People v. Reed

1

2024 IL App (1st) 210798-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWAYNE REED, Defendant-Appellant.

No. 1-21-0798

Court of Appeals of Illinois, First District, First Division

May 28, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County No. 09 CR 02212 02 The Honorable Stanley L. Hill, Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Coghlan concurred in the judgment.

ORDER

LAVIN JUSTICE

¶ 1 Held: Defendant failed to show that the trial judge's failure to recuse himself during postconviction proceedings resulted in plain error. In addition, the evidence set forth at the evidentiary hearing on defendant's petition supported the finding that trial counsel was not ineffective.

¶ 2 Defendant Dwayne Reed appeals from the trial court's order dismissing his postconviction petition following an evidentiary hearing under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). On appeal, defendant asserts that the trial judge possessed pertinent knowledge outside the record and, thus Illinois Supreme Court Rule 63 (eff. Feb. 2, 2017), required the judge to recuse himself from the postconviction proceedings.^[1]Defendant also challenges the court's determination that trial counsel properly informed him that he would be required to serve 85% of his sentence for aggravated kidnaping and did not lead him to reject plea offers based on erroneous or incomplete information. For the following reasons, we affirm the trial court's judgment.

¶ 3 I. Background

¶ 4 Defendant was charged with offenses that occurred on March 11, 2008. Specifically, he was charged with armed robbery (720 ILCS 5/18-2(A)(2) (West 2008)), aggravated unlawful restraint (720 ILCS 5/10-3.1 (West 2008)), aggravated kidnaping based on the concealment of his identity (720 ILCS 5/10-2(a)(4) (West 2008)), and, pertinent to this dispute aggravated kidnaping based on his possession of a firearm during the offense (720 ILCS 5/10-2(a)(6) (West 2008)). While both aggravated kidnaping charges were Class X felonies, the latter charge required that a 15-year firearm enhancement be added to any sentence. 720 ILCS 5/10-2(b) (West 2012). Thus, defendant was facing a minimum sentence of 21 years for that offense. See 730 ILCS 5/5-4.5-25 (West 2012) (setting forth a Class X sentencing range of 6 to 30 years in prison). Additionally, defendant could not receive more than 4.5 days of good conduct credit per month to offset any sentence for aggravated kidnaping. 730 ILCS 5/3-6 3(a)(2)(ii) (2008). Stated differently, he would be required to serve at least 85% of that sentence.

¶ 5 A. Plea Negotiations

¶ 6 Before trial, defendant was represented by private attorney Ezra Hemphill, who was later joined by John Benson. This case originally came before the Honorable Thomas M. Tucker but was later transferred to the Honorable Stanley L. Hill. Although plea conferences occurred before both judges (Ill. S.Ct. R. 402 (eff. July 1, 2012)), no plea agreement was reached. No contemporaneous record was made of any plea offer either.

¶ 7 B. Trial

¶ 8 The evidence at trial generally showed that at about 8:30 p.m. on March 11, 2008, Bianca Muniz was closing the currency exchange where she worked. After she had manually locked the front door, two men pried it open. She could see only one man's face, as the other wore a hood. According to Muniz, one man pointed a small gun at her head and directed her to the back, where she was forced to lay face down on the ground while her hands and ankles were tied with duct tape. Muniz, a non-smoker, noted the scent of cigarette smoke. When the men eventually left, Muniz freed herself and called the police. A large amount of cash was missing, and the police later recovered a partially burnt cigarette from the floor. DNA from the cigarette matched defendant's DNA profile. Following trial, the court found defendant guilty of all charges.

¶ 9 At sentencing, the trial court informed defendant that he would be statutorily required to serve 85% of any sentence for aggravated kidnaping. Sentences for other counts would be served at 50%. The court then imposed four concurrent 25-year sentences. Subsequently, the court found that aggravated unlawful restraint merged into aggravated kidnaping and vacated the conviction for the former offense. In addition, the court later reduced defendant's remaining sentences to 22 years in prison.

