People v. Sharp ( 2022 )

NOTICE 2022 IL App (4th) 210718-U FILED
This Order was filed under August 16, 2022
Supreme Court Rule 23 and is NO. 4-21-0718 Carla Bender
not precedent except in the
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). 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. ) McLean County
BYRON LEE SHARP, ) No. 10CF653
Defendant-Appellant. )
) Honorable
) John Casey Costigan,
) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court.
Justices DeArmond and Cavanagh concurred in the judgment.
ORDER
¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to
withdraw as counsel and affirmed the circuit court’s judgment as no issue of
arguable merit could be raised on appeal.
¶2 Defendant, Byron Lee Sharp, appeals from the trial court’s summary dismissal of
his postconviction petition. On appeal, the Office of the State Appellate Defender (OSAD)
moves to withdraw as appellate counsel on the ground no issue of arguable merit can be raised.
We grant OSAD’s motion and affirm the trial court’s judgment.
¶3 I. BACKGROUND
¶4 In July 2010, the State charged defendant by information with two counts of
criminal sexual assault, Class 1 felonies (720 ILCS 5/12-13(a)(2), (b)(1) (West 2010)), and one
count of aggravated criminal sexual abuse, a Class 2 felony (720 ILCS 5/12-16(d), (g) (West
2010)). The charges stemmed from a series of incidents involving A.B., who was 13 and 14
years old at the time of the incidents.
¶5 A. Guilty Plea
¶6 In November 2010, defendant entered into a negotiated plea agreement to the two
counts of criminal sexual assault. In exchange for defendant’s guilty plea, the State agreed to
nol-pros the count of aggravated criminal sexual abuse and agreed to a sentencing cap of 30
years. Defendant maintained “a right at a sentencing hearing to request a lesser sentence.” The
plea agreement noted defendant was subject to mandatory Class X sentencing and mandatory
consecutive sentencing for the two counts of criminal sexual assault.
¶7 At defendant’s plea hearing, the trial court admonished defendant on the terms of
his plea. Defendant stated he understood the charges against him. The court confirmed with the
State defendant was subject to mandatory Class X sentencing. The State identified a 2005
conviction for manufacture and delivery of a narcotic, a Class 1 felony, and a 1993 conviction
for manufacture and delivery of a controlled substance, a Class 2 felony, as prior qualifying
convictions. The court admonished defendant his sentences would be served consecutively and
he would be subject to a sentence between 12 and 60 years’ imprisonment without his plea
agreement. Defendant affirmed he understood the possible sentences. The court then discussed
the terms of defendant’s plea agreement with him, admonishing defendant:
“Now, your plea agreement, [defendant], says, that in return for your plea of
guilty to these two charges, first of all, the State is dismissing the third charge that
had been filed here, and the agreement says that you will be sentenced to no more
than a total of 30 years in the Department of Corrections. You will have a right at
a sentencing hearing to request a lesser sentence than that. Now what that means
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is at that next hearing, the sentencing, the court will take evidence from both
parties; and the court will decide the penalty, and it could be anything from a
minimum of 12 years up to a maximum of 30 years or anything in between 12 and
30.”
Defendant agreed he understood the terms of the plea agreement and possible sentencing. After
assuring defendant was aware of his rights, the court confirmed defendant was not forced or
threatened into the plea agreement and no other promises were offered to defendant beyond the
terms of the plea agreement. Defendant agreed. The State presented the factual basis for the
charges, and the court accepted defendant’s plea as knowing and voluntary.
¶8 Defendant’s presentence investigation report (PSI) detailed defendant’s criminal
record, which included 10 felony convictions and 3 misdemeanor convictions. The report also
explained defendant’s family, medical, substance abuse, and economic history.
¶9 At defendant’s sentencing hearing in January 2011, he did not object or offer
additions or corrections to the PSI. A.B.’s mother testified in aggravation. Defendant did not
present any additional evidence in mitigation. The State requested an aggregate term of 30 years’
imprisonment. Defendant requested an aggregate term of 20 years’ imprisonment. After
considering the PSI, the evidence presented, the recommendations of counsel, defendant’s
statement in allocution, and the relevant factors in mitigation and aggravation, the trial court
sentenced defendant to two terms of 14 years’ imprisonment, for an aggregate term of 28 years’
imprisonment. The court stated in deciding defendant’s sentence,
“The only thing that I see in this case that suggests there should be any departure
from the maximum penalty that I could impose is the fact that you pled guilty,
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that you took responsibility once you were in court and that you did not put this
child through the additional trauma of having to come to court.”
