People v. Melvin

229 N.E.3d 292

2023 IL App (4th) 220405

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

v.Bruce A. MELVIN, Defendant-Appellant.

NO. 4-22-0405

Appellate Court of Illinois, Fourth District.

Filed March 24, 2023

Rehearing Denied April 11, 2023

Appeal from the Circuit Court of Livingston County, No. 21CF94, Honorable Jennifer H. Bauknecht, Judge Presiding.

James E. Chadd, Catherine K. Hart, and Gregory G. Peterson, of State Appellate Defender’s Office, of Springfield, for appellant.

Randy Yedinak, State’s Attorney, of Pontiac (Patrick Delfino and David J. Robinson, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

PRESIDING JUSTICE DeARMOND delivered the judgment of the court, with opinion.

¶ 1 In February 2022, defendant, Bruce A. Melvin, pleaded guilty to distribution of harmful material, a Class 4 felony (720 ILCS 5/11-21(g) (West 2020)), and sexual exploitation of a child, a Class A misdemeanor (720 ILCS 5/11-9.1(2) (West 2020)). The plea agreement provided defendant would receive a sentence of 18 months in the Illinois Department of Corrections (DOC) with credit for 803 days served in pretrial detention and no mandatory supervised release (MSR), which would run consecutively to defendant’s sentence in case No. 19-CF-9 (10 years in DOC followed by 18 months’ MSR). Defendant moved to withdraw his guilty plea when DOC calculated his credit for time served to be 199 days not 303. The trial court denied the motion. Defendant and DOC eventually resolved the discrepancy, and defendant received the credit for 303 days; nevertheless, defendant now challenges his convictions and sentence on different grounds.

¶ 2 On appeal, defendant raises four issues: (1) his sexual-exploitation-of-a-child conviction is void and must be vacated because the State’s factual basis did not sufficiently establish "virtual presence"; (2) his convictions for distribution of harmful materials and sexual exploitation of a child violate the one-act, one-crime rule because they arise from a single act, so the lesser offense must be vacated; (3) the trial court erred in denying defendant’s motion to withdraw his guilty plea because the State offered an inadequate factual basis for the plea and the court erroneously informed defendant he would not serve MSR; and (4) the court’s written order certifying both convictions required defendant to register as a sex offender must be corrected because distribution of harmful materials does not require registration. We agree with defendant’s final argument but otherwise affirm the court’s judgment.

¶ 3 I. BACKGROUND

¶ 4 In April 2021, by way of information, the State charged defendant with two counts: distribution of harmful material, a Class 4 felony (count I) (720 ILCS 5/11-21(g) (West 2020)), and sexual exploitation of a child, a Class A misdemeanor (count II) (720 ILCS 5/11-9.1(2) (West 2020)). The charges arose from an exchange defendant had on Facebook with an account named "Brit Mae," on March 10, 2021. Believing (and confirming) he was communicating with a 16-year-old female, defendant engaged "Brit Mae" in a lecherous conversation and sent her "four pictures depicting himself[ ] [in] various stages of undress in a mirror." He took and sent the pictures with a cell phone, and each picture displayed defendant’s penis, which was sometimes erect or sometimes in his hand. Count I specifically alleged "defendant exhibited to a person he believed to be a minor, photographs, which taken as a whole, is harmful to minors and manufactured said photographs by use of [a] cellular phone." Count II alleged "defendant, in the virtual presence of and with knowledge that a child or one whom he or she believed to be a child would view his act, *** exposed his penis, for the purpose of sexual gratification or arousal of such person or one whom he believes to be a child."

¶ 5 Defendant and the State entered into a plea agreement and presented it to the trial court in a February 24, 2022, hearing. Addressing defendant directly, the court asked if he had any complaints about his attorney in this case, and defendant answered no. The court confirmed defendant discussed the guilty plea with his attorney, which he did. The court then summarized the plea, stating:

"And my understanding is you are pleading guilty today to Count 1. That is a Class 4 felony distribution of harmful material. And Count 2 is a Class A misdemeanor sexual exploitation of a child.

And in exchange for pleading guilty to those two charges, you have agreed to a term of one and a half years in [DOC]. There would be no MSR on that because it’s the Class 4 felony, I guess a conviction on Count 2. That will run consecutive to the sentence you are currently serving in 19-CF-9, and you have credit for 303 days served. So I think basically as far as this case goes it would be kind of an in and out kind of thing by the time you get your good time and all that with your 303 days and then the other six month good conduct credit."

