People v. Ramsey

2019 IL App (4th) 180094-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN K. RAMSEY, Defendant-Appellant.

NO. 4-18-0094

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

December 10, 2019

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Macon County

No. 15CF571

Honorable Jeffrey S. Geisler, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Justices Turner and Cavanagh concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, granting the Office of the State Appellate Defender's motion to withdraw as postconviction counsel.

¶ 2 In May 2015, the State charged defendant, Brian K. Ramsey, with three counts of burglary (720 ILCS 5/19-1(a) (West 2014)), one count of theft by deception with a prior theft conviction (720 ILCS 5/16-1(a)(2), (b)(2) (West 2014)), and one count of theft of services (720 ILCS 5/16-3(a) (West 2014)).

¶ 3 Defendant pled guilty to one count of burglary, and the remaining charges were dismissed pursuant to a plea agreement. The charge he pled guilty to was a Class 2 felony that was eligible for Class X sentencing. The trial court sentenced defendant to 20 years in prison.

¶ 4 In September 2017, defendant filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). Defendant claimed (1) trial counsel was ineffective for not recommending defendant for a drug treatment program, (2) trial counsel was ineffective because he failed to inform the court that the State had previously offered a 15-year sentence in exchange for a plea of guilty, (3) trial counsel was ineffective because he told defendant he could receive a sentence greater than 20 years, (4) defendant did not knowingly or voluntarily plead guilty, and (5) defendant's sentence is excessive and serves no rehabilitative purpose.

¶ 5 Later in September 2017, the trial court entered an order dismissing defendant's postconviction petition as patently frivolous and without merit. The court found that (1) defendant was not eligible for drug treatment for his sentence, (2) defendant's plea was knowing and voluntary, (3) nothing in the record indicated ineffective assistance of counsel, and (4) defendant's sentence was proper.

¶ 6 Defendant appealed and the Office of the State Appellate Defender (OSAD) was appointed to represent him on appeal. OSAD moves to withdraw its representation of defendant, contending that any appeal in this cause would be frivolous.

¶ 7 We grant counsel's motion and affirm the trial court's judgment.

¶ 8 I. BACKGROUND

¶ 9 In May 2015, the State charged defendant, Brian Ramsey, with three counts of burglary (720 ILCS 5/19-1(a) (West 2014)), one count of theft by deception with a prior theft conviction (720 ILCS 5/16-1(a)(1)(A) (West 2014)), and one count of theft of services. (720 ILCS 5/16-3(a) (West 2014)).

¶ 10 In August 2015, defendant pled guilty to one count of burglary and the remaining charges were dismissed pursuant to a plea agreement. The factual basis for the charge was that in April 2015, defendant was dropped off at a Walmart where he selected a box grill and took it outof the store without paying. He was approached at high speed by the vehicle that dropped him off, and they immediately left. Two similar incidents later occurred on separate occasions.

¶ 11 Defendant pled guilty to burglary, a Class 2 felony that was eligible for Class X sentencing. At the plea hearing, the trial court informed defendant that this meant the charge carried a range of 6 to 30 years in prison and was not probationable. Defendant said he understood the sentencing range. The court confirmed with defendant that this would be a fully negotiated plea resulting in a sentence of 20 years in the Illinois Department of Corrections, and defendant agreed.

¶ 12 Defendant said he understood all of the rights that he would be giving up by pleading guilty. Defendant signed a jury waiver. The trial court asked defendant if he was pleading guilty voluntarily, and defendant said yes. The court asked defendant if any force or threats had been used against him to get him to plead guilty, and defendant said no. The court asked defendant if any promises were made to him other than the plea terms that were discussed with the court, and defendant said no. The court asked defendant if he would agree that the court did not initiate the plea negotiations, and defendant said yes. The judge asked defendant if his attorney had answered all of his questions to his satisfaction, and defendant said yes.

¶ 13 Following the parties' agreement, the trial court sentenced defendant to 20 years in prison. The court informed defendant of his appellate rights, and defendant said he understood them. The only question that defendant raised throughout the entire hearing was whether his bond money would be returned to the person who posted the bond. Defendant never filed a motion to withdraw his guilty plea and did not appeal his conviction.