The court admonished defendant of his appellate rights in compliance with Illinois Supreme
Court Rule 605(c) (eff. Oct. 1, 2001), including the requirement defendant file a motion to
withdraw his guilty plea before filing an appeal.
¶ 10 B. Postplea Motions
¶ 11 In February 2011, defendant filed a letter with the trial court in which defendant
requested the court vacate his guilty plea. In a docket entry dated February 18, 2011, the court
construed defendant’s letter as a timely motion to withdraw his guilty plea, reappointed
defendant’s public defender, and set the motion for hearing.
¶ 12 In April 2011, appointed counsel filed a motion to reconsider defendant’s
sentence and a motion to withdraw defendant’s guilty plea and vacate the judgments. In the
motion to withdraw defendant’s guilty plea, defendant argued he did not fully understand the
plea and consequences thereof. Counsel also filed a certificate in compliance with Illinois
Supreme Court Rule 604(d) (eff. July 1, 2006).
¶ 13 At the hearing on defendant’s motions, counsel informed the court defendant filed
the motions on a “misapprehension of the law on [defendant’s] part.” Defendant only wanted to
challenge his sentence and not risk withdrawing his plea agreement. Counsel stated defendant
now wished to withdraw both motions. The court spoke with defendant, informed him of the
consequences of withdrawing the motions, and confirmed his desire to withdraw the motions.
Defendant agreed.
¶ 14 C. Postconviction Petition
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¶ 15 On August 16, 2021, defendant filed a petition for postconviction relief pursuant
to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). In his
petition, defendant argued he (1) received ineffective assistance of counsel where counsel
(a) pressured him to withdraw his motions to withdraw his guilty plea and reconsider his
sentence by threatening defendant with an increased sentence, (b) did not challenge his Class X
sentencing, and (c) did not provide defendant with copies of the transcripts from his proceedings;
(2) was denied due process where the State failed to notify defendant he was eligible for Class X
sentencing in the charging document; and (3) was denied due process where he received a
sentence of 28 years when his counsel told him he would get 20 years.
¶ 16 On August 24, 2021, the trial court entered a written order summarily dismissing
defendant’s postconviction petition as frivolous and patently without merit.
¶ 17 Defendant appealed the trial court’s summary dismissal of his postconviction
petition, and OSAD was appointed to represent him on appeal. In March 2022, OSAD moved to
withdraw as counsel on appeal. We granted defendant leave to file a response to OSAD’s motion
on or before April 25, 2022. Defendant has not done so.
¶ 18 II. ANALYSIS
¶ 19 OSAD contends no meritorious argument can be made the trial court erred in
summarily dismissing defendant’s postconviction petition. We agree.
¶ 20 The Act provides a mechanism for a criminal defendant to challenge his
conviction or sentence based on a substantial violation of federal or state constitutional rights.
People v. Morris, 236 Ill. 2d 345, 354, 925 N.E.2d 1069, 1074-75 (2010). Proceedings under the
Act are collateral in nature and not an appeal from the defendant’s conviction or sentence.
People v. English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. At the first stage of proceedings, the
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trial court must, within 90 days and without seeking or relying on input from the State,
summarily dismiss the petition if it determines the petition is frivolous or patently without merit,
meaning “the petition has no arguable basis either in law or in fact.” People v. Hodges, 234 Ill.
2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). See also 725 ILCS 5/122-2.1(a)(2) (West 2020);
People v. Gaultney, 174 Ill. 2d 410, 419, 675 N.E.2d 102, 107 (1996). At the first stage of
proceedings under the Act, all well-pleaded allegations are to be taken as true unless those
allegations are positively rebutted by the record. People v. Brown, 236 Ill. 2d 175, 189, 923
N.E.2d 748, 757 (2010). We review the trial court’s summary dismissal of a postconviction
petition de novo. People v. Edwards, 197 Ill. 2d 239, 247, 757 N.E.2d 442, 447 (2001).
¶ 21 A. Procedural Error
¶ 22 OSAD first asserts it can make no colorable argument the trial court procedurally
erred in summarily dismissing defendant’s postconviction petition at the first stage. The trial
court entered its written order on August 24, 2021, well within the 90-day period allotted by the
Act and without input by the State. Accordingly, we agree with OSAD it is not arguable the trial
court procedurally erred in dismissing defendant’s petition.
