People v. Thompson ( 2007 )

NO. 4-06-0900 Filed 7/31/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
LeROY D. THOMPSON, ) No. 05CF444
Defendant-Appellant. )
) Honorable
) Michael D. Clary,
) Judge Presiding.
_________________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In July 2005, the State charged defendant, LeRoy D.
Thompson, with four counts of burglary (720 ILCS 5/19-1(a) (West
2004)) and three counts of criminal damage to property (720 ILCS
5/21-1(1)(a) (West 2004)). In June 2006, pursuant to a plea
agreement, defendant pleaded guilty to the four burglary charges
in exchange for a sentence cap of seven years' imprisonment and
dismissal of the other three charges. In August 2006, the court
sentenced defendant to four concurrent six-year prison terms and
ordered him to pay restitution to Moon Glo, Rosie's Tavern, Quick
Lube, My Brother's Liquors, and Burger King. Defendant filed a
motion to vacate the restitution order and reconsider his sen-
tence, contending he was not involved in the Quick Lube and
Burger King burglaries. After a September 2006 hearing, the
court vacated the restitution to Quick Lube and Burger King and
affirmed the sentencing order in all other respects.
Defendant appeals, asserting (1) he was denied effec-
tive assistance of counsel at his sentencing hearing because his
counsel did not set forth a known mitigating factor and (2) the
restitution order should be vacated in its entirety because the
trial court failed to admonish him about it as required by
Supreme Court Rule 402(a)(2) (177 Ill. 2d R. 402(a)(2)). We
affirm.
I. BACKGROUND
According to the State's factual basis, defendant had
confessed to police officers that, on July 20, 2005, he and
Robert Quick had been smoking dope most of the day. While
driving around, Quick indicated he knew how to get some money and
all defendant would have to do was drive a car. Thus, on the
remainder of that day and into the next, defendant drove Quick to
Rosie's Tavern, Moon Glo, Country Cookin', and My Brother's
Liquors. At each place, defendant would drop Quick off, drive
away, return 10 to 15 minutes later, and pick up Quick.
Phil Adams, the owner of Moon Glo, noted someone had
entered his business on July 21, 2005, and damaged two poker
machines. On July 21, 2005, Delores Wimsett, an employee of
Country Cookin', discovered someone had forced the front door
open the prior evening, causing damage to the building and taking
some quantity of cash from a poker machine. Mary Cottle of
Rosie's Tavern observed the main door to her business was kicked
- 2 -
open and damaged and the video poker machines inside also re-
ceived damage. On July 21, 2005, David Winchester, the owner of
My Brother's Liquors, found damage to his business from the
forced entry and damage to his poker machines.
On July 22, 2005, the State charged defendant and Quick
with one count of burglary for each of the four businesses and
one count of criminal damage to property for each of the busi-
nesses except My Brother's Liquors. The State also charged Quick
with other crimes relating to different businesses. In June
2006, defendant and the State entered into a plea agreement,
under which defendant would plead guilty to the four burglary
counts with a sentence cap of seven years' imprisonment and the
State would seek the dismissal of the other three charges. At
the plea hearing, the trial court advised defendant that each
count of burglary was punishable by (1) 3 to 7 years' imprison-
ment, which could be 7 to 14 years if aggravating factors were
present; (2) 2 years' mandatory supervised release (MSR); (3) up
to 4 years' probation; and (4) up to a $25,000 fine. After
admonishments and hearing the State's factual basis, the court
accepted the plea agreement.
On July 27, 2006, defendant's presentence report was
filed. The presentence report indicated defendant had a three-
year-old son, for whom he gave the child's mother $50 to $100 per
week in support that was not court ordered. Defendant also sent
- 3 -
the trial court two letters, which the court noted it did not
consider as a matter of personal policy. In the letters, defen-
dant noted his son's mother was in college, unemployed, and thus
in need of financial support for the child. Defendant also noted
he had provided for his son financially in the past and wanted to
continue to do so in the future. At an August 2006 sentencing
hearing, defendant testified on his own behalf about his (1)
desire to undergo long-term residential drug treatment and (2)
work as a tattoo artist. Defendant also acknowledged he did not
have a very good history of showing up in court. After hearing
the parties' arguments, the trial court sentenced defendant to
four concurrent terms of six years' imprisonment and ordered him
to pay the following restitution in five years: $350 to Moon
Glo, $514 to Rosie's Tavern, $234.79 to Quick Lube, $657.90 to My
Brothers Liquors, and $7,196.83 to Burger King. The court
ordered the restitution to be joint and several with codefendant
Quick, who, according to the presentence report, was ordered to
pay the same amounts of restitution.
