Opinion
5-19-0048
02-17-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE BARNES, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Marion County No. 12-CF-96 Honorable Mark W. Stedelin, Judge, presiding.
JUSTICE BARBERIS delivered the judgment of the court. Justices Welch and Vaughan concurred in the judgment.
ORDER
JUSTICE BARBERIS
¶ 1 Held: The circuit court substantially complied with Rule 402A before accepting the defendant's admission to a probation violation, and the court, after finding the violation, did not abuse its discretion when it imposed a sentence of imprisonment for three years, and since any argument to the contrary would lack merit, this court grants the defendant's appointed appellate counsel leave to withdraw, and the judgment of conviction is affirmed.
¶ 2 The defendant, George Barnes, pleaded guilty to violating an order of protection, and was sentenced to conditional discharge. He violated his conditional discharge, and was resentenced to probation. He violated his probation, and was resentenced to imprisonment. Now, he appeals from the judgment of conviction. The defendant's appointed attorney on appeal, the Office of the State Appellate Defender (OSAD), has concluded that this appeal lack merit, and on that basis OSAD has filed a motion to withdraw as counsel, along with a brief in support thereof. See Anders v. California, 386 U.S. 738 (1967). OSAD provided the defendant with a copy of its Anders motion and brief. This court provided the defendant with ample opportunity to file a pro se brief, memorandum, or other document explaining why OSAD should not be allowed to withdraw or why this appeal has substantial merit, but the defendant has not taken advantage of that opportunity. This court has examined OSAD's Anders motion and brief, as well as the entire record on appeal. For the reasons that follow, this court has concluded that the instant appeal does indeed lack merit. Accordingly, this court must grant OSAD's motion to withdraw as counsel, and must affirm the judgment of conviction.
¶ 3 BACKGROUND
¶ 4 In 2012, the defendant was charged with two counts of violating an order of protection, which had been entered in Marion County case No. 11-OP-180. The offense was a Class 4 felony due to the defendant's prior conviction for domestic battery. In July 2012, pursuant to a fully-negotiated plea agreement, the defendant pleaded guilty to one count of violating a protective order, and the State moved to dismiss the other count. In accordance with the parties' agreement, the circuit court sentenced the defendant to conditional discharge for a period of two years. In 2013, the defendant admitted to violating conditional discharge, and the court revoked it. At a subsequent sentencing hearing, the defendant was sentenced to imprisonment for two years.
¶ 5 The defendant appealed from the judgment of conviction in case No. 12-CF-96. The defendant's appointed attorney on appeal, OSAD, filed an Anders motion to withdraw and an Anders brief. This court granted the Anders motion and affirmed the judgment of conviction. People v. Barnes, 2015 IL App (5th) 130429-U. This court's order was entered on June 22, 2015.
¶ 6 Meanwhile in May 2014, the defendant filed, through counsel, a petition for postconviction relief. There is no need to summarize the allegations, but the defendant sought vacatur of his conviction. The State admitted the defendant's postconviction allegations. Later in May 2014, the circuit court entered a written order granting the defendant's postconviction petition. The court vacated the defendant's conviction, and set a date for a pretrial hearing. The case started anew.
¶ 7 In March 2015, pursuant to a fully negotiated plea agreement between the parties, the defendant pleaded guilty (anew) to one of the two counts of violating an order of protection. In accordance with the parties' agreement, the circuit court sentenced the defendant to conditional discharge, for a period of two years.
¶ 8 In 2016 and 2017, the State filed petitions, and amended petitions, to revoke the defendant's conditional discharge. In June 2017, the circuit court held a hearing on the amended petition, and the court found that the State had met its burden of establishing a violation of conditional discharge. In October 2017, a sentencing hearing was held, and the court sentenced the defendant to probation, for a two-year period. The conditions of probation included abstaining from drug or alcohol consumption.
¶ 9 In November 2017, the State filed a petition to revoke probation. On November 14, 2017, the defendant appeared in open court for his first appearance on the petition. Addressing the defendant personally, the court admonished the defendant (1) as to the two specific allegations in the petition to revoke probation; (2) that he had a right to a hearing on the petition, a right to be present at that hearing, "a right to an attorney," and if he could not afford an attorney one would be appointed for him; (3) that at the hearing, he had a right to "confront and cross-examine the State's witnesses," a right to "present a defense," "a right to testify, if you wanted," and "a right to call witnesses on your own behalf and subpoena those witnesses, if necessary"; (4) that at that hearing, the State was obliged to prove the allegations in the petition by a preponderance of the evidence," [i]n other words, more likely true than not"; and (5) that if his probation were revoked, he could be "resentenced on the original charges" to imprisonment for "one to three years," or if he was "extended term eligible" to "one to six years" in prison, followed by mandatory supervised release for four years. In response to the court's queries, the defendant indicated that he understood all of those rights, and that he wanted the court to appoint an attorney for him. The court appointed an attorney, who was in the courtroom at the time. Counsel waived formal reading of the allegations and entered a general denial thereof.