The court then noted defendant would "have to register as a sex offender" based on count II, the sexual exploitation of a child. The court tasked the parties with determining whether count I would also require defendant to register, and both eventually indicated they believed it would.

¶ 6 The trial court next advised defendant of the rights he was waiving by entering into a plea agreement, informed him of the penalty range, and confirmed defendant entered his guilty plea knowingly and voluntarily. After defendant stated he still wished to plead guilty, the court asked for a factual basis and the State offered the following:

"On March 10th 2021, this Defendant was privately messaging a Facebook page titled Brit Mae. This is a page operated by the Livingston County Proactive Unit and purported to be an underage female.

In the conversation, it was confirmed that this minor the Defendant was talking to was 16 years old. Lewd conversations ensued wherein this Defendant did send four photos. These photos depicted him in stages of undress including with his penis showing as well as with his penis within a hand as well as a picture containing both his undressed self as well as his face."

Defense counsel stipulated to the factual basis, saying "if this case were to proceed to trial the State would be able to produce witnesses and evidence to substantially support the allegations." The court found a factual basis for the plea, accepted defendant’s guilty plea, and sentenced him according to the parties’ agreement. The court’s written judgment set defendant’s sentence on count I (distribution of harmful material) as 18 months in DOC with credit for 303 days served to be served consecutive to his sentence in case No. 19-CF-9. The court issued an order and certification of defendant as a sex offender, which noted "[d]efendant has been convicted of the following felony [and misdemeanor] offense(s) as described in 730 ILCS 150/2: Distribution [of] Harmful Material (Class 4) and sexual exploitation of [a] child (Class A)."

¶ 7 On March 25, 2022, defendant filed a pro se motion to withdraw guilty plea, claiming he was "not being given the benefit of the deal [he] entered [into] with the judge, [his] lawyer, and the State, as IDOC refuses to recognize the days awarded in the judgment order to IDOC." The trial court entered a modified judgment withdrawing the dates for time-served, but it did not affect DOC’s calculation for defendant’s credit time. A month later, defense counsel filed a motion to withdraw guilty plea and vacate the judgment. It incorporated defendant’s pro se motion but also alleged defendant "believes he is innocent of the charges against him, and wishes to proceed to trial." In a May 16, 2022, hearing, the parties argued defense counsel’s motion and focused solely on DOC’s calculation of defendant’s time credit. The court denied the motion, finding the calculation of a defendant’s "out-date" and time credit falls to DOC "and that’s certainly not a basis to withdraw a plea of guilty."

¶ 8 This appeal followed.

¶ 9 II. ANALYSIS

¶ 10 Defendant challenges his convictions and sentence on four grounds: (1) his conviction for sexual exploitation of a child is void and must be vacated because the State’s factual basis did not (and cannot) establish "virtual presence" as a matter of law; (2) his convictions arise from a single act (sending photos) and, therefore, violate the one-act, one-crime rule, which means the conviction for sexual exploitation of a child must be vacated since it is the lesser offense; (3) alternatively, the trial court should have granted defendant’s motion to withdraw guilty plea because the factual basis failed to establish an offense occurred and the court misinformed defendant about MSR; and (4) since the distribution-of-harmful-material offense does not require defendant to register as a sex offender, the court’s certification should be corrected. We will take each issue in turn.

[1–5] ¶ 11 We pause to note defendant forfeited these issues for appeal because he did not raise them contemporaneously, nor did he raise them in his motions to withdraw the guilty plea. People v. Wishard, 396 Ill. App. 3d 283, 286, 336 Ill.Dec. 193, 919 N.E.2d 1118, 1120 (2009); People v. Kiefel, 2013 IL App (3d) 110402, ¶ 16, 369 Ill.Dec. 596, 986 N.E.2d 1232. But forfeiture binds only the parties, not the reviewing court. See People v. Jackson, 2017 IL App (1st) 151779, ¶ 20, 418 Ill.Dec. 771, 91 N.E.3d 472. Indeed, we may review an unpreserved error for plain error in certain circumstances. People v. Thompson, 238 Ill. 2d 598, 613, 345 Ill.Dec. 560, 939 N.E.2d 403, 412 (2010) (citing People v. Averett, 237 Ill. 2d 1, 18, 340 Ill.Dec. 180, 927 N.E.2d 1191, 1201 (2010)). Defendant believes his circumstances warrant plain-error analysis. "In plain-error review, the burden of persuasion rests with the defendant." Thompson, 238 Ill. 2d at 613, 345 Ill.Dec. 560, 939 N.E.2d 403. We will apply the...