People v. Brownlee ( 2022 )

2022 IL App (5th) 210144-UNOTICE
NOTICE
Decision filed 09/14/22. The
This order was filed under
text of this decision may be NO. 5-21-0144
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 17-CF-1455
)
SHAVON BROWNLEE, ) Honorable
) John J. O’Gara,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE WHARTON delivered the judgment of the court.
Justices Barberis and Vaughan concurred in the judgment.
ORDER
¶1 Held: Where the record reveals that (1) postplea counsel complied with Illinois Supreme
Court Rule 604(d) (eff. July 1, 2017); (2) the trial court properly admonished the
defendant in accordance with Illinois Supreme Court Rule 402 (eff. July 1, 2012),
and the defendant confirmed that he understood these admonishments; (3) the
defendant is unable to establish grounds to withdraw his plea; and (4) the court did
not abuse its discretion in sentencing the defendant, we conclude the defendant has
no meritorious arguments. We therefore grant appointed appellate counsel’s motion
to withdraw.
¶2 Defendant, Shavon Brownlee, pleaded guilty to felony murder (720 ILCS 5/9-1(a)(3)
(West 2016)) in the death of Phillip Smith. The circuit court sentenced him to 40 years’
imprisonment. The court denied his motion to withdraw the plea but granted his motion to
reconsider the sentence, reducing his prison sentence to 35 years. Defendant appealed.
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¶3 The defendant’s appointed attorney on appeal, the Office of the State Appellate Defender
(OSAD), has concluded that this appeal lacks merit. Accordingly, OSAD has filed a motion to
withdraw as counsel for the defendant (see Anders v. California, 386 U.S. 738 (1967)) along with
a brief in support of the motion. OSAD has provided the defendant with a copy of its Anders
motion and brief. This court has provided him with ample opportunity to file a written pro se brief,
memorandum, etc., responding to OSAD’s motion or explaining why this appeal has merit. The
defendant has filed a response. Having read OSAD’s Anders motion and brief, the defendant’s
response thereto, and having examined the record on appeal, this court concludes that the instant
appeal does indeed lack merit. There is no potential ground for appeal. Accordingly, we grant
OSAD leave to withdraw and affirm the judgment of the circuit court.
¶4 BACKGROUND
¶5 The State originally charged defendant with the murder of Smith and the aggravated battery
with a firearm of Teon Slaughter. The murder charge included a 25-year add-on for personally
discharging a firearm. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2018). Also, the aggravated-
battery sentence had to be consecutive to that for murder. See id. § 5-8-4(d)(1).
¶6 In 2019, the State filed a superseding information charging defendant only with felony
murder. The new charge did not include the firearm enhancement. The State agreed to recommend
a sentence between 25 and 45 years if defendant would plead guilty to the new charge. He would
also have to answer some questions under oath about a codefendant.
¶7 A question arose about defendant’s fitness to stand trial or plead. The court received a
fitness report from Dr. Daniel Cuneo, dated August 5, 2019, in which Dr. Cuneo found defendant
fit. The parties stipulated to the substance of Cuneo’s findings. Defendant asserted that he was fit
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for trial. After questioning defendant about his understanding of the proceedings, the court found
him fit for trial.
¶8 Defendant assured the trial court that he wanted to accept the plea deal. The court
explained to defendant that, in exchange for his plea, the State would dismiss the original 2017
indictment and the court would sentence defendant within the recommenced 25- to 45-year range.
Defendant stated that he understood. In response to further questioning from the court, defendant
stated that he had a ninth-grade education, could read, write, and understand English, and was not
under the influence of any drugs or medication. He was satisfied with his counsel’s representation
and understood he would have to answer questions under oath after pleading guilty.
¶9 The court explained the charge as follows:
“THE COURT: Again, my understanding is you’re coming forward today and
wanting to admit and plead guilty to the offense of first degree murder, that you committed
that offense on August l3, 2017, here in St. Clair County, in that you, without legal
justification while committing forcible felony, an armed robbery, in violation of the laws
of the State of Illinois, that you injured Phillip Smith multiple times about the body and
thereby caused the death of Phillip Smith. Do you understand what it is that you are
admitting to and pleading guilty to here today?
THE DEFENDANT: Yes, sir.”
¶ 10 The court stated that it concurred in the plea agreement and would sentence defendant
within the 25- to 45-year range.
