Opinion
08-26-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN HARRIS, 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 10th Judicial Circuit,
Peoria County, Illinois,
Appeal No. 3-11-0729
Circuit No. 10-CF-503
Honorable Stephen A. Kouri, Judge, Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Lytton and McDade concurred in the judgment.
ORDER
¶ 1 Held: The trial court substantially complied with Illinois Supreme Court Rule 402(a), and defendant did not establish ineffective assistance of counsel. ¶ 2 Pursuant to a partially negotiated plea agreement, defendant, Melvin Harris, pled guilty to aggravated robbery (720 ILCS 5/18-5(a) (West 2010)), and was sentenced to 10 years imprisonment. Defendant filed a motion to withdraw the guilty plea, which was denied. On appeal, defendant argues: (1) he should be allowed to withdraw his guilty plea because the trial court did not substantially comply with Illinois Supreme Court Rule 402(a)(4) (eff. July 1, 1997); and (2) counsel was ineffective for failing to include the Rule 402(a)(4) violation in his motion to withdraw the guilty plea. We affirm.
¶ 3 FACTS
¶ 4 On June 8, 2010, defendant was charged by indictment with aggravated robbery (720 ILCS 5/18-5(a) (West 2010)) and robbery (720 ILCS 5/18-1(a) (West 2010)). On September 13, 2010, the cause was set for a jury trial; however, the court granted a continuance after defendant informed the court that he wanted to discuss a plea agreement instead of going to trial. On September 27, 2010, the court informed defendant of the availability of either a Rule 402 conference, going to trial on the charges, or an open plea. Defendant informed the court that he did not believe he was guilty of the aggravated robbery charge. The court responded that if defendant went to trial, the State would have to prove each element of the offense. The court continued the cause so that defendant could determine whether he wanted to go to trial. ¶ 5 On October 1, 2010, defendant entered into a partially negotiated plea of guilty to aggravated robbery. In exchange, the State dismissed the robbery charge and agreed to a sentencing cap of 10 years of imprisonment. Prior to accepting defendant's plea, the trial court admonished defendant as to the nature of the charge and that he faced a sentence of 4 to 15 years of imprisonment, but pursuant to the plea, he faced the possibility of 4 to 10 years imprisonment. The trial court also admonished defendant that he had a right to a trial by judge or by jury and that by pleading guilty, he was waiving his right to a trial. Defendant acknowledged that he understood these admonitions. ¶ 6 The State provided a factual basis for the plea, which the trial court found sufficient. In response to questions by the court, defendant indicated that no one was forcing him to plead guilty and no promises were made other than what had been set out in open court. The court accepted defendant's guilty plea, finding that it was made knowingly and voluntarily. Defendant also signed a written plea of guilty, where he acknowledged waiving his right to be confronted with the witnesses against him. ¶ 7 On November 18, 2010, a sentencing hearing was held. The presentence investigation report indicated defendant had prior convictions, which included five misdemeanors, one felony, and numerous traffic offenses. The trial court sentenced defendant to 10 years imprisonment. ¶ 8 Thereafter, defendant moved to withdraw his guilty plea. Defendant contended that his plea was not knowing and voluntary because his counsel informed him he would receive probation and also failed to communicate a six-year plea offer for the robbery charge. The trial court conducted a hearing on defendant's motion to withdraw his guilty plea and denied the motion. Defendant appeals.
