People v. Page , 2022 IL App (4th) 210374 ( 2022 )

2022 IL App (4th) 210374 FILED
October 24, 2022
NO. 4-21-0374 Carla Bender
th
4 District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Woodford County
ROBERT A. PAGE, ) No. 19CF127
Defendant-Appellant. )
) Honorable
) Michael L. Stroh,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Turner and Cavanagh concurred in the judgment and opinion.
OPINION
¶1 Defendant, Robert A. Page, entered an open plea of guilty to aggravated driving
under the influence (DUI) of alcohol (625 ILCS 5/11-501(a) (West 2018)). The offense was a
Class 1 felony because defendant had three prior convictions for DUI and one for aggravated
DUI. 625 ILCS 5/11-501(d)(2)(D) (West 2018). The court sentenced defendant to 10 years in
prison. Defendant appeals orders denying his motions to withdraw his plea and to reconsider the
sentence. We affirm.
¶2 I. BACKGROUND
¶3 Defendant was convicted of DUI in 1985, 1988, and 2005. In 2016, he was
charged with aggravated DUI in Woodford County case number 16-CF-42. Apparently unaware
of one of defendant’s convictions, the prosecution pursued case number 16-CF-42 as if it were
defendant’s third DUI offense rather than his fourth. Defendant pleaded guilty to aggravated DUI
in case number 16-CF-42. In November 2016, defendant was sentenced to four years’ probation
and 60 days in jail. That sentence would not have been authorized had defendant been charged
with having three prior DUI convictions. See 625 ILCS 5/11-501(d)(2)(C) (West 2016) (a fourth
violation of the DUI statute is a nonprobationable Class 2 felony).
¶4 On August 5, 2019, while defendant was on probation, he was stopped by a state
trooper who suspected defendant was under the influence of alcohol. The next day, the State
charged defendant by information with aggravated DUI in case number 19-CF-127. The State
did not know about defendant’s 1985 DUI conviction. Thus, the State charged this new offense
as if it were defendant’s fourth DUI prosecution rather than his fifth. This made the offense
charged in count I of the information a nonprobationable Class 2 felony rather than a Class 1
felony. Count I of the information specifically stated that this was a nonprobationable Class 2
felony. The State also charged defendant with unlawful possession of a controlled substance (720
ILCS 570/402(c) (West 2018)) for possessing “psilocybin mushrooms.”
¶5 On August 6, 2019, defendant appeared in court for arraignment and to set bond
in case number 19-CF-127. The pretrial bond report did not list defendant’s 1985 DUI
conviction. In court, the prosecutor and defense counsel both asserted that defendant had three
prior DUI convictions. The court admonished defendant that the Class 2 aggravated DUI charge
in count I was a nonprobationable offense.
¶6 Defendant posted bond. On September 3, 2019, he failed to appear for his
preliminary hearing. The court issued a warrant for defendant’s arrest. On September 5, 2019, a
grand jury returned an indictment in case number 19-CF-127 that was similar to the previously
filed information. The indictment alleged that count I was a Class 2 felony, but it did not specify
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that it was a nonprobationable offense. At some point, the State also filed a petition to revoke
defendant’s probation in case number 16-CF-42.
¶7 Defendant was found in Michigan in December 2019. He was returned to Illinois
to face the charges in case number 19-CF-127 and the petition to revoke probation in case
number 16-CF-42. On January 14, 2020, defendant appeared in court restrained and in a
wheelchair. The court noted defendant was “unresponsive” and “speaking uncontrollably.”
Defendant uttered nonsensical profanities. The court ordered an evaluation to determine whether
defendant was fit to stand trial.
¶8 While the parties awaited the fitness evaluation, defendant returned to court on
February 6, 2020. Defense counsel noted defendant now seemed lucid, though the prosecutor
expressed concern that defendant was not taking his medication. The court stated that defendant
now appeared to be of “sound mind.” However, given that defendant’s behavior at the last court
date was “beyond normal,” the court deemed it appropriate to proceed with the fitness
evaluation.
¶9 Dr. Jean Clore submitted a report opining that defendant was fit to stand trial. Dr.
Clore also opined that defendant did “not currently meet DSM-5 criteria for a psychiatric
disorder or condition.” In her report, Dr. Clore explained that jail records indicated defendant
exhibited extremely unusual behavior in January 2020. Although defendant refused to take
medications consistently, his symptoms quickly improved. Dr. Clore suspected defendant had
been suffering from “a substance-induced psychosis” in January 2020.