¶ 11 Defendant told the court at one point that he wanted to plead guilty because he was “tired
of dealing with this.” The court admonished him that he faced “very serious consequences” and
should not make a decision based on being tired or frustrated. Defendant clarified that he wanted
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to plead guilty because it was in his best interest. In response to further questioning from the court,
he stated that he understood that he would serve 100% of the sentence for felony murder, and that
his prison sentence would be followed by three years of mandatory supervised release (MSR).
¶ 12 Defendant further understood that, by pleading guilty, he would be giving up his right to
be presumed innocent, to plead not guilty, to have a jury or bench trial, to call and cross-examine
witnesses, put on a defense, and to remain silent. He assured the court that no one had forced or
threatened him to plead guilty, and no promises had been made regarding the outcome of his case,
other than the stated terms of the agreement.
¶ 13 As a factual basis, the prosecutor asserted that the State could prove beyond a reasonable
doubt that, on August 13, 2017, the Illinois State Police responded to a report of a homicide in the
Norman E. Owens housing complex in East St. Louis. Officers responding to the scene observed
a deceased black male, identified as Smith, in the driver’s seat of a vehicle. A second victim,
Slaughter, received multiple injuries and was transported to a hospital.
¶ 14 Slaughter told police that, at the time of the attack, he was asleep in the back seat of Smith’s
car. He awoke to find that he and Smith were injured. He did not see the attackers and could not
use his phone because his wrists were injured, so he walked to the nearest apartment and used his
head to bang on the door for help.
¶ 15 Officers obtained from a nearby convenience store a surveillance video showing several
men entering the store shortly before the shooting. Two of those men were defendant and James
O’Neal. Officers spoke to defendant’s girlfriend’s father. He was at his daughter’s house on the
night of the shooting when the defendant, Devonte Lindsey, and O’Neal arrived. Defendant said
that he, Lindsey, and O’Neal had approached a man sleeping in a car in the Norman Owens housing
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complex and tried to take a bag from inside the vehicle. However, the driver woke up and struggled
with them. Defendant said he injured the driver while O’Neal attacked the man in the back seat.
¶ 16 Lindsey told the police he had recently started “hanging out” with defendant and his cousin,
O’Neal. On the night of the incident, the three drove to a store where they discussed robbing
“younger people.” Defendant and O’Neal were armed with dangerous weapons. The men then
drove to a housing complex and walked around looking for someone to rob. Defendant approached
Smith’s car and told Lindsey he could see a wallet and book bag inside. Defendant thought Smith
probably had money on him. He entered the car through the open passenger-side window and
tried to take the book bag. Lindsey tried to take the wallet, but Smith woke up when Lindsey
reached for it. Defendant punched Smith in the face and attacked him with a dangerous weapon
as O’Neal attacked the back-seat passenger. All three men ran back to O’Neal’s car and drove to
defendant’s girlfriend’s house. Lindsey was shot twice during the incident. Lindsey initially
denied participating in the robbery, claiming he stayed in O’Neal’s car, but eventually admitted
that his fingerprints would be on Smith’s car. Lindsey did not think defendant and O’Neal were
going to kill Smith.
¶ 17 Police also interviewed defendant, who initially denied involvement, stating that he did not
associate with O’Neal. However, after being shown video-surveillance images of him and O’Neal
in the store, he admitted that he might have been with O’Neal that night for a family function.
Police recovered defendant’s fingerprints from a rear door of Smith’s car. Defense counsel
stipulated to the factual basis.
¶ 18 Defendant again stated that he wanted to plead guilty. The court accepted the factual basis,
found defendant’s plea knowing and voluntary, and reiterated that it would sentence defendant
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within the agreed-upon range. Defendant then answered the prosecutor’s questions about O’Neal’s
participation in the incident.
¶ 19 At sentencing, a jail official testified that defendant had been involved in four batteries
during his time at the jail. This was unusual, as less than 10% of the jail population faces
disciplinary proceedings.
¶ 20 The circuit court found the following applicable factors in aggravation: (1) deterrence of
others, (2) defendant caused or threatened serious harm to people other than the named victim,
(3) defendant lacked remorse, and (4) the impact of the crime on the victims’ families. The only
applicable mitigating factor was defendant’s lack of criminal history. The court imposed a 40-
year sentence.
¶ 21 On January 15, 2020, defendant filed a pro se motion to withdraw his guilty plea and vacate
the sentence alleging “ineffective counsel.” Defendant alleged that he was unaware that Lindsey
gave a new statement shortly before defendant’s guilty plea and that counsel was ineffective for
allowing him to proceed with the plea under those circumstances. Because the motion alleged that
counsel was ineffective, the trial court conducted a Krankel hearing. See People v. Krankel, 102
Ill. 2d 181 (1984).