¶ 14 In September 2017, defendant filed a postconviction petition. Defendant claimed that (1) trial counsel was ineffective for not recommending defendant for a drug treatmentprogram, (2) trial counsel was ineffective because he failed to inform the court that the State had previously offered a 15-year sentence in exchange for a plea of guilty, (3) trial counsel was ineffective because he told defendant he could receive a sentence greater than 20 years, (4) defendant did not knowingly or voluntarily plead guilty, and (5) defendant's sentence is excessive and serves no rehabilitative purpose.

¶ 15 Later in September 2017, the trial court entered an order dismissing defendant's postconviction petition. The court found that (1) defendant was not eligible for drug treatment for his sentence, (2) defendant's plea was knowing and voluntary, (3) nothing in the record indicated ineffective assistance of counsel, and (4) defendant's sentence was proper.

¶ 16 Defendant appealed and OSAD was appointed to represent him on appeal. OSAD moves to withdraw its representation of defendant, contending that any appeal in this cause would be frivolous. OSAD states in its motion that it considered the following issues:

"(A) Whether it is arguable that any procedural error warrants reversal.

(B) Whether it is arguable that the postconviction petition states the gist of a claim of ineffective assistance of counsel.

(C) Whether it is arguable that the postconviction claim of excessive sentence *** states the gist of a constitutional claim.

(D) Whether it is arguable that the trial court's refusal to grant defendant a drug evaluation was a violation of his right to due process."

¶ 17 OSAD contends that any appeal would be frivolous, and therefore moves to withdraw. Defendant pro se filed two responses in which he indicates the reasons he believes his appeal is not frivolous.

¶ 18 II. ANALYSIS

¶ 19 Defendant appeals, claiming his postconviction petition was erroneously dismissed because (1) trial counsel was ineffective for not recommending defendant for a drug treatment program, (2) trial counsel was ineffective because he failed to inform the court that the State had previously offered a 15-year sentence in exchange for a plea of guilty, (3) trial counsel was ineffective because he told defendant he could receive a sentence greater than 20 years, (4) defendant did not knowingly or voluntarily plead guilty, and (5) defendant's sentence is excessive and serves no rehabilitative purpose.

¶ 20 We disagree. We grant counsel's motion to withdraw and affirm the judgment of the trial court.

¶ 21 A. The Standard of Review and Anders

¶ 22 The United States Supreme Court has set forth the procedures to be followed for an appellate attorney to withdraw as counsel. Anders v. California, 386 U.S. 738 (1967); People v. Mares, 2018 IL App (2d) 150565, ¶ 6, 98 N.E.3d 554. Counsel's request to withdraw must be accompanied by a brief referring to anything in the record that could support an appeal. People v. Meeks, 2016 IL App (2d) 140509, ¶ 10, 51 N.E.3d 1109. After identifying issues that counsel could conceivably raise, counsel must then explain why these potential arguments are without merit. Id. A copy of this motion must be provided to the client, who will then be given an opportunity to respond to the motion to withdraw. Id. The appellate court will then review the record to determine whether the available arguments are wholly without merit. Id.

¶ 23 The Act provides a criminal defendant the means to redress substantial violations of his constitutional rights that occurred in his original trial or sentencing. People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 23, 38 N.E.3d 1256; 725 ILCS 5/122-1 (West 2016). The Act con-tains a three-stage procedure for relief. People v. Allen, 2015 IL 113135, ¶ 21, 32 N.E.3d 615; 725 ILCS 5/122-2.1 (West 2016). At the first stage, the trial court shall, within the first 90 days after the petition is filed and docketed, dismiss a petition summarily if the court determines it is "frivolous or is patently without merit ***." 725 ILCS 5/122-2.1(a)(2) (West 2016).

¶ 24 A petition may be dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact. Allen, 2015 IL 113135, ¶ 25. Stated another way, "[a] post-conviction petition is considered frivolous or patently without merit only if the allegations in the petition, taken as true and liberally construed, fail to present the 'gist of a constitutional claim.' " People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001) (quoting People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996)). An appellate court reviews the first-stage dismissal of a postconviction petition de novo. People v. Couch, 2012 IL App (4th) 100234, ¶ 13, 970 N.E.2d 1270.

¶ 25 B. Ineffective Assistance of Counsel Claims

...