¶ 10 On March 10, 2020, the court determined defendant was fit to stand trial. That
day, defendant entered an open guilty plea to count I of the indictment in case number
19-CF-127 (aggravated DUI with three prior convictions). He also admitted to the allegations in
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the petition to revoke probation in case number 16-CF-42. Although there was no agreement as
to sentencing, the State agreed to nol-pros count II of the indictment in case number 19-CF-127
(possession of a controlled substance), along with some other traffic charges. The trial court
accepted the guilty plea. However, in informing defendant about the sentencing consequences of
his plea to count I, the court incorrectly admonished defendant as if this were his third DUI
conviction. Specifically, instead of telling defendant he faced a mandatory prison sentence, the
court told defendant he could be sentenced to probation, along with either 10 days in jail or 480
hours of community service. The court ordered a presentence investigation report (PSI).
¶ 11 The PSI identified defendant’s 1985 DUI conviction. On June 2, 2020, the matter
came before the court for sentencing in case numbers 19-CF-127 and 16-CF-42. When the court
asked the prosecutor whether the State wished to present evidence in aggravation, the prosecutor
said defense counsel “wanted a clarification on the record.” Defense counsel explained that the
PSI incorrectly stated defendant was eligible for probation on count I of case number 19-CF-127.
The following colloquy then occurred:
“THE COURT: Okay. And everybody agrees, according to the—the way
this offense is charged and what [defendant] pled guilty to, that this is a
nonprobationable offense; is that correct?
[PROSECUTOR]: Correct.
[DEFENSE COUNSEL]: Well, and inquiring with [defendant], he did not
remember being admonished to that when he pled open. So I wanted to verify on
the record that that was done.”
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The court went off the record and reviewed the transcript from the last court appearance. The
court determined it had incorrectly admonished defendant about the consequences of pleading
guilty to count I in case number 19-CF-127. The court then said:
“[Defense counsel], I’m going to allow your client to withdraw his plea of
guilty at this point in time, since the charge does not match with the
admonishment, and the Court does not have the authority to overrule the State on
the way they charged the case. So I’m, at this point in time, vacating the
defendant’s plea of guilty.
What would you like me to do?”
Defense counsel requested a pretrial conference, as he wanted to discuss the issues with
defendant. The prosecutor then said that because he learned from the PSI that this was
defendant’s fifth DUI rather than his fourth, the State would amend the charging instrument in
case number 19-CF-127 to charge aggravated DUI as a Class 1 felony. Defendant raised no
objection.
¶ 12 On June 4, 2020, the State charged defendant by information with an additional
count III in case number 19-CF-127. The State alleged defendant committed aggravated DUI on
August 5, 2019, and the offense was a Class 1 felony based on defendant’s four prior DUI
convictions.
¶ 13 On October 6, 2020, defendant entered an open plea of guilty to count III in case
number 19-CF-127. This time, the court properly admonished defendant about the sentencing
consequences of the plea. The State agreed to nol-pros counts I and II of case number
19-CF-127, along with some traffic charges. The court accepted the plea. When the court
mentioned ordering a PSI, defense counsel reminded the court a PSI had already been prepared.
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The court expressed its belief that the earlier PSI related only to case number 16-CF-42. Defense
counsel corrected the court:
“It was from the 19-CF-127. It was because he had not been admonished
on the nonprobationable, and we took the plea back and reset it. The PSI’s done
and he’s been in custody ever since.”
¶ 14 On December 1, 2020, the matter came for sentencing in case numbers 19-CF-127
and 16-CF-42. By stipulation, as the State’s evidence in aggravation, the prosecutor offered a
summary of two witnesses’ testimony regarding defendant’s conduct preceding the traffic stop
that gave rise to case number 19-CF-127. Specifically, on August 5, 2019, construction work on
I-39 near U.S. 24 caused southbound traffic to be reduced to one lane. Two commercial vehicles
then crashed in this area and spilled oil on the road. As a result, the sole southbound lane had to
be closed. Traffic was redirected off the interstate at exit 22 while tow operators addressed the
crash. Fire department personnel redirected traffic using road flares and “multiple fire
department apparatuses with emergency lights activated.” At 10:11 p.m., a fire chief saw
defendant’s truck drive around the roadblock and head south on I-39. The fire chief alerted a
state trooper, who waited for the truck. At 10:17 p.m., the trooper saw defendant’s truck and
initiated a traffic stop. The trooper then used a loudspeaker to direct defendant to pull ahead and
to the right, but defendant did not follow those instructions. Upon speaking with defendant, the
trooper initiated a DUI investigation.
