People v. Dunkleberger , 2024 IL App (3d) 230674-U ( 2024 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2024 IL App (3d) 230674-UOrder filed October 10, 2024
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IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2024
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-23-0674
v. ) Circuit No. 22-CF-389
)
BRANDON A. DUNKLEBERGER, ) Honorable
) Howard C. Ryan Jr.,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court.
Justice Brennan concurred in the judgment.
Presiding Justice McDade specially concurred.
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ORDER
¶1 Held: Defendant failed to establish that the court committed plain error by accepting his
guilty plea without admonishing him as to the elements of the offense or ensuring
on the record that defense counsel had done so.
¶2 Defendant, Brandon A. Dunkleberger, appeals his conviction for aggravated domestic
battery. He argues that the court committed plain error by accepting his guilty plea when the court
failed to admonish him as to the elements of aggravated domestic battery and the record did not
affirmatively show that defense counsel explained the elements to him. We affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with aggravated domestic battery (720 ILCS 5/12-3.3(a-5)
(West 2022)) and domestic battery (id. § 12-3.2(a)(1)). Defendant retained private counsel. On the
date defendant was scheduled to appear in court for a bench trial, the State advised the court that
defendant was going to plead guilty to aggravated domestic battery and that it would dismiss the
domestic battery charge. The State set forth the terms of the plea, including that it was a blind plea
but that the State would cap its sentencing request at four years’ imprisonment.
¶5 The court asked defendant if he understood what was happening and defendant responded
affirmatively. The court stated that it understood that defendant wanted to plead guilty to
aggravated domestic battery which is a Class 2 felony. The court set forth the potential sentencing
range. The court further advised defendant of potential consequences of pleading guilty. It then
asked defendant if he understood everything that the court set forth and defendant replied that he
did. The court continued explaining that defendant did not have to plead guilty and advised
defendant of the rights he was giving up. The court again inquired whether defendant understood,
and defendant confirmed that he did. The court asked if defendant had any questions and defendant
replied that he did not. The court confirmed that defendant had been represented by counsel and
asked if defendant had any complaints about counsel. Defendant responded “No, Your Honor.”
¶6 The State then provided the factual basis. The State advised that Katelynn Buchanan would
testify that she had been in a dating relationship and had a child with defendant. Buchanan and
defendant had resided together. On the relevant date, defendant struck Buchanan, grabbed her by
the throat, and held her down by her throat. While being choked, Buchanan found it difficult to
breathe, her face became hot and flushed, she had difficulty seeing and her vision became blurry.
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Defendant’s counsel agreed that if the State called witnesses they would testify competently and
substantially as outlined by the State, which would be sufficient to support a conviction.
¶7 The court confirmed that no promises had been made to defendant other than those that
were set forth in court. The court asked if defendant was pleading guilty voluntarily and as a result
of his decision. Defendant responded affirmatively. The court found that defendant understood the
charges against him and the possible punishment. The court further found that there was a factual
basis for the plea and that the plea was voluntary. The court accepted the plea. The matter was set
for sentencing. Following a hearing, the court sentenced defendant to three years’ imprisonment.
The court advised defendant that he had the right to appeal and that prior to noticing an appeal he
must file a motion to withdraw his plea. The court further advised that in the motion he must set
out all of the reasons why he wanted to withdraw his plea and that any reasons not stated would
be waived on appeal.
¶8 Defendant filed, as a self-represented litigant, a motion to withdraw his guilty plea, arguing
that his attorney promised him that he would receive probation if he pled guilty. Defendant’s
private counsel withdrew, and the public defender was appointed to represent defendant. Counsel
filed an Illinois Supreme Court Rule 604(d) certificate and a motion to withdraw guilty plea. The
motion argued that defendant was promised by his attorney that if he entered the blind plea he
would receive probation and that he would not have entered into the plea if his attorney had not
made that promise. The court held a hearing on the motion and the motion was denied. Defendant
appeals.
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¶9 II. ANALYSIS
¶ 10 Defendant argues that his plea should be vacated because the court did not properly
admonish him under Illinois Supreme Court Rule 402(a) (eff. July 1, 2012). 1 Specifically, he
argues that pursuant to the Supreme Court’s opinion in Bradshaw v. Stumpf, 545 U.S. 175 (2005),
the court is required to either inform defendant of the elements of the offense or ensure the record
reflects that counsel did so. Defendant acknowledges that he failed to raise this issue in his motion
to withdraw his guilty plea, but argues that the failure to comply with the requirements of Rule
402(a) can be reviewed as second prong plain error. See e.g., People v. Davis, 145 Ill. 2d 240, 250-
51 (1991) (stating that “under Illinois Supreme Court Rule 604(d), any issue not raised by the
defendant in his motion to withdraw the plea of guilty shall be deemed waived upon appeal” but
that the failure to properly admonish a defendant under Rule 402 can amount to plain error).
¶ 11 Under the plain error doctrine, a clear or obvious error may excuse a procedural default.
