People v. Nieto-Roman , 2019 IL App (4th) 180807 ( 2020 )

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Appellate Court Date: 2020.09.29
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People v. Nieto-Roman, 2019 IL App (4th) 180807
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOSE MIGUEL NIETO-ROMAN, Defendant-Appellant.
District & No. Fourth District
No. 4-18-0807
Filed November 26, 2019
Decision Under Appeal from the Circuit Court of Cass County, No. 14-CF-112; the
Review Hon. Bob Hardwick Jr., Judge, presiding.
Judgment Affirmed.
Counsel on Stephen L. Richards, of Chicago, for appellant.
Appeal
R. John Alvarez, State’s Attorney, of Virginia (Patrick Delfino, David
J. Robinson, and David E. Mannchen, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE TURNER delivered the judgment of the court, with opinion.
Justices Knecht and Cavanagh concurred in the judgment and opinion.
OPINION
¶1 In November 2014, the State charged defendant, Jose Miguel Nieto-Roman, by information
with two counts of first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2014)) and one count
of aggravated battery (720 ILCS 5/12-3.05(b)(1) (West 2014)). In May 2015, the State also
charged defendant with felony murder (720 ILCS 5/9-1(a)(1), (2) (West 2014)) predicated
upon predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2014)). At
a June 2015 hearing, defendant entered a plea of guilty to one count of first degree murder (720
ILCS 5/9-1(a)(1) (West 2014)) pursuant to a negotiated plea agreement. Under the plea
agreement, the State moved to dismiss the other three charges and defendant’s sentence would
be capped at 50 years in prison. The Cass County circuit court accepted the agreement and
factual basis and entered a judgment of guilty. In August 2015, the court held defendant’s
sentencing hearing and sentenced him to 50 years in prison. Defendant filed pro se a timely
motion to withdraw his guilty plea. Defendant’s various attorneys filed several other postplea
motions, including an amended motion to withdraw defendant’s guilty plea and an amended
motion to reconsider defendant’s sentence in June 2017. After a November 2018 evidentiary
hearing, the court denied defendant’s amended motion to withdraw his guilty plea and
amended motion to reconsider his sentence.
¶2 Defendant appeals, asserting the circuit court erred by denying his amended motion to
withdraw his guilty plea because he (1) presented a defense worthy of consideration,
(2) showed a doubt of his guilt existed, and (3) was denied effective assistance of counsel based
on defense counsel’s failure to file a motion to suppress his custodial statements. We affirm.
¶3 I. BACKGROUND
¶4 All four of the charges in this case relate to the death of eight-month-old E.A.F. on October
31, 2014, who was the son of defendant’s girlfriend, Ember A.F. At the June 26, 2015, hearing,
the State presented the following plea agreement:
“Your Honor, in return for his guilty plea to Count 1, the state would be dismissing
Counts 2, 3, and 4. We would agree to take the request that we had for natural life in
prison, amend the information to take that out of there. We have agreed to a fifty year
cap, so the sentencing range would be 20 to 50 years in [the Department of
Corrections]. Of course, there would still be mandatory supervised release on whatever
the court would decide on the sentence. We would have a full presentence investigation
and we’d have a full sentencing hearing.”
The circuit court then admonished defendant pursuant to Illinois Supreme Court Rule 402(a)
(eff. July 1, 2012) and determined defendant’s plea was voluntary.
¶5 After determining the plea was voluntary, the circuit court asked for the factual basis. The
State provided, in pertinent part, the following factual basis:
“On October 31 of 2014 about approximately 8:00 A.M., Ember *** left her baby,
[E.A.F.], with the defendant to care for him while she went to a Halloween party with
her other child at the Beardstown school. She got to the school about 8:20. She spent
her time at the party. She went back home a little bit after 10:00 A.M. The defendant
was alone taking care of that baby. The only one to have contact with the baby for that
two hour period of time. When Ember *** got back to the house, the baby was lifeless,
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cool to the touch and was later pronounced dead at the Culbertson Hospital. Our
evidence will show and our pathologist will testify to the fact that the baby died from
blunt force trauma to the head, that was acute. In other words, it had just happened.