¶ 15 The defense offered no evidence in mitigation apart from a handwritten statement
from defendant that had been attached to the PSI. In that handwritten statement, defendant
asserted he would serve his sentence with “honor, integrity and supplication.” He expressed his
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desire to be reunited with his family as soon as possible. He vowed to abstain from alcohol for
the rest of his life, and he “humbly apologize[d]” for his poor judgment.
¶ 16 The prosecutor requested prison sentences of 10 years in case number 19-CF-127
and 5 years in case number 16-CF-42. The prosecutor asked the court to use its discretion to
make those sentences consecutive. Defense counsel requested concurrent sentences of five years
in case number 19-CF-127 and four years in case number 16-CF-42.
¶ 17 The court noted it considered the factual basis for the plea, the PSI, the State’s
evidence in aggravation, the parties’ arguments, and defendant’s handwritten statement. As a
mitigating factor, the court determined defendant did not contemplate his criminal conduct
would cause or threaten serious physical harm. Nevertheless, the court deemed it aggravating
that defendant’s conduct indeed threatened such harm. The court found defendant’s actions “very
bothersome.” The court observed that “defendant endangered himself and all of the workers that
were present on the scene trying to clean up the accident.”
¶ 18 The court also considered defendant’s history of criminal activity, including
DUIs. The court stated it reviewed the plea agreement presented to the court in 2016 when
defendant originally pleaded guilty to aggravated DUI in case number 16-CF-42. The court
explained that this plea agreement listed only two prior DUI convictions for defendant, not three.
Thus, in 2016, defendant got a “monumental break that was inconsistent with the law” when he
received probation and a jail sentence for what could have been a nonprobationable offense. The
court added that defendant “failed to take advantage of that gift or mistake” when he committed
another DUI offense in August 2019.
¶ 19 The court believed a prison sentence was necessary to protect the public and to
deter others from committing DUIs, particularly in areas where first responders work. However,
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the court did not believe consecutive sentencing was warranted. The court sentenced defendant
to 10 years in prison in case number 19-CF-127, to be served concurrently with a 5-year prison
sentence in case number 16-CF-42.
¶ 20 Defendant retained new counsel. Defendant moved to withdraw the guilty plea
and to reconsider the sentence. The motion to withdraw the guilty plea was pro forma. Without
further explanation, defendant alleged his plea was not knowing and voluntary, it was not
supported by an adequate factual basis, and he was not properly admonished. In the motion to
reconsider the sentence, defendant alleged his “physical wellbeing and/or mental state”
prevented him from making a statement in allocution and assisting his counsel at the sentencing
hearing. Defendant also maintained his sentence was excessive.
¶ 21 Defendant later supplemented his motions. Relevant to this appeal, defendant
alleged ineffective assistance of counsel for failing to object when the court vacated the guilty
plea to count I in case number 19-CF-127. According to defendant, that plea “was improperly
withdrawn *** and such allowed the State to file in [sic] Count III.” With no further elaboration,
defendant asserted his “plea to Count III constitutes double jeopardy.” Defendant also alleged,
without further elaboration, that the court erred in vacating defendant’s plea to count I.
¶ 22 On June 8, 2021, the court denied defendant’s motions. During the hearing,
defendant’s allegation of a double jeopardy violation was not addressed. Defendant timely
appealed. This appeal pertains solely to case number 19-CF-127.
¶ 23 II. ANALYSIS
¶ 24 A. Vacatur of Defendant’s First Guilty Plea
¶ 25 Defendant argues the trial court violated his double jeopardy rights and abused its
discretion by sua sponte vacating the first guilty plea. As his relief, defendant asks us to reinstate
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his open guilty plea to count I of the indictment. Defendant claims he preserved this issue for
review because he raised essentially the same arguments after he was sentenced pursuant to his
second plea. Alternatively, defendant frames the issue through the lenses of second-prong plain
error and ineffective assistance of counsel. The State responds that defendant failed to preserve
his challenge to the court vacating the first guilty plea. The State further argues defendant’s
affirmative acquiescence to vacating the plea forecloses plain-error review. The State also
contends defendant’s arguments are meritless.
