People v. Acosta ( 2020 )

2020 IL App (2d) 180848-UNo. 2-18-0848
Order filed May 13, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) No. 15-CF-0206
)
IGNACIO F. ACOSTA, ) Honorable
) C. Robert Tobin III,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BRIDGES delivered the judgment of the court.
Justices Jorgensen and Brennan concurred in the judgment.
ORDER
¶1 Held: The trial court properly denied defendant’s motion to withdraw his guilty plea,
which defendant asserted was induced by his counsel’s unfulfilled promise
regarding the length of his sentence: defendant had assured the court that no
promise had induced his plea, and the court found that no such promise had been
made.
¶2 Defendant, Ignacio F. Acosta, appeals the denial of his motion to withdraw his guilty plea
to aggravated domestic battery (720 ILCS 5.12-3.3)(a-5) (West 2014)). He contends that his plea
was not knowing and voluntary because his trial counsel misadvised him on the amount of good-
2020 IL App (2d) 180848-Utime credit and mandatory supervised release (MSR) that he would be required to serve. We
affirm.
¶3 I. BACKGROUND
¶4 On September 18, 2015, defendant was charged with multiple crimes relating to his
conduct toward the victim, Maria Soto. At defendant’s first court appearance, the trial court
advised him that aggravated domestic battery was a Class 2 felony, with a sentencing range of 3
to 14 years’ incarceration to be served at 85% with a 4-year MSR term. On October 16, 2015,
defendant was indicted, and two counts of domestic battery were added. At arraignment, the court
advised defendant that aggravated domestic battery was a Class 2 felony, with a sentence range of
3 to 7 years imprisonment, but up to 14 years if an extended term were to apply. The court
specifically stated that defendant would have to serve 85% of the sentence. The court then stressed
that defendant would not get day-for-day credit and repeated that he would have to serve at least
85%. The court also noted that the sentence would be followed by a four-year MSR term.
¶5 During a hearing on December 11, 2015, the trial court noted that defendant had two prior
Class 2 felony offenses and advised defendant that he would be subject to Class X sentencing with
a range of 6 to 30 years imprisonment to be served at 85% and with a 3- or 4-year MSR term. The
court also stated: “In other words, you don’t get day-for-day credit. A ten-year sentence would
mean that you would have to serve eight and a half real world years.”
¶6 On December 15, 2015, the parties agreed to a partially negotiated plea on the aggravated
domestic battery count, and the trial court again informed defendant of his sentencing eligibility.
According to the agreement, the State would request a 15-year prison sentence and the dismissal
of the remaining charges. The trial court extensively questioned defendant regarding his
understanding of the plea. The court stated that defendant would plead guilty to aggravated
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2020 IL App (2d) 180848-Udomestic battery, and in exchange, the State would recommend a sentence not exceeding 15 years,
but the court could impose a longer term if appropriate. Defendant stated that he understood. The
court told defendant that the sentence range for aggravated domestic battery was normally 3 to 14
years, but that defendant’s two prior Class 2 felony convictions rendered him eligible for Class X
sentencing. Thus, defendant’s sentence range would be 6 to 30 years with a 3- or 4-year MSR
term. Defendant said that he understood. The court also admonished defendant that he would
have to serve 85% of the sentence and gave as an example that if defendant were to be sentenced
to a ten-year term, he would “have to serve at least eight and a half years of real world time for
that sentence.” Defendant stated that he understood.
¶7 The State gave a factual basis, and defendant stated that he wished to plead guilty. The
court then admonished defendant about the rights he would give up by pleading guilty, and
defendant stated that he understood. However, when the court asked whether defendant
understood and still wished to plead guilty and give up those rights, defendant replied, “no” and
“not really.” The court called a recess to allow defendant to confer with counsel.
¶8 After the recess, counsel advised the trial court that defendant had been concerned about
only whether the guilty plea would preclude him from calling witnesses at sentencing. The court
confirmed that defendant would be able to call witnesses at sentencing and would be allowed to
cross-examine the State’s witnesses. The court then admonished defendant again about the rights
he would give up if he pleaded guilty, and defendant stated that he wanted to plead guilty.
Defendant stated that he had discussed the case and possible defenses with counsel and was
satisfied with counsel’s representation. Defendant stated that no one forced him to plead guilty
and that his plea was voluntary. The trial court found that the plea was voluntary.
