Opinion
Appeal No. 3-18-0696
05-25-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR M. UNGER, Defendant-Appellant.
NOTICE: 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 the 12th Judicial Circuit, Will County, Illinois,
Circuit No. 15-CF-1827
Honorable David M. Carlson, Judge, Presiding.
JUSTICE O'BRIEN delivered the judgment of the court.
Justice Lytton concurred in the judgment.
Presiding Justice McDade dissented.
ORDER
¶ 1 Held: (1) The circuit court substantially complied with admonishment requirements of Illinois Supreme Court Rule 605(c). (2) Defendant has not demonstrated prejudice needed for a finding of ineffective assistance of counsel.
¶ 2 Defendant, Arthur M. Unger, appeals from his conviction for attempted first degree murder. First, defendant argues that the court improperly admonished him under Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001). Second, defendant contends that counsel provided ineffective assistance. We affirm.
¶ 3 I. BACKGROUND
¶ 4 Defendant entered a guilty plea to the charge of attempted first degree murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2014)). The plea included an agreed sentencing cap of 25 years' imprisonment and the State's dismissal of several other charges.
¶ 5 Following the plea, the court sentenced defendant to 25 years' imprisonment. The court noted that, but for the agreed 25-year sentencing cap, it would have sentenced defendant to 30 years. The court admonished defendant that
"within 30 days from today's date you have to do one of two, if not both things. First and foremost, you can ask me to reconsider the sentence. If I grant that, I can reconsider the sentence and I can actually modify it to include up to the maximum, which would be 30 years in the Illinois Department of Corrections. If I deny it, you have 30 days from that date within which to file a notice of appeal.
You can also ask me to withdraw your plea. You have to do that within the next 30 days. If I grant that, we start all over again, meaning anything that was dismissed will be reinstated. If I deny it, you then have 30 days from that date within which to file a notice of appeal."
¶ 6 Counsel filed both a motion to reconsider sentence and a motion to withdraw defendant's guilty plea. In the motion to withdraw guilty plea, counsel made no argument as to why defendant should be allowed to withdraw the plea. The court denied both motions but awarded defendant additional credit for time served. Defendant appeals.
¶ 7 II. ANALYSIS
¶ 8 Defendant first argues that the circuit court erroneously admonished defendant under Illinois Supreme Court Rule 605(b)(2) (eff. Oct. 1, 2001), which applies to nonnegotiated pleas,
instead of Illinois Supreme Court Rule 605(c)(2) (eff. Oct. 1, 2001), which applies to negotiated pleas. Second, defendant argues counsel provided ineffective assistance when she failed to correct the court's improper admonishment and state a reason in defendant's motion to withdraw his guilty plea. We find that the court substantially complied with Rule 605(c)(2) and counsel was not ineffective.
¶ 9 A. Compliance with Rule 605(c)
¶ 10 Following the entry of a negotiated guilty plea, Rule 605(c) requires the court to advise defendant of the Rule 604(d) requirements that must be satisfied to preserve defendant's right to appeal. People v. Jamison, 181 Ill. 2d 24, 27 (1998); Ill. S. Ct. R. 604(d) (eff. July 1, 2017).
¶ 11 Defendant solely argues that the court failed to provide the admonishment set forth in Rule 605(c)(2). Rule 605(c)(2) states "prior to taking an appeal the defendant must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for the motion." Ill. S. Ct. R. 605(c)(2) (eff. Oct. 1, 2001). "When the trial court fails to properly admonish a defendant how to perfect an appeal from a negotiated guilty plea, and defendant fails to follow Rule 604(d), it is appropriate to remand the cause to the trial court for proceedings consistent with Rule 605(c)." People v. Pressey, 357 Ill. App. 3d 887, 890 (2005).
¶ 12 A court may substantially comply with Rule 605(c) so long as the court's admonishment imparts "to a defendant largely that which is specified in the rule, or the rule's 'essence' as opposed to 'wholly' what is specific in the rule." People v. Dominguez, 2012 IL 111336, ¶ 19. An improper admonishment alone will not automatically require a remand. People v. Williams, 344 Ill. App. 3d 334, 338 (2003). Instead, remand or reversal is dependent upon " 'whether real justice has been denied or whether [the] defendant has been prejudiced by the inadequate admonishment.' "
(Emphases in original.) Id. (quoting People v. Davis, 145 Ill. 2d 240, 250 (1991)). We review a court's compliance with supreme court rules de novo. People v. Dismuke, 355 Ill. App. 3d 606, 608 (2005).
