Case Information
*1
Opinion filed December 31, 2015 FIFTH DIVISION IN THE
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County.
Plaintiff-Appellee, )
) v. ) No. 08 CR 20482 )
LAMARR MAXEY, ) The Honorable
) Timothy Joseph Joyce, Defendant-Appellant. ) Judge, presiding.
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice Palmer concurred in the judgment and opinion.
OPINION Defendant Lamarr Maxey pled guilty to attempted aggravated robbery and was sentenced to 11 years with the Illinois Department of Corrections (IDOC). ¶ 2 On this direct appeal, defendant asks us to vacate as void a prior bond order.
Specifically, defendant argues that the trial court erroneously placed him оn bond during a prior appeal by the State, although Illinois Supreme Court Rule 604(a)(3) provides that "[a] defendant shall not be held in jail or to bail during the pendency of an appeal by the State." Ill. S. Ct. R. 604(a)(3) (eff. Dec. 11, 2014). [1] As a result of this order, defendant received consecutive sentences in another case. Section 5-8-4(d)(8) of the Unified Code of Corrections (Code) provides that, "[i]f a person charged with a felony commits a separate felony while on pretrial release *** then the sentences imposed upon conviction of thеse felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered." 730 ILCS 5/5-8-4 (West 2014). Defendant asks us to declare the prior bond order void and to vacate the
consecutive sentences entered in the other case, which is not before us on this appeal. For the following reasons, we do not find defendant's arguments on this issue persuasive. In the alternative, defendant asks us to allow him to withdraw his guilty plea
in the case at bar, because it was allegedly based on a misunderstanding that his guilty plea would not prevent him from subsequently challenging the prior bond on appeal. Again, for the reasons explained below, we are not persuaded by defendant's argument.
¶ 5 Lastly, defendant asks us to correct the mittimus to reflect the 1,045 days of
credit served. In response, the State asks us to reduce the days of credit to 951
days. Pursuant to our supreme court's decision issued last month in
People v.
Castleberry
,
¶ 6 BACKGROUND Since the issue before us is purely procedural, we provide here the
procedural history of the case below. After being indicted for attempt aggravated robbery, defendant filed a
motion to quash arrest and suppress evidence. After an evidentiary hearing, the trial court granted defendant's motion on October 7, 2009. On November 4, 2009, the parties appeared in court and the State indicated its intent to file, on the same day, a certificate of substantial impairment and notice of appeal. Defense counsel "object[ed] to the filing of that" and also "ask[ed] for an appeal bоnd because *** this [could] take[] two years while it pends." The parties then agreed to a continuance to November 10, 2009. As it stated it would do, the State filed both a notice of appeal and a certificate of substantial impairment on November 4, 2009.
¶ 9 On November 10, 2009, the parties agreed to another short continuance,
and appeared again on November 24, 2009. The State argued that the trial court lacked jurisdiction to reconsider its ruling on defendant's motion, and that the appeal had to proceed. Defense counsel responded: "I would ask you to set that $10,000 I-bond,[ [2] ] as this case could linger for several years before ultimately being resolved in Mr. Maxey's favor and it is punitive to hold him in custody while waiting that verdict."
¶ 10 Defense counsel then paraphrased Illinois Supreme Court Rule 604(a)(3)
(eff. Dec. 11, 2014), stating: "The defendant shall not be held in jail or to bail during pending [ sic ] a pendency of an appeal by the State or of a petition or appeal by the State under Rule 315 A, unless there are compelling reasons for his or her continued detention or being held for bail." The assistant State's Attorney (ASA) then responded: "I think I gave you
compelling reasons." However, the trial court held: "I don't think so." The court then instructed defense counsel: "Draft the order." To which, defense counsel responded: "Yes, sir." The half-sheet entry for November 24, 2009, states: "PD (Vern) State Files
Certificate of Impairment nunc pro tunc 11/01/09[.] [B]ail set at $10,000 I Bond # 6698202 off call." An order, dated November 24, 2009, also stated: "Bail set at $10,000 I Bond # 6698202."