Also, when Ember left the baby with the defendant, she changed the baby’s diaper, the
baby was awake, she fed the baby, it was healthy, there were no problems with the baby
whatsoever. The doctor will also testify, the pathologist, the baby had approximately a
five inch skull fracture with internal bleeding in the brain which was the ultimate cause
of death. Also contributing to the death the doctor will testify that the baby had
fractured ribs, burns, cocaine intoxication and cuts inside the baby’s mouth and various
other injuries. Our evidence will show that these were not accidental injuries. Our
evidence will show that they were knowing, that the defendant knowingly caused the
death of [E.A.F.] Also our evidence will show that the defendant, in fact, had cocaine
in his system the same as the baby did.”
The court asked defendant if that is what happened, and defendant replied in the affirmative.
The court also asked defendant if he was taking any medication, and defendant noted he was
taking a depression pill that contained a sleeping pill. Defendant had been taking the
medication since he had been in jail. Defense counsel also asked defendant some questions
about his representation of defendant. After the questions were over, the court confirmed
defendant was pleading guilty to one count of first degree murder and entered judgment
accordingly.
¶6 In August 2015, the circuit court held defendant’s sentencing hearing. The State presented
four photographs of the victim, and defendant presented the testimony of Tonya Bailey, the
mother of one of defendant’s children. Defendant also made a statement of allocution, which
read as follows:
“Dear Judge, Kevin told me to write down what I wanted to say to you so I could
read it and not forget anything. I don’t know how to explain what happened that day. I
loved [E.A.F.] very much and can’t believe I would ever hurt him. He is gone now and
I have to live with it. I have to live with that every day for the rest of my life. I know
the pain will never go away. I guess it shouldn’t. I won’t blame drugs for what
happened, but I wish I had never started with them because they can change you. You
are not the same person and they did change me. I stabbed myself that day after
everything because I no longer wanted to live knowing what I had done. I hope God
will forgive me. I know you have to give me my sentence today, and it has to be for a
long time. I hope you can give me the minimum of twenty. I will be almost fifty years
old when I get out. I am done with drugs forever. I know you hear that all the time, but
I mean it. I want to get an education while I’m in jail so I can do something productive
when I get out. Nothing will ever make up for what I did. I want to try anyway. I’m so
sorry. Thank you for letting me talk to you, Judge.”
The court sentenced defendant to 50 years’ imprisonment. On August 17, 2015, the court filed
the written sentencing judgment.
¶7 On September 11, 2015, defendant filed pro se a motion to withdraw his guilty plea and
vacate his sentence, asserting he did not receive effective assistance of counsel and his plea
was involuntary. Three days later, defendant’s plea counsel, Kevin Milner, filed a motion to
vacate judgment and for leave to withdraw defendant’s guilty plea and/or reconsideration of
his sentence. In a letter filed on September 23, 2015, defendant asked the circuit court to reduce
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his prison term to 20 years. In the letter, defendant stated he “will forever live with a guilt.” In
March 2016, defendant’s second attorney, Timothy Wessel, filed a supplemental postplea
motion on defendant’s behalf. The supplemental motion raised numerous allegations of
ineffective assistance of counsel. In June 2017, defendant’s third attorney, Stephen Richards,
filed an amended motion to withdraw defendant’s guilty plea. The amended motion asserted
the following: (1) defendant was innocent of the charge to which he pleaded guilty,
(2) defendant was denied effective assistance of counsel because counsel failed to investigate
or present evidence Ember murdered E.A.F., and (3) defendant was denied effective assistance
of counsel because counsel failed to file a motion to suppress defendant’s statements. Richards
also filed an amended motion to reconsider defendant’s sentence. Along with the two motions,
Richards filed a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016).
¶8 In November 2018, the circuit court held an evidentiary hearing on defendant’s amended
motion to withdraw his guilty plea and amended motion to reconsider his sentence. Defendant
testified on his own behalf and presented the testimony of Edgar Nieto-Roman, defendant’s
brother. The State presented the testimony of Illinois State Police Sergeant Scott Riley and
Ember. The evidence relevant to the issues on appeal follows.
