Opinion
5-22-0031
06-21-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RYAN WOODROW KEEN, 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 Jefferson County. Nos. 17-CF-504, 20-CF-66 Honorable Jerry E. Crisel, Judge, presiding.
JUSTICE BARBERIS delivered the judgment of the court. Presiding Justice Boie and Justice McHaney concurred in the judgment.
ORDER
BARBERIS JUSTICE
¶ 1 Held: Where defendant previously withdrew his postconviction petition pursuant to an agreement with the State, statute permitting withdrawn pleading to be refiled did not apply. As defendant did not allege any proper basis on which the prior proceedings were void, the circuit court properly dismissed the petition. As any argument to the contrary would lack merit, we grant defendant's appointed counsel on appeal leave to withdraw and affirm the circuit court's judgment.
¶ 2 Defendant, Ryan Woodrow Keen, appeals the circuit court's order summarily dismissing his postconviction petition. His appointed appellate counsel, the Office of the State Appellate Defender (OSAD), has concluded that there is no reasonably meritorious argument that the circuit court erred in denying relief. Accordingly, it has filed a motion to withdraw as counsel along with a supporting memorandum. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD has notified defendant of its motion, and this court has provided him with ample opportunity to respond and he has filed a brief response. However, after considering the record on appeal, OSAD's memorandum and supporting brief, and defendant's response, we agree that this appeal presents no reasonably meritorious issues. Thus, we grant OSAD leave to withdraw and affirm the circuit court's judgment.
¶ 3 BACKGROUND
¶ 4 The lengthy procedural history of this case began when defendant was charged with theft and burglary in case No. 17-CF-504. He was later charged in No. 18-CF-199 with possession and delivery of methamphetamine. He was also charged with various traffic offenses. On September 4, 2018, defendant pleaded guilty to possession of methamphetamine in 18-CF-199 in exchange for a six-year prison sentence, with 113 days' credit for time served. The State agreed to dismiss the delivery and traffic charges. In 17-CF-504, defendant pleaded guilty to burglary in exchange for 30 months' conditional discharge, a 62-day credit for time served, and dismissal of the theft charge.
¶ 5 Defendant agreed that his criminal history included three felony burglary convictions and multiple prison terms. The State specifically stated that defendant was pleading to a Class 3 felony. The circuit court admonished him that the sentencing range for a Class 3 felony was 2 to 5 years' imprisonment, with 1 year of mandatory supervised release (MSR), but that an extended term of 5 to 10 years' imprisonment was possible.
¶ 6 The court found the plea was knowing and voluntary. It thus accepted it and imposed the agreed-upon sentence of 30 months' conditional discharge. The judgment lists the burglary conviction as a Class 3 felony.
¶ 7 In 2020, the State petitioned to revoke defendant's conditional discharge, alleging that he possessed methamphetamine. At a subsequent hearing, the State asserted that defendant's burglary conviction was for a Class 2 felony, but defendant insisted that it was a Class 3.
¶ 8 While the revocation petition was pending, defendant was charged in 20-CF-66 with unlawful possession of a stolen motor vehicle and aggravated fleeing and eluding. The State amended the petition to include these acts.
¶ 9 On September 4, 2020, defendant entered a second negotiated guilty plea in which he admitted the allegations of the revocation petition and pleaded guilty to possession of a stolen motor vehicle. The State again represented that the underlying burglary charge was a Class 2 felony. In that case, defendant would receive a sentence of 10 years' imprisonment, with 2 years' MSR, to run concurrent to a 10-year term for the 2020 possession of a stolen vehicle charge. The State agreed to dismiss additional charges defendant had picked up in 2019 and 2020, including aggravated fleeing and eluding, possession of methamphetamine, driving under the influence, and various other traffic offenses.
¶ 10 The court admonished defendant about the rights he would be giving up by pleading guilty, the difference between a jury and a bench trial, and the rights he was waiving as to the revocation petition. Defense counsel agreed that defendant qualified for Class X sentencing due to his record. In describing the potential sentences, the court stated that the penalty for a Class 2 felony was 6 to 30 years' imprisonment, with 3 years of MSR, and no possibility of alternative sentencing.
¶ 11 Defendant assured the court that he had not been threatened or promised anything beyond the stated terms to secure his agreement, that he had had sufficient time to consider the agreement, and that he was satisfied with his counsel's performance. The court thus accepted the agreement and sentenced defendant accordingly.
¶ 12 In October 2020, defendant filed a pro se petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). He alleged that the court had erred in admonishing him that he was eligible for Class X sentencing and that defense counsel was ineffective for failing to correct the error. In the ensuing months, defendant filed several amended petitions and additional pro se motions. After the postconviction petition had moved to the second stage of proceedings, the State moved to dismiss it on the ground that it lacked any affidavits or other supporting documents.
