People v. Scott , 2022 IL App (4th) 210717-U ( 2022 )

NOTICE 2022 IL App (4th) 210717-U FILED
This Order was filed under October 13, 2022
Supreme Court Rule 23 and is NO. 4-21-0717 Carla Bender
not precedent except in the th
4 District Appellate
limited circumstances allowed Court, IL
IN THE APPELLATE COURT
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
REGINALD SCOTT, ) No. 15CF179
Defendant-Appellant. )
) Honorable
) Randall B. Rosenbaum,
) Judge Presiding.
JUSTICE BRIDGES delivered the judgment of the court.
Justices Turner and Harris concurred in the judgment.
ORDER
¶1 Held: Having found no issues of potential merit to support an appeal, we grant the
Office of the State Appellate Defender’s motion to withdraw as counsel on appeal
and affirm the denial of defendant’s motion to withdraw his guilty plea.
¶2 Defendant, Reginald Scott, appeals the denial of his motion to withdraw his guilty
plea. The trial court appointed the Office of the State Appellate Defender (OSAD), who now
moves to withdraw, claiming that this appeal presents no issue of arguable merit. We grant
counsel’s motion and affirm the denial of the motion to withdraw defendant’s guilty plea.
¶3 I. BACKGROUND
¶4 We previously summarized the facts of this case in defendant’s prior appeals (see
People v. Scott, 2020 IL App (4th) 190259-U; People v. Scott, 2019 IL App (4th) 180244-U; and
People v. Scott, 2017 IL App (4th) 150761), and we again restate the relevant facts here.
¶5 In February 2015, defendant was charged with three counts of first-degree murder
(720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2014)) in connection with the death of Vicente
Mundo. In May 2015, pursuant to a plea agreement, defendant pleaded guilty to count II (id. § 9-
1(a)(2)), the State dismissed counts I and III, and the State capped its sentencing
recommendations at 60 years’ imprisonment.
¶6 The trial court admonished defendant, first asking if defendant understood “what
they are saying” in the charge. Defendant responded, “Yes.” The court stated the offense called
for “a mandatory minimum sentence of 45 years,” with a maximum sentence of natural life.
Defendant stated he understood the possible penalty. The court reviewed with defendant the
rights he was giving up by pleading guilty, including asking defendant, “So you understand that
when you plead guilty that means we are not going to have a trial?” and defendant responded,
“Yes.” The court confirmed no promises were made to defendant beyond the terms of his
agreement and he was voluntarily pleading guilty.
¶7 The State presented a factual basis for the plea. On January 25, 2015, Daniel
Gonzalez arranged a meeting with Vicente Mundo to purchase cannabis. Mundo’s sister reported
him missing two days later. Mundo’s body was found in Tolono, Illinois, and the cause of death
was a single gunshot wound to the back of his head. Investigators located Gonzalez’s vehicle.
The passenger-side window was damaged, consistent with a gunshot, and the vehicle had new
seat covers. A forensic examination of Gonzalez’s vehicle revealed defendant’s fingerprints on
the outside trunk lid, a fired 9-millimeter cartridge casing, blood in the front seats and in the
trunk, and the front license plate from Mundo’s car.
¶8 Investigators interviewed defendant. Defendant admitted he and Gonzalez bought
cannabis from Mundo on January 25. When confronted with the evidence, defendant initially
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reported Gonzalez shot Mundo, and he helped Gonzalez dispose of Mundo’s body. Defendant
admitted driving Mundo’s vehicle and planning to sell it with Gonzalez. Defendant further
admitted he and Gonzalez plotted to rob Mundo in the apartment. The plan was to make it look
like defendant was robbing both Gonzalez and Mundo. When Mundo changed the meeting place
to the parking garage, defendant and Gonzalez changed the plan. Defendant was in the trunk of
Gonzalez’s vehicle, but he became stuck between the trunk and the back of the car. Mundo saw
defendant and tried to exit the car, but Gonzalez locked the door. Defendant admitted firing the
gun that killed Mundo. He pawned the gun at Pawn King. Investigators located the gun at Pawn
King.
¶9 The trial court accepted defendant’s guilty plea for first degree murder.
