People v. Maxey

49 N.E.3d 507

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Lamarr MAXEY, Defendant–Appellant.

No. 1–14–0036.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 31, 2015.

Rehearing Denied Jan. 28, 2016.

Michael J. Pelletier, Patricia Mysza, and Jonathan Krieger, all of State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Michelle Katz, and John J. Sviokla II, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice GORDON delivered the judgment of the court, with opinion:

¶ 1 Defendant Lamarr Maxey pled guilty to attempted aggravated robbery and was sentenced to 11 years with the Illinois Department of Corrections (IDOC).

¶ 2 On this direct appeal, defendant asks us to vacate as void a prior bond order. Specifically, defendant argues that the trial court erroneously placed him on bond during a prior appeal by the State, although Illinois Supreme Court Rule 604(a)(3) provides that “[a] defendant shall not be held in jail or to bail during the pendency of an appeal by the State.” Ill. S.Ct. R. 604(a)(3) (eff. Dec. 11, 2014).¹ As a result of this order, defendant received consecutive sentences in another case. Section 5–8–4(d)(8) of the Unified Code of Corrections (Code) provides that, “[i]f a person charged with a felony commits a separate felony while on pretrial release * * * then the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.” 730 ILCS 5/5–8–4 (West 2014).

¶ 3 Defendant asks us to declare the prior bond order void and to vacate the consecutive sentences entered in the other case, which is not before us on this appeal. For the following reasons, we do not find defendant's arguments on this issue persuasive.

¶ 4 In the alternative, defendant asks us to allow him to withdraw his guilty plea in the case at bar, because it was allegedly based on a misunderstanding that his guilty plea would not prevent him from subsequently challenging the prior bond on appeal. Again, for the reasons explained below, we are not persuaded by defendant's argument.

¶ 5 Lastly, defendant asks us to correct the mittimus to reflect the 1,045 days of credit served. In response, the State asks us to reduce the days of credit to 951 days. Pursuant to our supreme court's decision issued last month in People v. Castleberry, 2015 IL 116916, 398 Ill.Dec. 22, 43 N.E.3d 932, we must deny the State's request. We do order the mittimus corrected to reflect the trial court's order.

¶ 6 BACKGROUND

¶ 7 Since the issue before us is purely procedural, we provide here the procedural history of the case below.

¶ 8 After being indicted for attempt aggravated robbery, defendant filed a motion to quash arrest and suppress evidence. After an evidentiary hearing, the trial court granted defendant's motion on October 7, 2009. On November 4, 2009, the parties appeared in court and the State indicated its intent to file, on the same day, a certificate of substantial impairment and notice of appeal. Defense counsel “object[ed] to the filing of that” and also “ask[ed] for an appeal bond because * * * this [could] take[ ] two years while it pends.” The parties then agreed to a continuance to November 10, 2009. As it stated it would do, the State filed both a notice of appeal and a certificate of substantial impairment on November 4, 2009.

¶ 9 On November 10, 2009, the parties agreed to another short continuance, and appeared again on November 24, 2009. The State argued that the trial court lacked jurisdiction to reconsider its ruling on defendant's motion, and that the appeal had to proceed. Defense counsel responded: “I would ask you to set that $10,000 I-bond,^{[ 2 ]} as this case could linger for several years before ultimately being resolved in Mr. Maxey's favor and it is punitive to hold him in custody while waiting that verdict.”

¶ 10 Defense counsel then paraphrased Illinois Supreme Court Rule 604(a)(3) (eff. Dec. 11, 2014), stating: “The defendant shall not be held in jail or to bail during pending [sic ] a pendency of an appeal by the State or of a petition or appeal by the State under Rule 315 A, unless there are compelling reasons for his or her continued detention or being held for bail.”

¶ 11 The assistant State's Attorney (ASA) then responded: “I think I gave you compelling reasons.” However, the trial court held: “I don't think so.” The court then instructed defense counsel: “Draft the order.” To which, defense counsel responded: “Yes, sir.”

¶ 12 The half-sheet entry for November 24, 2009, states: “PD (Vern) State Files Certificate of Impairment nunc pro tunc 11/01/09[.] [B]ail set at $10,000 I Bond # 6698202 off call.” An order, dated November 24, 2009, also stated: “Bail set at $10,000 I Bond # 6698202.”