¶ 26 We will first consider whether defendant’s arguments are reviewable as a
preserved issue, as matter of plain error, or for ineffective assistance of counsel. Before
defendant was sentenced on count I of the indictment pursuant to his open guilty plea, defense
counsel told the court defendant did not remember being admonished when he pleaded guilty
that the offense was nonprobationable. Defense counsel asked the court to “verify on the record
that that was done.” As defendant’s appellate counsel acknowledged during oral argument, the
trial court may have interpreted trial counsel’s request as a motion to vacate the plea. The court
reviewed the transcript of the plea hearing and determined defendant was improperly
admonished. The court said it would “allow [defendant] to withdraw his plea of guilty.” If the
court was mistaken about whether defendant was asking to withdraw his plea, neither defendant
nor defense counsel corrected the court. Instead, when the court vacated the plea and solicited
defense counsel’s input about what “to do,” counsel asked to set a pretrial conference. The
prosecutor then said the State would “amend[ ] the charge to a Class 1 felony” because it learned
from the PSI that defendant had four prior DUI convictions, not three. The defense raised no
objection to the State modifying the classification of the aggravated DUI charge. The court set
the matter for a pretrial conference, as defense counsel suggested. When the State later charged
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defendant with a Class 1 felony in a new count III, defendant did not assert double jeopardy as a
defense or seek to reinstate the original plea. Instead, he pleaded guilty to count III. When
defendant did so, his counsel reminded the court there was no need for a new PSI because “we
took the plea back and reset it.” It was not until defendant retained new counsel to challenge the
second plea that defendant questioned, in a cursory manner, the propriety of vacating the first
plea.
¶ 27 Under these circumstances, we determine defendant affirmatively acquiesced to
the court’s actions. “ ‘[A] party cannot complain of error which that party induced the court to
make or to which that party consented.’ ” People v. Stewart, 2018 IL App (3d) 160205, ¶ 19
(quoting In re Detention of Swope, 213 Ill. 2d 210, 217 (2004)). Where a party acquiesces to a
ruling, the party waives the right to challenge the ruling and may not invoke the plain-error
doctrine. Stewart, 2018 IL App (3d) 160205, ¶¶ 19-21. A party who acquiesced to a ruling is
limited to pursuing a claim of ineffective assistance of counsel. People v. Bowens, 407 Ill. App.
3d 1094, 1101 (2011). Accordingly, we will review defendant’s challenge insofar as he alleges
his plea counsel was “ineffective for acquiescing to the double jeopardy violation and the judge’s
capricious vacatur of the plea agreement.”
¶ 28 Claims of ineffective assistance of counsel are governed by the standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984). Generally, to sustain a claim of ineffective
assistance, a defendant must show that his counsel’s performance was deficient and that such
deficiency prejudiced the defense. Strickland, 466 U.S. at 687. An attorney’s performance is
deficient where he or she made errors that were so serious that he or she “was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. A
defendant establishes prejudice where “counsel’s errors were so serious as to deprive the defendant
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of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. In that respect, a
defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
¶ 29 As we will explain, defendant’s contention that the court violated his double
jeopardy rights and abused its discretion by vacating the plea lacks merit. Thus, defendant cannot
show prejudice, and his ineffective-assistance claim fails. See People v. Gaines, 2020 IL 125165,
¶ 59 (“[D]efendant cannot demonstrate prejudice because there is no reasonable probability that
an objection would have resulted in the trial court permitting defendant to persist in his plea in
light of defendant’s repudiation of the factual basis.”).
¶ 30 Both the United States and Illinois Constitutions prohibit double jeopardy. U.S.
Const., amend. V; Ill. Const. 1970, art. I, § 10. These principles are also codified in Illinois’s
Criminal Code of 2012. See 720 ILCS 5/3-4 (West 2020). “The prohibition against double
jeopardy is designed to prevent the State from engaging in more than one attempt to convict an
individual, thereby subjecting him to embarrassment, expense, continuing anxiety and insecurity,
and increasing the possibility that he may be found guilty even if innocent.” People v. Cabrera,
402 Ill. App. 3d 440, 446 (2010). Prohibiting double jeopardy protects defendants from “ ‘(1) a
second prosecution for the same offense after acquittal; (2) a second prosecution for the same
offense after conviction; and (3) multiple punishments for the same offense.’ ” (Internal
quotation marks omitted.) Cabrera, 402 Ill. App. 3d at 447 (quoting People v. Henry, 204 Ill. 2d
267, 283 (2003)).