¶ 10 In July 2015, the trial court held defendant’s sentencing hearing. Defendant’s
mother testified in mitigation that defendant suffered a head injury as a child. After the injury,
defendant had problems with short-term memory and impulsive behavior.
¶ 11 The trial court sentenced defendant to 55 years in prison. The court admonished
defendant on his rights to appeal, informing defendant that “[p]rior to taking an appeal, you must
file in this court, within thirty days a written motion asking to have the judgment vacated and for
leave to withdraw your guilty plea. In that motion, you must specify your reasons for that
request.”
¶ 12 A. Motion to Withdraw Guilty Plea
¶ 13 On July 24, 2015, defendant filed a timely motion to withdraw his guilty plea. In
his motion, defendant asserted he (1) did not understand he could not appeal his sentence by
entering this type of plea agreement, (2) did not fire the gun that killed Mundo, and (3) wished to
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proceed to trial. Defense counsel filed a certificate pursuant to Illinois Supreme Court Rule
604(d) (eff. Dec. 11, 2014).
¶ 14 At a hearing on the motion, defendant testified he sustained a head injury when he
was approximately 11 or 12 years old. The injury affected his memory and comprehension, and
defendant stated, “If I don’t write it down then, or someone doesn’t remind me later or
repeatedly, usually I don’t remember it.”
¶ 15 The trial court denied defendant’s motion. The court reasoned the alleged head
injury did not appear to deter defendant from completing high school, playing soccer at a
collegiate level, and enrolling in college courses. As to defendant’s claim he was unaware he
could not appeal his sentence by entering into the plea agreement, the court concluded defendant
was properly admonished when he pleaded guilty, and he understood the agreement.
¶ 16 Defendant appealed. On appeal, this court remanded, finding defense counsel did
not strictly comply with Rule 604(d) because his certificate did not state counsel reviewed the
report of proceedings from defendant’s sentencing hearing. See Scott, 2017 IL App (4th) 150761,
¶ 19.
¶ 17 B. Amended Motion to Withdraw Guilty Plea
¶ 18 On remand, defendant filed an amended motion to withdraw his guilty plea. The
motion alleged the same three grounds for withdrawal as the initial motion and one new
allegation: “That on or about August 2017, Defendant ran into co-defendant, Daniel Gonzalez,
while at Menard Correctional Facility, and co-defendant stated he would be willing to submit an
affidavit stating that he (co-defendant) was the one who fired the gun that killed Vicente
Mundo.” No supporting affidavit was attached to the motion. Counsel filed a certificate pursuant
to Rule 604(d).
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¶ 19 After a hearing, the trial court denied defendant’s amended motion to withdraw
his guilty plea. Defendant appealed, and this court again vacated the denial and remanded for
further proceedings. This court concluded counsel failed to comply with Rule 604(d) in that
counsel did not submit an affidavit in support of the new allegation related to Gonzalez. Scott,
2019 IL App (4th) 180244-U, ¶ 17.
¶ 20 C. New Motion to Withdraw Guilty Plea
¶ 21 On remand, defendant was represented by new postplea counsel. New counsel
filed a new motion to withdraw defendant’s guilty plea. Defendant asserted the same basis for his
motion as was set forth in the amended motion to withdraw his guilty plea. Counsel attached his
own “affidavit” to the motion. The document was not notarized. In the document, counsel
explained he spoke with Gonzalez, who informed counsel he would not talk to defendant’s
counsel about anything related to the case until defendant’s counsel spoke with Gonzalez’s
attorney, Howard Weisman, a Chicago-based attorney. Counsel attempted twice to speak with
Weisman, leaving voicemail messages, but Weisman did not return his calls.
¶ 22 At the hearing on the motion, the court stated it remembered the evidence and
arguments from the prior hearings, found defendant’s counsel had “met a stone wall” trying to
interview Gonzalez, and denied defendant’s motion to withdraw his guilty plea.
¶ 23 On appeal, this court “reluctantly” remanded for a third time. See Scott, 2020 IL
App (4th) 190259-U, ¶ 33. The State conceded counsel’s “affidavit” was not a true affidavit,
neither sworn nor notarized, and therefore failed to strictly comply with Rule 604(d). Id. ¶ 24.