¶ 13 At a June 23, 2021, hearing, defendant expressed his desire to proceed pro se. After admonishing defendant about the dangers of proceeding pro se but finding that he was competent to do so, the court discharged appointed counsel and granted defendant a short continuance to prepare for the hearing on the State's motion to dismiss.
¶ 14 On September 9, 2021, defendant and the State, after having discussed the case outside the court's presence, proposed an agreement by which, in exchange for an amendment of the judgment in No. 17-CF-504, to correct a "scrivener's error" in the classification of burglary as a Class 2 felony with 2 years of MSR rather than a Class 3 felony with 1 year of MSR, defendant would withdraw all his pending postconviction pleadings. In addition, he would receive credit for time served on the 2017 case from December 11, 2017, to February 20, 2018, and from February 25, 2020, to September 4, 2020. The parties agreed that the sentence in the 20-CF-66 would not be altered.
¶ 15 After the prosecutor recited the terms of the agreement, defendant confirmed that the description was accurate. The court accepted the agreement. Subsequently, an amended judgment incorporated the change of the 2017 burglary to a Class 3 felony.
¶ 16 On October 22, 2021, defendant filed another pro se postconviction petition, claiming that the State had "conned" him into withdrawing his previous petitions. He asked that his previous petitions be reinstated.
¶ 17 Defendant further alleged that defense counsel was ineffective for failing to show him the complaint or discovery, failing to file motions asserting that restrictions enacted in response to the COVID-19 pandemic resulted in a violated his speedy-trial rights, allowing him to be resentenced for a Class 2 felony burglary when he pled to a Class 3, failing to give him the proper credit for time served, and informing him the only way to get the 192-day credit was to plead guilty to the 2020 case (on which he proclaimed his innocence). He further claimed that the court improperly admonished him about the 2017 burglary charge by reciting the sentencing range for a Class 2 felony and informing him that was eligible for Class X sentencing when he was not. He claimed that these errors rendered his plea and sentence void. He sought leave to withdraw his guilty plea, or alternatively, to be resentenced to seven years' imprisonment.
¶ 18 The court summarily dismissed the petition, finding it frivolous and patently without merit. The court noted that it had presided over all the proceedings and that defendant had previously pleaded guilty and agreed to withdraw his pending petitions. The court remained "convinced of the Defendant's knowing, intelligent and voluntary waiver of his rights and entry into the aforesaid agreements." Defendant timely appealed.
¶ 19 ANALYSIS
¶ 20 OSAD, although acknowledging that it has found no case directly on point, nevertheless concludes that there is no good-faith argument that the circuit court erred in dismissing defendant's petition. We agree that while the unique procedural posture of this case makes finding relevant precedent challenging, there is no viable argument that the circuit court erred.
¶ 21 The Act provides a mechanism by which a criminal defendant may assert that his conviction resulted from a substantial denial of his constitutional rights. 725 ILCS 5/122-1(a) (West 2020); People v. Delton, 227 Ill.2d 247, 253 (2008). Upon the filing of a petition, the circuit court has 90 days to examine it and either dismiss it as frivolous or patently without merit or docket it for further consideration. 725 ILCS 5/122-2.1 (West 2020); People v. Volkmar, 363 Ill.App.3d 668, 670 (2006).
¶ 22 Postconviction proceedings are generally considered civil. People v. Bailey, 2017 IL 121450, ¶ 29. However, such proceedings are sui generis, and as a result, "general civil practice rules and procedures apply only to the extent they do not conflict with the *** Act." Id. Section 122-5 of the Act permits a defendant, in the court's discretion, to withdraw a petition. 725 ILCS 5/122-5 (West 2020).
¶ 23 The supreme court has held that the withdrawal of a petition is the functional equivalent of the voluntary dismissal of a civil complaint. People v. Simms, 2018 IL 122378, ¶ 44. As a result, section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 2020)), which allows a voluntarily dismissed complaint to be refiled within one year, applies to postconviction proceedings. Simms, 2018 IL 122378, ¶ 46.
¶ 24 Defendant asserted that, having withdrawn his petition, he was entitled to refile it within one year. The problem is that defendant did not withdraw his petition as contemplated by section 13-217. Rather, he abandoned his petition (and collateral filings) pursuant to an agreement with the State by which he received much of the relief that he requested. In exchange, the State agreed to a new judgment clarifying that the burglary conviction represented a Class 3 felony-with a correspondingly shorter MSR term (see 730 ILCS 5/5-8-1(d)(2), (3) (West 2020))-and granting all the sentencing credit that he claimed. Thus, the parties' agreement was a settlement that precluded defendant from resurrecting his petition. See In re Marriage of Tiballi, 2014 IL 116319, ¶ 21 (voluntary dismissal pursuant to a settlement agreement is final and binding upon the parties and acts as a bar to further proceedings).