¶ 10 On September 10, 2018, the State filed an amended petition to revoke probation. Its allegations included an allegation that the defendant had failed to abstain from drugs and alcohol, in that he admitted in writing that he had consumed crack cocaine on December 13, 2017.
¶ 11 On September 11, 2018, the defendant, defense counsel, and a prosecutor appeared in open court. The attorneys informed the circuit court that the defendant planned to admit to one specific violation alleged in the petitions, which they described for the court.
¶ 12 Addressing the defendant personally, the court focused on that specific violation, admonishing him that it was alleged that he had failed to abstain from drugs and alcohol, in that he admitted in writing that he consumed crack cocaine on or about December 13, 2017. The court asked the defendant whether he understood the allegation, and he answered, "Yes, sir." The court admonished the defendant that if his probation were revoked, he could be resentenced to imprisonment for one to three years, with a four-year term of mandatory supervised release. Asked by the court whether he understood the possible sentencing, the defendant answered, "Yes, sir."
¶ 13 Next, the court admonished the defendant that he could persist in his denial of the allegations, and that he had a right to a hearing on the petition, a right to be present at that hearing, a right to demand that the State prove the allegations by a preponderance of the evidence, "a right to confront and cross-examine the State's witnesses," "a right to present a defense," "a right to call witnesses on your own behalf" and to subpoena them if necessary, and "a right to testify if you want." When asked by the court whether he understood these hearing-related rights, the defendant answered, "Yes, sir."
¶ 14 Finally, the court admonished the defendant that if he admitted the allegation, "there won't be a hearing of any kind, you'd be waiving those hearing rights, you'll be saying you violated probation *** and you could be sentenced anywhere in the range that I described." The court asked the defendant whether he understood that, and he answered, "Yes, sir." At that point, the defendant admitted the allegation.
¶ 15 The defendant acknowledged signing a document in open court, in which he admitted the violation. When asked by the court whether anybody had "forced you or threatened you" into signing the document, the defendant answered, "No, sir." When asked by the court whether anybody had promised him anything in exchange for his signature, the defendant answered, "No, sir." Finally, the court asked, "You have done this as your free and voluntary act?" and the defendant answered, "Yes, sir." The court found that the admission was made knowingly and voluntarily. For a factual basis, the prosecutor stated that Marion County probation officers would testify that shortly after the defendant was placed on probation on October 3, 2017, the Jefferson County probation department began monitoring him, and subsequently Marion County probation received from Jefferson County probation a document in which the defendant admitted in writing that he had consumed crack cocaine on December 13, 2017, in violation of his probation. Defense counsel said that the factual basis was "[c]orrectly stated." The court found a factual basis for the defendant's admission, and ordered a presentence investigation.
¶ 16 The probation department prepared a presentence investigation report (PSI). The PSI included a listing of the defendant's extensive felony and misdemeanor convictions.
¶ 17 On January 8, 2019, the court sentenced the defendant to imprisonment for three years, to be followed by mandatory supervised release for four years. The defendant appealed, and OSAD was appointed to represent him on appeal.
¶ 18 ANALYSIS
¶ 19 This appeal is from a judgment of conviction that was entered after the defendant's probation was revoked and he was resentenced to imprisonment. As previously mentioned, the defendant's appointed attorney on appeal, OSAD, has concluded that this appeal lacks merit, and accordingly has filed an Anders motion and brief. The defendant has not filed any kind of response. In its brief, OSAD discusses two potential issues in this appeal, viz.: (1) whether the circuit court substantially complied with Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003), and (2) whether the circuit court, after finding that the defendant had violated his probation, abused its discretion when it sentenced him to imprisonment for three years. This court has considered both of these potential issues, and agrees that they have no merit.
¶ 20 According to Rule 402A, in proceedings to revoke probation where the defendant admits to a violation of probation, there must be "substantial compliance" with the rules governing (a) admonitions to the defendant, (b) determining whether the admission is voluntary, and (c) determining a factual basis for the admission. Issues of compliance with Rule 402A are reviewed de novo. In re Westley A.F., 399 Ill.App.3d 791, 796 (2010).
¶ 21 Under the rules governing admonitions to the defendant, which are found in Rule 402A(a), the court "shall not accept" the defendant's admission to a violation "without first addressing the defendant personally in open court," and informing him of, and determining that he understands, the following:
"(1) the specific allegations in the petition to revoke probation, conditional discharge or supervision;
(2) that the defendant has the right to a hearing with defense counsel present, and the right to appointed counsel if the defendant is indigent and the underlying offense is punishable by imprisonment;
(3) that at the hearing, the defendant has the right to confront and cross-examine adverse witnesses and to present witnesses and evidence in his or her behalf;
(4) that at the hearing, the State must prove the alleged violation by a preponderance of the evidence;
(5) that by admitting to a violation, or by stipulating that the evidence is sufficient to revoke, there will not be a hearing on the petition to revoke probation, conditional discharge or supervision, so that by admitting to a violation, or by stipulating that the evidence is sufficient to revoke, the defendant waives the right to a hearing and the right to confront and cross-examine adverse witnesses, and the right to present witnesses and evidence in his or her behalf; and
(6) the sentencing range for the underlying offense for which the defendant is on probation, conditional discharge or supervision." Ill. S.Ct. R. 402A(a) (eff. Nov. 1, 2003).