¶ 13 While the State's appeal was pending, defendant was arrested in another case (No. 11 CR 07414–01). On May 27, 2011, this court reversed the trial court's grant of defendant's motion to quash and suppress evidence and remanded for further proceedings in the case on appeal before us (No. 08 CR 20482). People v. Maxey, 2011 IL App (1st) 100011, 350 Ill.Dec. 963, 949 N.E.2d 755. On December 20, 2012, after a bench trial, defendant was found guilty in case No. 11 CR 07414–01 of aggravated fleeing and eluding and residential burglary.³ The sentencing was scheduled for a later date.

¶ 14 Prior to defendant's sentencing in case No. 11 CR 07414–01, the parties appeared in court in case No. 08 CR 20482 on January 10, 2013, and defense counsel filed a motion to vacate the bond in case No. 08 CR 20482, which had been entered several years earlier in 2009. The trial court denied the motion, holding: “I do not think that Rule 604 * * * requires, quote, compelling reasons, unquote, for someone to be held on an I-bond or on a recognizance bond.”

¶ 15 The trial court further stated: “And pending resolution of this case, if it comes up to argue this again, should he be found guilty of this offense, you can make whatever argument you see fit on his behalf, but I agree you are entitled to have a decision now in order to make whatever decisions you want to make hereafter.”

¶ 16 Then the parties proceeded to discuss the pending plea offer from the State and defendant's pending suppression motion. The trial court described the State's plea offer of 11 years as “extremely generous,” in light of the 6 to 30 year sentencing range and defendant's lengthy criminal history. Defense counsel stated that defendant wanted to know if they could proceed on the suppression motion and then, if it was denied, could he still accept the State's plea offer of 11 years. The court responded: “If he wants the 11, he can have the 11 right now. If he wishes to reject the 11, and you're absolutely entitled to reject the 11, but we are going to fish or cut bait, which means we're going to make a decision.”

¶ 17 The parties went off the record and then the following colloquy between defendant and the trial court ensued on the record:

“DEFENDANT: Your Honor, I just feel like, you know, the caselaw and everything, you know, based on Supreme Court Rule 604(a)(3), you know, I was supposed to be released unconditionally. I mean, bail is bail, you know.

And as [the other trial judge] stated on the 24th of November when he let me go, he said—[ASA] asked a compelling reason. He said I don't think so. I mean, you read the transcript. You know, I'm saying absent a compelling reason, you know, I was entitled to unconditional release under [Rule] 604(a)(3). And I feel like—you know, I understand that I was out on bond and—I mean, I was out on bond, but if I got my unconditional release, I wouldn't have—you know, I wouldn't be out on bond. So that's why I just don't feel like, you know, a consecutive sentence is in order, you know, based on the fact that I was out on a bond that I shouldn't have been out on, you know.

THE COURT: I appreciate that, that is the effect of the ruling. I got that, Mr. Maxey. I didn't not take that seriously. I understand fully its importance—

DEFENDANT: I want to also—

THE COURT: Go ahead.

DEFENDANT: I also want to ask, you know, by me pleading guilty, is this issue moot now? I mean, can I under [sic ] blame error of the Supreme Court Rules—I mean, am I able to bring this back up? Because I feel this is a plain error that I was released on bond in the first place. I mean, the Supreme Court Rule, it's clear. They say unless compelling reasons, and the burden was on the State to submit these compelling reasons. The Judge ruled. And you read the transcript. He said no compelling reason, I don't think so. I mean, those are the exact four words he spoke, I don't think so. [ASA] asked him, your Honor, I think, based on the transcripts, she said I offered compelling reasons. [The other trial judge] pointblank said I don't think so.

So I'm saying there were no compelling reasons at the time. So based upon no compelling reasons at the time, why am I out on bond if the rule is clear, you know? Not to be held to bail or held pending, you know, unless a compelling reason—compelling reasons exist. It's just the plain language of the statute—I mean, the rule suggests that I wasn't supposed to be held—I wasn't supposed to be held to bail.

THE COURT: I'm not going to give you legal advice about what course you want to take. If you plead guilty, if I accept the plea of guilty and make a finding that it is voluntarily, freely and knowingly made, I anticipate I will go along with the sentencing recommendation that I made, which was 11 years in the Illinois Department of Corrections for this offense.

I am not making it consecutive to any other sentence, because there is no other sentence that you're serving at this time. So I can't say that this sentence will be consecutive to some other sentence. I don't do that. You're not serving some other sentence at this time that I will say this sentence will

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