People Of The State Of Ill. v. Cabrera
| Decision Date | 28 June 2010 |
| Docket Number | No. 1-07-2922.,1-07-2922. |
| Citation | 932 N.E.2d 528,342 Ill.Dec. 401,402 Ill.App.3d 440 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Pedro CABRERA, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
402 Ill.App.3d 440
932 N.E.2d 528
342 Ill.Dec. 401
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Pedro CABRERA, Defendant-Appellant.
No. 1-07-2922.
Appellate Court of Illinois,First District, First Division.
June 28, 2010.
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
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Anita Alvarez, State's Attorney, County of Cook (James E. Fitzgerald, Tasha-Marie Kelly, and Shannan McFadden, Assistant State's Attorneys, of counsel), Chicago, IL, for Plaintiff-Appellee.
Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Shawn O'Toole, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL, for Defendant-Appellant.
Justice GARCIA delivered the opinion of the court.
The defendant, Pedro Cabrera, appeals from Judge Mary Margaret Brosnahan's summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)). The defendant contends his petition states the gist of a meritorious claim for ineffective assistance of appellate counsel based on counsel's failure to raise a double jeopardy claim on direct appeal. In his petition, the defendant alleged that Judge Leo E. Holt, the trial judge, subjected him to double jeopardy by sua sponte vacating his negotiated guilty plea and setting his case for trial on all charges after accepting the defendant's plea of guilty to one count of armed robbery and granting the State's motion to nol-pros the remaining charges.
On February 16, 2010, we issued an opinion affirming Judge Brosnahan's summary dismissal because we found jeopardy never terminated on the armed robbery charge and jeopardy never attached to the remaining charges. We granted the defendant's petition for rehearing pursuant to Supreme Court Rule 367 (210 Ill.2d R. 367) and heard oral argument on the defendant's contention that the continuing jeopardy doctrine, which we applied in rejecting the defendant's claim, was not addressed in the briefs or supported by a published opinion in Illinois. In the absence of an Illinois case applying the continuing jeopardy doctrine, the defendant contends his petition cannot be found to have no arguable basis in law as our supreme court articulated in People v. Hodges, 234 Ill.2d 1, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009). After reconsidering the matter in light of the arguments on rehearing, we affirm Judge Brosnahan's summary dismissal.
BACKGROUND
The defendant was charged in a six-count indictment with two counts of armed robbery, two counts of burglary, and two counts of aggravated unlawful restraint involving an on-the-street encounter with a husband and wife and their two children as they were exiting their car. On March 9, 2004, Judge Holt was informed by defense counsel that the State had extended an offer of six years' imprisonment in exchange for the defendant's plea of guilty to one count of armed robbery. Judge Holt continued the matter to the next day for a guilty plea hearing. On March 10, 2004, Judge Holt began the hearing by making certain inquiries of the defendant. In the course of his admonishments to the defendant, Judge Holt informed the defendant that “when you plead guilty you say to the court I am guilty and there is nothing left to try.” The defendant responded that he understood the process of pleading guilty and was entering his plea of guilty freely and voluntarily. Following the admonishments, Judge Holt entered his findings regarding the defendant's plea: “[The] Court finds that he understands his rights and that he is waiving his rights freely and
voluntarily.” The State's factual basis for the defendant's plea of guilty was stipulated to by the defense. Following the factual basis, Judge Holt stated:
“Let the record reflect that there is a sufficient factual basis for the plea of guilty. Accordingly the plea of guilty is accepted. There will be a finding of guilty. Judgment is entered on the finding.”
The State nol-prossed the five remaining counts of the indictment.
In aggravation, the State informed Judge Holt that the defendant had four prior felony convictions; in mitigation, the defense rested on the agreement reached with the State. The defendant was then given the opportunity to address the court. In response to Judge Holt's question about any prior commitments to the penitentiary, the defendant stated he previously served seven years and eight months in the Illinois Department of Corrections (IDOC) with this being his third IDOC sentence. The following exchange, central to this appeal, then occurred.
“THE COURT: Mr. Cabrera, you can't imagine how lucky you are. I don't even understand the sentence and the agreement that was made between your attorney and the state's attorney. It boggles my mind that you are a five time convicted felon and you committed an armed robbery which endangers the life of the people that you were robbing and you come out with a six year sentence. It just boggles my mind that you come out with the minimum. I don't understand it.