¶ 25 In dismissing the refiled petition, the circuit court never expressly used the word "settlement," but it found that defendant voluntarily agreed to terminate the postconviction proceedings in exchange for consideration from the State, which is a settlement. A finding that a valid settlement occurred will not be reversed unless the court's conclusion is against the manifest weight of the evidence. In re Marriage of Stoker, 2021 IL App (5th) 200301, ¶¶ 47-48 (citing In re Marriage of Baecker, 2012 IL App (3d) 110660, ¶ 25). Defendant acknowledged the terms of the agreement and never expressed any reluctance to proceed with the agreement or confusion about its terms. Thus, the court's conclusion that the parties reached a voluntary settlement is not against the manifest weight of the evidence.
¶ 26 Defendant asserted in the refiled petition that the State had "conned" him into withdrawing his petition and related filings. However, he alleged no specific facts in support of this assertion. He did not claim that the prosecutor misled him, made any unfulfilled promises, or threatened him in any way to convince him to drop his various pleadings. See People v. Wilson, 307 Ill.App.3d 140, 145 (1999) ("[n]onfactual and nonspecific assertions amounting to mere conclusions are insufficient to require a hearing under the Act").
¶ 27 Even if we viewed defendant's petition as being properly refiled, however, its substantive allegations are nevertheless frivolous and patently without merit. His primary allegation was that counsel was ineffective in that he failed to show him the complaint or the discovery, failed to file a motion alleging that restrictions enacted pursuant to the COVID pandemic resulted in a violation of his right to a speedy trial, allowed him to be resentenced to a Class 2 felony when he pleaded guilty to a Class 3, failed to ensure that he received proper credit for time served, and advised him that the only way to get the 192-day credit was to plead guilty to the 2020 case.
¶ 28 Generally, a voluntary guilty plea waives all nonjurisdictional errors and defects. People v. Myrieckes, 315 Ill.App.3d 478, 485 (2000)." 'To establish that a defendant was deprived of effective assistance of counsel, a defendant must establish both that his attorney's performance was deficient and that the defendant suffered prejudice as a result.'" People v. Manning, 227 Ill.2d 403, 412 (2008) (quoting People v. Pugh, 157 Ill.2d 1, 14 (1993)). In the guilty plea context, a defendant must show that" 'there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" People v. Brown, 2017 IL 121681, ¶ 26 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
¶ 29 With the possible exception of the final allegation, defendant does not contend that counsel's alleged errors affected his decision to plead guilty. Moreover, defendant told the court at the plea hearing that his decision to plead was voluntary and that he was satisfied with counsel's performance.
¶ 30 We note that defendant's complaints about being sentenced for a Class 2 felony and receiving insufficient sentence credit were cured through his agreement with the State. Thus, he cannot establish prejudice as to these claims. The supreme court recently held that its emergency administrative orders in response to COVID prevail over any contrary provisions in the speedy trial statute (725 ILCS 5/103-5 (West 2020)). People v. Mayfield, 2023 IL 128092, ¶ 41. Thus, a speedy trial motion would not have succeeded. Finally, defendant does not substantiate his contention that counsel advised him to plead guilty to a separate offense to obtain sentencing credit in a separate case, which in any event is nonsensical. In light of the circuit court's admonishments and defendant's responses, that court reasonably rejected defendant's contention that he pleaded guilty to an additional offense and accepted a lengthy prison sentence therefor merely to receive a relatively small amount of sentence credit for a previous conviction.
¶ 31 Defendant further contended that the court improperly admonished him on the 2017 burglary, listing the range for a Class 2 felony and telling defendant he was eligible for Class X sentencing. As with his ineffective-assistance allegations, defendant does not contend that the admonishments influenced him to plead guilty. The sentence to which he ultimately agreed was within the extended-term range for a Class 3 felony. See 730 ILCS 5/5-4.5-40(a) (West 2020). And the alleged errors regarding the MSR term and sentencing credit were corrected through defendant's agreement with the State.
¶ 32 Defendant contends, however, that these alleged mistakes rendered his plea and sentence void. Defendant is incorrect. As noted, a voluntary guilty plea waives all nonjurisdictional errors or defects. Myrieckes, 315 Ill.App.3d at 485. Defendant does not contend that the circuit court lacked jurisdiction. He cites some older cases holding that an improper sentence is void. However, those cases have been superseded by People v. Castleberry, 2015 IL 116916, which abolished the "void sentence" rule. Since that case, it is "no longer valid" to argue that a sentence that does not conform to a statutory requirement is void. People v. Price, 2016 IL 118613, ¶ 27. In any event, as noted, defendant's actual sentence was within the range for a Class 3 felony, and the only arguable sentencing error, which concerned the MSR term, was corrected.
¶ 33 Defendant has filed a brief response in which he contends, without elaboration, that the issues he raises have merit. For the reasons stated, we disagree.
¶ 34 CONCLUSION
¶ 35 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and affirm the circuit court's judgment.
¶ 36 Motion granted; judgment affirmed.