Opinion
5-24-0720
12-06-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HECTOR U. ROSAS, 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 Champaign County. No. 13-CF-1962 Honorable Jason M. Bohm, Judge, presiding.
JUSTICE MOORE delivered the judgment of the court. Justices Boie and Sholar concurred in the judgment.
ORDER
MOORE, JUSTICE
¶ 1 Held: The circuit court properly dismissed defendant's postconviction petition where the issues lacked merit and postconviction counsel provided reasonable assistance. 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, Hector U. Rosas, appeals the circuit court's order dismissing his postconviction petition. His appointed appellate counsel, the Office of the State Appellate Defender (OSAD), concludes that there is no reasonably meritorious argument that the court erred. Accordingly, it has filed a motion for leave to withdraw as counsel on appeal and a supporting memorandum. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD has notified defendant of its motion. This court has provided him with an opportunity to respond but he has not done so. After considering the record on appeal, OSAD's motion and supporting memorandum, we agree that there is no issue that could support an appeal. Accordingly, we grant OSAD leave to withdraw and affirm the trial court's judgment.
¶ 3 BACKGROUND
¶ 4 The State charged defendant with three counts of predatory criminal sexual assault of a child, Q.T.L., who was under the age of 13 (720 ILCS 5/12-14.1(a)(1) (West 2010)). Defendant moved to suppress statements he made while being questioned at the Champaign Police Department. He contended that the police continued to question him after he invoked his right to counsel. The State maintained that, after defendant stated that he "might need a lawyer," the police halted questioning, but defendant voluntarily re-initiated the conversation. Following an evidentiary hearing, the trial court denied the motion.
¶ 5 On October 20, 2014, defendant entered an open plea to one count of predatory criminal sexual assault of a child in exchange for the State dropping the two remaining charges and dismissing charges in an unrelated case, No. 14-CF-128. Defendant was represented at the hearing by assistant public defender George Vargas. The court observed that an interpreter was present, and that Vargas was fluent in Spanish.
¶ 6 The court advised defendant of the charges and potential sentences. It informed him of the rights that he would be giving up by pleading guilty. Defendant assured the court that his plea was voluntary.
¶ 7 After ascertaining that no one had threatened defendant or promised him anything to induce the plea and ascertaining a factual basis, the court found the plea voluntary. As there was no agreement about the sentence, the court scheduled a sentencing hearing.
¶ 8 Prior to that hearing, defendant attempted to file a pro se motion to withdraw his guilty plea. The court stated that it would address the motion later. In addition to calling the victim, Q.T.L., the State presented, without objection, testimony of police officers about additional offenses defendant committed, including those charged in No. 14-CF-128. In closing, defense counsel argued that the court should consider the prospect of defendant's deportation as a mitigating factor.
¶ 9 The court sentenced defendant to the maximum 30 years' imprisonment. More than 30 days later, on January 9, 2015, defendant, represented by new counsel, moved to withdraw his guilty plea. The court considered the motion on the merits and denied it.
¶ 10 The Fourth District dismissed defendant's first direct appeal because the motion to withdraw the plea was filed too late. People v. Rosas, 2017 IL App (4th) 150040-U, ¶¶ 22-25.
¶ 11 Defendant then filed a postconviction petition contending that plea counsel was ineffective for not timely moving to withdraw the plea. The court purportedly allowed defendant to file a late notice of appeal challenging the denial of the motion to withdraw. On appeal, the Fourth District reversed and remanded to allow defendant to file new postplea motions. People v. Rosas, 2020 IL App (4th) 190090-U, ¶¶ 22-23.
¶ 12 Following remand, defendant filed a new motion to withdraw the plea or, alternatively, reconsider the sentence. Defendant argued that plea counsel intimidated him and forced him to plead guilty, plea counsel promised him that he would not receive the maximum sentence, the court did not inform him that he would be deported, he did not understand that pleading guilty would waive any issues arising from the suppression hearing, and his plea counsel was generally ineffective. He further contended that the sentence was excessive.
¶ 13 At a hearing on the motion, defendant testified that, on the morning of the plea, he told Vargas that he wanted to go to trial. However, Vargas insisted that he take plea because it was the "best way forward" if he wanted to see life outside of prison. Although defendant was concerned about a possible 30-year sentence, Vargas assured him that he would not get a maximum sentence due to his clean record. According to defendant, Vargas never advised him about the plea terms or the immigration consequences. He accepted the plea because he thought he could eventually get his life back.