¶9 Edgar testified he had a telephone conversation with Ember on October 30, 2014. Ember
called him that day, and the call lasted around 13 to 15 minutes. During the conversation,
Ember told Edgar she had purchased Halloween costumes for her daughter and E.A.F. Ember
stated she was taking both children to a Halloween party at her daughter’s school the next day.
Ember also mentioned defendant was cheating on her and he did not know what was coming
to him. Edgar described Ember as mad due to defendant’s cheating. Additionally, Edgar stated
Ember called him on October 31, 2014, and only stated she had found E.A.F. under a blanket
and the baby had burns. Edgar admitted he did not tell the police Ember called him after she
found E.A.F. He also admitted defendant usually watched E.A.F. while Ember took her
daughter to school.
¶ 10 Edgar also testified he attended a Romeo Santos concert with Ember on June 12, 2015.
After the concert, they went to a Spanish club in Chicago called the Circuit. Ember was
drinking alcohol that night. Ember told Edgar defendant was innocent. Ember stated she was
bathing E.A.F. and dropped him. After she dropped E.A.F., Ember decided not to take him to
the Halloween party. Edgar asked Ember why she had not said this before, and Ember stated
because she did not want to go to jail.
¶ 11 Defendant testified he was innocent of the charges against him. As to the letter he wrote
after he pleaded guilty, defendant explained he was referring to the guilt he had for failing to
protect E.A.F. from Ember. He also testified his attorney, Kevin Milner, wrote the statement
of allocution defendant made at his sentencing hearing. Defendant further testified he made
false statements to the police implicating himself because Ember threatened to kill herself and
defendant’s unborn child.
¶ 12 Moreover, defendant testified about the night of October 30, 2014. According to defendant,
Ember and her children were with him when he closed his family’s grocery store that night
around 10 p.m. After he closed the store, the four of them went to Wal-Mart to purchase
costumes for the children and candy for the school Halloween party. Ember told defendant she
was taking both children to the Halloween party. Defendant gave Ember money to purchase
items but did not go in the store. Ember purchased about $200 worth of candy and costumes.
After leaving Wal-Mart, they stopped at a liquor store and the home of a drug dealer. Defendant
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purchased a half of a pound of cocaine for $5000. Thereafter, they went back to the grocery
store, which had an apartment attached to it. Defendant admitted he snorted most of the cocaine
but stated he did give some to Ember. On cross-examination, defendant testified he did not
consume most of it but did consume a lot of it. He stayed up cleaning the store and watching
television in the store. Defendant assumed Ember and the children had gone to sleep.
¶ 13 At about 2:45 a.m. on October 31, 2014, defendant went outside to smoke a cigarette. He
offered a beer and a cigarette to a woman named Stacy who was walking down the street. The
woman had already been drinking and accepted the beer and cigarette. He also gave her some
cocaine. They ended up in his Cadillac Escalade, which was parked in the alley behind the
store. Eventually, Ember came out and started hitting the door of the vehicle. Defendant drove
off and parked the vehicle at a friend’s house. There, he and Stacy finished the cocaine.
Defendant returned to the store around 6:30 a.m. Ember awoke and started throwing things
and hitting defendant. She broke defendant’s cellular telephone and told him he would pay for
his actions. Defendant fell asleep but did wake up to give Ember the car keys. Defendant got
out of bed at 9:15 a.m., smoked a cigarette, and went back to bed.
¶ 14 Defendant woke up again when Ember began banging on the back door. He opened the
door and went back to bed. At some point, Ember woke him up and stated “look what you
made me do.” Ember was holding E.A.F., who was wrapped in a colorful blanket. Defendant
observed E.A.F. was not breathing, and defendant tried to give him cardiopulmonary
resuscitation (CPR). Defendant attempted CPR for 10 minutes and then ordered Ember to get
her daughter out of the vehicle. When Ember and the girl returned to the apartment, defendant
told her to call an ambulance and began putting cream on the red markings on E.A.F.’s face.
When Ember did not immediately call for the ambulance, he called her a “stupid b***,” and
Ember stated she did not want to call an ambulance because she did not want to go to jail.