This court instructed the trial court to assign a new judge to the case, due to comments by the
trial court on second remand, which demonstrated the court held some “misconceptions” as to
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this court’s previous orders, which “may have handicapped the court’s ability to ensure
compliance with Rule 604(d).” Id. ¶ 35.
¶ 24 D. Present Motion to Withdraw Guilty Plea
¶ 25 On October 15, 2021, counsel filed a new motion to withdraw defendant’s guilty
plea and vacate the judgment. In his motion, defendant alleged (1) he did not understand the
nature of the charges against him, (2) he did not actually fire the gun and kill Mundo, (3) “[t]hat
on or about August 2017, Defendant ran into *** Gonzalez, while at Menard Correctional
Facility, and [Gonzalez] stated that he would be willing to submit an affidavit stating that he
[(Gonzalez)] was the one who fired the gun that killed Vicente Mundo,” and (4) defendant
wished to proceed to trial.
¶ 26 Defendant attached to his petition his own affidavit, explaining he did not
understand the charges due to the head injury in his youth, and prior to pleading guilty, defendant
informed his counsel he did not understand the charges against him. Defendant also asserted he
did not fire the gun that killed Mundo and Gonzalez told defendant he would sign an affidavit
asserting the same. Also attached to the petition was an affidavit from defense counsel, in which
counsel explained he sent a letter to Gonzalez and then contacted Gonzalez by phone. Gonzalez
stated he would not speak with counsel until counsel had spoken with Gonzalez’s attorney,
Weisman. Counsel spoke with Weisman, who indicated he would reach out to Gonzalez and his
family. A month later, counsel contacted Weisman, who indicated he had been unsuccessful in
contacting Gonzalez but would reach out again. Another month had passed, and counsel received
no further contact from Weisman.
¶ 27 Counsel filed a certificate pursuant to Rule 604(d), which affirmed:
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“1. I have consulted with Defendant in person, by mail, by phone, or by
electronic means to ascertain the Defendant’s contentions of error in the entry of
the plea of guilty and in the sentence;
2. I have examined the trial court file and report of proceedings of the plea
of guilty and the report of proceedings in the sentencing hearing, and
3. I have made any amendments to the motion necessary for the adequate
presentation of any defects in those proceedings.”
¶ 28 In December 2021, the trial court held a hearing on defendant’s motion.
Defendant testified that when he entered his guilty plea, he thought he could withdraw his guilty
plea and proceed to trial. Defendant described the head injury he sustained at around 11 or 12
years of age. As a result of the injury, defendant had short-term memory problems, he would
have trouble remembering anything he did not write down or have repeated to him, and he had
difficulty completing “complex scenario[s].” In college, defendant had to try “a little bit harder”
to be an average student. At the time of his plea, defendant informed his counsel he did not
understand the charges and the implications of pleading guilty.
¶ 29 Defendant also testified he was in the recreational yard at Menard Correctional
Center with Gonzalez. Gonzalez told defendant he would sign an affidavit stating Gonzalez was
the shooter and defendant was not involved in the murder of Mundo. Defendant believed
Gonzalez was transferred and never finalized the affidavit. Defendant confirmed he wished to
proceed to trial.
¶ 30 On cross-examination, defendant agreed, during his statement in allocution at
sentencing, he stated, “I do apologize to the family for my acts and what happened to Mundo.”
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However, defendant continued to deny he was the one that shot Mundo. He also agreed he did
not speak up when the State stated defendant shot Mundo when reciting the facts for the plea.
¶ 31 The trial court reviewed defendant’s claims in turn. The court found no basis to
conclude that the injury “in any way” affected defendant’s ability to understand his plea. At the
sentencing hearing, the court’s questions were “not so complex” that defendant’s prior
concussion would prevent him from understanding his plea. Further, defendant was asked “point
blank” if he understood that by pleading guilty, he would not have a trial. Defendant responded,
“Yes.” The court “believe[d] [defendant] absolutely, consistent with what is on the transcript
from May 12th, 2015, knew the charges against him.”