After sentencing, defendant filed a motion to vacate
the restitution order related to Quick Lube and Burger King and
reconsider his sentence because he was not involved in the crimes
that occurred at those businesses. After a September 2006
hearing, the court vacated the restitution order as to Quick Lube
and Burger King and affirmed the sentencing order in all other
- 4 -
respects. This appeal followed.
II. ANALYSIS
A. Ineffective Assistance of Counsel
Defendant first argues his sentencing counsel was
ineffective for failing to point out a statutory mitigating
factor that should have been known to counsel.
This court reviews ineffective-assistance-of-counsel
claims under the standard set forth in Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People
v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). To
obtain reversal under Strickland, a defendant must prove (1) his
counsel's performance failed to meet an objective standard of
competence and (2) counsel's deficient performance resulted in
prejudice to the defendant. Evans, 186 Ill. 2d at 93, 708 N.E.2d
at 1163.
To satisfy the deficiency prong of Strickland, the
defendant must demonstrate counsel made errors so serious and
counsel's performance was so deficient that counsel was not
functioning as "counsel" guaranteed by the sixth amendment (U.S.
Const., amend. VI). Further, the defendant must overcome the
strong presumption the challenged action or inaction could have
been the product of sound trial strategy. Evans, 186 Ill. 2d at
93, 708 N.E.2d at 1163. To satisfy the prejudice prong, the
defendant must prove a reasonable probability exists that, but
- 5 -
for counsel's unprofessional errors, the proceedings' result
would have been different. Evans, 186 Ill. 2d at 93, 708 N.E.2d
at 1163-64. The Strickland Court noted that, when a case is more
easily decided on the ground of lack of sufficient prejudice
rather than that counsel's representation was constitutionally
deficient, the court should do so. Strickland, 466 U.S. at 697,
80 L. Ed. 2d at 699, 104 S. Ct. at 2069.
Here, defendant asserts his counsel failed to point out
the excessive hardship a term of imprisonment would be on his son
and son's mother, a statutory mitigating factor (730 ILCS
5/5-5-3.1(a)(11) (West 2004)). However, defendant has failed to
establish the prejudice prong of the Strickland test. First, the
presentence report, which the trial court had received, indicated
defendant had a three-year-old son and he paid his son's mother
$50 to $100 a week in support. Thus, the court was aware impris-
onment would be a hardship on defendant's son and son's mother as
defendant had provided financial support to them.
Second, it is unlikely this mitigating factor would
have held any weight in sentencing defendant. Defendant, who was
28 years old, had a criminal history of three retail-theft
convictions, two theft convictions, and a criminal-sexual-abuse
conviction. Defendant had also been in prison before as he
received a 2-year prison term for one of the theft convictions
and an 18-month prison term for one of the retail-theft convic-
- 6 -
tions. Further, defendant was being sentenced for his role in a
string of four burglaries that the court noted were not the
result of a "spur-of-the-moment, rash decision influenced perhaps
by drugs or alcohol."
Accordingly, we find defendant was not denied effective
assistance of counsel by his sentencing counsel's failure to
point out the excessive hardship imprisonment would have on
defendant's son and his son's mother.
B. Restitution
Defendant also contends the restitution order should be
vacated in its entirety because the trial court did not admonish
him about the possibility of paying restitution as required by
Rule 402(a)(2) (177 Ill. 2d R. 402(a)(2)). The State contends
defendant has forfeited this issue under Supreme Court Rule
604(d) (210 Ill. 2d R. 604(d)) by failing to raise this issue in
a postplea motion.
Under Rule 604(d), any issue not raised in a motion to
withdraw a guilty plea or to reconsider a sentence after a guilty
plea is forfeited. However, in People v. Fuller, 205 Ill. 2d
308, 322-23, 793 N.E.2d 526, 537 (2002), our supreme court stated
that, if a trial court fails to give a defendant admonishments in
compliance with Rule 402 (177 Ill. 2d R. 402), that failure may
amount to plain error, an exception to the forfeiture rule set
forth in Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)).