According to defendant, Ember still did not call an ambulance, so defendant hit her on the head
with his cellular telephone. After being hit, Ember called the police. Defendant then realized
he had cocaine in the bedroom. When he heard the sirens, he grabbed the cocaine and ran to a
friend’s home. The friend was not at home, so defendant put the cocaine in the trash.
¶ 15 When defendant returned to the store, he saw yellow tape was up and understood that to
mean someone had died. Defendant went back to his friend’s house and grabbed some knives.
He then returned to the store because he wanted to die where E.A.F. died. When the police
tased defendant, he stabbed himself. Defendant said he was hoping to die at the hands of the
police.
¶ 16 The parties stipulated Milner would testify he represented defendant and spoke with both
defendant and Edgar. Edgar never told Milner about Ember’s confession she killed E.A.F.
Milner would also testify defendant never told him of the names and occurrences he testified
to at the hearing and contained in defendant’s affidavits.
¶ 17 Riley testified he arrived in Beardstown to investigate the injuries sustained by E.A.F.
between 12:30 p.m. and 1 p.m. on October 31, 2014. At that time, Riley did not know E.A.F.
had died. When Riley arrived, defendant had not yet been taken into custody. When the police
apprehended defendant, it was apparent defendant had stabbed himself in the stomach twice.
Defendant had also been tased. Riley was in the ambulance with defendant when he was
transported to the hospital. Master Sergeant Jamie Jackson was also in the ambulance and
advised defendant of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), before
questioning defendant. Defendant waived his rights, and the police recorded the interview of
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defendant. Riley identified the recording of the conversation and the transcript of it, which
were admitted into evidence. The ambulance ride to the hospital was 15 to 20 minutes long,
and medical personnel were addressing defendant’s condition during the ride. Defendant had
an oxygen mask on while being transported to the hospital. During the interview, defendant
did not say Ember was the person who killed E.A.F. Riley attempted to interview defendant at
the hospital, but defendant asserted his right to counsel.
¶ 18 On November 16, 2014, Riley interviewed defendant at the Morgan County jail at
defendant’s request. Riley read defendant his Miranda rights, and defendant again waived
them. Riley also identified a recording and transcript of that interview, which were admitted
into evidence. During the November 2014 interview, defendant did not state Ember killed
E.A.F. Defendant again stated he was giving E.A.F. a bath and the infant was in a blue carrier
in the bathtub. While defendant was trying to get clothes, he heard a bang like the baby had hit
his head. Defendant mentioned the baby had suffered burns.
¶ 19 Ember testified she was the mother of E.A.F., who was eight months old at the time of his
death. Defendant was not the biological father of E.A.F. At the time of E.A.F.’s death, Ember
had a five-year-old daughter who was in preschool, and she was five months pregnant with a
child, whose father was defendant. Ember moved in with defendant in August 2014.
¶ 20 Ember explained her daughter’s school started at 8:20 a.m. Her daily routine was she and
her daughter left the house at 8 a.m., got breakfast at McDonald’s, and then went to her
daughter’s school. While she was gone, Ember would leave E.A.F. at home in the care of
defendant.
¶ 21 Ember testified she was the one who closed the store on October 30, 2014, because
defendant’s parents did not trust him with the money. Defendant was a cocaine user. She also
testified she did not do drugs and did not consume cocaine on October 31, 2014. Ember never
planned to take E.A.F. to the party because she could not hold E.A.F. and all of the candy bags
and help out at the party. When she went to Wal-Mart, she bought her daughter’s Halloween
costume, candy, and bags to hold the candy. Ember denied having a telephone conversation
with Edgar on October 30, 2014. She denied telling Edgar defendant was cheating on her and
defendant had no idea what was coming to him.
¶ 22 Ember further testified she did not go out and see defendant in his Escalade in the early
morning hours on October 31, 2014. Moreover, defendant never gave her cocaine that morning,
and she did not know he purchased cocaine after they went to Wal-Mart. On the morning of
October 31, 2014, she woke up around 7 a.m., and defendant was in bed with her. She knew
defendant was in bed with her when she went to bed on October 30, 2014, and to her
knowledge, he never left. Defendant also woke up at 7 a.m. When she got out of bed, she gave
E.A.F. a bottle and changed his diaper. Ember then started getting her daughter ready for
school. She did not put anything into E.A.F.’s anus on the morning of October 31, 2014, and
never used a rectal thermometer. Before she left, Ember confirmed with defendant he was
watching E.A.F. like he usually did. Ember and her daughter left around 8 a.m., went to
McDonald’s, and then went to the school. Ember attended the Halloween party and left the
school around 10 a.m. She got home around 10:07 a.m. with her daughter. The back door was
locked, so Ember knocked on the door. Her daughter was with her when defendant answered
the door.