¶ 13 While the State's appeal was pending, defendant was arrested in another case
(No. 11 CR 07414-01). On May 27, 2011, this court reversed the trial court's grant of defendant's motion to quash and suppress evidence and remanded for further proceedings in the case on appeal before us (No. 08 CR 20482). People v. Maxey , 2011 IL App (1st) 100011. On December 20, 2012, after a bench trial, defendant was found guilty in case No. 11 CR 07414-01 of aggravated fleeing and eluding and residential burglary. [3] The sentencing was scheduled for a later date. Prior to defendant's sentencing in case No. 11 CR 07414-01, the parties
appeared in court in case No. 08 CR 20482 on January 10, 2013, and defense counsel filed a motion to vacate the bond in case No. 08 CR 20482, which had been entered several years earlier in 2009. The trial court denied the motion, holding: "I do not think that Rule 604 *** requires, quote, compelling reasons, unquote, for someone to be held on an I-bond or on a recognizance bond." The trial court further stated: "And pending resolution of this case, if it comes up to argue this again, should he be found guilty of this offense, you can make whatever argument you see fit on his behalf, but I agree you are entitled to have a decision now in order to make whatever decisions you want to make hereafter." Then the parties proceeded to discuss the pending plea offer from the State
and defendant's pending suppression motion. The trial court described the State's plea offer of 11 years as "extremely generous," in light of the 6 to 30 year sentencing range and defendant's lengthy criminal history. Defense counsel stated that defendant wanted to know if they could proceed on the suppression motion and then, if it was denied, could he still accept the State's plea offer of 11 years. The court responded: "If he wants the 11, he can have the 11 right now. If he wishes tо reject the 11, and you're absolutely entitled to reject the 11, but we are going to fish or cut bait, which means we're going to make a decision." The parties went off the record and then the following colloquy between
defendant and the trial court ensued on the record:
"DEFENDANT: Your Honor, I just feel like, you know, the caselaw and everything, you know, based on Supreme Court Rule 604(a)(3), you know, I was supposed to be released unconditionally. I mean, bail is bail, you know.
And as [the other trial judge] stated on the 24th of November when he let me go, he said–[ASA] asked a compelling reason. He said I don't think so. I mean, you rеad the transcript. You know, I'm saying absent a compelling reason, you know, I was entitled to unconditional release under [Rule] 604(a)(3). And I feel like–you know, I understand that I was out on bond and–I mean, I was out on bond, but if I got my unconditional release, I wouldn't have–you know, I wouldn't be out on bond. So that's why I just don't feel like, you know, a consecutive sentence is in order, you know, based on the fact that I was out on a bond that I shouldn't have been out on, you know.
THE COURT: I appreciate that, that is the effect of the ruling. I got that, Mr. Maxey. I didn't not take that seriously. I understand fully its importanсe–
DEFENDANT: I want to also–
THE COURT: Go ahead.
DEFENDANT: I also want to ask, you know, by me pleading guilty, is this issue moot now? I mean, can I under [ sic ] blame error of the Supreme Court Rules–I mean, am I able to bring this back up? Because I feel this is a plain error that I was released on bond in the first place. I mean, the Supreme Court Rule, it's clear. They say unless compelling reasons, and the burden was on the State to submit these compelling reasons. The Judge ruled. And you read the transcript. He said no compelling reason, I don't think so. I mean, those are the exact four words he spoke, I don't think so. [ASA] asked him, your Honor, I think, based on the transcripts, she said I offered compelling reasons. [The other trial judge] pointblank said I don't think so.
So I'm saying there were no compelling reasons at the time. So based upon no compelling reasons at the time, why am I out on bond if the rule is clear, you know? Not to be held to bail or held pending, you know, unless a compelling reason–compelling reasons exist. It's just the plain language of the statute–I mean, the rule suggests that I wasn't supposed to be held–I wasn't supposed to be held to bail.
THE COURT: I'm not going to give you legal advice about what course you want to take. If you plead guilty, if I accept the plea of guilty and make a finding that it is voluntarily, freely and knowingly made, I anticipate I will go along with the sentencing recommendation that I made, which was 11 years in the Illinois Department of Corrections for this offense.
I am not making it consecutive to any other sentence, because there is no other sentence that you're serving at this time. So I can't say that this sentence will be consecutive to some other sentence. I don't do that. You're not serving some othеr sentence at this time that I will say this sentence will be concurrent or this sentence will be consecutive. I'm just going to sentence you today.
