People v. Brown

2020 IL App (4th) 180613-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY W. BROWN, Defendant-Appellant.

NO. 4-18-0613

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

January 3, 2020

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 Macon County

No. 10CF1857

Honorable Jeffrey S. Geisler, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

Presiding Justice Steigmann and Justice Cavanagh concurred in the judgment.

ORDER

¶ 1 Held: Appellate counsel's motion to withdraw is granted and the trial court's judgment is affirmed.

¶ 2 Defendant, Gary W. Brown, pleaded guilty to aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2010)) and, pursuant to a negotiated plea agreement with the State, was sentenced to 15 years in prison. He appeals the trial court's denial of an amended motion to withdraw his guilty plea and vacate his waiver of his right to a jury trial.

¶ 3 On appeal, the Office of the State Appellate Defender (OSAD) was appointed to represent defendant. OSAD has filed a motion to withdraw as appellate counsel, citing Pennsylvania v. Finley, 481 U.S. 551 (1987), and alleging there are no potentially meritorious issues for review. Because this appeal involves a direct appeal from the trial court's judgment and not a postconviction collateral attack, we characterize OSAD's motion to withdraw as one brought pursuant to Anders v. California, 386 U.S. 738 (1967), rather than Finley. Additionally, we grant OSAD's motion and affirm the trial court's judgment.

¶ 4 I. BACKGROUND

¶ 5 In December 2010, the State charged defendant with two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2010)) (counts I and II), one count of aggravated battery (id. § 12-4(b) (8)) (count III), and one count of burglary (id. § 19-1 (a)) (count IV). In connection with the criminal-sexual-assault counts, the State alleged that while displaying a dangerous weapon, i.e., a hammer with rubber ends, defendant twice placed his sex organ in the sex organ of the victim, T.T. In August 2011, the State filed a petition to have defendant declared a sexually dangerous person under the Sexually Dangerous Persons Act (725 ILCS 205/0.01 et seq. (West 2010)).

¶ 6 In April 2013, defendant pleaded guilty to one count of aggravated criminal sexual assault (count I) pursuant to a negotiated plea agreement with the State. In exchange for his guilty plea, the parties agreed defendant would receive a 15-year prison sentence and that the State would dismiss both the remaining charges against defendant (counts II, III, and IV) and its petition to have defendant declared a sexually dangerous person. At the plea hearing, the trial court admonished defendant regarding the rights he would be giving up by pleading guilty, that the applicable sentencing range was 6 to 60 years due to defendant's prior criminal history, that "there would also be a Mandatory Supervised Release [(MSR)], or parole term, of an indeterminate 3 years to natural life," and that defendant's sentence was "an 85[%] sentence by law." Defendant asserted he understood each of the court's admonishments and wished to plead guilty.

¶ 7 The State presented a factual basis that T.T. would testify, on December 18, 2010, she was speaking with defendant when he "indicated he *** wanted to have sexual intercourse with her." T.T. refused and "struggled to get away." The two "ended up" in a vehicle where defendant struck T.T. on the head with a hammer. T.T. was incapacitated and "in a great deal of pain" but did not lose consciousness. After striking T.T. with the hammer, defendant engaged in an act of sexual intercourse with her inside the vehicle. The State asserted its evidence would also show that forensic testing on samples taken from T.T.'s vaginal area were a deoxyribonucleic acid (DNA) match to standards taken from defendant. It further represented that the police searched the vehicle defendant had been using at the time of the offense and found a hammer that was consistent with T.T.'s description of the hammer defendant used. Additionally, a physical examination of T.T. showed a laceration on her head that was consistent with her being struck by an object and "scuff marks and scratches" on her body that were consistent with a struggle.

¶ 8 On further questioning by the trial court, defendant asserted his counsel had answered any questions he had about the case to his satisfaction; he was pleading guilty of his own free will; he had no questions regarding the charges against him, his rights, the possible sentences, or anything else; and he wanted to continue to plead guilty. The court then accepted defendant's plea, finding it was knowingly and voluntarily made, and sentenced him to 15 years in prison with an "indeterminate [MSR term of] from 3 years to natural life."

