People v. Johnson

2017 IL App (4th) 160920

87 N.E.3d 1073

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Octavius Lorenzo JOHNSON, Defendant–Appellant.

NO. 4–16–0920

Appellate Court of Illinois, Fourth District.

FILED October 31, 2017

Michael J. Pelletier, Jacqueline L. Bullard, and Daaron V. Kimmel, of State Appellate Defender's Office, of Springfield, for appellant.

Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE KNECHT delivered the judgment of the court, with opinion.

¶ 1 Defendant, Octavius Lorenzo Johnson, appeals the denial of his motion to withdraw his guilty plea, arguing for the first time on appeal the trial court relied on improper sentencing factors at his sentencing hearing. Defendant concedes he forfeited his improper-factor argument but argues the error constitutes second-prong plain error. Defendant also asserts, and the State concedes, he is entitled to one additional day of sentence and per diem credit. We reverse defendant's sentence, remand to the trial court for a new sentencing hearing, and direct defendant be awarded one additional day of sentence credit and an additional $5 in per diem credit.

¶ 2 I. BACKGROUND

¶ 3 In November 2014, defendant pleaded guilty to two counts of unlawful delivery of a controlled substance within 1000 feet of a church, a Class 1 felony ( 720 ILCS 570/407(b)(2) (West 2012)) punishable by a prison term of 4 to 15 years ( 730 ILCS 5/5–4.5–30(a) (West 2012)). In exchange for defendant's guilty plea, the State agreed to dismiss seven other charges and recommend a total sentence cap at 13 years' imprisonment. The trial court concurred in the partially negotiated plea agreement and accepted defendant's guilty plea.

¶ 4 At the January 2015 sentencing hearing, the State recommended a 13–year prison sentence in accordance with the negotiated plea agreement, while defense counsel recommended a 6–year prison sentence. The court sentenced defendant to 11 years' imprisonment. To fashion this sentence, the trial court enumerated several mitigating and aggravating factors, reasoning:

"There is, from looking at the factors in mitigation, the only two factors—and to me, they somewhat meld with one another—but it's under the concept that your attorney was talking about, either rehabilitation, which is, what is the likelihood, in essence of your committing additional crimes based upon your current character, your current attitudes and whether or not you've made amends or made changes in your life and lifestyle in order to prevent yourself from committing other crimes."

The court commended defendant for seeking help with his addiction issues and working toward rehabilitation since being in custody. The court went on, stating:

"The factors in aggravation, unfortunately from your perspective, well exceed the factors in mitigation, as I already indicated. I think the conduct threatened serious harm. You did receive compensation, that being for committing the offense, that being of selling drugs. You have a history of prior delinquency or criminal activity, and the best way to summarize that is by referring to the last page of the Pre–Sentence Investigation Report. *** [T]here is a necessity to deter others from committing the same types of crimes, so I'm balancing, in essence, the factors in aggravation and mitigation.

And while I can see the justification for the 13 years by the State, I'm not going to impose that. I'm going to impose a term of 11 years. And so I'm giving you two years' credit off the maximum. The reason I'm doing so is I think you have utilized, in essence, what resources are available to you while you've been in custody in order to try to better yourself and you'll need to continue to use those resources and put your actions behind your words."

The trial court then admonished defendant of his appellate rights and explained defendant must file a motion to withdraw his guilty plea to preserve his right to appeal.

¶ 5 In February 2015, defendant filed a timely pro se postplea motion. In the motion, defendant requested a sentence reduction, arguing his sentence was excessive in light of the progress he had made toward rehabilitation. The trial court set the cause for a hearing and appointed counsel for defendant. At the hearing, the court explained it could not reconsider defendant's sentence because the sentence was imposed pursuant to a negotiated plea agreement. The court then told defendant he must move to withdraw his plea if he wished to challenge his sentence, which, if granted, would take the parties "back to square one." Defendant indicated he wished to move forward with a motion to withdraw his guilty plea.

¶ 6 Defendant's appointed counsel was granted leave to amend his pro se motion for a sentence reduction, and counsel changed the motion into a motion to withdraw defendant's guilty plea. The motion alleged defendant's "plea was not knowing and voluntary." At an August 2015 hearing, the trial court denied defendant's motion to withdraw his guilty plea, finding defendant entered into the plea agreement knowingly and voluntarily. Though the court had taken the position throughout the proceedings it was unable to hear defendant's pro se motion for a sentence reduction because the sentence was imposed pursuant to a negotiated plea agreement, in denying defendant's motion to withdraw his guilty plea, the court stated:

"With respect to reconsideration of the sentence itself, the Court felt at that time, as I do now, that an 11–year sentence was and is appropriate, notwithstanding the defendant's disappointment. As it relates to then the motion to withdraw guilty pleas, as well as the motion to reconsider sentence, each of those motions are denied."