DEFENDANT: Oh, okay. One more thing. By me raising this motion here in your courtroom, that doesn't prevent me from raising it also in [case No. 11 CR 07414-01], does it?
THE COURT: I'm not giving you any legal advice. What do you want to do?
DEFENDANT: I'm going to sign the paper.
THE COURT: Excuse me?
DEFENDANT: I will sign the paper.
THE COURT: You mean you wish to plead guilty?
DEFENDANT: Yes." Defendant then pled guilty. Prior to sentencing, the trial court asked defendant if there was "[a]nything [he] wished to say," and defendant replied: "I would just like to reiterate, you know, I feel like I shouldn't have been held to bond on this case. It was an errоr for me to be put out on bond. Basically, I was eligible for unconditional release." The trial court then sentenced defendant to 11 years with IDOC, plus three years of mandatory supervised release, with credit for 1,044 days served. The trial court then informed defendant of his appeal rights, stating that he had to first file in the trial court a written motion within 30 days if he wished to withdraw his guilty plea. Thus, defendant pled guilty and was sentenced in the case at bar on January
10, 2013. Less than 30 days later, on February 5, 2013, defendant filed a pro se motion to withdraw his guilty plea in case no. 08 CR 20482. Defendant raised а number of issues, including that he received ineffective assistance of counsel "in that he was mislead [ sic ] into believing that he would be able to appeal various pre-trial rulings to the appellate court regardless of his guilty plea which he knows 'now' to be untrue." He also stated that his counsel was "ineffective when on January 10, 2015, he sought before *** the circuit court Defendant's Motion to Vacate Prior Bond knowing very well that he had requested Nov. 24, 2009 this bond due to his lack of knowledge and his apprehension of Supreme Court Rule 604(a)(3) on the same day (see court transcript for that day). He was also ineffective *** in that he could have raised my issue about defendant's bond pursuant to Ill. Supreme Court Rule 604(c) Appeals From Bail Orders by Defendant Before Conviction which then would have been appealable to the Appellate Ct." On February 27, 2013, in case No. 11 CR 07414-01, defendant was
sentenced to 20 years and 3 years, respectively, for residential burglary and aggravated fleeing and eluding. These two sentences ran concurrently to each other but consecutive to the 11 year sentence imposed in the case at bar (No. 08 CR 20482). In response to defendant's motion to vacate his plea, the trial court appointed
counsel, and appointed counsel filed a supplemental motion on September 5, 2013. The supplemental motion made several claims, including that defendant's guilty plea was based on a misapprehension of the law, in that he did not understand that his guilty plea would bar him from appealing the denial of his motion to vacate his prior bond. On October 3, 2015, counsel filed an "Addendum to Supplemental Motion to Vacate Guilty Plea," which added claims that are not at issue on this appeal. On December 17, 2013, the trial court denied defendant's motion to vacate
his plea, finding that his plea was voluntarily made. The court observed:
"THE COURT: There is nothing that the Court said or did that would have led Mr. Maxey to believe he had a right to appeal the propriety of rulings in that regard.
And as the State points out, and as I think my questions alluded to earlier, the question of whether Mr. Maxey was on bond or not at the time he committed the second offense was completely, totally, absolutely irrelevant then and irrelevant now because this was the first case that got resolved. So the issue of whether he was on bond or not is simply not an [ sic ] justiciable issue for this Court to resolve, not then and not now." ¶ 23 The trial court also granted defendant's motion to correct the mittimus, to
which the State had no objection. The court granted defendant an additional day's credit, for a total of 1,045 days considered served, which was entered nunc pro tunc to the date of the guilty plea.
¶ 24 On December 17, 2013, defendant filed a notice of appeal in the case at bar
(Nо. 08 CR 20482) appealing the trial court's denial of defendant's motion to withdraw his guilty plea.
¶ 25 The notice of appeal in case No. 11 CR 07414-01 was filed on March 9,
2013. Over two years later, on October 13, 2015, the State filed a motion in that appeal to consolidate it with the appeal now before us. On October 19, 2015, a different division of this court denied the State's motion to consolidate. On November 12, 2015, that division heard oral argument, but it has not yet issued a decision. ANALYSIS On this direct appeal, defendant raises three claims: (1) that the prior
order granting defendant an I-bond during a prior appeal must be vacated as void; (2) that the trial court should have allowed defendant to withdraw his guilty plea because he did not understand that his guilty plea would preclude him from his challenging his bond on appeal; and (3) that the mittiums should be corrected. For the reasons explained below, we order the mittimus corrected. However, we do not find defendant's other arguments persuasive and we affirm the defendant's judgment and conviction.