¶ 23 When defendant opened the door, he looked different, and Ember sensed something was
wrong. She looked and saw E.A.F. had a blanket over the top of him. Defendant told her
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daughter to go to the front. E.A.F. appeared burnt and motionless. He did not have any skin on
his face. Ember was hysterical. She began yelling “what happened” at defendant. Defendant
did not answer at first and was pacing back and forth. Defendant eventually stated E.A.F. fell
in the bathtub. Ember had E.A.F. in her arms and tried to go towards the front door that
separated the apartment from the grocery store, but defendant blocked her. She was eventually
able to get past defendant and ran to the telephone in the store. Defendant ran after her and hit
her upside the head with his cellular telephone. Ember then ran to defendant’s cousin who was
in the store and got a cellular telephone from him. She then called 9-1-1. Emergency responders
arrived within five minutes. Ember did not call Edgar until she was at the hospital and did not
call defendant’s mother. Moreover, she denied telling defendant it was the last time he would
ever cheat on her. Ember never begged defendant not to call the ambulance and never said it
was her fault. She also denied saying not to call 9-1-1 because she did not want to go to jail.
Ember also stated she and defendant never talked about what to say to the authorities and did
not have an agreement as to what defendant would say.
¶ 24 Ember testified she was interviewed over the telephone by Riley and the conversation was
recorded. She did not recall telling Riley she was 90% sure defendant stayed at home and did
not go to Wal-Mart. Ember also did not recall telling Riley the costumes and candy were
purchased earlier in the week. Additionally, Ember admitted she told Riley defendant’s
statement he paid $5000 for cocaine was a lie. However, Ember acknowledged she did not
know whether defendant’s statement about the cocaine was true or not. Ember also
acknowledged she was under investigation by the Department of Children and Family Services
(DCFS) for a bruise on E.A.F.’s leg. She continued to live with defendant despite the DCFS
case and defendant’s cocaine usage. Ember admitted visiting defendant in jail but denied
writing any love letters to him. She also accepted defendant’s telephone calls from jail.
¶ 25 Last, Ember testified she stayed in contact with defendant’s family and was friends with
Edgar. She admitted going to the concert and bar with Edgar but denied ever mentioning
defendant that evening. According to Ember, Edgar saw another friend at the bar, and she did
not talk to him much after that.
¶ 26 In rebuttal, Edgar testified Ember would write love letters to defendant before he would go
visit his brother in jail. During the visit, Edgar would put the letters up to the glass for defendant
to read. One of the letters Ember denied writing was on a Styrofoam plate. Edgar testified the
plate was one used to wrap up meat in the grocery store. He observed Ember write the note on
the Styrofoam plate. He also provided the paper and pen for the other letter. The circuit court
admitted the letters over the State’s objection. Edgar testified he kept all of the letters Ember
wrote to defendant. The State recalled Ember, who again denied writing the letters.
¶ 27 On November 28, 2018, the circuit court entered a written order denying defendant’s
amended motion to withdraw his guilty plea and amended motion to reconsider. As to a
potential motion to suppress, the court found the statements were made voluntarily. The court
also found defendant admitted his guilt at the sentencing hearing and subsequent pro se filings.
The court found defendant only wanted to withdraw his plea because he was unhappy with his
50-year prison term.
¶ 28 On December 12, 2018, defendant filed a timely notice of appeal in compliance with
Illinois Supreme Court Rule 606 (eff. July 1, 2017). Accordingly, this court has jurisdiction
under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).
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¶ 29 II. ANALYSIS
¶ 30 Defendant contends the circuit court erred by denying his motion to withdraw his guilty
plea because he had a defense worthy of consideration, he had raised a doubt of his guilt and
the ends of justice would be better served by a trial in this case, and he was denied effective
assistance of counsel. The State disagrees.
