THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAMARR MAXEY, Defendant-Appellant.
No. 1-14-0036
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
December 31, 2015
2015 IL App (1st) 140036
FIFTH DIVISION. Appeal from the Circuit Court of Cook County. No. 08 CR 20482. The Honorable Timothy Joseph Joyce, Judge, presiding.
Presiding Justice Reyes and Justice Palmer concurred
OPINION
¶ 1 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 on bond during a prior аppeal by the State, although
¶ 3 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.
¶ 4 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, 2015 IL 116916, we must deny the State‘s request. We do order the mittimus corrected to reflect the trial court‘s order.
BACKGROUND
¶ 6 Since the issue before us is purely procedural, we provide here the procedural history of the case below.
¶ 7 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 bond because *** this [сould] 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.
¶ 8 On November 10, 2009, the parties agreed to another short continuance, and
¶ 9 Defense counsel then paraphrased
¶ 10 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.”
¶ 11 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.”
¶ 12 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.
¶ 13 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.”
¶ 14 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.”
¶ 15 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 to reject the 11, and you‘re absolutely entitled to reject the 11, but we are going tо
¶ 16 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 read the transсript. 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 importancе–
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 dо that. You‘re not serving some other 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.”
¶ 17 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 beеn held to bond on this case. It was an error 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.
¶ 18 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 tо withdraw his guilty plea in case no. 08 CR 20482. Defendant raised a 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
¶ 19 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).
¶ 20 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.
¶ 21 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.”
¶ 22 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.
¶ 23 On December 17, 2013, defеndant filed a notice of appeal in the case at bar (No. 08 CR 20482) appealing the trial court‘s denial of defendant‘s motion to withdraw his guilty plea.
¶ 24 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
¶ 25 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 conviсtion.
I. The Bond Order
¶ 26 First, defendant asks us to vacate as void the bond order issued during a prior appeal in this case, and to vacate the consecutive sentences that were imposed in a different case as a result of the bond order.
¶ 27 In response, the State argues that the sole procedure for vacating a bond order is set forth in
¶ 28 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., 2015 IL 119178, ¶ 9. “The same rules of construction apply to both” statutes and Supreme Court Rules. Id. Our primary objective is to give effect to the drafters’ intent, which is best indicated by the plain language of the statue. Id. De novo review means that the reviewing court performs the same analysis that a trial judge would perform. A.M. Realty Western L.L.C. v. MSMC Realty L.L.C., 2012 IL App (1st) 121183, ¶ 37.
¶ 29
“(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).
¶ 30 There is also no dispute that defendant did not utilize
¶ 31 In response, defendant argues, first, that “[t]he State contradicts itself on this point, since it claims elsewhere that the bond determination did not set ‘bail.’ [Citation.] The State then faults [defendant] for not pursuing an avenue that, by the State‘s logic, was unavailable to him.” However, as we explained above, it is the defendant‘s logic which bars his claim. If we agree with defendant that the I-bond did, in fact, constitute bail for purposes of
¶ 32 Defendant cites in support People v. Beaty, 351 Ill. App. 3d 717, 723 (2004), which stated, without any citation or support, that: “Orders appealable under
¶ 33 In addition, Beaty was in a different procedural posture from the case at 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, 351 Ill. App. 3d at 723). By contrast, in the case at bar, defendant asks us to consider the validity of his bond when the appeal to which it pertained is now over. For all these reasons, we do not find Beaty apposite to our case.
¶ 34 Defendant argues further that, even if the procedure outlined in
¶ 35 The State claims that, since defendant failed to follow the procedure outlined in
¶ 36 Defendant argues that the bond order is void and may be attacked at any time. Previously our supreme court recognized a “type of voidness challenge” which was “a challenge to a sentence that did not conform to the applicable sentencing statute.” People v. Thompson, 2015 IL 118151, ¶ 33. “This type of challenge [was] based
II. Withdraw Guilty Plea
¶ 37 In the alternаtive, 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.
¶ 38 “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, 358 Ill. App. 3d 447, 450 (2005); see also People v. Hughes, 2012 IL 112817, ¶ 32 (“A defendant has no absolute right to withdraw his guilty plea.“). Generally, the decision whether to allow a defendant to withdraw a guilty plea pursuant to
¶ 39 A defendant may seek to withdraw his or her guilty plea on the grounds that 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, 2012 IL 112817, ¶ 32; Spriggle, 358 Ill. App. 3d at 450-51. A defendant‘s misapprehension of the law is well recognized as a reason for vacating a guilty plea. People v. Belcher, 199 Ill. 2d 378, 383 (2002). ” ’ In the absence of substantial objective proof showing that a defendant‘s mistaken impressions were reasonably justified, subjective impressions alone are not sufficient grounds on which to vacate a guilty plea.’ ” Spriggle, 358 Ill. App. 3d at 451 (quoting People v. Artale, 244 Ill. App. 3d 469, 475 (1993)). “The defendant bears the burden of proving that his or her mistaken impression was objectively reasonable under the circumstances existing at the time of the plea.” (Emphasis in original.) Spriggle, 358 Ill. App. 3d at 451.
¶ 40 In the cаse at bar, the record simply does not bear out defendant‘s claim that 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
III. The Mittimus
¶ 41 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 сourt, the trial judge‘s oral pronouncement 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, 2012 IL App (1st) 110959, ¶ 41 (quoting People v. Smith, 242 Ill. App. 3d 399, 402 (1993))). Thus, we order the mittimus corrected to reflect the oral pronouncement of the trial court of 1,045 days served.
¶ 42 On appeal, the State asks us to reduce the number of days served to 951 days served. In effect, the State is appealing the sentencing order, which
¶ 43 In Castleberry, as in the case at bar, the State “did nоt file either an appeal or 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 appellee who does not cross-appeal may not ‘аttack 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, 2015 IL 116916, ¶¶ 22-23.
¶ 44 As a result, the State lacked the authority to ask for a reduction in the credit for days served which would have, in effect, appealed the trial court‘s sentencing order. See also Castleberry, 2015 IL 116916, ¶ 24 (“the authority granted under
CONCLUSION
¶ 45 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.
¶ 46 Affirmed; mittimus corrected.