¶ 9 In May 2013, defendant filed a pro se motion to withdraw his guilty plea and vacate his sentence. He alleged his attorney, Howard R. Baker, provided ineffective assistance of counsel; he did not fully understand that he could be determined to be "a sexually dangerous person" in the future and "do more time" after serving his 15-year prison sentence; and that he did not understandthe trial court's MSR admonishments. The same month, defendant's attorney filed a second motion to withdraw plea and vacate sentence on defendant's behalf. Defendant's claims in connection with that motion essentially reiterated the claims of his pro se filing, except for his claim alleging Baker's ineffectiveness.

¶ 10 In October 2013, the trial court conducted a hearing in the matter. Defendant testified that when pleading guilty, he did not understand that his MSR term could be for an indeterminate length of time from three years to life. He stated he did not understand the word "indeterminate" and would not have agreed to plead guilty had he understood that "parole could be for life." Defendant also testified that he did not understand "the possibility of being found to be sexually violent" and, if he had, he would not have pleaded guilty. On cross-examination, defendant maintained that he did not ask the trial judge what "indeterminate" meant because "[i]t didn't cross [his] mind." He also acknowledged that he had discussions with Baker about the possibility of commitment as a sexually violent person. However, defendant asserted that he did not understand what Baker was telling him. Specifically, he did not understand that his confinement could be prolonged.

¶ 11 Ultimately, the trial court denied defendant's request to withdraw his plea and vacate his sentence and he appealed. On appeal, defendant argued the court improperly failed to conduct a Krankel inquiry (People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984)) into his pro se postplea claims of ineffective assistance of counsel and the State conceded the issue. People v. Brown, 2015 IL App (4th) 130905-U, ¶ 16. This court accepted the State's concession and remanded the matter to the trial court so that it could conduct an inquiry into defendant's pro se claims. Id. ¶ 19.

¶ 12 On remand, a new attorney, Scott A. Rueter, was appointed to represent defendant. In March 2017, with Rueter's assistance, defendant filed an amended motion to withdraw his guilty plea and vacate his jury trial waiver. Defendant alleged (1) his jury trial waiver was not voluntarily or knowingly executed because Baker did not inform defendant of the ramifications or consequences of his waiver; (2) his guilty plea was not voluntarily or knowingly entered "because defendant felt he had no option but to enter a plea of guilty based upon the representations made to him by" Baker; (3) Baker did not inform defendant that he faced the possibility of commitment as a sexually violent person after serving his 15-year prison sentence; and (4) Baker did not adequately inform defendant regarding MSR, causing defendant not to understand the trial court's MSR admonishments.

¶ 13 In June 2017, the trial court conducted a hearing on defendant's amended motion. Defendant testified on his own behalf that at the time he pleaded guilty, he was not aware that he could be committed as a sexually violent person after serving his 15-year sentence in the Illinois Department of Corrections (DOC). According to defendant, Baker represented to him that if his case went to trial, he "could be committed" but, if he pleaded guilty, "then whatever the plea agreement was, that would be it." Defendant asserted he would not have pleaded guilty if he had known that he "could be committed as a sexually violent person."

¶ 14 Defendant also asserted that at the time he pleaded guilty, he did not understand what was being said about MSR. He acknowledged that the trial court advised him that his MSR term could be "anywhere [from] three years to natural life." However, the court used the word "indeterminate," which defendant asserted he did not understand. Defendant also testified that Baker did not discuss MSR with him and had not informed him of the "possibility of up to life inparole." Again, defendant stated he would not have pleaded guilty if he had known that he faced the possibility of an MSR period of natural life.

¶ 15 The State elected not to cross-examine defendant or present evidence, believing that State participation in the proceedings would be improper because the matter had been remanded for a Krankel inquiry into what were, originally, defendant's pro se ineffective-assistance-of-counsel claims. The trial court then called Baker as the court's own witness. Baker testified that he met with defendant numerous times regarding the petition the State filed to have him declared a sexually dangerous person. He asserted he explained "what that meant" to defendant several times and that it was "basically indeterminate time of imprisonment or in a hospital...