¶ 31 Generally, the decision to grant or deny a defendant’s motion to withdraw a guilty plea
rests in the circuit court’s sound discretion and, thus, is reviewed for an abuse of discretion.
People v. Hughes, 2012 IL 112817, ¶ 32, 983 N.E.2d 439. A reviewing court will only find an
abuse of discretion where the ruling is arbitrary, fanciful, unreasonable, or no reasonable
person would take the view adopted by the circuit court. People v. Delvillar, 235 Ill. 2d 507,
519, 922 N.E.2d 330, 338 (2009). A defendant does not have an automatic right to withdraw
his or her guilty plea. Hughes, 2012 IL 112817, ¶ 32. Rather, the defendant must show a
manifest injustice under the facts involved. Hughes, 2012 IL 112817, ¶ 32. “Withdrawal is
appropriate where the plea was entered through a misapprehension of the facts or of the law or
where there is doubt as to the guilt of the accused and justice would be better served through a
trial.” Hughes, 2012 IL 112817, ¶ 32 (citing People v. Baez, 241 Ill. 2d 44, 110, 946 N.E.2d
359, 398 (2011)).
¶ 32 A. Defense Worthy of Consideration
¶ 33 Defendant contends another basis for allowing the withdrawal of a guilty plea is if the
defendant has a defense to the charge worthy of consideration. The State disagrees a worthy
defense standing alone is a basis for allowing a defendant to withdraw his guilty plea. In 1952,
the Illinois Supreme Court did include “a defense worthy of consideration by a jury” as one of
the reasons for allowing a defendant to withdraw a guilty plea. People v. Morreale, 412 Ill.
528, 531-32, 107 N.E.2d 721, 723 (1952). Specifically, the Morreale court stated the
following:
“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 withdrawal of the plea of guilty and allow the accused to
plead not guilty.” Morreale, 412 Ill. at 531-32.
However, the supreme court has not used all of the aforementioned language since 1993. See
People v. Pugh, 157 Ill. 2d 1, 14, 623 N.E.2d 255, 261 (1993). More recent supreme court
cases like those previously cited and others do not include the defense worthy of consideration
language. See supra ¶ 31; see also Delvillar, 235 Ill. 2d at 520; People v. Pullen, 192 Ill. 2d
36, 40, 733 N.E.2d 1235, 1237 (2000). We note the other cases cited by defendant in his brief
and at oral arguments other than Morreale do not include “a defense worthy of consideration
by a jury” language. See People v. Jamison, 197 Ill. 2d 135, 163, 756 N.E.2d 788, 803 (2001);
People v. Hillenbrand, 121 Ill. 2d 537, 545, 521 N.E.2d 900, 903 (1988). In fact, the supreme
court has dropped both the misrepresentation and defense bases and combined the doubt of
guilt basis with the justice basis. Thus, we agree with the State the supreme court no longer
recognizes the defense worthy of consideration language as a separate basis for allowing a
defendant to withdraw his guilty plea. Even if such a basis did exist, defendant did not present
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a defense worthy of consideration as explained in our analysis of whether defendant presented
a doubt of his guilt.
¶ 34 B. Doubt of Defendant’s Guilt
¶ 35 As to whether a doubt of defendant’s guilt existed, defendant notes his testimony and
Edgar’s testimony at the evidentiary hearing about Ember’s statements admitting she killed
E.A.F. However, even assuming such testimony is admissible, Ember denied making the
statements Edgar and defendant testified she made. A reviewing court affords great deference
to the circuit court’s assessment of the witnesses’ credibility because “ ‘the circuit court is in
a superior position to determine and weigh the credibility of the witnesses, observe the
witnesses’ demeanor, and resolve conflicts in their testimony.’ ” People v. Parker, 2016 IL
App (1st) 141597, ¶ 29, 70 N.E.3d 734 (quoting People v. Richardson, 234 Ill. 2d 233, 251,
917 N.E.2d 501, 512-13 (2009)). Moreover, defendant’s testimony is contrary to the statements
he made to the police and to the court at his sentencing hearing and in his letter after the
sentencing hearing. Defendant also did not tell Milner, his original attorney, Ember was the
individual who killed E.A.F. Defendant pleaded guilty after Ember gave birth to his child in
April 2015, and thus any continued threat of harm to his unborn child no longer existed, and
he could have recanted his allegedly false statements instead of pleading guilty. Further,
defendant did not present a reason for not telling his own attorney about exculpatory evidence
of which he had personal knowledge. Additionally, the circumstantial evidence does not
support defendant’s claims in his amended motion to withdraw his guilty plea. The facts are
undisputed both defendant and the infant had cocaine in their systems and defendant tried to
kill himself after the infant had died.
