People v. Marshall

886 N.E.2d 1106

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eric MARSHALL, Defendant-Appellant.

No. 1-06-0032.

Appellate Court of Illinois, First District, First Division.

March 31, 2008.

Michael J. Pelletier, Deputy Defender, and Emily S. Wood, Asst. Appellate Defender, Office of the State Appellate Defender, Chicago, IL, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago, IL (James F. Fitzgerald, Michelle Katz, and Daniel Griffin, Asst. State's Attorneys, of Counsel), for Appellee.

Presiding Justice CAHILL delivered the opinion of the court:

Defendant Eric Marshall appeals the dismissal of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)). In 2000, defendant pled guilty to one count of armed violence in exchange for a seven-year prison sentence. His conviction and sentence were affirmed on direct appeal. People v. Marshall, No. 1-00-3698, 335 Ill.App.3d 1189, 297 Ill.Dec. 205, 836 N.E.2d 936 (November 12, 2002) (unpublished order under Supreme Court Rule 23 (166 Ill.2d R. 23)).

In 2003, defendant filed a petition under the Act, claiming he did not receive the "benefit of his bargain" when a three-year term of mandatory supervised release was added to the seven-year prison term he had accepted in a plea agreement. See 730 ILCS 5/5-8-1(d)(1) (West 2000) (in general, every sentence for a Class X felony must include a sentence of three years' mandatory supervised release in addition to a prison term). Defendant's petition survived the first stage of postconviction proceedings. 725 ILCS 5/122-2.1(a)(2) (West 2002). It was dismissed at the second stage on the State's motion. 725 ILCS 5/122-2.1(b) et seq. (West 2002). Defendant appeals. We affirm but vacate the $90 fee assessed to defendant under section 22-105 of the Code of Civil Procedure (Code) (735 ILCS 5/22-105 (West 2004)) (frivolous lawsuits filed by prisoners).

Defendant was arrested in 1999 after police found a loaded gun under the car he was driving and 15 packets of cocaine on his person. Marshall, slip op. at 2. In pretrial proceedings on March 8, 2000, Leonard Schultz, defendant's retained counsel, requested a plea conference under Supreme Court Rule 402 (177 Ill.2d R. 402). The trial judge asked defendant: "[Do you] want me to have the [plea] conference with your attorney?" Defendant answered, "Yes." After the conference, Schultz said: "I have communicated the results of the conference. My client would like an opportunity to think about the offer made by the State." The matter was continued until April 19, 2000, when the following took place:

"MR. SCHULTZ: [The court] yesterday [on April 18, 2000] graciously offered seven years in return for a plea. I believe [defendant] is ready to do that at this time.

I am asking him now to execute the appropriate waivers in light of his decision.

Is that right?

[DEFENDANT]: I want a continuance.

MR. SCHULTZ: Judge, my client just said to me he wanted a continuance.

For what reason, exactly?

[DEFENDANT]: To think.

MR. SCHULTZ: * * *

Judge, my client is asking the Court to have a couple more days or a day * * * to consider his decision.

THE COURT: I'm setting the matter for trial.

MR. SCHULTZ: Okay, Judge.

THE COURT: Nobody will force Mr. Marshall to do anything. But I've given him a lot of time to think of what he wants to do in this matter.

So, if you don't want to do it today we will set it down for trial. That's the way the matter will be disposed of.

Pick a date, Mr. Schultz.

[DEFENDANT]: All right. Go ahead.

MR. SCHULTZ: * * * My client has just indicated that it's his desire and a very wise choice to take advantage of the offer that the Court has given him.

* * *

THE COURT: Mr. Marshall, there was a conference about your case the other day and we continued it.

Have you had a chance to talk to your attorney about that conference and what we talked about in the conference?

[DEFENDANT]: Yes.

THE COURT: * * *

I have before me a charge of armed violence.

How do you plead—guilty or not guilty?

[DEFENDANT]: Guilty.

THE COURT: This is what is called a Class X felony. Now the sentence on this charge * * * goes from a period in the penitentiary from 6 years up to 30 years.

You could be fined or you could get a penitentiary sentence and have to serve a period of three years['] mandatory supervised release, which is like parole, when you get out of the penitentiary.

Those are the different types of sentences and the range of sentences you can get for this charge.

* * *

Do you understand that?

[DEFENDANT]: Yes.

THE COURT: When you plead guilty you give up your right to any type of trial, either jury or bench.

