Opinion
No. 1-11-0086
03-14-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENJAMIN GOMEZ, 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
Cook County.
No. 08 CR 19421
Honorable
Frank G. Zelezinski,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the judgment.
ORDER
¶ 1 Held: Defendant's forfeiture of claim that trial court violated Rule 402(d) honored where defendant failed to establish plain error; mittimus corrected; judgment affirmed in all other respects. ¶ 2 Following a bench trial, defendant Benjamin Gomez was convicted of possession of cannabis and cocaine with intent to deliver, then sentenced to concurrent, respective terms of 6 and 12 years' imprisonment. On appeal, defendant does not contest the sufficiency of the evidence to establish his guilt of these offenses or the propriety of his sentences. Rather, defendant takes issue with the pretrial proceedings claiming that the trial court "breached" Supreme Court Rule 402(d) (eff. July 1, 1997), by failing to admonish him in Spanish and ensure that his waiver of his right to be tried by a factfinder unfamiliar with the evidence was knowing and voluntary. He also requests that his mittimus be corrected to reflect the proper pre-sentencing credit. ¶ 3 The record shows that defendant was charged by indictment with 10 counts of narcotics offenses. When the case was called on March 24, 2009, defendant was represented by private counsel, and requested a Rule 402 conference. No interpreter was present, and none was requested. Prior to the conference, the following colloquy was had between the court and defendant:
"THE COURT: [Defendant], what your attorney is requesting is what is called a 402 Conference. And what this means is that he's asking that as soon as I take a break, I'm going to have a conference with your attorney and the Prosecutors, and we're going to talk to -- we're going to talk about your case to them and to me. Now, during this conference, I'm going to learn things about your case both from your attorney as well as the State's Attorneys. However, if your case is not disposed of short of going to a trial, I still might be the Judge who might preside over a trial in your case.¶ 4 When the matter was recalled, no plea agreement had been reached, and the matter was continued numerous times. On one status date, the court asked if defendant would need an interpreter for trial. Counsel indicated that he would, and the record shows that a Spanish interpreter was provided for defendant at his bench trial. ¶ 5 The evidence adduced by the State at trial showed that in the summer of 2008, the Drug Enforcement Administration (DEA) was conducting a several months long undercover drug surveillance, involving defendant. On August 14, 2008, undercover agent Mario Elias spoke with defendant, told him he wanted to purchase cocaine, and they agreed to meet on August 20, 2008. ¶ 6 On that date, Elias met with defendant and agreed to pay $10,500 for a half kilogram of cocaine. The parties then agreed to meet later at the Maxwell Street Restaurant at 171st and Halsted Streets. Defendant went to his apartment to pick up the half kilogram of cocaine, then drove to the restaurant where he was arrested. A search of the vehicle he was driving revealed a plastic bag containing cocaine, which was later found to weigh 495 grams. Following his arrest, defendant told Agent Elias that he was going to make a $1,700 profit from the sale. ¶ 7 Defendant also consented to a police search of his apartment which revealed over 20 bags of packaged marijuana, two digital scales, several identification cards, and a box of sandwich bags. ¶ 8 On this evidence, the trial court found defendant guilty of possession of cannabis with intent to deliver and possession of a controlled substance with intent to deliver. The court denied defendant's subsequent motion for a new trial, and sentenced him to the terms indicated above. ¶ 9 On appeal, defendant maintains that because he did not understand English, the trial court "breached" Rule 402(d) by failing to admonish him in Spanish of the risk of bias posed by a Rule 402 conference, namely, that the judge who hears the evidence in aggravation at the conference will also preside over his trial. He maintains that the trial judge was required, but failed, to obtain his knowing and voluntary waiver of his right to be tried before a fact-finder not already familiar with the evidence against him, and he, therefore, requests a new trial before a different judge. ¶ 10 We observe initially that defendant did not raise this issue at trial or in a post-trial motion, and has thus forfeited it for review. