People v. Tate

2022 IL App (4th) 200320-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERMARCO D. TATE, Defendant-Appellant.

No. 4-20-0320

Court of Appeals of Illinois, Fourth District

February 2, 2022

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 Circuit Court of Pike County No. 19CF157 Honorable John Frank McCartney, Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court. Presiding Justice Knecht and Justice Steigmann concurred in the judgment.

ORDER

HOLDER WHITE JUSTICE

¶ 1 Held: The appellate court vacated the conviction in count II, concluding defendant's convictions for home invasion in counts II and III violated the one-act, one-crime rule.

¶ 2 In October 2019, defendant, Germarco D. Tate, entered a negotiated plea of guilty to three counts of home invasion (720 ILCS 5/19-6(a)(3), (4) (West 2018)) (counts I, II, and III), and one count of residential burglary (720 ILCS 5/19-3(a) (West 2018)) (count IV). Pursuant to the negotiated plea agreement, the trial court sentenced defendant to three 32-year prison terms for counts I, II, and III and one 15-year prison term for count IV, with all sentences to run concurrently. In February 2020, defendant filed an amended motion to withdraw guilty plea and vacate judgment, which the trial court subsequently denied.

¶ 3 Defendant appeals, arguing his convictions on counts II and III for home invasion, being based upon a single entry into a single dwelling, violate the one-act, one-crime rule. We affirm in part and vacate the conviction in count II.

¶ 4 I. BACKGROUND

¶ 5 On August 19, 2019, the State charged defendant with (1) home invasion, in that defendant, knowingly and without authority, entered the dwelling place of Janet E. Olsen and threatened to kill Olsen, and in doing so, defendant personally discharged a firearm, a Class X felony (720 ILCS 5/19-6(a)(4) (West 2018)) (count I); (2) home invasion, in that defendant, knowingly and without authority, entered the dwelling place of Albert L. Berry and Donna M. Hyde and while armed with a firearm, used force against Berry where defendant struck Berry with the grip of the revolver causing injury to Berry's head, a Class X felony (720 ILCS 5/19-6(a)(3) (West 2018)) (count II); and (3) home invasion in that defendant, knowingly and without authority, entered the dwelling place of Berry and Hyde and, while armed with a firearm, threatened the imminent use of force against Hyde where defendant put a gun to Hyde's head and said "he would shoot her if she did not tell them the [personal identification number (PIN)] to her debit card," a Class X felony (720 ILCS 5/19-6(a)(3) (West 2018)) (count III).

¶ 6 On September 23, 2019, the State charged defendant with residential burglary, in that defendant, knowingly and without authority, entered the dwelling place of Ethan and Susan Miller, with the intent to commit a theft therein, a Class 1 felony (720 ILCS 5/19-3(a) (West 2018)) (count IV).

¶ 7 A. Guilty Plea

¶ 8 On October 22, 2019, defendant pleaded guilty to all four counts. In exchange for defendant's guilty plea, and pursuant to a fully negotiated agreement, defendant received a sentence of 32 years each, for counts I, II, and III and a 15-year sentence for count IV, with all sentences to run concurrently. The State asserted a factual basis, in relevant part, as to counts II and III that Berry and Hyde would testify that in the early morning hours of August 16, 2019, three individuals armed with firearms entered their residence. Berry would testify an individual struck him with the grip of a revolver. Hyde would testify an individual "put a gun to her head and said he would shoot her if she did not give the PIN to her debit card." The State also provided that defendant admitted during a police interview that he participated in the home invasion and that he struck Berry, though he did not admit it was with a revolver. The trial court accepted the factual basis and determined defendant's plea to be knowing and voluntary. Subsequently, the court entered a judgment of conviction on all four counts and sentenced defendant in accordance with the terms of the negotiated plea agreement.

¶ 9 B. Postplea Proceedings

¶ 10 On November 14, 2019, defendant filed a pro se motion to withdraw guilty plea and vacate sentence. In the motion, defendant alleged, in relevant part, that the State charged him with two Class X felonies "on the same house-residence." At a November 26, 2019, hearing on defendant's motion, the trial court appointed new counsel to represent defendant.