¶ 28 I. The Bond Order ¶ 29 First, defendant asks us to vacate as void the bond order issued during a
prior aрpeal in this case, and to vacate the consecutive sentences that were imposed in a different case as a result of the bond order. In response, the State argues that the sole procedure for vacating a bond
order is set forth in Supreme Court Rule 604, and the time for appealing the order has passed. The rule specifically provides that an appeal "may be taken at any time before conviction " (emphasis added) (Ill. S. Ct. R. 604(c) (eff. Dec. 11, 2014)), and there is no dispute that defendant did not appeal the bond prior to conviction. The issue of whether the applicable Supreme Court Rules permit the appeal
in this case is a question of statutory interpretation, which we review
de novo
.
In re Michael D.
,
"(1) Appealability of Order With Respect to Bail . Before conviction a defendant may appeal to the Appellate Court from an order setting, modifying, revoking, denying, or refusing to modify bail or the conditions thereof. As a prerequisite to appeal the defendant shall first present to the trial court a written motion for the relief to be sought on appeal. ***
(2) Procedure . The appeal may be taken at any time before conviction by filing a verified motion for review in the Appellate Court. ***" Ill. S. Ct. R. 604(c) (eff. Dec. 11, 2014). There is also no dispute that defendant did not utilize Rule 604(c)'s
procedure for appealing an order setting "bail or the conditions thereof." Ill. S.
Ct. R. 604(c) (eff. Dec. 11, 2014). Defendant's primary argument to this court is
that the I-bond in this case constituted "bail" in violation of another part of Rule
604, namely subsection (a)(3), which prohibits holding defendant "to bail
during the pendency of an appeal by the State." Ill. S. Ct. R. 604(a)(3) (eff.
Dec. 11, 2014). If defendant is correct and the I-bond constituted "bail" within
the meaning of Rule 604(a)(3), then this same rule also required him to file his
motion for review "before conviction" (Ill. S. Ct. R. 604(c) (eff. Dec. 11,
2014)). If defendant is not correct and the I-bond did not constitute "bail" as the
State contends, then his claim fails on the merits, because he then would not
have been "held to bail" in violation of the rule. Ill. S. Ct. R. 604(a)(3) (eff.
Dec. 11, 2014). Either way, his claim fails. See
Maksym v. Board of Election
Commissioners
, 242 Ill. 2d 303, 322 (2011) (" '[W]here the same, or
substantially the same, words or phrases appear in different parts of the same
statute they will be given a generally accepted and consistent meaning, where
the legislative intent is not clearly expressed to the contrary.' " (quoting
Moran
v. Katsinas
,
which stated, without any citation or support, that: "Orders appealable under
Supreme Court Rule 604(c)(1)–orders 'setting, modifying, revoking, denying, or
refusing to modify bail or the condition thereof' (188 Ill. 2d R. 604(c)(1))–are
different from an order applying the standard set forth in Supreme Court Rule
604(a)(3)–an order which denies the unconditional release pending an appeal
that Supreme Court Rule normally affords." Even if we found this unsupported
dicta persuasive, its language does not apply to the case at bar. Unlike
Beaty
,
this is not a case where the trial court "denie[d]" defendant "the unconditional
release" which he sought.
Beaty
,
bar. In
Beaty
, the defendant sought to appeal his bond order as part of the
State's interlocutory appeal from the adverse evidentiary ruling (
Beaty
, 351 Ill.
App. 3d at 720), and the
Beaty
court permitted the defendant to do that (
Beaty
,
in Rule 604(c), we lack jurisdiction to consider his claim. However, we are not
barred from considering an order that was a necessary step to the order at issue
before us (
Filliung v. Adams
,
¶ 40 II. Withdraw Guilty Plea In the аlternative, defendant asks this court to allow him to withdraw his
guilty plea because it was based on a misunderstanding. He claims that he did not understand that his plea could preclude him from challenging the validity of his prior bond on this appeal. "Leave to withdraw a plea of guilty is not granted as a matter of right, but as
required to correct a manifest injustice under the facts involved."
