People v. Page

2022 IL App (4th) 210374

222 N.E.3d 259

469 Ill.Dec. 46

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

v.Robert A. PAGE, Defendant-Appellant.

NO. 4-21-0374

Appellate Court of Illinois, Fourth District.

Filed October 24, 2022

James E. Chadd, Douglas R. Hoff, and Stephanie T. Puente, of State Appellate Defender's Office, of Chicago, for appellant.

Gregory Minger, State's Attorney, of Eureka (Patrick Delfino, David J. Robinson, and Linda Susan McClain, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 Defendant, Robert A. Page, entered an open plea of guilty to aggravated driving under the influence (DUI) of alcohol ( 625 ILCS 5/11-501(a) (West 2018)). The offense was a Class 1 felony because defendant had three prior convictions for DUI and one for aggravated DUI. 625 ILCS 5/11-501(d)(2)(D) (West 2018). The court sentenced defendant to 10 years in prison. Defendant appeals orders denying his motions to withdraw his plea and to reconsider the sentence. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant was convicted of DUI in 1985, 1988, and 2005. In 2016, he was charged with aggravated DUI in Woodford County case number 16-CF-42. Apparently unaware of one of defendant's convictions, the prosecution pursued case number 16-CF-42 as if it were defendant's third DUI offense rather than his fourth. Defendant pleaded guilty to aggravated DUI in case number 16-CF-42. In November 2016, defendant was sentenced to 4 years’ probation and 60 days in jail. That sentence would not have been authorized had defendant been charged with having three prior DUI convictions. See 625 ILCS 5/11-501(d)(2)(C) (West 2016) (a fourth violation of the DUI statute is a nonprobationable Class 2 felony).

¶ 4 On August 5, 2019, while defendant was on probation, he was stopped by a state trooper who suspected defendant was under the influence of alcohol. The next day, the State charged defendant by information with aggravated DUI in case number 19-CF-127. The State did not know about defendant's 1985 DUI conviction. Thus, the State charged this new offense as if it were defendant's fourth DUI prosecution rather than his fifth. This made the offense charged in count I of the information a nonprobationable Class 2 felony rather than a Class 1 felony. Count I of the information specifically stated that this was a nonprobationable Class 2 felony. The State also charged defendant with unlawful possession of a controlled substance ( 720 ILCS 570/402(c) (West 2018)) for possessing "psilocybin mushrooms."

¶ 5 On August 6, 2019, defendant appeared in court for arraignment and to set bond in case number 19-CF-127. The pretrial bond report did not list defendant's 1985 DUI conviction. In court, the prosecutor and defense counsel both asserted that defendant had three prior DUI convictions. The court admonished defendant that the Class 2 aggravated DUI charge in count I was a nonprobationable offense.

¶ 6 Defendant posted bond. On September 3, 2019, he failed to appear for his preliminary hearing. The court issued a warrant for defendant's arrest. On September 5, 2019, a grand jury returned an indictment in case number 19-CF-127 that was similar to the previously filed information. The indictment alleged that count I was a Class 2 felony, but it did not specify that it was a nonprobationable offense. At some point, the State also filed a petition to revoke defendant's probation in case number 16-CF-42.

¶ 7 Defendant was found in Michigan in December 2019. He was returned to Illinois to face the charges in case number 19-CF-127 and the petition to revoke probation in case number 16-CF-42. On January 14, 2020, defendant appeared in court restrained and in a wheelchair. The court noted defendant was "unresponsive" and "speaking uncontrollably." Defendant uttered nonsensical profanities. The court ordered an evaluation to determine whether defendant was fit to stand trial.

¶ 8 While the parties awaited the fitness evaluation, defendant returned to court on February 6, 2020. Defense counsel noted defendant now seemed lucid, though the prosecutor expressed concern that defendant was not taking his medication. The court stated that defendant now appeared to be of "sound mind." However, given that defendant's behavior at the last court date was "beyond normal," the court deemed it appropriate to proceed with the fitness evaluation.

¶ 9 Dr. Jean Clore submitted a report opining that defendant was fit to stand trial. Dr. Clore also opined that defendant did "not currently meet DSM-5 criteria for a psychiatric disorder or condition." In her report, Dr. Clore explained that jail records indicated defendant exhibited extremely unusual behavior in January 2020. Although defendant refused to take medications consistently, his symptoms quickly improved. Dr. Clore suspected defendant had been suffering from "a substance-induced psychosis" in January 2020.