¶ 13 We find that the court's admonishments substantially complied with Rule 605(c). The parties agree that defendant entered a negotiated plea. However, the court provided a Rule 605(b) admonishment, which is directed at nonnegotiated pleas. Ill. S. Ct. R. 605(b) (eff. Oct. 1, 2001). The court advised defendant that he could file a motion to reconsider sentence and a motion to withdraw his guilty plea. See Ill. S. Ct. R. 605(b)(2) (eff. Oct. 1, 2001). Due to the nature of defendant's negotiated plea, the court needed to admonish defendant, under Rule 605(c)(2), that he could only file a motion to withdraw his guilty plea and not a motion to reconsider sentence. Ill. S. Ct. R. 605(c)(2) (eff. Oct. 1, 2001). Despite the unnecessary information, the court correctly conveyed the essence of Rule 605(c)(2) to defendant—defendant had the right to file a motion to withdraw his guilty plea and must do so before filing a notice of appeal. Further, the court indicated that if it granted defendant's motion to withdraw his plea, the proceedings would restart, and the dismissed charges would be reinstated. The court continued, "[i]f I deny it, you then have 30 days from that date within which to file a notice of appeal." The court's admonishment advised defendant that he did not have an absolute right to withdraw his guilty plea, and intimated that defendant would need to state a reason for the court to grant such a motion. Therefore, the court substantially complied with the Rule 605(c) admonishment requirement and conveyed the requirements for the negotiated plea.
¶ 14 Even assuming, arguendo, that the court failed to substantially comply with Rule 605(c), the court's incorrect admonishment did not deny defendant real justice. See Williams, 344 Ill. App. 3d at 339 (The appellate court found that the lack of admonishment to file a motion to reconsider
sentence did not prejudice defendant, since defendant's "ability to raise a sentencing issue on appeal was not compromised or limited by the actions of the trial court."). Counsel filed the correct motion—a motion to withdraw his guilty plea—and thus preserved defendant's right to appeal. See Ill. S. Ct. R. 604(d) (eff. July 1, 2017).
¶ 15 B. Ineffective Assistance of Counsel
¶ 16 A defendant is guaranteed "the right to effective assistance of counsel at all critical stages of the criminal proceedings, which include the entry of a guilty plea." People v. Hughes, 2012 IL 112817, ¶ 44. To challenge counsel's effectiveness, a defendant must show: (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. Strickland v. Washington, 466 US. 668, 694 (1984). "A defendant must satisfy both prongs of the Strickland test and a failure to satisfy any one of the prongs precludes a finding of ineffectiveness." People v. Simpson, 2015 IL 116512, ¶ 35. "[W]e may dispose of an ineffective assistance of counsel claim by proceeding directly to the prejudice prong without addressing counsel's performance." People v. Hale, 2013 IL 113140, ¶ 17. A defendant's claim of error alone is insufficient to render counsel's assistance ineffective. People v. Houston, 229 Ill. 2d 1, 4 (2008). "A defendant establishes prejudice by showing that, but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different." Id.
¶ 17 We need not address the deficient performance prong of Strickland as defendant has not satisfied the prejudice prong. See Hale, 2013 IL 113140, ¶ 17. Defendant fails to show how counsel's failure to attempt to correct the court's incorrect admonishment prejudiced him. That is, defendant does not argue how an objection would have changed the result of the proceeding. Moreover, despite counsel's failure to object to the court's misstatement, counsel filed a motion
to withdraw defendant's guilty plea, as required by Rule 604(d) to preserve defendant's right to appeal. See Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Therefore, an objection would not have altered the outcome of this proceeding.
¶ 18 Defendant's contention that counsel failed to provide specific arguments as to why defendant should be allowed to withdraw his guilty plea also fails because defendant does not allege sufficient prejudice. Specifically, defendant does not allege the grounds that counsel should have stated in the motion to withdraw or whether he entered his guilty plea "through a misapprehension of the facts or of the law, or if there is doubt of the guilt of the accused and the ends of justice would better be served by submitting the case to a trial." People v. Pullen, 192 Ill. 2d 36, 40 (2000). We cannot determine from defendant's generic allegations of prejudice whether counsel's allegedly inadequate motion altered the outcome of the proceeding. Therefore, defendant has not satisfied the prejudice requirement necessary for a finding of ineffective assistance of counsel.
