People v. Perez , 2021 IL App (4th) 190177-U ( 2021 )

NOTICE
This Order was filed under 2021 IL App (4th) 190177-UFILED
Supreme Court Rule 23 and June 1, 2021
is not precedent except in the Carla Bender
NO. 4-19-0177 4th District Appellate
limited circumstances
allowed under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
VICTOR PEREZ, ) No. 16CF1
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
Justices Turner and Harris concurred in the judgment.
ORDER
¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to
withdraw and affirmed the trial court’s judgment where no meritorious issues
could be raised on appeal.
¶2 This case comes to us on the motion of the Office of the State Appellate Defender
(OSAD) to withdraw as counsel on appeal because no meritorious issues can be raised in this
case. Specifically, OSAD asserts it can make no meritorious argument that the trial court
(1) failed to substantially comply with Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003) or
(2) abused its discretion in sentencing defendant to 2½ years’ imprisonment. For the following
reasons, we grant OSAD’s motion and affirm the trial court’s judgment.
¶3 I. BACKGROUND
¶4 In January 2016, the State charged defendant, Victor Perez, with two counts of
aggravated driving under the influence of alcohol (aggravated DUI) and one count of driving
with a suspended license following an early morning traffic stop. Defendant knowingly and
voluntarily waived his right to a jury trial. In November 2016, defendant pleaded guilty to the
two Class 4 felony aggravated DUI charges, the Class A misdemeanor driving with a suspended
license charges, and various traffic offenses. The trial court admonished defendant about the
charges he faced, his right to trial, and the applicable sentencing ranges. The State provided the
following factual basis for the charges:
“On January 1st of 2016, this [d]efendant was pulled over
for numerous traffic infractions including driving in the wrong
lane, not having his lights on, running over the curb. He was
pulled over and found to have the odor of alcohol on him. He
admitted he had had one beer. He submitted to standard field
sobriety testing[,] which showed obvious impairment as well as
clues on each test, the HGN, one-leg stand, walk and turn.”
The State indicated defendant submitted to a breath test “with the result of [0].83 [sic].” The
statement of arrest indicated a preliminary breath test result of 0.228 and a later evidentiary
breath test result of 0.183. The court found defendant’s guilty plea was knowing and voluntary
and found him guilty of all the charges.
¶5 The presentence investigation report (PSI) indicated defendant had the following
felony convictions: (1) a 1987 burglary, (2) two 1991 burglaries, (3) a 1996 possession of
cannabis, (4) a 1998 attempted murder, and (5) a 2015 driving with a suspended license.
Defendant was sentenced to 15 years’ imprisonment on the 1998 attempted murder charge, was
released from prison in 2011, and successfully completed 3 years of parole. At sentencing, the
State recommended a sentence of 2½ years’ imprisonment. Defense counsel argued defendant
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caused no serious harm, it was defendant’s first DUI offense, and although defendant had a
criminal history, there was a significant gap from the time he was released from prison in 2011
and the instant offense.
¶6 In allocution, defendant stated he had no run-ins with the law since his release
from prison in 2011. Defendant acknowledged his DUI was “a huge mistake” and accepted
responsibility for his actions. Defendant indicated he wished to return to work and “go back to
being a productive citizen” who paid his taxes.
¶7 The trial court noted the offense was serious and defendant was highly
intoxicated. However, the court also acknowledged defendant did not cause serious harm. The
court further considered deterrence as a factor. Finally, the court acknowledged defendant’s
criminal history but did not consider it in aggravation because defendant “made significant
efforts in becoming a productive member of society since [he was] released from the Department
of Corrections.” The court sentenced defendant to 24 months’ probation and 180 days in
Livingston County jail with credit for 58 days in custody and a stay on the remaining term.
¶8 In May 2017, the State filed a petition to revoke probation, alleging defendant
failed to report to his probation officer on three occasions and his current whereabouts were
unknown. In August 2017, the trial court held a hearing on the petition to revoke probation, and
defendant admitted the allegations. The court admonished defendant about the applicable range
of penalties he faced and the rights he was giving up by admitting the probation violations. The
court found defendant knowingly and voluntarily admitted the probation violations.
¶9 In October 2017, the trial court held a sentencing hearing where the State asked
for a term of 2½ years’ imprisonment. Defense counsel asked for a new term of probation
because defendant had not committed a new offense and a term of imprisonment would not
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allow defendant to get treatment for his substance abuse issue. The court ordered defendant to
remain on probation until April 2019 and informed defendant he needed to report to the
probation office.