The goal of these admonitions is "to ensure that the [defendant] understands his admission, the rights that the [defendant] is waiving, and the potential consequences the [defendant] faces by admitting a probation violation." Westley A.F., 399 Ill.App.3d at 796 (citing People v. Ellis, 375 Ill.App.3d 1041, 1046 (2007)). Substantial compliance with the rules governing admonitions is an "affirmative showing in the record that the defendant understood each of the required admonitions." Ellis, 375 Ill.App.3d at 1046. Substantial compliance does not necessarily involve the court's reciting all of Rule 402A's admonitions at the time the defendant admits to a probation violation. Westley A.F., 399 Ill.App.3d at 796. "In determining whether substantial compliance was had, courts consider the entire record, including what transpired at earlier proceedings." Id.
¶22 Here, the court's admonitions to the defendant substantially complied with Rule 402A(a). On September 11, 2018, the date that the defendant admitted the probation violation, the court informed him of the great bulk of the admonitions enumerated in Rule 402A. In fact, the only admonition that was left unmentioned on that date was the admonition detailing the defendant's right to appointed counsel at the hearing-and the defendant was actually appearing with appointed counsel at that hearing. Ten months earlier, on November 14, 2017, the date of the defendant's first appearance on the revocation petition, the court had admonished the defendant of his right to appointed counsel, and had appointed counsel for him. Throughout the proceedings, the defendant always expressed an understanding of the admonitions. It is clear that the defendant understood his admission, the rights that he was waiving, and the potential consequences that he faced by admitting a probation violation. See Ellis, 375 Ill.App.3d at 1046.
¶ 23 Rule 402A(b) states that the court "shall not accept an admission to a violation *** without first determining that the defendant's admission is voluntary and not made on the basis of any coercion or promise." Ill. S.Ct. R. 402A(b) (eff. Nov. 1, 2003). As the transcript makes clear, the court honored that rule, too. Before accepting the defendant's admission, the court made the necessary inquiries, and determined that the admission was voluntary, and not influenced by coercion or promises.
¶ 24 Rule 402A(c) states that the court "shall not revoke probation *** on an admission *** without first determining that there is a factual basis for the defendant's admission." Ill. S.Ct. R. 402A(c) (eff. Nov. 1, 2003). Here, the prosecutor provided a factual basis that was adequate for the admission, and the court rightly found a factual basis.
¶ 25 The second potential issue raised by OS AD is whether the circuit court, after finding that the defendant had violated his probation, abused its discretion when it sentenced him to imprisonment for three years. Where a defendant's probation is revoked and he is then resentenced, he forfeits any claim of error regarding that sentence unless he files, within 30 days after the sentencing date, a written motion to reconsider the sentence. Ill. S.Ct. R. 605(a)(3)(B), (C) (eff. Oct. 1, 2001). Here, the defendant did not file a motion to reconsider sentence. Therefore, any sentencing issue has been forfeited.
¶ 26 Additionally, the circuit court did not abuse its discretion in sentencing the defendant to three years in prison. For the defendant, violating an order of protection was a Class 4 felony, because of his prior conviction for domestic battery. See 720 ILCS 5/12-3.4(d) (West 2018). Ordinarily, a Class 4 felony is punishable by imprisonment for a term of not less than one year and not more than three years. See 730 ILCS 5/5-4.5-45(a) (West 2018). The defendant's three-year sentence was within that statutory range. Especially in light of the defendant's criminal history, the sentence does not represent an abuse of discretion. His criminal history dates back to the mid-1980s. It includes felony convictions for manufacture or delivery of cocaine in 1996 and 2006, with prison sentences of 7 years and 7½ years, respectively, and for burglary in 1997, with a 10-year prison sentence, and two misdemeanor convictions for domestic battery in 2011. Furthermore, the defendant had demonstrated an unwillingness to abide by the terms of conditional discharge or probation. Even if the defendant had not forfeited all claims of error regarding his sentence, any attack on the propriety of that sentence would have been futile.
¶ 27 CONCLUSION
¶ 28 For the reasons stated above, neither of OSAD's two potential issues has any merit. Furthermore, this court, on its own, has not been able to identify any issue of arguable merit. Accordingly, OSAD's motion to withdraw as counsel is granted, and the judgment of conviction is affirmed.
¶ 29 Motion granted; judgment affirmed.