¶ 22 Defense counsel said that he was aware of Lindsey’s statement and reviewed it with
defendant, who felt that he did not have enough time to evaluate the statement before pleading
guilty. We note that Lindsey’s October 2019 statement contained only one significant difference
from his original statement. In the original statement, Lindsey said that he, defendant, and O’Neal
drove to Centreville to pick up two other men, but the latter statement asserted that only he,
defendant, and O’Neal were in the car.
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¶ 23 The court observed that the new statement reiterated defendant’s involvement in the
offense, although it could possibly have been used to impeach Lindsey at a trial. The court found
that counsel was not ineffective because he discussed Lindsey’s new statement with defendant and
the new statement would not have made a substantial difference in defendant’s decision whether
to plead guilty, stating that “why anybody would rely on that in deciding whether to plead guilty
or not doesn’t make any sense to me.”
¶ 24 The court initially declined to appoint new counsel, but after defendant said that he no
longer wanted his attorney to represent him, the court appointed a public defender. New counsel
filed an Illinois Supreme Court Rule 604(d) certificate on August 27, 2020, stating that he:
(1) consulted with the 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) 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) made any amendments to the motion necessary for
the adequate presentation of any defects in those proceedings. See Ill. S. Ct. R. 604(d) (eff. July
1, 2017).
¶ 25 New counsel filed an amended motion to withdraw the guilty plea, alleging that:
(1) defendant was not allowed to fully review discovery, including videos, that would have
changed his decision to plead guilty; (2) had defendant known about Lindsey’s new statement prior
to the guilty plea hearing, he would not have pled guilty; (3) defense counsel failed to adequately
communicate with defendant; (4) defendant’s plea was involuntary where (a) defense counsel was
ineffective, and (b) defendant did not understand the nature of the charges; and (5) defendant had
a defense worthy of consideration.
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¶ 26 At a hearing on the motion, defendant testified that, despite repeated requests, his original
counsel refused to allow him to see “videos” and that, had he seen them, it would have changed
his position on a possible plea deal. Defendant also testified that he first learned of Lindsey’s
revised statement on the morning of the plea hearing. On cross-examination, defendant testified
he did not know what was on the videos as he had never seen them. Had he seen them, he would
have known whether they were consistent with police reports.
¶ 27 Counsel, by contrast, said that he showed defendant videos that he thought were pertinent,
using a laptop at the courthouse. He visited defendant in jail more than once prior to the guilty-
plea hearing and regularly communicated with him. In rebuttal, defendant denied that counsel
ever showed him videos on a laptop.
¶ 28 The court denied the motion to withdraw. The court found that the plea was voluntary,
there was no mistake of fact or law, and that counsel’s representation, while “not perfect,” was not
constitutionally ineffective. The court then proceeded to the motion to reconsider the sentence.
The court stated that Dr. Cuneo’s report indicated that defendant suffered from “an unspecified
learning disorder and borderline intellectual functioning,” but that these facts were not “touched
upon by this Court at the sentencing or relied upon sufficiently in the Court’s opinion.”
Accordingly, the court reduced defendant’s sentence to 35 years’ imprisonment. Defendant filed
a notice of appeal and the court appointed OSAD.
¶ 29 ANALYSIS
¶ 30 We agree with OSAD that this appeal presents no issue of even arguable merit. OSAD
first concludes that postplea counsel complied with Illinois Supreme Court Rule 604(d) (eff. July
1, 2017). The rule requires that counsel representing a defendant on a postplea motion shall: “file
with the trial court a certificate stating that the attorney has consulted with the defendant either by
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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.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017). The certificate must indicate that counsel
discussed with the defendant potential errors relating both to the sentence and to the guilty plea.
People v. Tousignant, 2014 IL 115329, ¶ 20.
¶ 31 Here, counsel filed a certificate stating that he had consulted with defendant to ascertain
his contentions of error in the entry of the plea and in the sentence; examined the trial court file
and report of proceedings of the plea of guilty and the report of proceedings in the sentencing
hearing; and made any amendments to the motion necessary to adequately present those alleged
defects. As counsel’s certificate closely tracked the language of the rule, there is no arguably
meritorious contention that counsel failed to comply.
¶ 32 OSAD next concludes that no good-faith contention can be made that defendant’s plea was
involuntary. Due process requires that a guilty plea must be knowing and voluntary. People v.