¶ 32 As to defendant’s claim he did not fire the gun, the trial court did “not believe that
allegation remotely.” The court stressed the evidence, in this case, was consistent with defendant
being the one that fired the gun. Defendant was acting as the robber in his and Gonzalez’s plot,
defendant owned the gun, and defendant sold the gun to the pawn shop after the murder.
¶ 33 On defendant’s related claim of Gonzalez’s affidavit, the trial court noted the
situation undermined defendant’s argument he could not understand complex situations. The
court found defendant minimized what he was saying during his testimony, spoke in a halting
manner, and had to be reminded to answer at least once. The court “simply [did] not believe the
testimony of [defendant] about this allegation that Mr. Gonzalez after the fact would submit an
affidavit in support of him.”
¶ 34 Finally, the trial court believed defendant was truthful in that defendant wished to
proceed to trial. However, the court explained wishing to proceed to trial is not a valid basis to
withdraw a guilty plea. The trial court denied defendant’s motion to withdraw his guilty plea.
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¶ 35 The trial court appointed OSAD to represent defendant on appeal. In March 2022,
OSAD filed a motion for leave to withdraw as counsel on appeal pursuant to Anders v.
California, 386 U.S. 738 (1967), contending the appeal is without merit. This court granted
defendant leave to file a response to OSAD’s motion on or before May 4, 2022. Defendant has
not done so.
¶ 36 II. ANALYSIS
¶ 37 Pursuant to Anders , 386 U.S. at 738 and People v. Jones, 38 Ill. 2d 384 (1967),
OSAD moves to withdraw as counsel. In her motion, appellate counsel states that she read the
record and found no issue of arguable merit. Specifically, she contends no meritorious argument
can be made to establish that the trial court erred in denying defendant’s motion to withdraw the
guilty plea on six potential issues: (1) Whether the court complied with Illinois Supreme Court
Rule 402 (eff. July 1, 2012); (2) whether the court complied with Illinois Supreme Court Rule
605(c) (eff. Oct. 1, 2001); (3) whether counsel complied with Illinois Supreme Court Rule
604(d) (eff. July 1, 2017); (4) whether the trial court erred in denying defendant’s motion to
withdraw his guilty plea; (5) whether defendant could challenge his sentence as excessive
without withdrawing his guilty plea; and (6) whether defendant received ineffective assistance of
postplea counsel. We agree with appellate counsel that none of these potential issues has merit.
¶ 38 A. Rule 402 Requirements
¶ 39 Before accepting a defendant’s negotiated guilty plea, the trial court must
substantially comply with Rule 402. Before accepting the plea, the court must give the defendant
certain specified admonishments regarding the nature of the charge that he faces, the possible
sentences therefore, his right to plead guilty or not guilty, and the consequences of a guilty plea.
See Ill. S. Ct. R. 402(a) (eff. July 1, 2012). The court is further required to ask the defendant to
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confirm the terms of his plea agreement after the terms are stated in open court and determine the
plea is voluntary and not a result of force, threats, or promises beyond those of the plea
agreement. Ill. S. Ct. R. 402(b) (eff. July 1, 2012). Finally, the court must determine if there is a
factual basis for the plea. Ill. S. Ct. R. 402(c) (eff. July 1, 2012).
¶ 40 At defendant’s plea hearing, the trial court discussed with defendant the charge
and possible sentence, defendant’s rights, the terms of the plea agreement, and if the plea was
voluntary and not the result of force, threat, or other promises. Defendant responded in the
affirmative that he understood all the admonishments and his plea was voluntary. The State
presented a factual basis for the plea. As the trial court fully complied with Rule 402, we agree
with appellate counsel any suggestion to the contrary would have no merit.
¶ 41 Additionally, defendant did not raise a claim pursuant to Rule 402 in his motion
to withdraw his guilty plea. Therefore, regardless of the merit of such a claim, any claim of error
in Rule 402 admonishments would be deemed waived on appeal. See Ill. S. Ct. R. 605(c) (eff.
Oct. 1, 2001) (“[I]n any appeal taken from the judgment on the plea of guilty any issue or claim
of error not raised in the motion to vacate the judgment and to withdraw the plea of guilty shall
be deemed waived.”).