¶ 10 C. Direct Appeal

¶ 11 On direct appeal, we rejected defendant's assertion that his convictions for aggravated robbery and aggravated kidnaping while in possession of a firearm had to be reduced to simple robbery and kidnaping. People v. Reed, 2016 IL App (1st) 142174-U. We agreed, however, that the conviction for aggravated kidnaping based on the concealment of his identity was required to be vacated under the one-act, one-crime doctrine. Id.

¶ 12 D. Postconviction Petition

¶ 13 In March 2018, defendant filed a pro se postconviction petition alleging that trial counsel was ineffective for telling him he would have to serve 50% of his sentence and for not informing him that he would actually have to serve at least 85%. Defendant alleged that this failing impacted his decision to reject plea offers made before trial.

¶ 14 According to the petition, Judge Tucker said he would impose a 10-year sentence, without a firearm enhancement, to be served at 50%, if defendant proceeded to a bench trial. In addition, no "deal or issue" as to aggravated kidnaping was raised before Judge Tucker. Before Judge Hill the State offered defendant a 25-year-sentence to be served at 50%. Judge Hill himself offered defendant a 22-year sentence to be served at 50%. But see People v Donelson, 2011 IL App (1st) 092594, ¶ 14 (stating that the trial court is not party to a plea agreement). We note that the petition did not specify which counts the aforementioned plea offers applied to, but did allege that Hemphill said Judge Hill would not come off the 15-year firearm enhancement for armed robbery. The petition further alleged that the only issue discussed at the plea conferences was whether he would be required to serve a 15-year firearm enhancement for armed robbery. Conversely, no one mentioned that he would be required to serve 85% of any sentence. Had he known, he would have accepted Judge Hill's offer or the State's offer.

¶ 15 Judge Hill appointed postconviction counsel and advanced the petition to the second stage following the passage of 90 days. He also suggested that defendant's complaint would be cured if the court immediately imposed a 22-year sentence, to be served at 50%, without altering any findings of guilt. In addition, the State moved to dismiss the petition, arguing, among other things, that defendant could not establish prejudice because he did not allege which counts the plea offers pertained to. If defendant was offered statutorily unauthorized sentencing credit for aggravated kidnaping, he would have to show that the trial court or the State would not have corrected that error before the defective plea offer could be implemented.

¶ 16 At a hearing on October 18, 2019, the State said it could not agree to a percentage of good conduct credit that deviated from statute. In addition, postconviction counsel agreed that the petition did not specify the details of the State's offer. Judge Hill speculated that because he would not have offered defendant credit at 50% if that was not authorized, "there must have been a piece there that said we're reducing it down in such a way that you can give day for day at 50 percent." That being said, Judge Hill, lacked "any specific recollection of who said what."

¶ 17 On December 13, 2019, Judge Hill denied the State's motion to dismiss. In doing so, he recalled that in pretrial negotiations, there was a question of whether the State would be able to prove a firearm was used in the offense. Additionally, he recalled that "the State was prepared in pretrial to dismiss that enhanced situation," but he was unsure whether trial counsel advised defendant of that. Furthermore, Judge Hill stated, "I did recommend that if he pled guilty that I would sentence him I think to 22 years."

¶ 18 A week later, Judge Hill acknowledged that he had "some personal knowledge of this" since he had participated in plea conferences and observed that postconviction counsel was now saying that the plea offers applied to all charges. The court rejected the State's argument that defendant needed to amend his petition to include that allegation.

¶ 19 At a hearing on October 16, 2020, Judge Hill, consulting his general practices, speculated at length as to what the details of the plea offers may have been. On October 29, 2020, he further speculated and found that certain internal records tendered by the State refreshed his recollection.

During that hearing, Judge Hill also told postconviction counsel that he did not have the right to call a State's Attorney to find out what the offer was:

"You have the offer from me; the last offer was 22 years. That comes from me, and I'm telling you, that's what I offered him. That's borne out by these files. So it's irrelevant what a State's Attorney may have said regarding that because it's right here, and you've got me saying the offer, is 25 - I mean, sorry, 22 years on armed robbery. Period."

Judge Hill acknowledged, however, that the State's records did not specifically mention "aggravated kidnaping." Moreover, he found that based on the practice in Cook County the aggravated kidnaping charges and unlawful restraint...