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¶ 31 The first question in a double jeopardy analysis is whether jeopardy attached.
Gaines, 2020 IL 125165, ¶ 25. Here, the parties agree jeopardy attached on March 10, 2020,
when the trial court unconditionally accepted defendant’s open guilty plea to count I of the
indictment. See Gaines, 2020 IL 125165, ¶ 34 (“[T]his court holds that jeopardy attaches when
the trial court unconditionally accepts defendant’s plea.”).
¶ 32 The next question is “whether jeopardy terminated improperly.” Gaines, 2020 IL
125165, ¶ 39. “ ‘In the parlance of double jeopardy case law, jeopardy “continues” if *** the
jeopardy that attached in the first trial remains open so that defendant can be reprosecuted for the
same crime without violating the bar against double jeopardy.’ ” Gaines, 2020 IL 125165, ¶ 39
(quoting People v. Daniels, 187 Ill. 2d 301, 310-11 (1999)). “Conversely, ‘[j]eopardy
“terminates” if the trial concludes under conditions in which defendant could not be retried
without violating the double jeopardy rule ***.’ ” Gaines, 2020 IL 125165, ¶ 39 (quoting
Daniels, 187 Ill. 2d at 311).
¶ 33 Here, the trial court sua sponte vacated defendant’s open guilty plea to count I of
the indictment. More than 70 years ago, our supreme court held as follows:
“[A] court may set aside or withdraw a plea of guilty, on its own motion and
without the consent of a defendant, in cases where the evidence shows that the
defendant is insane, or under some similar disability, or where the court has good
reason to doubt the truth of the plea, or where it is affirmatively shown that the
plea of guilty was induced by some promise on the part of the State’s Attorney or
others in authority, or where it is obvious that a defendant has been misinformed
as to his rights.” (Emphasis added.) People v. Hancasky, 410 Ill. 148, 154-55
(1951).
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If a trial court properly exercises its discretion by sua sponte vacating a guilty plea, then
jeopardy does not terminate improperly and there is no double jeopardy violation. See Gaines,
2020 IL 125165, ¶ 55 (“Because the trial court did not abuse its discretion in vacating
defendant’s guilty plea sua sponte, defendant’s bench trial did not offend the bar against double
jeopardy.”). “ ‘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 trial court.’ ”
Gaines, 2020 IL 125165, ¶ 45 (quoting People v. Delvillar, 235 Ill. 2d 507, 519 (2009)).
¶ 34 We hold that the trial court did not abuse its discretion by vacating defendant’s
guilty plea to count I of the indictment. Before the court accepted that plea, the court incorrectly
told defendant he could receive probation. At the next court date, when the matter was set for
sentencing, it seems defendant may have been confused as to whether he was eligible for
probation. As the State argues, upon reviewing the transcript of the plea hearing, it was obvious
defendant had been “misinformed as to his rights.” Hancasky, 410 Ill. at 155. Thus, the trial
court was authorized to vacate the plea sua sponte. We determine the trial court acted within its
discretion. By vacating the plea, the court likely believed it was both protecting defendant’s
rights and preempting any question down the road as to whether defendant knowingly and
voluntarily pleaded guilty. We emphasize that when the court vacated defendant’s plea, the court
received no objection from the defense. Nor had the State yet indicated its intent to enhance
defendant’s aggravated DUI charge.
¶ 35 In arguing that there was a double jeopardy violation and an abuse of discretion,
defendant notes he was properly informed at his arraignment/bond hearing in August 2019 that
count I was a nonprobationable offense. Thus, defendant asserts he was “actually aware that the
minimum term did not include probation and was not otherwise prejudiced by the judge’s
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incorrect admonishment” at the plea hearing in March 2020. Defendant labels it a “minor” flaw
that the court incorrectly told him at the plea hearing that he was eligible for probation.
Defendant also maintains that, had he explicitly requested the court to vacate the guilty plea, the
court would have been under no obligation to do so.