¶ 9 ANALYSIS
¶ 10 On appeal, defendant argues the trial court did not substantially comply with Rule 402(a)(4) because before his plea was accepted, he was not informed of his right to confront the witnesses against him. Defendant further argues that counsel was ineffective for failing to raise this issue in his motion to withdraw the guilty plea. ¶ 11 Initially, the State points out that defendant did not include the court's failure to provide proper admonishments in his motion to withdraw his plea of guilty and has thus forfeited it for review. See Ill. S. Ct. R. 604(d) (eff. July 1, 2006). Nevertheless, where the trial court fails to give a defendant the admonishments required by Rule 402(a), the plain error doctrine has been applied as an exception to the forfeiture rule. People v. Fuller, 205 Ill. 2d 308 (2002). However, before conducting a plain error analysis, we must first determine whether a clear or obvious error occurred. People v. Hillier, 237 Ill. 2d 539 (2010). ¶ 12 In order to satisfy due process, the record must affirmatively show that a defendant's guilty plea was made voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238 (1969) (finding that the court cannot presume waiver of important constitutional rights from a silent record); Fuller, 205 Ill. 2d 308. Rule 402 was adopted to ensure compliance with these due process requirements. Fuller, 205 Ill. 2d 308. Under Rule 402(a), a trial court shall not accept a plea of guilty without informing defendant of, and determining that he understands, the nature of the charge, the minimum and maximum sentence, the right to plead guilty or not guilty, and the right to a jury trial and to confront the witnesses against him. Ill. S. Ct. R. 402(a) (eff. July 1, 1997). ¶ 13 The purpose of Rule 402 admonishments is to ensure that a defendant understands his plea, the rights he has waived by pleading guilty, and the consequences of his action. People v. Dougherty, 394 Ill. App. 3d 134 (2009). However, the failure to properly admonish a defendant, standing alone, does not automatically establish grounds for reversing the judgment or vacating the plea. Fuller, 205 Ill. 2d 308. Substantial, not literal, compliance is all that is required. Dougherty, 394 Ill. App. 3d 134. Whether reversal is required depends on whether real justice has been denied or whether defendant has been prejudiced by the inadequate admonishment. Fuller, 205 Ill. 2d 308. We may consider the entire record in order to determine substantial compliance with Rule 402(a). See People v. Sutherland, 128 Ill. App. 3d 415 (1984). ¶ 14 In this instant case, the trial court did not strictly comply with Rule 402(a)(4), because it failed to inform defendant of his right to confront witnesses before accepting his guilty plea. However, the court did inform defendant of the charge and the minimum and maximum sentence. The court also informed defendant he had a right to a trial by judge or by jury and that by pleading guilty, he was waiving his right to a trial. Defendant stated that he understood his right to trial and wished to plead guilty. Defendant also signed a written guilty plea, stating that he understood he was waiving his right to be confronted with the witnesses against him. We note that Rule 402(a) sets out an enumerated list of the admonishments to be given and there seems to be no reason why compliance need ever be merely substantial. Nonetheless, we find the circumstances of the instant case sufficient to support substantial compliance with Rule 402(a). ¶ 15 In support of defendant's argument to vacate his guilty plea, he relies on Sutherland, 128 Ill. App. 3d 415. In Sutherland, the court found Rule 402(a) admonishments to be reversible error where the trial court failed to inform defendant that he had a right to plead not guilty and that he had a right to a jury trial and to confront witnesses. We find Sutherland distinguishable because, in the instant case, defendant was admonished of his right to trial by judge and by jury. See People v. Mendoza, 48 Ill. 2d 371 (1971) (finding substantial compliance with Rule 402(a) in a postconviction claim where defendant was informed of the right to a jury trial, but was not informed he was waiving the right to self-incrimination and to confront witnesses). Moreover, based on defendant's prior convictions, he was familiar with the criminal justice system and was also advised, prior to pleading guilty, that if he doubted proof of his guilt, he should proceed to trial where the State would have to prove each element at trial. Obviously, a trial requires the testimony of witnesses for the State and the opportunity to confront those witnesses for the defense. Knowing he would be waiving his right to a trial on the merits, logic dictates defendant was well aware he would also be giving up his opportunity to confront the State's witnesses during trial. ¶ 16 Based on the record before us, the court's failure to expressly admonish defendant as to his right to confront witnesses in this case did not equate to defendant's lack of knowledge of this right when he pled guilty. Perhaps, this point contributed to defendant's failure to raise this issue in the trial court. Nonetheless, we conclude the trial court substantially complied with Rule 402(a). Due to this substantial compliance with the Rule, we conclude defendant has not demonstrated this record contains error, plain error does not apply, and we recognize defendant's procedural default. See Hillier, 237 Ill. 2d 539. ¶ 17 Additionally, defendant's argument that counsel was ineffective for failing to raise the improper admonishments in his motion to withdraw the guilty plea must also fail. To prevail on a claim of ineffective assistance of counsel, defendant must establish that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. People v. Manning, 241 Ill. 2d 319 (2011) (citing Strickland v. Washington, 466 U.S. 668 (1984)). As we have already concluded, the trial court's admonitions substantially complied with Rule 402(a); therefore, defendant cannot show that but for counsel's failure to raise this issue in his motion to withdraw the guilty plea, there was a reasonable probability the trial court would have granted the motion. See People v. Graham, 206 Ill. 2d 465 (2003) (holding that a defendant's claim of ineffective assistance is defeated if he suffered no prejudice).
¶ 18 CONCLUSION
¶ 19 For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed. ¶ 20 Affirmed.