messrs. Gordon and Jones, each of whom was 60 years old or older at the time of the crimes. Concluding that the defendant "deserve[d]" extended-term sentences, the court sentenced him to 45 years on each count, to be served concurrently. The court entered a written judgment reflecting those sentences. ¶ 10 The defendant filed a motion to reconsider the sentences. He did not file a motion to withdraw the guilty pleas. The circuit court entered an order denying the motion to reconsider. The defendant appealed from the denial order. ¶ 11 On direct appeal, this court recognized that the defendant's guilty plea was a negotiated plea and that the defendant had failed to file a motion to withdraw the pleas pursuant to Supreme Court Rule 604(d) (eff. July 1, 2006). Due to those circumstances, and in accordance with authorities such as People v. Linder, 186 Ill. 2d 67 (1999), this court dismissed the appeal without reaching its merits. People v. DeRosa, 396 Ill. App. 3d 769 (2009). ¶ 12 On June 9, 2010, the defendant filed a "motion for extension of time to file a petition for post-conviction relief." He acknowledged that his deadline for filing a postconviction petition was May 25, 2010, and he requested an additional 30 days in which to file. On June 18, 2010, the circuit court granted the motion. ¶ 13 On June 21, 2010, the defendant filed pro se a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2010)), wherein he claimed that plea counsel had provided constitutionally ineffective assistance that rendered his guilty pleas unknowing and involuntary. The defendant wrote that plea counsel failed to inform him "that he faced a sentence enhancement of 15 years" and "that an open plea entailed that petitioner was in affect [sic] pleading to the indictment as it pertained to the greater offenses i.e. home invasion." In regard to the prejudice he allegedly suffered as a result of plea counsel's errors, the defendant wrote that "had he known that he faced the exact sentencing range whether he plead [sic] to an open-plea or went to trial, he would have opted to go to trial instead." The defendant requested the appointment of counsel. ¶ 14 The circuit court ordered the pro se petition docketed for further consideration, and appointed postconviction counsel. By appointed counsel, the defendant filed a "petition for post-conviction relief" that was essentially the same as the original pro se petition. Postconviction counsel filed a certificate of compliance with Supreme Court Rule 651(c) (eff. Dec. 1, 1984). The State filed a motion to dismiss the petition, asserting that all of the defendant's claims were res judicata, forfeited, or without merit. ¶ 15 On May 8, 2012, the circuit court called an evidentiary hearing on the petition. Postconviction counsel asked the court for leave to withdraw as counsel, due to a "disagreement" between himself and the defendant regarding "certain strategy involved in this claim." The court denied the motion to withdraw. Counsel then called the defendant as a witness, but immediately informed the court that "pursuant to the RPC rules" he was not going to examine the defendant. "I would just ask that he can say to you what he wishes to say," counsel told the judge, "but I do not want to conduct direct examination." ¶ 16 In narrative form, the defendant testified that plea counsel never informed him that he faced a 15-year extension to the 6- to 30-year sentence for home invasion, and the defendant therefore was unaware of it. Indeed, plea counsel told the defendant that he was "looking at about 20 years", and the defendant was "shocked" when he heard his sentence. At the time of the pleas, the defendant was "messed up" and "didn't understand what was going on" because he was taking "400 milligrams of trazodone every night." If the defendant had known that he could be sentenced to 45 years, he would not have pleaded guilty. On cross-examination by the State, the defendant indicated that he could not remember doing the following at the December 5, 2007, plea hearing: pleading guilty to two counts of home invasion, telling the judge that he was fit to enter a plea and was not under the influence of alcohol or any drug, or telling the judge that he understood that the judge could sentence him to 6, 30, or 60 years of imprisonment. ¶ 17 On May 14, 2012, the circuit court entered a written order stating that the postconviction petition was "dismissed with prejudice." The court wrote that the plea transcript established that the defendant, at the time he pleaded guilty, understood that he faced imprisonment for a term as lengthy as 60 years, and did not plead guilty in reliance upon plea counsel's advice that the term would not exceed 30 years. ¶ 18 The defendant filed a timely notice of appeal, thus perfecting the instant appeal. The circuit court appointed OSAD to represent the defendant in this appeal.