¶ 36 Defendant’s arguments are unconvincing. As the State correctly points out, “[t]he
question was not whether vacating the plea was required, but whether the court had discretion to
vacate the plea sua sponte.” Moreover, the record gives us no confidence that defendant was
aware of the sentencing consequences when he pleaded guilty to count I. Defendant received
proper admonishments at the arraignment/bond hearing on August 6, 2019. However, defendant
then left the jurisdiction, and he did not return to court in Illinois until January 2020. By that
time, defendant exhibited symptoms of temporary psychosis, apparently induced by substance
abuse. On March 10, 2020, before the court accepted defendant’s guilty plea, the court
misadvised defendant about the plea’s sentencing consequences. Considering that defendant
experienced psychosis in the interim and then was affirmatively misled as to the sentencing
consequences, there is little reason to place stock in the correct admonishments defendant
received months earlier.
¶ 37 Defendant proposes that, instead of vacating the guilty plea, the trial court should
have readmonished him and then asked him whether he wished to persist with his plea. Although
the court could have taken that approach, defendant cites no case requiring the court to do so. As
explained above, the court was vested with discretion to vacate the plea when it became obvious
defendant was misinformed as to his rights.
¶ 38 As we determine that the trial court acted within its discretion by vacating the
guilty plea to count I, jeopardy did not terminate improperly. Thus, defendant was not subjected
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to double jeopardy when the State filed a new count III or when defendant pleaded guilty to that
count. Having failed to demonstrate either a double jeopardy violation or an abuse of discretion,
defendant has not shown prejudice from his trial counsel’s failure to preserve these issues for
review. Accordingly, we hold that defendant did not receive ineffective assistance of counsel in
the manner defendant claims.
¶ 39 We emphasize that our analysis is limited to whether there was a double jeopardy
violation and whether the trial court abused its discretion under the circumstances presented. As
a means of presenting these issues, defendant contends that defense counsel was ineffective for
failing to recognize the double jeopardy issue and for failing to object to the trial court’s
allegedly “arbitrary procedures.” On the authority of Hancasky, we reject those specific
arguments. During oral argument in this matter, this court questioned the attorneys as to whether
defendant’s trial counsel also was ineffective for (1) bringing the issue of faulty admonishments
to the trial court’s attention on June 2, 2020, and then (2) failing to ask the court to proceed with
defendant’s original guilty plea. In response to those questions, defendant’s appellate counsel
argued that there was “not enough in the record to know why [defendant’s trial counsel] did what
he did.” We agree, as the record is silent as to what conversations defendant had with his
counsel. See People v. Veach, 2017 IL 120649, ¶ 46 (issues are better suited to collateral
proceedings when the record on direct appeal is “incomplete or inadequate for resolving the
claim”).
¶ 40 B. Vindictive Prosecution
¶ 41 Defendant next argues the prosecutor was vindictive for charging him with Class
1 aggravated DUI after the court allowed him to withdraw his guilty plea to the Class 2 version
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of the offense. Defendant recognizes he did not raise this issue below. Defendant asks us to
review the issue for second-prong plain error and for ineffective assistance of counsel.
¶ 42 “Under plain-error review, we will reverse a forfeited error if the error was clear
and obvious and either (1) the evidence was so closely balanced the error alone threatened to tip
the scales of justice against defendant or (2) the error was so serious it affected the fairness of
defendant’s trial and challenged the integrity of the judicial process. People v. Jophlin, 2018 IL
App (4th) 150802, ¶ 59. Our first step is to determine whether any error occurred. Jophlin, 2018
IL App (4th) 150802, ¶ 59. If the prosecutor was not vindictive, a defendant cannot obtain relief
for vindictiveness pursuant to either the plain-error doctrine or a claim of ineffective assistance.
See Jophlin, 2018 IL App (4th) 150802, ¶¶ 65, 68.
¶ 43 “The filing of criminal charges is a discretionary matter resting within the
exclusive jurisdiction of the prosecution.” People v. Flanagan, 201 Ill. App. 3d 1071, 1076
(1990). “One purpose of instituting criminal proceedings against an individual is to punish;
therefore, the presence of a punitive motivation behind prosecutorial action does not render such
action constitutionally violative.” People v. Hall, 311 Ill. App. 3d 905, 911 (2000). Nevertheless,
“[a]s a general matter, a prosecution is vindictive and violates due process if it is undertaken to
punish a defendant because he has done ‘what the law plainly allows him to do.’ ” People v.