Kidd, 129 Ill. 2d 432, 443 (1989) (citing Boykin v. Alabama, 395 U.S. 238 (1969)). To that end,
Illinois Supreme Court Rule 402 requires that, prior to accepting a guilty plea, the trial court
admonish the defendant (1) of the nature of the charge, (2) of the minimum and maximum sentence
prescribed by law, (3) that the defendant has the right to plead not guilty, and (4) that if the
defendant pleads guilty there will not be a trial of any kind, so that by pleading guilty he or she
waives the right to a trial by jury and the right to be confronted with the witnesses against him or
her. Ill. S. Ct. R. 402 (eff. July 1, 2012).
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¶ 33 Here, the trial court properly admonished defendant about the charge and the minimum
and maximum sentences. The court told defendant that he was giving up his right to plead not
guilty. The trial court also told defendant that, by entering a guilty plea, he would give up his right
to a jury or bench trial at which he could present his own witnesses, cross-examine the State’s
witnesses, and hold the State to its burden of proving him guilty beyond a reasonable doubt. The
court explained the difference between a jury trial and a bench trial. Defendant assured the court
that he understood each of these admonishments. Defendant further assured the court that he
wanted to plead guilty because doing so was in his best interest and that no one had threatened him
or promised him anything in exchange for pleading guilty. Thus, at least as to the initial
admonishments, there can be no reasonable argument that defendant’s plea was not knowing and
voluntary. See People v. Artale, 244 Ill. App. 3d 469, 475 (1993) (where record refutes assertions
that a plea was not knowing and voluntary, court may deny motion to withdraw plea, as a proper
and meticulous admonition of the defendant per Rule 402 cannot simply be ignored).
¶ 34 OSAD further concludes that defendant could not successfully contend that the trial court
erred by denying his motion to withdraw his plea. A defendant does not have an absolute right to
withdraw a guilty plea and bears the burden of demonstrating the necessity of withdrawing the
plea. People v. Ferral-Mujica, 2017 IL App (2d) 160240, ¶ 22. A defendant should be allowed
to withdraw a guilty plea:
“ ‘Where it appears that the plea of guilty was entered on a misapprehension of the facts or
of the law, or in consequence of misrepresentations by counsel or the State’s Attorney or
someone else in authority, or the case is one where there is doubt of the guilt of the accused,
or where the accused has a defense worthy of consideration by a jury, or where the ends of
justice will be better served by submitting the case to a jury, the court should permit the
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withdrawal of the plea of guilty and allow the accused to plead not guilty.’ ” People v.
Davis, 145 Ill. 2d 240, 244 (1991) (quoting People v. Morreale, 412 Ill. 528, 531-32
(1952)).
¶ 35 Lindsey’s new statement was not grounds for defendant to withdraw his plea. Defendant
admitted in his testimony that he was aware of the new statement before the guilty plea hearing.
And in any event, Lindsey’s October 2019 statement was consistent with his earlier statement in
terms of defendant’s involvement in the incident. The only difference was the collateral detail
whether the codefendants picked up two additional men prior to the offense. Thus, the trial court
could reasonably conclude that defendant’s assertion that he would not have pleaded guilty had he
seen the statement earlier, did not “make any sense.”
¶ 36 Similarly, defendant was not entitled to withdraw his plea based on his assertion that he
was not able to see the videos. The trial court could reasonably credit original counsel’s detailed
testimony that he showed defendant pertinent videos. But even taking defendant’s contrary
testimony at face value, he cannot establish that viewing the videos would have caused him to
reject the State’s plea offer. At the hearing, defendant testified that he did not know what the
videos showed, as he had not seen them. Thus, he cannot plausibly claim that something on the
videos would have caused him to change his plea. Moreover, defendant assured the court at the
guilty plea hearing that his plea was voluntary and that he was satisfied with counsel’s
performance.
¶ 37 A defendant has the burden to establish grounds to withdraw his guilty plea (Ferral-
Mujica, 2017 IL App (2d) 160240, ¶ 22). At least on the present record, we cannot say that any
inability to view the videos affected defendant’s decision to plead guilty.
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¶ 38 We note that defendant received a relatively advantageous offer from the State. The State
removed the 25-year firearm add-on from the murder charge and dropped altogether the battery
charge involving Slaughter, which upon conviction would have resulted in a sentence of at least 6
years, to be served consecutively to any sentence for murder. Instead, per the plea agreement, he
faced a maximum sentence of 45 years. The trial court reasonably rejected defendant’s assertion
that he would have rejected this offer based on the relatively trivial discovery issues he raised.
¶ 39 OSAD lastly concludes that defendant could not successfully challenge his sentence.