¶ 36 Additionally, even if this court should not give deference to the circuit court’s credibility
determination, the evidence defendant presented at the evidentiary hearing was incredible and
inconsistent with the other circumstantial evidence. Thus, we find it was insufficient to meet
his burden of showing a doubt as to his guilt.
¶ 37 Accordingly, we find the circuit court did not abuse its discretion by finding defendant did
not present a doubt as to his guilt.
¶ 38 C. Effective Assistance of Counsel
¶ 39 Last, defendant contends his counsel failed to provide effective assistance of counsel
because counsel failed to file a motion to suppress defendant’s custodial statements. The State
first asserts we should decline to address this issue because the record has not been fully
developed. However, defendant raised the claim in his amended motion to withdraw, and the
circuit court held an evidentiary hearing on the amended motion. Thus, the parties had an
opportunity to develop the necessary record to fully present the issue, and we will address the
issue on appeal.
¶ 40 This court analyzes ineffective assistance of counsel claims under the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d
1158, 1163 (1999). To obtain reversal under Strickland, a defendant must prove (1) his
counsel’s performance failed to meet an objective standard of competence and (2) counsel’s
deficient performance resulted in prejudice to the defendant. Evans, 186 Ill. 2d at 93. To satisfy
the deficiency prong of Strickland, the defendant must demonstrate counsel made errors so
serious and counsel’s performance was so deficient that counsel was not functioning as
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“counsel” guaranteed by the sixth amendment (U.S. Const., amend. VI). Evans, 186 Ill. 2d at
93. Further, the defendant must overcome the strong presumption the challenged action or
inaction could have been the product of sound trial strategy. Evans, 186 Ill. 2d at 93. To satisfy
the prejudice prong, the defendant must prove, but for counsel’s unprofessional errors, a
reasonable probability exists the proceeding’s result would have been different. Evans, 186 Ill.
2d at 93. The Strickland Court noted a court should address a claim on the ground of lack of
sufficient prejudice rather than counsel’s constitutionally deficient representation when it is
easier to do so. Strickland, 466 U.S. at 697.
¶ 41 When counsel has failed to file a motion to suppress, to establish the prejudice prong, the
defendant must show a reasonable probability both (1) the circuit court would have granted the
suppression motion and (2) the trial outcome would have been different if the evidence had
been suppressed. People v. Patterson, 2014 IL 115102, ¶ 81, 25 N.E.3d 526; see also People
v. Brown, 2018 IL App (4th) 160288, ¶ 46, 115 N.E.3d 408. Defendant contends a motion to
suppress defendant’s first custodial statement in the ambulance would have been granted.
Assuming for argument’s sake that is true, defendant does not establish a reasonable
probability he would have been found not guilty after a trial. As previously noted, the facts are
undisputed both he and the infant had cocaine in their systems and defendant tried to kill
himself when he realized the infant had died. Furthermore, defendant does not develop any
argument his November 2014 statements to Riley would have been suppressed. Thus, those
statements, in which defendant claimed the baby fell in the bathtub while under his care, would
also have been admissible as evidence of his guilt. Moreover, Ember testified she left E.A.F.
in defendant’s care that morning like she did every morning and the infant was burnt and
motionless when she returned home. Here, defendant has failed to establish the prejudice prong
of the Strickland test. Accordingly, the circuit court did not abuse its discretion by denying
defendant’s ineffective assistance of counsel claim.
¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, we affirm the Cass County circuit court’s judgment.
¶ 44 Affirmed.
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