¶ 42 B. Rule 605(c) Admonishments
¶ 43 Rule 605 requires, at the time of defendant’s sentencing, the trial court must
admonish defendant as to his right to appeal. See Ill. S. Ct. R. 605 (eff. Oct 1, 2001). Rule 605(c)
lists the specific admonishments to be given to defendants who plead guilty pursuant to a
negotiated plea agreement: (1) that defendant has a right to appeal; (2) that prior to taking an
appeal, the defendant must file a written motion to have the judgment vacated and for leave to
withdraw his guilty plea within 30 days of the imposition of sentence; (3) that if the motion is
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allowed, the judgment and sentence will be vacated and the matter set for trial; (4) that the State
may request any charges dismissed pursuant to the plea agreement be reinstated and set for trial;
(5) that if the defendant is indigent, transcript copies will be provided and counsel appointed; and
(6) on appeal, any claim not raised in the motion to withdraw guilty plea shall be deemed
waived. Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001). We review compliance with Rule 605(c) de novo.
People v. Dominguez, 2012 IL 111336, ¶ 13.
¶ 44 In this case, the trial court fully admonished defendant of his appeal rights before
the conclusion of the sentencing hearing. The court informed defendant (1) he had the right to
appeal, (2) that prior to an appeal he must file within 30 days a motion to withdraw his guilty
plea, (3) he must specify his reasons for withdrawal and any reason not stated will be waived,
(4) if he is allowed to withdraw his plea, the judgment will be vacated and a trial date set, and
(5) if he cannot afford an attorney, one would be appointed and transcripts provided. Therefore,
the court fully complied with the requirements of Rule 605(c), and we agree with appellate
counsel any argument to the contrary would be without merit.
¶ 45 C. Rule 604(d) Requirements
¶ 46 Rule 604(d) requires counsel representing a defendant on a motion to withdraw
his guilty plea to certify the following:
“[T]he attorney has consulted with the defendant either by phone, mail, electronic
means or in person to ascertain defendant’s contentions of error in the sentence
and the entry of the plea of guilty, has examined the trial court file and both the
report of proceedings of the plea of guilty and the report of proceedings in the
sentencing hearing, and has made any amendments to the motion necessary for
adequate presentation of any defects in those proceedings.”
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“[S]trict compliance with Rule 604(d) is required.” People v. Prather, 379 Ill. App. 3d 763, 768
(2008). In general, we consider the certificate itself to evaluate compliance with Rule 604(d);
however, “we may consider the record where it undermines the certificate filed.” People v. Neal,
403 Ill. App. 3d 757, 760 (2010). As we have demonstrated in prior appeals of this case, the
proper remedy for counsel’s failure to comply strictly with Rule 604(d) is to remand the cause to
the trial court for the opportunity to file a new motion to withdraw the guilty plea and a new
hearing on the motion. See People v. Bridges, 2017 IL App (2d) 150718, ¶¶ 6, 12; see also Scott,
2020 IL App (4th) 190259-U; Scott, 2019 IL App (4th) 180244-U; Scott, 2017 IL App (4th)
150761. Whether defense counsel complied with Rule 604(d) is reviewed de novo. People v.
Grice, 371 Ill. App. 3d 813, 815 (2007).
¶ 47 Here, counsel filed a facially compliant certificate pursuant to Rule 604(d).
Nothing in the record undermines counsel’s Rule 604(d) certificate. Therefore, we agree with
appellate counsel any argument postplea counsel failed to comply with Rule 604(d) is without
arguable merit.
¶ 48 D. Motion to Withdraw Guilty Plea
¶ 49 “A defendant has no absolute right to withdraw his guilty plea.” People v.
Hughes, 2012 IL 112817, ¶ 32. Rather, the defendant must establish “a manifest injustice under
the facts involved.” Id. The decision to grant or deny a motion to withdraw a guilty plea and
vacate the judgment is generally reviewed for an abuse of discretion. People v. Baez, 241 Ill. 2d
44, 109-10 (2011). “An abuse of discretion will be found only where the court’s ruling is
arbitrary, fanciful, unreasonable, or no reasonable person would take the view adopted by the
*** court.” People v. Delvillar, 235 Ill. 2d 507, 519 (2009).
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¶ 50 In this case, defendant offered three bases on which to withdraw his guilty plea:
(1) defendant did not understand the nature of the charges against him, (2) defendant did not
actually fire the gun and his codefendant, Gonzalez, offered to provide an affidavit stating
Gonzalez was the one that fired the gun, and (3) defendant wished to proceed to trial.