Sentencing is within the trial court’s discretion and we will not disturb a sentence absent an abuse
of that discretion. People v. O’Neal, 125 Ill. 2d 291, 297-98 (1988). A sentence within the
statutory range is presumed not to be excessive. People v. Wilson, 2017 IL App (3d) 150165, ¶ 12.
Here, the 35-year sentence, and 3-year MSR period, imposed by the trial court are within both the
statutory range for murder (730 ILCS 5/5-4.5-20(a)(1) (West 2018)) and the recommended range
agreed upon by the parties.
¶ 40 Further, the record shows that the trial court considered the relevant aggravating and
mitigating factors. In adjudicating defendant’s motion to reconsider the sentence, the court
acknowledged that it may have given insufficient consideration to a mitigating factor and reduced
defendant’s sentence accordingly. While defendant had no previous criminal record, the crime
was serious. Although Smith’s death was the basis for the charge to which defendant pleaded
guilty, the trial court also properly considered the serious injuries suffered by Slaughter (the charge
that was dropped pursuant to the plea agreement). Defendant nonetheless received a sentence at
the exact midpoint of the agreed-upon sentencing range. Thus, there is no good-faith argument
that the trial court abused its discretion in sentencing defendant.
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¶ 41 In response to OSAD’s Anders motion, defendant has filed what appears to be a pro se
brief. He argues that he should have been allowed to withdraw his plea based on Lindsey’s new
statement and his being unable to view the videos. He also raises two additional claims: that the
trial court did not admonish him that intent to kill the victim was an element of the offense to
which he pleaded guilty; and that the prospect of Lindsey testifying against him after having
entered into a plea agreement in exchange for that testimony violated defendant’s right to due
process.
¶ 42 As previously discussed, the record flatly refutes the first two claims. Defendant
acknowledged that he was aware of Lindsey’s revised statement before the plea hearing and the
trial court reasonably credited defense counsel’s testimony that he showed defendant the pertinent
videos.
¶ 43 Moreover, as the circuit court noted, Lindsey’s new statement differed only in the collateral
detail of whether they picked up additional passengers before committing the crime. His account
of defendant’s involvement remained unchanged. The circuit court found incredible defendant’s
assertion that he would have rejected the State’s relatively generous plea offer and insisted on
going to trial based on this inconsequential discrepancy. With regard to the videos, defendant’s
claim that he would have rejected the State’s plea offer based on the content of the videos is
inconsistent with his testimony that he had not seen them.
¶ 44 The third claim, that the trial court did not inform him that intent to kill the victim was an
element of the offense, is meritless. Defendant was charged with felony murder. Intent to cause
the victim’s death is not an element of felony murder. See 720 ILCS 5/9-1(a)(3) (West 2018) (“A
person who kills an individual without lawful justification commits first degree murder if, in
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performing the acts which cause the death ***[,] he is attempting or committing a forcible felony
other than second degree murder.”).
¶ 45 Here, the State filed an amended information that included all the statutory elements. At
the plea hearing, the court recited the charge in detail and defendant said that he understood the
nature of the offense. Thus, the record refutes any claim that defendant did not understand the
nature and elements of the offense.
¶ 46 Defendant cites Henderson v. Morgan, 426 U.S. 637 (1976), which is readily
distinguishable. There, the defendant was charged with first degree murder. He was allowed to
plead guilty to second degree murder, but the prosecution never filed a written charge alleging that
offense. The defendant, who had an exceptionally low IQ and had always maintained that he did
not intend to kill the victim, was never informed that the intent to kill the victim was an element
of second degree murder. Under those circumstances, the Court held that his plea was involuntary.
Id. at 646-47.
¶ 47 Here, intent to kill was not an element of felony murder. The State filed an amended
information including the statutory elements. The trial court read defendant the charge, which he
said he understood.
¶ 48 Defendant’s last claim is that the State offering Lindsey a plea deal in exchange for his
testimony against defendant violated defendant’s right to due process. Defendant cites no
authority for the assertion that this common practice somehow violated his constitutional rights,
and has therefore waived it. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). In any event, such
agreements have been routinely upheld so long as the witness is required to testify truthfully. See,
e.g., People v. Cotton, 393 Ill. App. 3d 237, 252-55 (2009).
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¶ 49 Defendant further claims for the first time that he was “prejudiced by this perjured
testimony.” Defendant does not further explain this claim. There was no “testimony,” as
defendant pleaded guilty. At the plea hearing, he stipulated to the factual basis and waived the
right to subject the State’s case to adversarial scrutiny.
¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, OSAD’s Anders motion is granted, and the judgment of the
circuit court is affirmed.
¶ 52 Motion granted; judgment affirmed.
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