¶ 23 B. Substantive Error
¶ 24 OSAD further asserts it can make no colorable argument the trial court
substantively erred in dismissing defendant’s postconviction petition where defendant’s
contentions have no merit. Defendant made several claims in his postconviction petition: (1) he
received ineffective assistance of counsel where counsel (a) pressured him to withdraw his
motions to withdraw his guilty plea and reconsider sentence by threatening defendant with an
increased sentence, (b) did not challenge his Class X sentencing, and (c) did not provide
defendant with copies of the transcripts from his proceedings; (2) defendant was denied due
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process where the State failed to notify defendant he was eligible for Class X sentencing in the
charging document; and (3) defendant was denied due process where he received a sentence of
28 years when his counsel told him he would get 20 years. We agree with OSAD none of
defendant’s claims have merit.
¶ 25 1. Ineffective Assistance of Counsel
¶ 26 To demonstrate ineffective assistance of counsel, a defendant must show
counsel’s (1) performance fell below an objective standard of reasonableness and (2) deficient
performance resulted in prejudice to the defendant such that, but for counsel’s errors, the result
of the proceeding would have been difference. Strickland v. Washington, 466 U.S. 668, 688, 694
(1984). If a defendant fails to prove either prong of the Strickland test, his claim for ineffective
assistance of counsel must fail. People v. Sanchez, 169 Ill. 2d 472, 487, 662 N.E.2d 1199, 1208
(1996). In the context of postconviction proceedings, “a petition alleging ineffective assistance of
counsel may not be summarily dismissed if (i) it is arguable that counsel’s performance fell
below an objective standard of reasonableness and (ii) it is arguable that the defendant was
prejudiced.” Hodges, 234 Ill. 2d at 17.
¶ 27 a. Alleged Threat of Increased Sentence
¶ 28 Defendant’s first claim of ineffective assistance, counsel threatened him with a
higher sentence if he did not withdraw his motions to withdraw his guilty plea and reconsider his
sentence, is positively rebutted by the record. At the hearing on defendant’s motions, defendant
affirmed to the court he wished to withdraw his motions and he understood the ramifications of
doing so.
¶ 29 Further, even if counsel had informed defendant he would be subject to a higher
sentence if he persisted with his motion to withdraw his guilty plea, such advice would be a
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correct assessment of the law. To challenge a sentence after entering a negotiated guilty plea, a
defendant must first file a motion to withdraw the guilty plea pursuant to Illinois Supreme Court
Rule 604(d) (eff. July 1, 2017). See People v. Linder, 186 Ill. 2d 67, 68, 708 N.E.2d 1169, 1170
(1999). If defendant withdrew his guilty plea, and was later found guilty of the charged offenses,
two counts of criminal sexual assault, Class 1 felonies (720 ILCS 5/12-13(a)(2), (b)(1) (West
2010)), for which he was subject to Class X sentencing (730 ILCS 5/5-4.5-95(b) (West 2010)),
and which would be mandatory consecutive sentences (id. § 5-8-4(d)(2)), he would have been
subject to a maximum sentence of 60 years’ imprisonment (id. § 5-4.5-25(a) (“The sentence of
imprisonment shall be a determinate sentence of not less than 6 years and not more than 30
years.”)). The court would not be bound by defendant’s original sentence of 28 years and could
impose a higher sentence at its discretion. See People v. Walker, 2021 IL App (4th) 190073,
¶ 68, 188 N.E.3d 1235. Therefore, there is no merit to an argument counsel provided ineffective
assistance by correctly informing defendant of the risks of persisting with his motion to withdraw
his guilty plea.
¶ 30 b. Class X Sentencing
¶ 31 Next, defendant claims counsel provided ineffective assistance where he failed to
challenge defendant’s eligibility for Class X sentencing.
¶ 32 First, “[i]t is well established that a voluntary guilty plea waives all
non-jurisdictional errors or irregularities, including constitutional ones.” People v. Townsell, 209
Ill. 2d 543, 545, 809 N.E.2d 103, 104 (2004). However, even were defendant’s claim of
ineffective assistance not waived, it has no merit, as defendant was subject to Class X
sentencing.
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¶ 33 Section 5-4.5-95(b) of the Unified Code of Corrections (730 ILCS 5/5-4.5-95(b)
(West 2010)) provides as follows:
“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2
felony, after having twice been convicted in any state or federal court of an
offense that contains the same elements as an offense now (the date the Class 1 or
Class 2 felony was committed) classified in Illinois as a Class 2 or greater Class
felony and those charges are separately brought and tried and arise out of different
series of acts, that defendant shall be sentenced as a Class X offender.”
In other words, if a defendant has two prior Class 2 or greater felonies and is convicted of a third,
unrelated felony, he is subject to Class X sentencing.