THE DEFENDANT: I hate to tell you the truth, Your Honor, you know what I'm saying, I plead guilty because of my background. I
can't show my innocence. That's the only thing wrong with my life. Can't show my innocence because of my background.
THE COURT: Are you telling me that you are innocent of this charge?
THE DEFENDANT: Yes, Your Honor. Yes, Your Honor.
THE COURT: Well Mr. Cabrera, you're going to get a chance to prove your innocence. I don't take guilty pleas from people who are innocent of the crimes that they are charged with.
THE DEFENDANT: But Your Honor, I prefer to take the time, sir.
THE COURT: I'm not interested in what you prefer. You don't have a right to cause me to disgrace myself and the criminal justice system by accepting a plea of guilty from you when you are in fact not guilty. That's what you are telling me, that you didn't commit this crime. I'm not going to send you to the penitentiary for a crime you didn't commit. Just because that may be your desire. You don't have a right to impose that on me.
THE DEFENDANT: Sir, I no I'm standing-I can't beat it at trial, sir.
THE COURT: I don't care whether you can beat it or not. You're entitled to a trial if you are not guilty of the crime you are charged with.
THE DEFENDANT: I been blessed already, you known what I'm saying. I've been blessed in the courtroom already.
THE COURT: You're going to be blessed again because you're going to get a trial. Set this case for trial. The plea is ordered vacated. Waiving his right to trial by jury. The previous order vacating his-waiving his right to trial by jury is vacated. The plea of not guilty is reinstated.”
The matter was continued from time to time for trial. At the time of trial, the defendant elected a bench trial.
At trial, the State's evidence was that the defendant, armed with a knife, robbed the couple and removed items from the family car with the aid of another. The defendant was arrested nearby soon after the crimes, with some of the possessions of the husband and wife. The defendant did not testify at trial.
Judge Holt found the defendant guilty of all counts, merging the two counts of aggravated unlawful restraint with the two counts of armed robbery. He sentenced the defendant to 20 years' imprisonment on the armed robbery counts, which included the count of armed robbery to which the defendant had entered his plea of guilty. A single concurrent seven-year prison term was imposed for burglary.
On direct appeal, the defendant presented an issue, based on plain error, very similar to the one before us now.
People v. Cabrera, No. 1-04-3297 (1999) (unpublished order under Supreme Court Rule 23). He asserted that Judge Holt erred in rejecting his guilty plea based solely on his professed claim of innocence without considering the particular facts of his case. In affirming, we noted that the United States Supreme Court has held that a trial court's acceptance of a guilty plea supported by a strong factual basis is not error, even in the face of the defendant's proclamation of innocence; however, the states are free to prohibit their courts from accepting a guilty plea where a defendant maintains his innocence. North Carolina v. Alford, 400 U.S. 25, 38 n. 11, 91 S.Ct. 160, 168 n. 11, 27 L.Ed.2d 162, 172 n. 11 (1970). Consistent with the language in Alford, we noted that under Illinois case law a trial court may, but is not required to, accept a guilty plea from a defendant that maintains his innocence. A trial court has discretion to vacate its acceptance of a defendant's guilty plea if the defendant proclaims his innocence during the course of the guilty plea hearing. We determined that Judge Holt acted within his discretion in vacating the defendant's plea of guilty in light of the defendant's proclamation of innocence. Cabrera, No. 1-04-3297, citing People v. Peterson, 311 Ill.App.3d 38, 41-42, 46, 244 Ill.Dec. 206, 725 N.E.2d 1 (1999) (rejecting the claim based on dicta in a single case that a court must accept a guilty plea because “every other case to address the issue specifically holds or states that it is within the discretion of the trial court to accept or reject a guilty plea when innocence is proclaimed”), and People v. Ottomanelli, 153 Ill.App.3d 565, 566-68, 106 Ill.Dec. 537, 505 N.E.2d 1328 (1987) (rejection of plea of guilty affirmed where trial judge stated, “I don't let somebody plead guilty that says [he] didn't do it”).
On February 7, 2007, the defendant filed a pro se postconviction petition alleging, in pertinent part, that Judge Holt improperly subjected him to double jeopardy by accepting the guilty plea only to later vacate it and force the defendant to trial on all counts. He also...
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