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2020 IL App (2d) 180848-U¶9 On February 17, 2016, counsel moved to withdraw the plea, alleging that it was not
knowing and voluntarily and that defendant wished to assert his innocence. Counsel filed a Rule
604(d) certificate, but also filed a motion to withdraw. At the hearing on the motion, the trial court
asked defendant about his concerns with his counsel. Defendant stated that counsel should have
“[t]ried to look up more stuff in the law books” and stated that “I’ve been looking up the Fourth
Amendment.” When asked what counsel failed to do, defendant stated that “he’s not representing
me in a proper way” and “I’m not being understood.” Defendant asked for a continuance, which
the court denied. The trial court found that there was no reason to dismiss counsel.
¶ 10 In support of his motion to withdraw the plea, defendant testified that he was innocent and
wished to go to trial with new counsel. Defendant acknowledged that he had not been forced to
plead guilty and could not point to anything specific that he did not understand. The court denied
the motion to withdraw the plea, finding that defendant had been thoroughly admonished and that
the motion lacked a basis in law and fact.
¶ 11 At sentencing, the trial court stated that the applicable sentencing range was 6 to 30 years
with a 4-year MSR term. The State requested a 15-year prison term, to be served at 85% with a
mandatory 4-year MSR term. Defense counsel asked for the minimum of six years’ imprisonment
and acknowledged that defendant was required to serve 85% of the sentence. The court sentenced
defendant to 15 years’ imprisonment, to be served at 85%, followed by a 4-year MSR term. The
court said that it would have imposed a much longer sentence if defendant had been convicted
after a trial.
¶ 12 Defendant appealed, and we granted his motion for a summary remand, ordering the trial
court to admonish defendant regarding his right to appeal in strict compliance with Illinois
Supreme Court Rule 605(c) (eff. Oct. 1, 2001) and to then allow defendant to move to withdraw
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2020 IL App (2d) 180848-Uhis guilty plea. On remand, the trial court admonished defendant regarding his right to appeal.
Counsel filed a motion to withdraw the plea that was essentially the same as the original. He then
filed an amended motion to withdraw the plea, additionally alleging that defendant was not
properly admonished of the possible penalties and that counsel had provided ineffective assistance.
¶ 13 Counsel also filed a motion to reconsider defendant’s sentence, alleging that the 15-year
prison term was excessive and that defendant did not qualify for Class X sentencing. The motion
further alleged that, even if he was eligible for the Class X sentence, defendant was not required
to serve 85% of his prison term and should have been eligible for day-for-day credit. The motion
also alleged that defendant was subject to only a 3-year MSR term. The State disagreed with the
allegations.
¶ 14 The trial court appointed a new public defender as conflict counsel. At the hearing on the
motions, defendant testified that his plea was not knowing and voluntarily because trial counsel
was “telling me one thing and another.” When asked to clarify, defendant said that counsel told
him that if he pleaded guilty, he could be sentenced to six years’ incarceration, to be served at
50%. Defendant testified that he felt “played” by counsel when the court sentenced him to a 15-
year term to be served at 85% with a 4-year MSR term. Defendant admitted that he did not raise
his concerns with the court at sentencing but stated he did not do so because he expected to appeal
the sentence. Defendant also acknowledged that, before sentencing, the court admonished him
about the penalties, specifically that the sentence range was 6 to 30 years’ imprisonment, to be
served at 85%, with a State-recommended cap of 15 years, and that he had stated that he
understood. Regardless, defendant stated that counsel had promised that the trial court would
impose a six-year prison term, to be served at 50%, or that he could obtain that sentence later, after
prevailing on appeal. Defendant admitted that he did not ask the court about the possibility of
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2020 IL App (2d) 180848-Ureceiving a six-year prison term, to be served at 50%, and did not raise any questions or concerns
about it during the sentencing hearing.
¶ 15 Counsel testified that he never told defendant that he would serve 50% rather than 85% of
his sentence. He also testified that he would not have promised defendant a shorter sentence on
appeal. Based on the admonitions given at the plea hearing, the trial court denied the motion. The
court found that defendant was not credible, noting that granting the motion to withdraw the plea
would require finding that defendant did not tell the truth during the plea hearing and that his trial
counsel was lying. The court denied the motion to withdraw the plea, and defendant appeals.
¶ 16 II. ANALYSIS
¶ 17 Defendant contends that his plea was not knowing or voluntary because his counsel
misadvised him about his eligibility for good-time credit and the duration of his MSR.
¶ 18 A guilty plea must be voluntary and intelligent. People v. Blankley, 319 Ill. App. 3d 996,
1007 (2007). “One basis for the withdrawal of a guilty plea is where defense counsel gives the
defendant inadequate advice prior to entering the plea.” Id. ¶ 39. “ ‘A defendant may enter a
guilty plea because of some erroneous advice by counsel, but that fact alone does not destroy the
voluntary nature of the plea.’ ” Id. (quoting People v. Cunningham, 286 Ill. App. 3d 346, 349.