Rendak, 2011 IL App (1st) 082093, ¶ 15 (quoting United States v. Goodwin, 457 U.S. 368, 372
(1982)). In other words, “vindictiveness principles are triggered when a prosecutor without
notice increases the possible sanction severity for no valid reason after the defendant has
exercised a procedural right.” People v. Walker, 84 Ill. 2d 512, 523-24 (1981) (plurality opinion).
¶ 44 In some cases, the facts give rise to a presumption of vindictiveness. “Ordinarily,
a presumption of prosecutorial vindictiveness exists where a prosecutor brings additional charges
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and more serious charges against a defendant after the defendant has successfully overturned a
conviction, effectively subjecting the defendant to greater sanctions for pursuing a statutory or
constitutional right.” Rendak, 2011 IL App (1st) 082093, ¶ 16. “No such presumption, however,
automatically exists in the pretrial setting where a prosecutor has broad discretion in charging a
defendant.” Rendak, 2011 IL App (1st) 082093, ¶ 16.
¶ 45 Here, the parties submit competing views about whether the presumption of
vindictiveness applies. Defendant argues the presumption applies, though he candidly
acknowledges the facts do “not squarely fit within the framework of prosecutorial vindictiveness
case law.” Defendant relies on cases where the State filed new or enhanced charges after the
defendant successfully challenged his initial conviction—through an appeal or a motion to
withdraw a plea, for example. Here, by contrast, the trial court sua sponte vacated defendant’s
guilty plea upon discovering that the court had admonished defendant incorrectly.
¶ 46 Courts have held the presumption of vindictiveness does not arise when the
prosecution modifies charges after a trial court sua sponte declares a mistrial. See United States
v. Whaley, 830 F.2d 1469, 1479 (7th Cir. 1987), abrogated in part on other grounds by, United
States v. Durrive, 902 F.2d 1221 (7th Cir. 1990); Sisson v. State, 985 N.E.2d 1, 11-12 (Ind. Ct.
App. 2012). The reason is that, if the defendant “exercised no statutory or constitutional right,”
he cannot claim he was penalized for or discouraged from exercising such right. Whaley, 830
F.2d at 1479.
¶ 47 This reasoning applies here. The premise of the prohibition against vindictive
prosecutions is that it is improper “[t]o punish a person because he has done what the law plainly
allows him to do.” Goodwin, 457 U.S. at 372. Where a trial court sua sponte vacates an open
guilty plea before sentencing to correct its own error, the defendant has exercised no right for
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which he could be punished vindictively. Moreover, courts recognize a presumption of
vindictiveness only in situations where there is a “realistic likelihood” of vindictiveness, as
opposed to “a mere opportunity for vindictiveness.” (Internal quotation marks omitted.)
Goodwin, 457 U.S. at 384. We see no realistic likelihood a prosecutor would punish a defendant
for a trial court correcting its own mistake in giving faulty admonishments.
¶ 48 Even if the presumption of vindictiveness applied here, we believe the State
rebutted it. The prosecutor had a valid reason to enhance the classification of defendant’s
aggravated DUI charge, as the PSI revealed defendant had four prior DUI convictions, not three.
Although defendant insists the State “had all the information available to it to charge the Class 1
offense when it initially brought charges,” the pretrial bond report did not list defendant’s 1985
DUI conviction. Defendant insists “it was the State’s responsibility to exercise its due diligence
to be aware of the number of [his] prior convictions.” But even if the State could have or should
have discovered the 1985 conviction sooner, inadvertence or negligence is not vindictiveness.
This is not a case like People v. Brexton, 405 Ill. App. 3d 989, 995 (2010), for example, where
the State knew all relevant facts before the defendant entered his guilty plea. There is also no
support for defendant’s assertion that the prosecutor’s “explanation was disingenuous” as to the
reason for enhancing the charge. Nor can defendant claim surprise, as he presumably knew his
own criminal record.
¶ 49 The State thus acted appropriately when it filed a new charge upon receiving new
information. Accordingly, we reject defendant’s claims of plain error and ineffective assistance
of counsel.
¶ 50 C. Excessive Sentence
¶ 51 Finally, defendant argues his 10-year sentence is excessive.