¶ 19 ANALYSIS
¶ 20 In its Finley motion to withdraw as counsel in this appeal, OSAD identifies two potential issues that could be raised on appeal: (1) that postconviction counsel provided the defendant with unreasonable assistance, and (2) that the circuit court's denial of the postconviction petition was manifestly erroneous. ¶ 21 In regard to the first issue, OSAD notes that postconviction counsel filed a certificate of compliance with Supreme Court Rule 651(c) (eff. Dec. 1, 1984), which indicates that counsel provided the defendant with the reasonable level of assistance to which he was entitled in postconviction proceedings. See People v. Lander, 215 Ill. 2d 577, 583-85 (2005) (explaining that Rule 651(c) was designed to ensure that postconviction counsel provides a reasonable level of assistance, and compliance may be shown by the record or by counsel's certificate). According to OSAD, "[t]he only potential question involves counsel's decision to allow [the defendant] to testify in the narrative." OSAD notes that postconviction counsel, at the evidentiary hearing, informed the court that "pursuant to RPC rules," he would not conduct a direct examination of the defendant. According to OSAD, these remarks made clear that postconviction counsel declined to examine the defendant, and thus required the defendant to testify in narrative form, due to counsel's apprehension that the defendant was about to commit perjury. Given counsel's apprehension, OSAD concludes, counsel acted properly in declining to examine the defendant. On this point, OSAD relies on People v. Flores, 128 Ill. 2d 66, 107 (1989), wherein our supreme court held that criminal defense counsel should have discretion to make a good-faith determination whether the defendant would testify untruthfully. ¶ 22 OSAD's reasoning and conclusions concerning postconviction counsel are sound. This issue is purely a question of law, without any factual or credibility disputes, and therefore review is de novo. See People v. Chapman, 194 Ill. 2d 186, 217 (2000). Postconviction counsel's certificate under Rule 651(c) establishes that counsel provided a reasonable level of assistance. Nothing in the record contradicts the certificate in any way. Counsel's remarks at the evidentiary hearing, including his obvious reference to the Illinois Rules of Professional Conduct of 2010 ("RPC rules"), reveal that counsel declined to examine the defendant only because he expected the defendant to perjure himself. Counsel handled this uneasy situation appropriately. Rule 3.3(a)(3) of the Illinois Rules of Professional Conduct (Ill. Rs. Prof'l Conduct R. 3.3(a)(3) (eff. Jan. 1, 2010)) prohibits a lawyer from offering evidence he knows to be false, and permits a lawyer to refuse to offer testimony that he reasonably believes to be false. See also Ill. Rs. Prof'l Conduct R. 3.3, cmt. 9. By having the defendant testify in narrative form, postconviction counsel avoided an ethical breach but nevertheless allowed the defendant to tell his side to the judge. Cf. Ill. Rs. Prof'l Conduct R. 3.3, cmt. 7. ¶ 23 The next potential issue identified by OSAD is that the circuit court's denial of the postconviction petition was manifestly erroneous. OSAD argues that the denial cannot be manifestly erroneous given the plea transcript's clear refutation of the defendant's postconviction claims. This argument also is correct. At the third stage of postconviction proceedings, the burden is on the defendant to make a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). Where the circuit court rules on a petition after a third-stage or evidentiary hearing, where fact-finding and credibility determinations are involved, a reviewing court will not reverse the circuit court's decision unless it is manifestly erroneous. Id. Here, the defendant claimed that plea counsel provided him with ineffective assistance that rendered his guilty pleas unknowing and involuntary. At the hearing, the defendant testified that plea counsel never informed him that he could be sentenced to a prison term as lengthy as 45 years, that he did not know at the time he pleaded guilty that he could be sentenced to so lengthy a term, and that he was "shocked" when the sentencing judge imposed that sentence. The plea transcript belies the defendant's testimony at the evidentiary hearing. It clearly shows that at the plea hearing the court properly admonished the defendant about his right to a trial, his rights at trial, the consequences of a guilty plea, etc., all in substantial compliance with Supreme Court Rule 402(a) (eff. July 1, 1997). The court specifically mentioned the possibility of a prison sentence of 6 years, 30 years, or 60 years. The postconviction court relied on the plea transcript in denying the postconviction petition, and it was right to do so. The circuit court's conclusion was certainly not against the manifest weight of the evidence. ¶ 24 Finally, the 45-year sentences for the two home-invasion counts are legally permissible. Home invasion was a Class X felony. 720 ILCS 5/12-11(c) (West 2006). The extended term of imprisonment for a Class X felony was "not less than 30 years and not more than 60 years." 730 ILCS 5/5-8-2(a)(2) (West 2006). An extended-term sentence was permitted for a defendant who committed any felony against a person who was 60 years of age or older at the time of the offense, or against the property of such a person. 730 ILCS 5/5-5-3.2(b)(4)(ii) (West 2006). Each of the defendant's two home invasions was committed against a person who was 60 or older, and on that basis the defendant was eligible for an extended-term sentence as to each home-invasion count. ¶ 25 Any potential issue in this case is frivolous. Accordingly, OSAD's motion to withdraw as counsel is granted, and the judgment of the circuit court is affirmed. ¶ 26 Motion granted; judgment affirmed.