- 7 -
Defendant notes this court rejected the State's forfei-
ture argument in People v. Jenkins, 141 Ill. App. 3d 602, 608-09,
490 N.E.2d 953, 957-58 (1986), a direct-appeal case, and vacated
the restitution order. However, in rejecting the forfeiture
argument, the Jenkins decision relied upon this court's earlier
decision in People v. Culp, 127 Ill. App. 3d 916, 919-21, 468
N.E.2d 1328, 1330-31 (1984), which had declined to apply Rule
604's forfeiture provision because the restitution issue was
raised in a postconviction petition. Jenkins, 141 Ill. App. 3d
at 608-09, 490 N.E.2d at 957. In light of our supreme court's
more recent decision in Fuller, 205 Ill. 2d at 322-23, 793 N.E.2d
at 537, and Jenkins's questionable reliance on Culp, we conclude
defendant has forfeited his restitution argument unless the
plain-error exception applies.
Before this court can invoke the plain-error exception,
we must determine whether any reversible error occurred. A trial
court's failure to properly admonish a defendant itself does not
automatically establish grounds for reversing the judgment or
vacating the plea. Substantial compliance with Rule 402 suffices
to establish due process. Moreover, whether an imperfect admon-
ishment requires reversal depends on whether real justice has
been denied or whether the inadequate admonishment prejudiced the
defendant. Fuller, 205 Ill. 2d at 323, 793 N.E.2d at 537.
In Culp, 127 Ill. App. 3d at 925, 468 N.E.2d at 1334,
- 8 -
this court held that, under Rule 402(a)(2) (87 Ill. 2d R.
402(a)(2)), a trial court must admonish a defendant about the
possibility of restitution. Thus, the trial court in this case
did err by failing to admonish defendant about a potential
restitution order. However, we must determine whether that error
constitutes reversible error.
While our supreme court has not addressed whether the
failure to admonish a defendant under Rule 402(a)(2) about
restitution constitutes reversible error, it has addressed
whether the failure to admonish a defendant about a MSR term
under the rule constitutes reversible error. See People v.
Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005). In Whitfield,
217 Ill. 2d at 193, 840 N.E.2d at 668, our supreme court recog-
nized the appellate court's distinction "between 'open' guilty
pleas and negotiated pleas for a specific sentence." In the
former situation, the failure to admonish a defendant concerning
a MSR term is not a constitutional violation, as long as the
sentence plus the term of MSR is less than the maximum sentence
that the defendant was told he could receive. Whitfield, 217
Ill. 2d at 193, 840 N.E.2d at 668. With the latter, the court's
failure to advise the defendant about the MSR term has been held
to be reversible error and a violation of due process.
Whitfield, 217 Ill. 2d at 194, 840 N.E.2d at 669.
The Whitfield facts fell into the latter category, and
- 9 -
our supreme court found no substantial compliance with Rule 402
and a due-process violation. Whitfield, 217 Ill. 2d at 195, 840
N.E.2d at 669. The court noted the defendant was prejudiced by
the omitted admonition because he received a more onerous sen-
tence than the one he was told he would receive. Whitfield, 217
Ill. 2d at 201, 840 N.E.2d at 673. The addition of the MSR term
constituted an unfair breach of the plea agreement. Whitfield,
217 Ill. 2d at 195, 840 N.E.2d at 669.
Unlike Whitfield, this case does not involve an agree-
ment for a specific sentence. As to potential sentences, the
trial court advised defendant each count was punishable (1) by 3
to 7 years' imprisonment, which could be 7 to 14 years if aggra-
vating factors were present; (2) 2 years of MSR; (3) up to 4
years' probation; and (4) up to a $25,000 fine. The court later
sentenced defendant to four concurrent terms of six years'
imprisonment and the following restitution: $350 to Moon Glo,
$514 to Rosie's Tavern, $234.79 to Quick Lube, $657.90 to My
Brothers Liquors, and $7,196.83 to Burger King. The court later
vacated the restitution to Burger King and Quick Lube because
defendant did not plead guilty to the crimes at those locations.
Thus, defendant was actually ordered to pay a total of $1,242.69
in restitution. In this case, defendant's sentence is clearly
lower than the agreed maximum prison term of seven years and the
admonished maximum fine of $25,000.
- 10 -
Accordingly, we conclude defendant was not prejudiced
by the incomplete admonishment as he did not receive a more
onerous sentence than the one he was told he would receive.
Since defendant did not receive a more onerous sentence, his plea
agreement was not breached and the imperfect admonishment did not
deny him real justice. Thus, the court's failure to admonish
defendant about the possibility of a restitution order did not
constitute plain error.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State's request
that defendant be assessed $50 as costs for this appeal.
Affirmed.
McCULLOUGH and COOK, JJ., concur.
- 11 -