¶ 7 This appeal followed.

¶ 8 II. ANALYSIS

¶ 9 This case presents an intricate procedural question: whether a defendant, who entered into a partially negotiated plea agreement, may challenge his sentence on the basis the trial court relied on improper sentencing factors without withdrawing his guilty plea. The Illinois Appellate Court districts are split on this question. See People v. Palmer–Smith, 2015 IL App (4th) 130451, ¶ 28, 390 Ill.Dec. 466, 29 N.E.3d 95 (holding a defendant need not withdraw his plea in order to challenge the sentence based upon the trial court's reliance on improper sentencing factors); People v. Martell, 2015 IL App (2d) 141202, ¶ 10, 399 Ill.Dec. 215, 46 N.E.3d 253 ("[E]ven when the plea is negotiated, a defendant may move only to reconsider his sentence and may appeal from that judgment—as long as the motion and the appeal are based on something other than a contention that the sentence is merely excessive."); People v. Rademacher, 2016 IL App (3d) 130881, ¶¶ 57–61, 405 Ill.Dec. 719, 59 N.E.3d 12 (disagreeing with Palmer–Smith and Martell and holding such defendants must withdraw their guilty plea if they wish to challenge with their sentence); People v. Dunn, 342 Ill. App. 3d 872, 881, 277 Ill.Dec. 131, 795 N.E.2d 799, 806–07 (2003) (First District, indicating a defendant must withdraw his guilty plea to challenge his sentence imposed pursuant to a negotiated plea agreement); People v. Richard, 2012 IL App (5th) 100302, ¶ 24, 361 Ill.Dec. 35, 970 N.E.2d 35 (concluding "a sentence entered pursuant to a negotiated guilty plea cannot be directly challenged as excessive; instead, a motion to withdraw must first be filed" (emphasis added)).

¶ 10 Defendant asserts this court may consider his improper-factors argument because he is not arguing his sentence was excessive and this case is properly before this court on the denial of his motion to withdraw his guilty plea, citing Palmer–Smith, 2015 IL App (4th) 130451, ¶ 28, 390 Ill.Dec. 466, 29 N.E.3d 95. The State argues our Palmer–Smith decision was based upon an erroneous interpretation of Evans, Linder, and the subsequently amended language of Illinois Supreme Court Rule 604(d) (eff. Dec. 11, 2014), and it urges us to adopt the reasoning of the Third District in Rademacher. In support, the State argues Illinois Supreme Court Rules 605(b) and (c) (eff. Oct. 1, 2001), when construed in pari materia with Rule 604(d), confirm the motion-to-reconsider-sentence provisions do not apply when the plea was negotiated.

¶ 11 Defendant concedes he forfeited his improper-factor argument by failing to include it in his pro se motion for a sentence reduction or his amended motion to withdraw his guilty plea. Defendant requests plain-error review, asserting the trial court's reliance on improper sentencing factors constitutes second-prong plain error. Alternatively, defendant requests the rules of forfeiture be relaxed because (1) the filing of a proper motion to reconsider his sentence by appointed counsel would have fallen on "deaf ears" (see People v. Thompson, 238 Ill. 2d 598, 612, 345 Ill.Dec. 560, 939 N.E.2d 403, 412 (2010) ), given the trial court's admonishments, or (2) his appointed counsel was ineffective for failing to properly amend his pro se motion for a sentence reduction and assert his improper-factor argument. The State does not respond to defendant's forfeiture arguments or refute defendant's argument the trial court relied on improper sentencing factors.

¶ 12 Finally, defendant asserts, and the State concedes, he is entitled to one additional day of sentence and per diem credit.

¶ 13 A. Defendant's Argument That the Trial Court Relied Upon Improper Sentencing Factors

¶ 14 Because we must resolve a Rule 604(d) procedural question, we will begin our analysis with a discussion of Rule 604(d) and the relevant case law shaping the application of the rule.

¶ 15 1. Rule 604(d)

¶ 16 a. Supreme Court Precedent

¶ 17 Prior to the supreme court's decision in People v. Evans, 174 Ill. 2d 320, 220 Ill.Dec. 332, 673 N.E.2d 244 (1996), Rule 604(d) did not distinguish between open and negotiated plea agreements. At the time, the rule...