Opinion
Appeal No. 3-13-0444
06-18-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAY V. COX, Defendant-Appellant.
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 the 12th Judicial Circuit, Will County, Illinois, Circuit No. 12-CF-412 Honorable Daniel J. Rozak, Judge, Presiding. JUSTICE WRIGHT delivered the judgment of the court.
Presiding Justice McDade and Justice O'Brien concurred in the judgment.
ORDER
¶ 1 Held: The trial court erred by denying defendant's request for appointment of new counsel to represent defendant on his motion to withdraw guilty plea based on the allegations of ineffective assistance of defense counsel raised in the motion. The court's ruling denying the motion to withdraw is reversed and the matter is remanded for further proceedings. ¶ 2 Defendant appeals from the trial court's order denying defendant's motion to withdraw his guilty plea on two grounds. First, defendant contends he is entitled to a new hearing because original defense counsel could not properly argue his own ineffectiveness and labored under a per se conflict of interest under these circumstances. Alternatively, defendant requests a new hearing because original defense counsel did not strictly comply with the requirements of Supreme Court Rule 604(d) by filing a timely, written certificate of compliance. We reverse and remand.
¶ 3 BACKGROUND
¶ 4 On February 8, 2013, the parties presented a partially-negotiated plea agreement to the court. This agreement called for defendant to plead guilty to count I of a two-count indictment charging defendant with the Class 2 felony offense of aggravated driving under the influence of alcohol, which alleged defendant operated a motor vehicle while his blood alcohol concentration was at least 0.08 and caused an accident that resulted in the death of Efren Garcia. 625 ILCS 5/11-501(a)(1), (d)(1)(F) (West 2012). According to the terms of the partially-negotiated plea agreement, the court allowed the State's request to dismiss count II of the indictment and the State agreed to a sentencing cap of 12 years' imprisonment on count I. The court accepted defendant's guilty plea to count I and scheduled the matter for a sentencing hearing. ¶ 5 On April 25, 2013, after the sentencing hearing, the trial court sentenced defendant to serve 12 years' imprisonment. On that date, the court advised defendant he must first file a motion to withdraw his guilty plea if he decided to exercise his right to appeal. ¶ 6 On April 29, 2013, defense counsel filed a motion to reconsider defendant's sentence. The court denied this request on May 2, 2013. Defense counsel then requested the trial court to direct the circuit clerk to file a notice of appeal from the court's denial of the motion to reconsider defendant's sentence and appoint an appellate defender. Defense counsel's request triggered the trial court's explanation that, since the proceeding involved a partially-negotiated plea agreement, the only method of appeal available to defendant required defendant to first file a timely motion to withdraw his guilty plea. ¶ 7 Consistent with the court's advice, on May 9, 2013, defense counsel filed a "Motion to Withdraw Plea" within 30 days of the sentencing hearing that took place on April 25, 2013. Defense counsel's motion to withdraw plea alleged defendant entered into a "blind plea" with an agreed sentencing cap of 12 years' incarceration but "defendant was not advised that the sentence imposed by the court was not able to be appealed." ¶ 8 On May 9, 2013, defendant also filed a separate pro se "Motion to Withdraw Plea of Guilty and Vacate Judgment." The pro se motion claimed defense counsel was ineffective because counsel "misled defendant into believing that if he declined the 9 year offer the State was presenting him with and entered a blind plea, defendant would receive a lower sentence than 9 years." Defendant also filed a request for appointment of new counsel on May 9, 2013. ¶ 9 The trial court initially addressed defendant's pro se motion to withdraw his guilty plea alleging ineffective assistance of trial counsel on May 9, 2013. Defendant responded to the court's questions about his attorney's performance. Defendant stated his attorney did not make any promises but "misled" him because both defendant and his attorney agreed that the State's offer of "nine years was excessive." According to defendant, defense counsel "figured if I pled - put in a blind plea, I would get less [than nine years]." The court reminded defendant that, at the time of his guilty plea, defendant informed the court that he had discussed the plea agreement with his attorney, was satisfied with his attorney's representation, and was not promised anything from his attorney. ¶ 10 After the exchange between defendant and the court, the court denied defendant's pro se motion to withdraw his guilty plea on the grounds of ineffective assistance of counsel. The court then scheduled a hearing to determine the merits of the separate motion to withdraw guilty plea prepared by defense counsel. ¶ 11 On June 7, 2013, without appointing new defense counsel, the trial court heard arguments on defense counsel's motion to withdraw defendant's guilty plea. During arguments, defense counsel stated, "I don't know if in fact I told [defendant] he could always appeal ***. I thought that the State's offer was high, and I thought we could do better. I never - as I said, I never told him it was a non-appealable issue because I thought it was appealable, so that being the fact, Judge[,] he was misinformed." ¶ 12 The court took the matter under advisement. On June 18, 2013, the parties appeared before the court for the court's ruling on defense counsel's motion to withdraw plea. Before the court announced its ruling, the prosecutor noted that the record did not contain a written Rule 604(d) certificate from defense counsel. Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013). The prosecutor requested an assurance on the record that defense counsel consulted with defendant and reviewed the transcripts before filing his motion to withdraw the guilty plea. Defense counsel stated on the record that he "absolutely" complied with the rule and that he would file a certificate immediately. ¶ 13 When announcing its ruling denying the request to withdraw defendant's guilty plea, the court observed that defense counsel's motion to withdraw guilty plea alleged defense counsel failed to inform defendant that he could not appeal the imposed sentence. The court noted the trial court's admonishments to defendant at the time of the guilty plea properly advised defendant of the proper steps for appellate review, including filing a motion to withdraw the guilty plea. ¶ 14 On June 18, 2013, defendant filed his notice of appeal. On June 19, 2013, defense counsel filed his Rule 604(d) certificate.