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¶ 52 The Illinois Constitution specifies that “[a]ll penalties shall be determined both
according to the seriousness of the offense and with the objective of restoring the offender to
useful citizenship.” Ill. Const. 1970, art. 1, § 11. The purposes of sentencing include retribution,
deterrence, incapacitation, and rehabilitation. People v. Wheeler, 2019 IL App (4th) 160937,
¶ 37. “Which of these purposes predominates in a given case is a matter left to the sound
discretion of the trial court.” Wheeler, 2019 IL App (4th) 160937, ¶ 37. We accord great
deference to the trial court’s sentencing decision because that court is “ ‘in the best position to
consider the defendant’s credibility, demeanor, general moral character, mentality, social
environment, habits, and age.’ ” People v. Klein, 2022 IL App (4th) 200599, ¶ 38 (quoting
People v. Etherton, 2017 IL App (5th) 140427, ¶ 15). We presume a sentence is proper if it falls
within the statutory penalty range. Klein, 2022 IL App (4th) 200599, ¶ 37. Absent explicit
evidence to the contrary, we also presume the court considered all mitigating factors. People v.
Harris, 2015 IL App (4th) 140696, ¶ 57. “A sentence within the statutory range will not be
deemed excessive, and will not be disturbed, unless it is greatly at variance with the spirit and
purpose of the law or manifestly disproportionate to the nature of the offense.” Harris, 2015 IL
App (4th) 140696, ¶ 55.
¶ 53 Defendant maintains the trial court “did not meaningful[ly] take into account the
fact that [defendant] accepted responsibility for his actions.” He also contends his history of
abusing alcohol should be deemed a mitigating factor in light of his nonviolent criminal history.
According to defendant, he “is in greater need of treatment than a lengthy period of
incarceration.” Defendant further asserts the court did not fully consider his potential for
rehabilitation. In that respect, defendant notes he has an associate degree, he previously owned a
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business, he responded well to alcohol abuse treatment in the past, and he expressed a desire to
abstain from alcohol.
¶ 54 Defendant was under the influence of alcohol when he drove around a roadblock
meant to protect workers who were responding to an accident in a construction zone. This was
defendant’s fifth DUI offense, and he also had a long history of other traffic violations.
Fortunately, a police officer pulled defendant over before anybody got hurt. The trial court
recognized that, although defendant did not contemplate harming anyone, the result easily could
have been different. The court also considered that defendant failed to take advantage of his
lenient sentence for aggravated DUI in 2016. Defendant wrote a note apologizing for his actions,
vowing to abstain from alcohol and to serve his sentence with “honor, integrity and
supplication.” However, defendant also left Illinois after he posted bond in this case, and he
apparently returned in a substance-induced psychosis.
¶ 55 The sentencing range was 4 to 15 years in prison. 730 ILCS 5/5-4.5-30(a) (West
2018). The court also had the discretion to order defendant’s sentence to run consecutively to his
sentence in case number 16-CF-42. 730 ILCS 5/5-8-4(c)(1) (West 2018). The court sentenced
defendant to 10 years in prison and declined to impose consecutive sentencing.
¶ 56 We find no abuse of discretion. Clearly, defendant has an alcohol-abuse problem
and would benefit from treatment. To that end, we note the trial court recommended defendant
for a substance abuse program operated by the Department of Corrections. Defendant also has
the potential for rehabilitation, and nothing in the trial court’s ruling suggested otherwise. On the
other hand, defendant’s addiction and poor choices have manifested themselves repeatedly in
actions that endanger the public, leaving the trial court with no choice but to impose a prison
sentence. We determine the trial court properly accounted for and weighed all relevant factors
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and circumstances. We cannot say defendant’s sentence was greatly at variance with the spirit
and purpose of the law or manifestly disproportionate to the nature of the offense.
¶ 57 III. CONCLUSION
¶ 58 For the reasons stated, we affirm the trial court’s judgment.
¶ 59 Affirmed.
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People v. Page, 2022 IL App (4th) 210374Decision Under Review: Appeal from the Circuit Court of Woodford County, No. 19-CF-
127; the Hon. Michael L. Stroh, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Stephanie T. Puente, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Gregory Minger, State’s Attorney, of Eureka (Patrick Delfino,
for David J. Robinson, and Linda Susan McClain, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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