¶ 51 1. Nature of the Charges Against Defendant
¶ 52 Defendant first alleged that, due to the head injury he suffered as a child, he has
difficulty understanding complex situations and, therefore, did not understand the nature of the
charges against him when he pleaded guilty.
¶ 53 Following defendant’s testimony, the trial court determined, although it believed
defendant suffered a head injury as a child, there was no basis to conclude the injury affected
defendant’s ability to understand the proceedings at the hearing on the guilty plea. “[W]e must
give great deference to the court’s factual findings because the trial court stands in the best
position to weigh the credibility of the witnesses.” (Internal quotation marks omitted.) People v.
Hotwagner, 2015 IL App (5th) 130525, ¶ 31. During the plea hearing, the court thoroughly
explained the charge against defendant and the consequences of pleading guilty, and defendant
confirmed he understood. The court found defendant’s testimony that, despite his confirmation,
he did not actually understand the nature of the charges was not credible. The court’s
determination was not arbitrary, fanciful, or unreasonable, and therefore we agree with appellate
counsel any argument the court’s decision was an abuse of discretion would be without merit.
¶ 54 2. Identity of the Shooter and Gonzalez’s Alleged Affidavit
¶ 55 Defendant next alleged he did not personally shoot Mundo, and his codefendant,
Gonzalez, agreed to provide him with an affidavit stating as such.
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¶ 56 Similar to defendant’s testimony he did not understand the nature of the charges
against him, the trial court did not find defendant’s testimony that he was not the shooter to be
credible. The evidence presented in the State’s factual basis for defendant’s plea was consistent
with defendant being the shooter. Defendant admitted to police he fired the gun, killing Mundo,
and pawned the gun after the shooting. Defense counsel acknowledged the State had witnesses
who would testify consistently with the State’s factual basis, and defendant agreed to plead
guilty after he was identified as the shooter multiple times during his plea hearing.
¶ 57 Further, the trial court did not find defendant’s testimony credible as to
defendant’s conversation with Gonzalez. First, such a conversation would be a “complex
situation” of the exact type defendant was claiming he had difficulty understanding, undermining
his own testimony. Defendant did not present an affidavit from Gonzalez supporting the
conversation because his counsel could not speak with Gonzalez, and defendant’s own account
of the conversation was not credible. Deferring to the court’s findings of fact, as we must, the
court’s denial of this claim was not arbitrary, fanciful, or unreasonable. We agree with appellate
counsel that any argument on appeal to the contrary would be meritless.
¶ 58 3. Desire to Proceed to Trial
¶ 59 Defendant’s final allegation is that he wished to proceed to trial.
¶ 60 As discussed, “[a] defendant has no absolute right to withdraw his guilty plea.”
Hughes, 2012 IL 112817, ¶ 32. A desire to proceed to trial despite already pleading guilty is not
“a manifest injustice.” Id. Therefore, defendant’s desire to proceed to trial, no matter how
sincere, was not a basis to withdraw his guilty plea. Therefore, it was not an abuse of discretion
to deny defendant’s motion on this ground. We agree with appellate counsel no meritorious
argument can be made otherwise.
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¶ 61 E. Excessive Sentence
¶ 62 In People v. Johnson, 2019 IL 122956, ¶¶ 49-51, 57, our supreme court held that
a defendant who enters a negotiated guilty plea—including one that sets a sentencing cap—must
file a motion to withdraw his guilty plea before challenging a sentence that is statutorily
authorized, constitutional, and within the terms of the plea agreement.