¶ 14 Vargas testified that, after the denial of the suppression motion, he was concerned that, if defendant were found guilty after a trial, the court would likely impose the equivalent of a life sentence. Vargas concluded that a trial would be a "slow guilty plea based on what he told the police." He recalled that, on the morning of the plea, defendant vacillated on whether to go to trial or take the plea. During a break in court proceedings, he and assistant public defender Stephanie Corum met defendant at the jail. During that meeting, Vargas told defendant that it was his decision whether to accept the plea. He communicated the plea offer and discussed the viability of going to trial given the expected evidence. Vargas informed defendant that his offense would result in deportation.
¶ 15 Vargas denied promising defendant that he would get less than 30 years. He denied threatening or intimidating defendant.
¶ 16 Corum testified that, during the meeting, Vargas calmly explained the sentencing range, the evidence, and why it was in defendant's best interest to take the plea. Corum mentioned that Vargas was more "physically intimidating" than her, but she did not recall any threats or coercion. She recalled that Vargas told defendant that, during sentencing, he would tell the judge that defendant would be deported. Defendant decided to accept the plea.
¶ 17 The trial court denied the motion, specifically finding that defendant was not credible. The court concluded that defendant was not forced to plead guilty, and the record rebutted any argument that Vargas promised him a sentence of less than 30 years. The court found that the plea court's failure to admonish defendant about deportation was harmless because defendant was undoubtedly aware by the time he entered the plea that he would be deported. The court noted that Vargas did attempt to suppress the confession. The court also denied the motion to reconsider the sentence. Defendant timely appealed.
¶ 18 On appeal, defendant argued only that his sentence was excessive. The Fourth District rejected this argument and affirmed. People v. Rosas, 2021 IL App (4th) 200508-U.
¶ 19 Defendant then filed the postconviction petition at issue here. He contended that (1) he was illegally arrested by the police, who continued to question him after he invoked his right to counsel; (2) prosecutors engaged in misconduct by agreeing to dismiss the unrelated case, then presenting evidence of those allegations at sentencing; (3) he was denied his right to contact the Peruvian consulate; (4) he was not advised about deportation; and (5) he contended in an attached affidavit that Vargas coerced and threatened him into pleading guilty. He also alleged that direct-appeal counsel was ineffective for failing to raise these issues.
¶ 20 The trial court interpreted defendant's filing as a successive postconviction petition and denied leave to file. The Fourth District reversed. People v. Rosas, 2022 IL App (4th) 210730-U.
¶ 21 Following remand, the trial court appointed the public defender who filed an amended petition raising the same six claims. Counsel also filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
¶ 22 The State moved to dismiss the amended petition. The trial court granted the motion and defendant timely appeals.
¶ 23 ANALYSIS
¶ 24 OSAD concludes that there is no reasonably meritorious argument that the court erred in dismissing defendant's petition as all of its claims clearly lacked merit. We agree.
¶ 25 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) provides a mechanism by which a criminal defendant may assert that his conviction resulted from a substantial denial of his constitutional rights. Id. § 122-1(a); People v. Delton, 227 Ill.2d 247, 253 (2008).
¶ 26 Proceedings under the Act are collateral. People v. Edwards, 2012 IL 111711, ¶ 21. As a result, issues that were decided on direct appeal or in previous collateral proceedings are barred by res judicata (People v. Pitsonbarger, 205 Ill.2d 444, 458 (2002)), and issues that could have been raised earlier, but were not, are forfeited (People v. Blair, 215 Ill.2d 427, 443-44 (2005)).
¶ 27 Defendant's first contention, that he was illegally questioned by the police, was waived by his guilty plea. A voluntary guilty plea waives all nonjurisdictional defenses and defects. People v. Horton, 143 Ill.2d 11, 22 (1991). Moreover, "that petitioner may have been motivated by his coerced confession does not invalidate his otherwise knowing and intelligent plea of guilty [citations], since that plea represented a voluntary and intelligent choice of the alternatives available to him." People v. Phelps, 51 Ill.2d 35, 38 (1972).
¶ 28 Prior to the plea, Vargas filed a motion to suppress defendant's statements. The court conducted a full hearing, after which it denied the motion. Vargas testified that the admissibility of defendant's statements was a significant factor in his recommendation to defendant to take the plea offer. The denial of the suppression motion may partially explain defendant's decision to plead guilty, but it does not make the plea involuntary. And it does not allow defendant to relitigate the suppression motion under the guise of a motion to withdraw the plea.