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant maintains, however, that even absent an objection in the trial court, this court should review the trial court's taking of evidence without his knowing consent as plain error. ¶ 11 The plain error doctrine is a narrow and limited exception to the general waiver rule allowing a reviewing court to consider forfeited errors where the evidence was closely balanced or where the error was so egregious that defendant was deprived of a substantial right and a fair trial. People v. Herron, 215 Ill. 2d 167, 178-79 (2005). Defendant has the burden of persuasion under both prongs of the plain error doctrine; and to obtain relief, he must first show that a clear or obvious error occurred. People v. Hillier, 237 Ill. 2d 539, 545 (2010). If defendant fails to meet his burden, we will honor his procedural default. Hillier, 237 Ill. 2d at 545. ¶ 12 We initially observe that defendant has not attempted to argue for plain error review under the closely balanced evidence prong, but rather, relies on the structural, second prong to excuse his procedural default. He asserts that the trial court erred in failing to ensure that he knowingly and voluntarily consented to the court hearing evidence in aggravation at the conference and then presiding over his trial where he was not provided Rule 402 admonitions in Spanish. He maintains that this was a fundamental error similar to the failure to obtain a valid jury waiver before a bench trial, and to the Rule 402(d)(2) requirement that a trial judge recuse himself if defendant withdraws his plea after being advised that the trial judge has withdrawn his concurrence to a plea agreement. Neither of these situations obtain here. ¶ 13 In 2009, when defendant's conference took place, Rule 402 (Ill. S. Ct. R. 402(d)(2) eff. July 1, 1997)) provided, in relevant part, that if a tentative plea agreement has been reached by the parties which contemplates the entry of a plea of guilty in the expectation that a specified sentence will be imposed or that other charges before the court will be dismissed, the trial judge may permit, upon request of the parties, the disclosure to him of the tentative agreement and the reasons therefor in advance of the tender of the plea. At the same time the judge may also receive, with the consent of defendant, evidence in aggravation or mitigation. Ill. S. Ct. R. 402(d)(2). ¶ 14 There is no provision in Rule 402(d)(2) that requires the trial court to ensure that a defendant knowingly and voluntarily waives his right to be tried before a judge not familiar with the evidence against him when pursuing a plea conference. Defendant has cited no relevant, supporting authority for his assertion to the contrary, and we have found none. Moreover, the record in this case shows that the court substantially apprised defendant, who was represented by counsel and requested a conference, that it would hear facts related to his case and that if no agreement was reached, the court could preside over his subsequent trial. The record also shows that defendant agreed with this procedure, and that neither he, nor his counsel, indicated that there was a language problem nor raised such an issue in the trial court. ¶ 15 In addition, defendant's argument regarding the receipt of evidence in aggravation during the Rule 402 conference is entirely speculative since the record does not reflect whether, or if, any such evidence was submitted. Such speculation is insufficient to show that the conduct of the trial court impacted his right to a fair trial, and that it was plain error. People v. Hopp, 209 Ill. 2d 1, 17 (2004); People v. Morales, 2012 IL App (1st) 101911, ¶¶59-60. ¶ 16 In sum, defendant has failed to show error by the trial court which precluded him from receiving a fair trial before a fair and unbiased trial judge. Absent such a showing, there is no basis to find plain error, and the claim of error is forfeited. Morales, ¶60. ¶ 17 Defendant next contends, the State concedes and we agree that defendant's mittimus should be corrected to reflect 114 days of pretrial sentencing credit instead of 113 days. We, therefore, order the mittimus corrected to reflect 114 days of presentence credit. People v. McCray, 273 Ill. App. 3d 396, 403 (1995). ¶ 18 In light of the foregoing, we affirm the judgment of the circuit court of Cook County and order the mittimus corrected. ¶ 19 Affirmed; mittimus corrected.
Now, is it okay with you to have this conference with your attorney and the State's Attorney?
THE DEFENDANT: (Nodding.)
THE COURT: Is this a 'yes'?
THE DEFENDANT: (Nodding.)
THE COURT: Okay. He's nodding his head 'yes.'
[DEFENSE COUNSEL]: Yes.
THE DEFENDANT: Yes.
THE COURT: We'll pass it for a 402 Conference."