¶ 63 Defendant entered into a negotiated guilty plea with the State in which, in
exchange for his plea to first degree murder, the State agreed to limit its sentencing
recommendation to 60 years’ imprisonment. The sentence for first degree murder is “not less
than 20 years and not more than 60 years.” 730 ILCS 5/5-4.5-20(a) (West 2014). Additionally,
because defendant “personally discharged a firearm that proximately caused *** death to another
person, 25 years or up to a term of natural life” was to be added to his sentence. Id.§ 5-8-1(a)(1)(d)(iii). Therefore, defendant was subject to a term of imprisonment of 45 years to
natural life. The plea agreement limited that term to 45 years to 60 years. Defendant received a
sentence of 55 years’ imprisonment. Defendant’s sentence was statutorily authorized,
constitutional, and within the terms of the plea agreement. Thus, defendant was required to
withdraw his guilty plea in order to challenge his sentence. See Johnson, 2019 IL 122956, ¶ 57.
¶ 64 Because defendant could not challenge his sentence without withdrawing his
guilty plea, we agree with appellate counsel no meritorious argument can be made on appeal that
defendant’s sentence was excessive.
¶ 65 F. Ineffective Assistance of Postplea Counsel
¶ 66 Finally, appellate counsel asserts there is no merit to a claim postplea counsel was
ineffective for failing to develop a claim that plea counsel did not properly explain the charges to
defendant before he pleaded guilty.
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¶ 67 For a claim of ineffective assistance of counsel, a defendant must satisfy the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Hodges,
234 Ill. 2d 1, 17 (2009). The defendant must first establish that, despite the strong presumption
that trial counsel acted competently and that the challenged action was the product of sound trial
strategy, counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms such that he or she was not functioning as the counsel guaranteed
by the sixth amendment. People v. Manning, 227 Ill. 2d 403, 416 (2008). Second, the defendant
must establish prejudice. People v. Valdez, 2016 IL 119860, ¶ 14. In most situations, this is done
by showing a reasonable probability that the proceeding would have resulted differently absent
counsel’s errors. Id. However, to establish prejudice in the context of a guilty plea, a defendant
“ ‘must show that there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.’ ” People v. Brown, 2017 IL
121681, ¶ 26 (quoting Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)). When the ineffective
assistance claim relates to a defendant’s prospects at trial, the Illinois Supreme Court has
required “a claim of innocence or a plausible defense to establish prejudice.” Id. ¶ 45 (citing
People v. Hall, 217 Ill. 2d 324, 335-36 (2005)). When the claim relates to advice concerning the
consequences of a plea, a petitioner “must convince the court that a decision to reject the plea
bargain would have been rational under the circumstances.” (Internal quotation marks omitted.)
Id. ¶ 40. A failure to establish either prong of the Strickland test precludes a finding of
ineffectiveness. People v. Peterson, 2017 IL 120331, ¶ 79.
¶ 68 Defendant was convicted of first degree murder alleging he personally discharged
the firearm that caused Mundo’s death, and therefore faced a sentence of 45 years to natural life.
See 730 ILCS 5/5-4.5-20(a), 5-8-1(a)(1)(d)(iii) (West 2014). However, if defendant were not the
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shooter, he would have faced a minimum sentence of 35 years under the accountability theory.
See id. §§ 5-4.5-20(a), 5-8-1(a)(1)(d)(i). Therefore, as appellate counsel points out, postplea
counsel could have argued defendant was not aware of this difference in the charges when he
pleaded guilty, thus enhancing defendant’s argument he did not understand the charges against
him.
¶ 69 However, even if there was sufficient evidence in the record to argue whether plea
counsel properly explained the charges to defendant, defendant could not have established he
was prejudiced. Defendant could not have established (1) he had a plausible defense, (2) a claim
of innocence, or (3) a decision to forgo his guilty plea would have been rational under the
circumstances. Therefore, regardless of how postplea counsel would have framed such an
argument, it would have been in vain. As the trial court stated when it denied defendant’s motion
to withdraw his guilty plea, “[a]ll of the evidence in this case is consistent with [defendant] being
the one who pulled the trigger and killed Mr. Mundo.” We agree with OSAD that no meritorious
claim of ineffective assistance could be raised on appeal.
¶ 70 III. CONCLUSION
¶ 71 After examining the record, the motion to withdraw, and the memorandum of law,
we agree with counsel that this appeal presents no issue of arguable merit. Thus, we grant
OSAD’s motion to withdraw and we affirm the judgment of the trial court of Champaign
County.
¶ 72 Affirmed.
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