¶ 29 Defendant's second contention, that prosecutors improperly used evidence of the dismissed charges at sentencing, is also not a basis to withdraw of the plea. As OSAD points out, the record contains no evidence that the plea agreement limited the prosecution's ability to present evidence at sentencing. Generally, a trial court may consider at sentencing evidence of a defendant's other crimes, regardless of whether he was charged with or convicted of those offenses. People v. Alarcon-Trujillo, 2021 IL App (2d) 191046, ¶ 32 (citing People v. Ward, 154 Ill.2d 272, 334 (1992)). In short, nothing prevented the prosecutor from presenting evidence relating to the dismissed case at sentencing the sentencing hearing in this case.
¶ 30 Defendant's third contention, that he was not allowed to contact the Peruvian consulate, was likewise waived by his guilty plea. See Horton, 143 Ill.2d at 22. In any event, the failure to inform a foreign national of his right to contact his country's consulate is not a basis for a new trial or plea proceeding. Section 103-1(b-5) of the Code of Criminal Procedure of 1963, which became effective after defendant's guilty plea, provides that, consistent with the Vienna Convention, "when foreign nationals are arrested or detained, they must be advised of their right to have their consular officials notified." 725 ILCS 5/103-1(b-5) (West 2022); see Vienna Convention on Consular Relations, opened for signature April 24, 1963, art. 36(1)(b), 21 U.S.T. 77, 100-01, 596 U.N.T.S. 261. However, that section further provides, consistent with prior precedent, that the Convention "does not create any new substantive State right or remedy." 725 ILCS 5/103-1(b-5) (West 2022); see People v. Montano, 365 Ill.App.3d 195, 201 (2006) (a new trial is not a remedy for a violation of the Vienna Convention).
¶ 31 Defendant's fourth contention, that his plea was involuntary because he was not informed that he would be deported as a result of a conviction, is belied by the record. At the hearing on the motion to withdraw, Vargas testified, corroborated by Corum, that he told defendant that he would be deported if convicted. The trial court found that defendant's contrary testimony was not credible. Defendant presents no newly discovered evidence that would alter this conclusion.
¶ 32 Defendant's fifth contention merely reiterates previous claims that Vargas coerced and threatened him to get him to plead guilty. As noted, the trial court found that defendant's testimony was not credible and reiterated its original conclusion that the guilty plea was voluntary.
¶ 33 Defendant also argued with regard to each substantive claim that direct-appeal counsel was ineffective for failing to raise that claim. "To establish that a defendant was deprived of effective assistance of counsel, [he] 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)). A defendant who claims that appellate counsel was ineffective for failing to raise an issue on appeal must allege facts demonstrating that such failure was objectively unreasonable and that counsel's decision prejudiced defendant. People v. Enis, 194 Ill.2d 361, 377 (2000). If the underlying issue is not meritorious, then defendant has suffered no prejudice. Id. As we have concluded that defendant's substantive claims lack merit, appellate counsel was not ineffective for failing to raise them.
¶ 34 OSAD further concludes that there is no meritorious argument that postconviction counsel provided unreasonable assistance. The right to postconviction counsel is purely statutory. People v. Mason, 2016 IL App (4th) 140517, ¶ 19. As such, postconviction petitioners are entitled to only a reasonable level of assistance. Id. "Reasonable assistance of counsel is premised on counsel's compliance with [Illinois Supreme Court] Rule 651(c)." Id. The rule provides that the record on appeal "shall contain a showing, which may be made by the certificate of petitioner's attorney, that the attorney has consulted with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." Ill. S.Ct. R. 651(c) (eff. July 1, 2017). Where counsel files a Rule 651(c) certificate, we presume that counsel complied with the rule; the petitioner bears the burden of rebutting that presumption. People v. Carrizoza, 2018 IL App (3d) 160051, ¶ 13.
¶ 35 Here, counsel filed a certificate closely tracking the rule's language. Nothing in the record rebuts the presumption that counsel provided reasonable assistance. Thus, an argument on this issue would not be meritorious.
¶ 36 CONCLUSION
¶ 37 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and affirm the circuit court's judgment.
¶ 38 Motion granted; judgment affirmed.