¶ 10 Approximately three weeks after sentencing, the trial court held a compliance
review hearing. Defendant’s probation officer reported defendant was “off to an okay start.”
Defendant reported to the probation office as directed but admitted to smoking cannabis. At a
December 2017 compliance review hearing, the probation officer reported defendant missed an
appointment on November 30, 2017, without calling and his telephone appeared to be
disconnected. The probation officer further reported receiving confirmation from the lab
regarding defendant’s use of cannabis.
¶ 11 In January 2018, the trial court held another compliance review hearing where the
probation officer indicated he met with defendant after the prior court hearing. Defendant was
positive for cannabis and alcohol and admitted to using both substances. According to the
probation officer, defendant failed to attend his last two office visits and had not set up a
substance abuse evaluation. The State indicated it would file another petition to revoke
probation.
¶ 12 The State filed a second petition to revoke probation, alleging defendant (1) failed
to appear for three scheduled probation appointments, (2) consumed alcohol, (3) tested positive
for cannabis on three occasions, and (4) failed to obtain a substance abuse evaluation. In
October 2018, defendant admitted the allegations in the petition to revoke probation. The court
admonished defendant regarding the rights he was giving up by admitting the probation
violations and the applicable range of penalties he faced. Specifically, the court admonished
defendant he could deny the violations, make the State prove the violations by a preponderance
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of the evidence, confront and cross-examine witnesses, and present evidence on his behalf. The
court determined defendant’s admission was not the result of coercion or promises. The court
found defendant knowingly and voluntarily admitted the probation violations. Defendant agreed
the court could consider the petition to revoke, signed by the supervising officer, as the factual
basis. Additionally, defendant signed a document acknowledging he had been given all the Rule
402A admonishments and his admission was knowing and voluntary.
¶ 13 In December 2018, the trial court held a sentencing hearing. A new PSI indicated
“defendant stated he purposefully missed all of his probation appointments. He repeatedly stated
he did not want to be on probation and would not participate if given another chance at a term of
probation.” As evidence in mitigation, defendant offered a letter from his employer indicating he
was employed full time and was dependable. Defendant also provided the court with a copy of
defendant’s completed alcohol and drug evaluation. The State again asked for a term of 2½
years’ imprisonment. Defense counsel asked the court to terminate defendant’s probation
unsuccessfully.
¶ 14 The trial court acknowledged defendant had made positive changes in his life
since his release from prison in 2011. The court noted defendant’s DUI involved a threat of
harm to the community and defendant failed to take steps to change his behavior. Defendant
continued to drink while on probation, failed to engage in recommended substance abuse
treatment, and failed to report to the probation office. The court found that a continued sentence
of probation or simply terminating probation would deprecate the seriousness of the offense.
Accordingly, the court sentenced defendant to a term of 2½ years’ imprisonment, which, given
defendant’s credit for 105 days in custody and other good-time credit he might be eligible for,
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would result in 6 to 12 months in prison, followed by one year of mandatory supervised release
(MSR).
¶ 15 Defense counsel filed a motion to reconsider defendant’s sentence and a Rule
604(d) certificate (Ill. S. Ct. R. 604(d) (eff. July 1, 2017)). After a hearing on the motion to
reconsider, the trial court denied the motion. The court acknowledged the mitigating factors but
pointed out the aggravating factors included the serious nature of the offense and deterrence.
The court clarified defendant was sentenced for aggravated DUI and defendant’s conduct while
on probation was a relevant factor in the court’s determination that he was unlikely to succeed on
probation. The court noted the sentence was within the statutory range and found the
aggravating factors outweighed the mitigating factors. Accordingly, the court denied the motion
to reconsider sentence.
¶ 16 This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, OSAD seeks to withdraw as counsel, asserting it can make no
meritorious argument that the trial court (1) failed to substantially comply with Illinois Supreme
Court Rule 402A (eff. Nov. 1, 2003) or (2) abused its discretion in sentencing defendant to 2½
years’ imprisonment. For the following reasons, we agree and allow OSAD’s motion to
withdraw.
¶ 19 A. Rule 402A
¶ 20 Whether the trial court substantially complied with Illinois Supreme Court Rule
402A(a) (eff. Nov. 1, 2003) admonishments is a question of law we review de novo. People v.