People v. Hammons, 2018 IL App (4th) 160385, ¶ 17. However,
“under the plain-error doctrine, the existence of an error is not enough to avert a
forfeiture, even if the error is genuinely an error. Not even reversible error is
enough. *** The plain error doctrine is not a backdrop to catch merely arguable
issues that could have been raised in the trial court. The error had to be manifest or
patent.” Id.1
Defendant’s argument appears to vacillate between arguing that the court failed to properly admonish him
under Rule 402(a) and that his plea was otherwise not knowingly and voluntarily made. Specifically, he seems to
make some argument that the record must show that the elements of the offense were explained to him aside from the
requirements of Rule 402(a). He also argues that Rule 402(a) requires a showing that the elements were explained to
him. However, as defendant sets forth his standard of review based upon compliance with a supreme court rule and
makes his plain error argument based upon compliance with Rule 402(a), we frame the issue and consider it as whether
the court complied with Rule 402(a).
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¶ 12 Under the second prong of the plain error doctrine, if a clear or obvious error occurred, the
court must then determine if the “ ‘error is so serious that its consideration is necessary to preserve
the integrity and reputation of the judicial process.’ ” Id. ¶ 42 (quoting People v. Hampton, 149 Ill.
2d 71, 102 (1992)). The concern is whether defendant has suffered a serious injustice. Id.“Defendant bears the burden of persuasion in showing both that a clear and obvious error exists
and that one of the prongs is satisfied.” People v. Marcos, 2013 IL App (1st) 111040, ¶ 58.
¶ 13 Illinois Supreme Court Rule 402(a) (eff. July 1, 2012) requires the court, prior to accepting
a guilty plea, to admonish defendant and determine that he understands, inter alia, the nature of
the charge. “[T]he trial court is not required to apprise a defendant of the elements of the crimes
with which he is charged before accepting a guilty plea.” People v. Jackson, 199 Ill. 2d 286, 296
(2002).
¶ 14 Defendant faults the court for failing to explain the elements of the offense to him, in light
of the Supreme Court’s decision in Stumpf. However, based on the plain language of Rule 402(a),
the court is only required to ensure defendant understands the nature of the offense and here, the
court clearly advised the defendant that he was charged with aggravated domestic battery. The
court further asked if defendant understood, and defendant acknowledged he did. Our supreme
court has expressly stated that the court is not required to apprise a defendant of the elements of
the offense prior to accepting a guilty plea. See Jackson, 199 Ill. 2d at 296. Additionally, this court
has rejected a similar argument that Stumpf requires the court to advise defendant of the elements
in People v. Stone, 2018 IL App (3d) 160171, ¶ 17. This court stated that “Stumpf therefore rejects
defendant’s assertion that the court must explain the elements of each charge before accepting a
guilty plea. Instead, Stumpf indicates that this obligation is best left to defense counsel.” Id.Additionally, we reject defendant’s contention that the court’s failure to ensure that counsel
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explained the elements of the offense to defendant was somehow a violation of Rule 402(a). Rule
402(a) simply does not contain any such requirement. Thus, defendant has failed to establish any
error in the court’s Rule 402(a) admonishments.
¶ 15 Further, we disagree with defendant’s argument that, based upon the language in Stumpf,
“the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects
that the nature of the charge and the elements of the crime were explained to the defendant by his
own, competent counsel.” Stumpf requires an affirmative showing in the record that counsel
explained the elements of the offense to defendant in order to have a valid guilty plea. (Emphasis
added.) Stumpf, 545 U.S. at 183. The Supreme Court previously stated that “it may be appropriate
to presume that in most cases defense counsel routinely explain the nature of the offense in
sufficient detail to give the accused notice of what he is being asked to admit.” (Emphasis added.)
Henderson v. Morgan, 426 U.S. 637, 647 (1976). This leads to the conclusion that the
constitutional prerequisites may be satisfied in various ways. Based on the foregoing, the court’s
failure to ensure that the record reflected that counsel explained the elements of the offense to
defendant, was not a clear or obvious error. Thus, there was no plain error and defendant’s
arguments remain procedurally defaulted.
¶ 16 III. CONCLUSION
¶ 17 The judgment of the circuit court of La Salle County is affirmed.
¶ 18 Affirmed.
¶ 19 PRESIDING JUSTICE McDADE, specially concurring:
¶ 20 I concur with the majority’s decision to affirm the circuit court’s denial of Dunkleberger’s
motion to withdraw guilty plea. I write separately, however, because I do not join in the majority’s
analysis in paragraph 15. I fail to see how a citation to a case that was decided 30 years before
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Stumpf somehow provides support for the vague conclusion that “the constitutional prerequisites
may be satisfied in various ways” (supra ¶ 15), especially when the majority makes no attempt to
specify what those “ways” may be or how they apply in this case.
¶ 21 I emphasize that at the hearing on Dunkleberger’s motion to withdraw guilty plea, whether
he was informed by defense counsel of the elements of the charged offenses was not at issue.
Rather, the sole issue addressed at the hearing was whether Dunkleberger pled guilty only after
receiving a promise from counsel that he would receive probation instead of prison time.
Accordingly, when counsel testified, he was not asked whether he informed Dunkleberger of the
elements of the charged offenses. Thus, even if Dunkleberger is correct that the law requires the
record to reflect that defense counsel so informed him, his failure to raise the issue in the circuit
court has deprived this court of being able to determine whether counsel in fact did so. The record
in this case does not show, either way, whether counsel informed Dunkleberger of the elements of
the charged offenses. In the absence of that information, it is impossible to find that error in fact
occurred. See People v. Bannister, 232 Ill. 2d 52, 71 (2008) (holding that when it has not been
shown that error in fact occurred, a defendant is not entitled to relief under the plain-error doctrine).
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