Rather, “ ‘it must be shown that defendant was denied the effective assistance of counsel.’ ” Id.(quoting Cunningham, 286 Ill. App. 3d 346 at 349-50).
¶ 19 To establish that counsel was ineffective, a defendant must satisfy the two-prong test
articulated in Strickland v. Washington, 466 U.S. 688 (1984). See People v. Valdez, 2016 IL
119860, ¶¶ 13-14. Counsel’s conduct is deficient under Strickland if counsel fails to ensure that
the defendant entered the plea voluntarily and intelligently. People v. Rissley, 206 Ill. 2d 403, 457
(2003). To establish prejudice, a defendant must show a reasonable probability that, but for
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2020 IL App (2d) 180848-Ucounsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill
v. Lockhart, 474 U.S. 52, 59 (1985). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. People v. Manning, 227 Ill. 2d 403, 418 (2008). The
defendant bears the burden of establishing both parts of the Strickland test. People v. Jones, 219
Ill. App. 3d 301, 305 (1991). Claims that are not substantiated in some way by factual allegations
must fail. Id. Likewise, claims that the record refutes cannot succeed. People v. Strickland, 363
Ill. App. 3d 598, 607 (2006).
¶ 20 A lack of prejudice may be shown when the trial court’s admonitions pursuant to Illinois
Supreme Court Rule 402 (eff. July 1, 2012) were sufficient to overcome any prejudice created by
the claims of ineffective assistance. See People v. Hall, 217 Ill. 2d 324, 339 (2005). The purpose
of such a colloquy is to ensure that a defendant’s guilty plea is not accepted unless it is intelligent
and voluntary. People v. Horton, 250 Ill. App. 3d 944, 951 (1993). This purpose would hardly be
served if a defendant could state on the record that his plea was voluntary and then turn around
and claim that it was involuntary, as it would reduce the colloquy to a meaningless exercise. See
People v. Robinson, 157 Ill. App. 3d 622, 629, (1987). “[E]xhaustive admonitions cannot be
disregarded as merely a ritualistic formality.” Ramirez, 162 Ill. 2d at 245. Thus, “a defendant
cannot be rewarded for disregarding the specific admonitions of the court.” People v. Radunz, 180
Ill. App. 3d 734, 742 (1989). If a plea of guilty is to have any binding effect or is to be given any
subsequent weight, extensive and accurate admonitions given by a trial court must be held to
overwhelm a defendant’s assertion that he entered his plea involuntarily. Robinson, 157 Ill. App.
3d at 629. Where, as here, a defendant has been meticulously advised of the consequences of his
plea and has affirmatively acknowledged that he understands those consequences, he may not
claim error on appeal merely because he is dissatisfied with the length of his sentence. People v.
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2020 IL App (2d) 180848-USpriggle, 358 Ill. App. 3d 447, 455 (2005). We review the decision to grant or deny a motion to
withdraw a plea for an abuse of discretion. People v. Glover, 2017 IL App (4th) 160586, ¶ 29.
¶ 21 Here, the trial court specifically found that defendant’s assertions that his counsel
misinformed him lacked credibility. That determination was not an abuse of discretion. Counsel
specifically testified that he did not mislead defendant, and the court was entitled to credit
counsel’s testimony over that of defendant. Moreover, counsel’s testimony about his
representation of defendant was consistent with what transpired at the guilty plea hearing.
¶ 22 Defendant argues that counsel’s amended motion to withdraw the plea, including the claim
that the court erred in applying Class X sentencing, shows that counsel misinformed him of the
sentence. But counsel’s choice to pursue a legal argument in the motion to withdraw the plea does
not show that counsel misinformed defendant at the time of the plea. The record does not support
such a determination when counsel testified that he did not misinform defendant and when the
court, on multiple occasions, and with defense counsel present, correctly and extensively
admonished defendant of the sentencing range. Counsel also acknowledged at sentencing that the
sentence would be served at 85% percent. Defendant stated each time that he understood.
Defendant assured the court that no one had forced or threatened him into pleading guilty and that
no promises, other than the terms of the negotiated plea, had been made. In short, defendant
assured the trial court that he was pleading guilty freely and voluntarily to a 15-year sentence, to
be served at 85%, with a 4-year MSR term. The trial court correctly considered the guilty plea
proceedings, assessed the credibility of defendant and counsel, and did not abuse its discretion
when it denied the motion to withdraw the plea.
¶ 23 III. CONCLUSION
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2020 IL App (2d) 180848-U¶ 24 For the reasons stated, the trial court did not err in denying the motion to withdraw the plea.
Accordingly, the judgment of the circuit court of Boone County is affirmed.
¶ 25 Affirmed.
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