* * *

THE COURT: By signing this piece of paper that means you don't want a jury trial in the matter; is that right?

[DEFENDANT]: Yes.

THE COURT: * * *

[When you plead guilty you] also give up your right * * * to bring in your own witnesses to testify for you * * *.

When you plead guilty you give up all those rights.

Do you understand that?

[DEFENDANT]: Yes.

* * *

THE COURT: [O]ther than what I told you I would sentence you to in the conference I had with your attorney and the State's Attorney[,] has anyone promised you anything else, has anybody forced you to plead guilty today?

[DEFENDANT]: No.

THE COURT: Find the plea of guilty is knowingly and voluntarily given and accepted. Finding of guilty. Judgment on the finding.

* * *

THE COURT: [A]nything you want to say before I impose sentence? * * *

[DEFENDANT]: No.

THE COURT. Okay. Based [on] the facts of the case, also your prior history of criminal behavior * * * I'm going to sentence you * * * to a term of seven years [with the] Illinois Department of Corrections."

On May 11, 2000, defendant moved to vacate his plea, claiming trial counsel: (1) failed to contact exculpatory witnesses; (2) "became lazy" when counsel failed to obtain an additional $10,000 from defendant's family; and (3) coerced defendant by threatening a 25-year sentence unless he pled guilty. The trial court appointed Colleen Koch, assistant Public Defender, as postplea counsel. At proceedings on July 25, 2000, Koch said: "I have spoken with [defendant] extensively. I spoke with one of his witnesses right now." The witness was defendant's girlfriend Crystal Baggett. Koch also filed a certificate under Supreme Court Rule 604(d) (210 Ill.2d R. 604(d)), stating she had consulted with defendant to determine his contentions of error as to the plea, examined the trial court record and made amendments to defendant's motion. Koch moved to admit the affidavits of Donnell Black and Laron Smith, who stated defendant had been arrested while merely sitting in a parked car. The judge allowed these documents entered in the case file but found they were not true affidavits as they were not notarized or in proper form.

At the hearing on defendant's motion to vacate the plea, defendant said Schultz failed to investigate or call his exculpatory witnesses and coerced him by saying the judge would not believe the witnesses. Defendant said he had wanted a continuance, but "it seemed like I couldn't get one." Defendant said he thought accepting seven years was "playing it safe," but he had second thoughts after a discussion with Baggett. Defendant admitted on cross-examination that he was not forced to accept the plea and he could have had a trial. Defendant admitted the transcript of the plea hearing was correct where it showed that the judge said: "You could be fined or you could get a penitentiary sentence and have to serve a period of three years['] mandatory supervised release * * *." (Emphasis added.)

Schultz also testified. He said the Rule 402 conference happened over a period of time, beginning on March 8, 2000, and continuing on April 18 and 19, 2000. Schultz said he discussed the results with defendant in detail at each juncture. Schultz denied telling defendant the police would be believed over defendant's witnesses. He denied telling defendant the witnesses refused to testify. Schultz admitted he did not subpoena the witnesses.

The trial court denied defendant's motion to vacate his plea, finding it was knowing and voluntary. The court found defendant had not suffered ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Defendant argued on direct appeal: (1) the factual basis for the charge of armed violence was inadequate; (2) defense counsel was ineffective for failing to argue an insufficient factual basis; and (3) the consecutive sentences violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Marshall, slip op. at 1. As noted, we affirmed. Marshall, slip op. at 4.

Defendant filed a pro se postconviction petition on April 17, 2003, claiming violations of his rights under the fifth, sixth and fourteenth amendments to the United States Constitution. He argued that postplea counsel: (1) failed to challenge the factual basis for the plea; (2) failed to investigate; and (3) had a conflict of interest. He argued that appellate counsel was ineffective for failing to argue: (1) the police lacked probable cause; (2) he was not advised of his rights under Miranda; (3) the evidence was insufficient to support a conviction of armed violence; and (4) the prosecution withheld evidence favorable to him. Defendant later filed pro se supplements to this petition, adding claims of constitutional violations: (1) three years of mandatory supervised release exceeded the terms of his plea agreement; and (2) he was not properly admonished under Supreme Court Rule 402 (177 Ill.2d R. 402) before the trial court accepted his guilty plea.

The trial court granted defendant's motion to appoint postconviction counsel. Defendant then moved to proceed pro se, claiming appointed counsel had declined to argue the grounds defendant wanted. Counsel later filed a certificate under Supreme Court...