The State's initial fully-negotiated plea offer was to sentence defendant to nine years' imprisonment in return for his plea of guilty. However, defendant rejected that offer by the State.
¶ 15 ANALYSIS
¶ 16 Defendant raises two contentions on appeal. First, defendant argues his attorney labored under a per se conflict of interest because defense counsel was required to allege and argue his own ineffectiveness in advising defendant as part of the motion to withdraw defendant's guilty plea. Second, defendant argues the matter should be remanded for new post-plea proceedings because defense counsel failed to strictly comply with Supreme Court Rule 604(d). ¶ 17 The State responds that defense counsel did not labor under a per se conflict of interest because the motion to withdraw defendant's guilty plea failed to plead a bona fide issue demonstrating his trial attorney's ineffectiveness. The State also argues defense counsel's verbal assertion on the record that he complied with Supreme Court Rule 604(d) was sufficient. ¶ 18 We first address defendant's contention that the court should have appointed new counsel to help him address the ineffective assistance claims centering around the advice he received from defense counsel before accepting the partially-negotiated plea agreement. In cases where a defendant raised an ineffective assistance of counsel claim in the trial court, reviewing courts have refused to hold that a per se conflict of interest exists every time an attorney raises his own ineffectiveness or that appointment of new counsel is required. People v. Perkins, 408 Ill. App. 3d 752, 762 (2011); People v. Jones, 219 Ill. App. 3d 301, 304 (1991). We review de novo the issue regarding whether a per se conflict of interest existed. People v. Miller, 199 Ill. 2d 541, 544 (2002). ¶ 19 Regarding the legal implications of defendant's ineffective assistance of counsel claims, defendant asserts that his trial counsel misinformed him that defendant would be giving up his right to appeal the propriety of any sentence he received based on a negotiated sentencing cap contemplated by the partially-negotiated plea agreement. Our supreme court has clearly established, where a defendant pleads guilty to a partially-negotiated plea agreement involving the State's dismissal of certain charges and a recommendation of a cap on his sentence, a defendant implicitly concedes that a sentence imposed within that range cannot be deemed as excessive. People v. Linder, 186 Ill. 2d 67, 74 (1999). The Linder court held that, although defendant may not like the sentence imposed by the trial court, this is a risk defendant assumed as part of the bargain when he accepted the terms of the partially-negotiated plea agreement. Id. ¶ 20 In the case at bar, defense counsel and defendant, pro se, both filed separate motions seeking to withdraw defendant's guilty plea on the grounds that defense counsel did not advise defendant that any sentence within the range of the sentencing cap could not be challenged as excessive on appeal. Further, based on the allegations, defendant requested the trial court to appoint new counsel to address the ineffectiveness of trial counsel. Defendant's allegations are substantiated by defense counsel's arguments on the motion to withdraw when defense counsel admitted he did not realize defendant could not appeal the excessiveness of the sentence imposed by the court under the partially-negotiated plea agreement with a sentencing cap. Moreover, the fact that defense counsel actually filed a motion to reconsider sentence also supports defense counsel's argument that he provided incomplete or inaccurate advice to defendant based on his own misunderstanding of the law. ¶ 21 We recognize it is not automatically required that new counsel be appointed in every case where a defendant alleges ineffective assistance of counsel. People v. Gabrys, 2013 IL App (3d) 110912, ¶ 21 (citing People v. Moore, 207 Ill. 2d 68, 78 (2003)). In Moore, our supreme court held:
"[W]hen a defendant presents a pro se posttrial claim of ineffective assistance of counsel, the trial court should first examine the factual basis of the defendant's claim. If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion. However, if the allegations show possible neglect of the case, new counsel should be appointed." People v. Moore, 207 Ill. 2d 68, 77-78 (2003).¶ 22 Here, the issues raised by defendant neither involved matters of trial strategy nor were without merit. We further note that neither defendant nor defense counsel were sworn as witnesses to testify to details regarding the advice defense counsel provided to defendant regarding the plea or whether defendant suffered prejudice as a result of any misinformation. Since defendant may be required to present testimony from his original defense counsel as a witness in support of the motion to withdraw plea, we conclude defendant's original defense counsel was laboring under a conflict of interest. ¶ 23 For these reasons, we conclude that the trial court should have appointed new post-plea counsel for purposes of the hearing on defendant's motion to withdraw the guilty plea. Consequently, since newly-appointed counsel will be subject to the requirements of Rule 604(d), we do not reach the issue of whether defense counsel's verbal statement to the court followed by a written 604(d) certificate submitted after the notice of appeal constituted strict compliance with Rule 604(d). See Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013).
¶ 24 CONCLUSION
¶ 25 For the foregoing reasons, the judgment of the circuit court of Will County is reversed and the matter is remanded for further proceedings. ¶ 26 Reversed and remanded.