Ellis, 375 Ill. App. 3d 1041, 1046, 874 N.E.2d 980, 983 (2007). As pronounced by our supreme
court in People v. Hall, 198 Ill. 2d 173, 181, 760 N.E.2d 971, 975 (2001), and later codified in
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Rule 402A(a), the trial court must ensure a defendant who seeks to admit a petition to revoke
probation understands the following:
“(1) the specific allegations in the petition to revoke
probations, conditional discharge[,] or supervision;
(2) that the defendant has the right to a hearing with
defense counsel present, and the right to appointed counsel if the
defendant is indigent and the underlying offense is punishable by
imprisonment;
(3) that at the hearing, the defendant has the right confront
and cross-examine adverse witnesses and to present witnesses and
evidence in his or her behalf;
(4) that at the hearing, the State must prove the alleged
violation by a preponderance of the evidence;
(5) that by admitting to a violation, or by stipulating that
the evidence is sufficient to revoke, there will not be a hearing on
the petition to revoke probation, conditional discharge[,] or
supervision, so that by admitting to a violation, or by stipulating
that the evidence is sufficient to revoke, the defendant waives the
right to a hearing and the right to confront and cross-examine
adverse witnesses, and the right to present witnesses and evidence
in his or her behalf; and
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(6) the sentencing range for the underlying offense for
which the defendant is on probation, conditional discharge[,] or
supervision.” Ill. S. Ct. R. 402A(a)(1)-(6) (eff. Nov. 1, 2003).
The court must further ensure the admission is knowing and voluntary, not the product of
coercion or promise, and supported by a sufficient factual basis. Ill. S. Ct. R. 402A(b), (c) (eff.
Nov. 1, 2003).
¶ 21 At the hearing on the second petition to revoke probation, the court admonished
defendant regarding the rights he was giving up by admitting the probation violations and the
applicable range of penalties he faced. Specifically, the court admonished defendant about his
rights to deny the violation, make the State prove the violations by a preponderance of the
evidence, confront and cross-examine witnesses, and present evidence on his behalf. The court
determined defendant’s admission was not the result of coercion or promises. The court found
defendant knowingly and voluntarily admitted the probation violations. Defendant agreed the
court could consider the petition to revoke, signed by the supervising officer, as the factual basis.
Additionally, defendant signed a document acknowledging he had been given all the Rule 402A
admonishments and his admission was knowing and voluntary.
¶ 22 Our review of the record shows the trial court substantially complied with Rule
402A and ensured defendant understood (1) the specific allegations in the petition to revoke and
(2) his right to a hearing with defense counsel where he could confront and cross-examine
adverse witnesses, present evidence on his behalf, and where the State had to prove the
allegations by a preponderance of the evidence. The court ensured defendant understood his
admission would waive those rights and the applicable penalties for his underlying charges.
Finally, the court ensured there was a factual basis for the allegations and determined
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defendant’s admission was knowing and voluntary. Accordingly, we agree with OSAD that no
meritorious argument can be made that the court failed to substantially comply with Rule 402A.
¶ 23 B. Sentence
¶ 24 OSAD next asserts no meritorious argument can be made challenging defendant’s
sentence because the issues raised in his motion to reconsider sentence are moot following his
successful discharge from MSR and his completed sentence.
¶ 25 “A sentencing challenge is moot where defendant has completed serving his
sentence.” People v. McNulty, 383 Ill. App. 3d 553, 558, 892 N.E.2d 73, 77 (2008). “In other
words, when a defendant has completed his term of incarceration and MSR, a reviewing court is
unable to render any sort of effectual relief.” People v. Funches, 2019 IL App (3d) 160644, ¶ 8,
129 N.E.3d 582.
¶ 26 On December 24, 2018, the trial court sentenced defendant to a term of 2½ years’
imprisonment with credit for 105 days in custody, followed by one year of MSR. OSAD asserts
that, with 50% good-time credit, defendant was released from prison on November 6, 2019, and
his sentence was completely discharged on November 6, 2020. We have reviewed the website of
the Illinois Department of Corrections, which no longer shows defendant in its custody, and thus,
we may judicially note he has been discharged from MSR. See People v. McKinney, 399 Ill.
App. 3d 77, 79, 927 N.E.2d 116, 117 (2010) (finding the reviewing court can take judicial notice
of the Illinois Department of Corrections’s website).
¶ 27 We conclude no meritorious issue challenging defendant’s sentence can be raised
where defendant has completed his entire sentence following his successful discharge from
MSR. Accordingly, we allow OSAD’s motion to withdraw and affirm the judgment of the trial
court.
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¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, we affirm the trial court’s judgment.
¶ 30 Affirmed.
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