People v.
Spriggle
,
the plea was entered based on a misapprehension of fact or law, or if there is a
doubt of the guilt of the accused and the ends of justice would better be served
by submitting the case to a trial.
Hughes
,
he was suffering from a misunderstanding. The record shows that, during the plea proceeding and prior to the plea, defendant expressed the issue, quite thoughtfully and articulately. He asked the court whether a guilty plea would preclude him from pursuing the bond issue in the future, and the court replied that it would not provide legal advice. Defendant then asked specifically: "By me raising this motion here in your courtroom, that doesn't prevent me from raising it in [case No. 11 CR 07414-01], does it?" Again, the trial court repeated: "I'm not giving you any legal advice." Defendant, however, decided to proceed without this knowledge in order to preserve the benefit of his bargain with the State. The record simply does not bear out defendant's claim that he was suffering from a misunderstanding, and thus we cannot find that the trial court abused its discretion. III. The Mittimus On appeal, defendant asks us to correct the mittimus to reflect the 1,045 days
served ordered by the trial court. " 'Although a written order of the circuit court
is evidence of the judgment of the circuit court, the trial judge's oral
pronouncеment is the judgment of the court.' "
People v. Carlisle
, 2015 IL App
(1st) 131144, ¶ 87 (quoting
People v. Whalum
, 2012 IL App (1st) 110959,
¶ 41). " ' "When the oral pronouncement of the court and the written order are in
conflict, the oral pronouncement controls." ' "
People v. Carlisle
, 2015 IL App
(1st) 131144, ¶ 87 (quoting
Whalum
,
served. In effect, the State is appealing the sentencing order, which Illinois
Supreme Court Rules do not permit it to do. Last month, our supreme court
held in
Castleberry
: "Illinois Supreme Court Rule 604(a) sets forth with
specificity those instances where the State may appeal in a criminal case. The
rule does not permit the State to appeal a sentencing order."
Castleberry
, 2015
IL 116916, ¶ 21 (discussing Ill. S. Ct. R. 604(a) (eff. July 1, 2006)). "[B]ecause
the rule does not authorize the appeal of sentencing orders, it follows that the
State could not have cross-appealed in the appellate court on this issue, 'since a
reviewing court acquires not greater jurisdiction on cross-appeal than it could
on appeal.' "
Castleberry
,
a cross-appeal in the appellate court but 'simply responded to a claim raised by defendant.' " Castleberry , 2015 IL 116916, ¶ 22 (quoting the State's brief in Castleberry ). In Castleberry , the State argued that "the appellate court could, therefore, properly address its argument." Castleberry , 2015 IL 116916, ¶ 22. The supreme court responded: "This is incorrect." Castleberry , 2015 IL 116916, ¶ 22. The court explained:
"As the appellee in the appellate court, the State could, without filing a
cross-appeal, raise any argument of record in support of the circuit court's
judgment. [Citations.] However, an aрpellee who does not cross-appeal
may not 'attack the decree with a view either to enlarging his own rights
thereunder or of lessening the rights of his adversary.' [Citation.]
The State's argument *** was not brought to sustain the judgment of
the circuit court. It was instead, a new and different issue brought with a
view to 'lessening the rights' of defendant. The State's argument was a
de
facto
cross-appeal *** and, as such, was impermissible."
Castleberry
,
for days served which would have, in effect, appealed the trial court's sentencing order. See also Castleberry , 2015 IL 116916, ¶ 24 ("the authority grantеd under Rule 615(b)" to the appellate courts to modify sentences "is limited to 'reduc[ing] the punishment imposed by the trial court' " (quoting Ill. S. Ct. R. 615(b)(4))).
¶ 50 CONCLUSION For the foregoing reasons, we affirm the judgment and conviction. However,
we order the mittimus corrected to reflect the 1,045 days of credit ordered by the trial court. Affirmed; mittimus corrected.
Notes
[1] Illinois Supreme Court Rule 604 was amended effective December 3, 2015. However, this amendment had no effect on the sections which we quote in this opinion.
[2] An I-bond is a recognizance bond.
[3] Case No. 11 CR 07414-01 is currently pending on appeal before another division of this court in appeal No. 1-13-698.
[4] The reply brief in the instant appeal was filed November 10, 2015; and our
supreme court's opinion in
Castleberry
,