¶ 19 III. CONCLUSION
¶ 20 The judgment of the circuit court of Will County is affirmed.
¶ 21 Affirmed.
¶ 22 PRESIDING JUSTICE McDADE, dissenting:
¶ 23 In most criminal cases, the defendant stands before the court unschooled in the procedural technicalities that govern the parties in our adversarial justice system. For that reason, trial judges are required to provide "admonishments" to assist the defendant in understanding what he/she is defending against, in navigating the system, and in realizing the benefits and protections that system affords him or her. Dominguez, 2012 IL 111336, ¶ 15. The admonishments are informational benefits prescribed by the supreme court that flow directly from the trial court to the
defendant. Id. As characterized by the court, "[t]he rules of this court are not suggestions; rather, they have the force of law, and the presumption must be that they will be obeyed and enforced as written. Bright v. Dicke, 166 Ill. 2d 204, 210 (1995)." People v. Campbell, 224 Ill. 2d 80, 87 (2006).
¶ 24 Similarly, a defendant in Unger's position is also entitled to the effective assistance of counsel in navigating the criminal justice system as he defends against the charges alleged against him. Strickland, 466 U.S. at 686.
¶ 25 In this specific case, the trial court's admonitions, first, failed to convey the requirements for the negotiated plea the defendant had entered; second, described an inapplicable motion to reconsider sentence as "first and foremost"; and, third, failed to inform defendant that the motion that was required to be filed had to set out grounds for seeking to withdraw the plea. See Dominguez, 2012 IL 111336, ¶ 15.
¶ 26 The majority finds that the trial court "intimated that defendant would need to state a reason for the court to grant such a motion" (Emphasis added) and concludes that mere intimation constitutes substantial compliance with the requirement of Rule 605(c).
¶ 27 Apparently trial counsel was no more familiar with the correct rule than the court was, missed the fact or the import of the court's intimation, and followed the court's deficient admonishment to the letter. In accord with its instruction, counsel filed both the unnecessary motion to reconsider sentence and the requisite motion to withdraw his guilty plea. The latter—which was not the motion described by the court as "first and foremost"—was submitted omitting any assertion of grounds just as the court had omitted the need for such assertion from its admonishment. And, because the admonition given to defendant had not included the information that grounds were required, he lacked the knowledge to question his counsel about the failure to assert any.
¶ 28 The defendant does not have a right to withdraw a guilty plea whether it is negotiated or not. People v. Walston, 38 Ill. 2d 39, 42 (1967) (" 'Permission to withdraw a plea of guilty and enter a plea of not guilty is a matter within the discretion of the [trial] court ***.' " (emphasis added) (quoting People v. Morreale, 412 Ill. 528, 531 (1952))). A defendant does, however, have a right, recognized in and implemented through supreme court rule, to seek to withdraw such a plea, with an implicit corresponding right to have the request objectively considered and judicial discretion fairly exercised. Ill. S. Ct. R. 605(b) (eff. Oct. 1, 2001); id. § 605(c). The court did not accurately or adequately inform this defendant of his rights in this regard. In addition, the failure of counsel to know and follow the rule's requirement of asserting grounds for withdrawing the negotiated guilty plea fell below an objective standard of reasonableness and cannot be reasonably rehabilitated by recasting it as trial strategy. Moreover, counsel's performance compounded the harmful impact of the court's insufficient admonishment. The trial court (1) was presented with no grounds by counsel, (2) was unable for this reason to address and consider any legitimate grounds defendant might have asserted, and (3) was denied the opportunity to exercise its discretion to validate or reject any grounds. As a result, we have no basis on which to validly assess any likelihood of a different decision on defendant's motion to withdraw his plea had grounds actually been asserted. For us to make a finding, as the majority has done, that defendant has not been prejudiced is pure conjecture and constitutes a further departure from the rule's requirement that essentially swallows it.
¶ 29 Finally, to add insult to injury, when defendant seeks to vindicate the right given him by the supreme court, we impose upon him—the sole relevant party in the courtroom with neither the knowledge nor the duty to discharge it—the obligation to satisfy the burden dropped by both the trial court and defense counsel and we punish him for his inability to do so.
¶ 30 For these reasons, I would: find that the errors of the trial court and defense counsel, whether considered separately or in combination, prejudiced defendant; reverse the denial of defendant's motion; and remand the matter for new proceedings on defendant's motion to withdraw his guilty plea. Supra ¶ 11.