¶ 34 Defendant pleaded guilty to two counts of criminal sexual assault, Class 1
felonies (720 ILCS 5/12-13(a)(2), (b)(1) (West 2010)). Defendant has two prior Class 1 felony
convictions and five prior Class 2 felony convictions. See Individuals in Custody, Illinois
Department of Corrections, https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx
(last visited July 18, 2022); see also People v. Young, 355 Ill. App. 3d 317, 321 n.1, 822 N.E.2d
920, 924 (2005) (holding we may take judicial notice of information that the Department of
Corrections has provided on its website). The same convictions are listed in defendant’s PSI,
which he did not dispute. Any two of those convictions would be sufficient to subject defendant
to mandatory Class X sentencing. The State specifically identified qualifying convictions during
the plea hearing, “[Defendant] has a [2005] Cook County manufacture and a delivery of a
narcotic, a Class One Felony. He also has a [1993] Cook County manufacture and delivery of a
controlled substance, a Class Two Felony. Those would be the two Class Twos or greater.” The
court discussed the possible penalties with defendant and defendant stated he understood.
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Therefore, any challenge to defendant’s eligibility for Class X sentencing would have been
without merit.
¶ 35 c. Transcripts
¶ 36 Defendant also argues counsel provided ineffective assistance by not providing
defendant with a copy of the trial court transcripts after he filed his motion to withdraw his guilty
plea.
¶ 37 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) provides if a defendant
filing a motion to withdraw his guilty plea is indigent, “the trial court shall order a copy of the
transcript *** be furnished the defendant without cost.” After defendant filed his letter which the
court construed as a pro se motion to withdraw his guilty plea, the court in a docket entry dated
February 18, 2011, reappointed defendant’s public defender and ordered transcripts prepared for
defendant. Defendant’s counsel certified he reviewed the transcripts of proceedings pursuant to
Rule 604(d). Therefore, the record shows transcripts were provided in compliance with Rule
604(d).
¶ 38 Defendant does not explain why he was entitled to personally receive copies of
the transcripts from his counsel, nor does he explain how he was prejudiced by not personally
receiving copies of the transcripts. Without prejudice, there can be no ineffective assistance of
counsel. See Sanchez, 169 Ill. 2d at 487.
¶ 39 2. Charging Document
¶ 40 Defendant alleges in his postconviction petition his due process rights were
violated where the State failed to include his eligibility for Class X sentencing in the charging
instrument.
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¶ 41 First, as previously discussed, “[i]t is well established that a voluntary guilty plea
waives all non-jurisdictional errors or irregularities, including constitutional ones.” Townsell,
209 Ill. 2d at 545. Any claim of error as to defendant’s charging document is waived. Waiver
aside, however, defendant’s claim has no merit, as the State was not required to include
defendant’s eligibility for Class X sentencing in the charging document. Our supreme court has
stated while section 5-4.5-95(b) of the Unified Code of Corrections (730 ILCS 5/5-4.5-95(b)
(West 2010)) increases a defendant’s sentence because of his prior felony convictions, the
classification of the offense for which the defendant is then being sentenced remains the same as
that originally charged. People v. Jameson, 162 Ill. 2d 282, 290, 642 N.E.2d 1207, 1211 (1994).
Therefore, the State was not required to give notice of the Class X sentencing eligibility. Id.(holding the State is not required to notify a defendant in advance of trial that he could receive an
increased sentence based on his prior criminal convictions).
¶ 42 3. Sentencing Agreement
¶ 43 Finally, defendant claims his due process rights were violated when he was
sentenced to 28 years’ imprisonment after his lawyer told him he would get 20 years’
imprisonment. Defendant’s claim is positively rebutted by the record.
¶ 44 Prior to accepting defendant’s plea agreement, the trial court questioned
defendant extensively. The court confirmed defendant understood the terms of his plea
agreement, including defendant would be “sentenced to no more than a total of 30 years in the
Department of Corrections.” The court reiterated for defendant, “Now what that means is at that
next hearing, the sentencing, the court will take evidence from both parties; and the court will
decide the penalty, and it could be anything from a minimum of 12 years up to a maximum of 30
years or anything in between 12 and 30.” Defendant confirmed he understood the possible
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sentence. He also confirmed no other promises were made beyond the discussed terms of his plea
agreement. After these extensive admonishments, the trial court accepted defendant’s guilty plea
as knowing and voluntary. Therefore, any claim defendant was misled regarding the terms of his
agreement and the possible sentence is positively rebutted by the record.
¶ 45 III. CONCLUSION
¶ 46 For the reasons stated, we agree no meritorious issue can be raised on appeal. We
grant counsel’s motion to withdraw as appellate counsel and affirm the trial court’s judgment.
¶ 47 Affirmed.
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