¶ 11 On February 18, 2020, defendant filed an amended motion to withdraw guilty plea and vacate judgment. In the amended motion, defendant alleged (1) his guilty plea was involuntarily made, (2) he was denied effective assistance of counsel in violation of the United States Constitution and the Illinois Constitution, and (3) counsel's actions were so prejudicial to defendant that his guilty plea was not "knowingly, intelligently, or voluntarily given." Specifically, defendant asserted, "Count II and Count III violate the one[-]act[, ] one[-]crime rule." Defendant did not mention a violation of the one-act, one-crime rule in the attached affidavit.

¶ 12 On July 7, 2020, the trial court held a hearing on defendant's amended motion to withdraw guilty plea and vacate judgment. At the hearing, defendant did not testify but relied on his affidavit. The State presented testimony through defendant's plea counsel, Walker Filbert, and Pike County Sheriff David Greenwood. Following the State's evidence, defense counsel asserted, in relevant part, that he believed defendant's convictions for home invasion in counts II and III violated the one-act, one-crime rule and compared defendant's actions in counts II and III to a speeding violation. Specifically, defense counsel asserted defendant's actions in count II and count III were analogous to being clocked twice while committing a single speeding violation. The State did not address defense counsel's one-act, one-crime argument. Ultimately, the trial court denied defendant's amended motion to withdraw guilty plea and vacate judgment. The court did not address defendant's one-act, one-crime argument.

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant argues his convictions for home invasion in counts II and III violate the one-act, one-crime rule because both counts are "based upon a single entry into a single dwelling." The State argues defendant forfeited his one-act, one-crime rule violation by failing to make a proper objection during his sentencing hearing. Further, the State appears to contend defendant waived this issue when he pleaded guilty and defense counsel agreed a factual basis existed to sustain the burden of proof as to counts II and III. Moreover, the State argues if we find defendant forfeited his claim, defendant cannot show plain error review is warranted where defendant committed the home invasion in counts II and III with at least two other people. We review this issue below.

¶ 16 A. Forfeiture or Waiver

¶ 17 The Illinois Supreme Court has observed that Illinois law has tended to use the terms "waiver" and "forfeiture" interchangeably. People v Morgan, 385 Ill.App.3d 771, 776, 896 N.E.2d 417, 421 (2008) (citing People v. Blair, 215 Ill.2d 427, 443, 831 N.E.2d 604, 615 (2005)). "The Blair court, however, pointed out important distinctions between these two terms, when used correctly. 'Waiver' means the voluntary relinquishment of a known right. [Citation.]" Id. " 'Forfeiture' is defined as the failure to raise an issue in a timely manner, thereby barring its consideration on appeal. [Citation.]" Id. "Unless there is plain error, a voluntary guilty plea waives all non-jurisdictional errors including violations of constitutional rights." Id. (citing People v. Billops, 125 Ill.App.3d 483, 484, 466 N.E.2d 304, 305 (1984)).

¶ 18 Here, we find defendant did not relinquish a known right by pleading guilty to counts II and III where nothing in the record suggests defendant was aware or informed at the time of his guilty plea that convictions on counts II and III were potentially impermissible under the one-act, one-crime rule. Further, defense counsel's agreement as to the factual basis of each count did not waive this claim where defendant does not challenge whether there was a factual basis for each count but rather asserts the one-act, one-crime rule prohibits the entry of two convictions for a single act. In this case, we find plain error applicable. See id.

¶ 19 To preserve an error for consideration on appeal, a defendant must object to the error in the trial court and raise the error in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675. Failure to do so constitutes forfeiture. Id. However, we may consider a forfeited claim where the defendant demonstrates a plain error occurred. See Ill. S.Ct. R. 615(a) (eff. Jan. 1, 1967). To prevail under the plain-error doctrine, defendant must first demonstrate a clear and obvious error occurred. People v. Piatkowski, 225 Ill.2d 551, 565, 870 N.E.2d 403, 410-11 (2007). If an error occurred, we will reverse only where (1) "the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error" or (2) the "error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." Id.

¶ 20 While defendant filed an amended motion to withdraw guilty plea and vacate sentence which included an...