¶ 10 On March 10, 2020, the court determined defendant was fit to stand trial. That day, defendant entered an open guilty plea to count I of the indictment in case number 19-CF-127 (aggravated DUI with three prior convictions). He also admitted to the allegations in the petition to revoke probation in case number 16-CF-42. Although there was no agreement as to sentencing, the State agreed to nol-pros count II of the indictment in case number 19-CF-127 (possession of a controlled substance), along with some other traffic charges. The trial court accepted the guilty plea. However, in informing defendant about the sentencing consequences of his plea to count I, the court incorrectly admonished defendant as if this were his third DUI conviction. Specifically, instead of telling defendant he faced a mandatory prison sentence, the court told defendant he could be sentenced to probation, along with either 10 days in jail or 480 hours of community service. The court ordered a presentence investigation report (PSI).

¶ 11 The PSI identified defendant's 1985 DUI conviction. On June 2, 2020, the matter came before the court for sentencing in case numbers 19-CF-127 and 16-CF-42. When the court asked the prosecutor whether the State wished to present evidence in aggravation, the prosecutor said defense counsel "wanted a clarification on the record." Defense counsel explained that the PSI incorrectly stated defendant was eligible for probation on count I of case number 19-CF-127. The following colloquy then occurred:

"THE COURT: Okay. And everybody agrees, according to the—the way this offense is charged and what [defendant] pled guilty to, that this is a nonprobationable offense; is that correct?

[PROSECUTOR]: Correct.

[DEFENSE COUNSEL]: Well, and inquiring with [defendant], he did not remember being admonished to that when he pled open. So I wanted to verify on the record that that was done."

The court went off the record and reviewed the transcript from the last court appearance. The court determined it had incorrectly admonished defendant about the consequences of pleading guilty to count I in case number 19-CF-127. The court then said:

"[Defense counsel], I'm going to allow your client to withdraw his plea of guilty at this point in time, since the charge does not match with the admonishment, and the Court does not have the authority to overrule the State on the way they charged the case. So I'm, at this point in time, vacating the defendant's plea of guilty.

What would you like me to do?"

Defense counsel requested a pretrial conference, as he wanted to discuss the issues with defendant. The prosecutor then said that because he learned from the PSI that this was defendant's fifth DUI rather than his fourth, the State would amend the charging instrument in case number 19-CF-127 to charge aggravated DUI as a Class 1 felony. Defendant raised no objection.

¶ 12 On June 4, 2020, the State charged defendant by information with an additional count III in case number 19-CF-127. The State alleged defendant committed aggravated DUI on August 5, 2019, and the offense was a Class 1 felony based on defendant's four prior DUI convictions.

¶ 13 On October 6, 2020, defendant entered an open plea of guilty to count III in case number 19-CF-127. This time, the court properly admonished defendant about the sentencing consequences of the plea. The State agreed to nol-pros counts I and II of case number 19-CF-127, along with some traffic charges. The court accepted the plea. When the court mentioned ordering a PSI, defense counsel reminded the court a PSI had already been prepared. The court expressed its belief that the earlier PSI related only to case number 16-CF-42. Defense counsel corrected the court:

"It was from the 19-CF-127. It was because he had not been admonished on the nonprobationable, and we took the plea back and reset it. The PSI's done and he's been in custody ever since."

¶ 14 On December 1, 2020, the matter came for sentencing in case numbers 19-CF-127 and 16-CF-42. By stipulation, as the State's evidence in aggravation, the prosecutor offered a summary of two witnesses’ testimony regarding defendant's conduct preceding the traffic stop that gave rise to case number 19-CF-127. Specifically, on August 5, 2019, construction work on I-39 near U.S. 24 caused southbound traffic to be reduced to one lane. Two commercial vehicles then crashed in this area and spilled oil on the road. As a result, the sole southbound lane had to be closed. Traffic was redirected off the interstate at exit 22 while tow operators addressed the crash. Fire department personnel redirected traffic using road flares and "multiple fire department apparatuses with emergency lights activated." At 10:11 p.m., a fire chief saw defendant's truck drive around the roadblock and head south on I-39. The fire chief alerted a state trooper, who waited for the truck. At 10:17 p.m., the trooper saw defendant's truck and initiated a traffic stop. The trooper then used a loudspeaker to direct d...