People v. Brown

• Citation: 2023 IL App (4th) 220400
• Docket Number: 4-22-0400
• Decision Date: 13 March 2023
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALVIN BROWN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

1

2023 IL App (4th) 220400

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ALVIN BROWN, Defendant-Appellant.

No. 4-22-0400

Court of Appeals of Illinois, Fourth District

March 13, 2023

Appeal from the Circuit Court of Boone County No. 17CF202 Honorable Robert Tobin, Judge Presiding.

Attorneys for Appellant: James E. Chadd, Thomas A. Lilien, and Christopher McCoy, of State Appellate Defender's Office, of Elgin, for appellant.

Attorneys for Appellee: Tricia L. Smith, State's Attorney, of Belvidere (Patrick Delfino, David J. Robinson, and David E. Mannchen, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Doherty and Lannerd concurred in the judgment and opinion.

OPINION

HARRIS, JUSTICE

¶ 1 Defendant, Alvin Brown, pleaded guilty to driving while license revoked (DWLR) (625 ILCS 5/6-303(a), (d-5) (West 2016)). Based on his criminal history, the trial court sentenced him as a Class X offender to nine years in prison under section 5-4.5-95(b) of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-95(b) (West 2018)). During postplea proceedings, defendant moved for reconsideration of his sentence, which the court denied. Defendant appeals, arguing (1) he is entitled to a remand for resentencing because he was not given the opportunity "to elect the benefit of" amendments to section 5-4.5-95(b), which made the statute inapplicable to his case and took effect after his sentencing but before the court ruled on his postplea motion and (2) the record refutes his postplea counsel's certification of compliance with the requirements of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), entitling him to further postplea

2

proceedings. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In July 2017, a grand jury indicted defendant on one count of DWLR (625 ILCS 5/6-303(a), (d-5) (West 2016)). The offense was charged as a Class 2 felony and based on allegations that, on or about June 3, 2017, defendant drove a motor vehicle at a time when (1) his driving privileges were revoked for committing a driving under the influence (DUI) offense and (2) he had 14 prior violations for DWLR.

¶ 4 In October 2019, defendant entered an open plea of guilty to the charged offense. At his guilty plea hearing, the trial court admonished defendant regarding the rights he was giving up and the consequences he faced by pleading guilty. Such consequences included defendant's potential eligibility for sentencing as a Class X offender-with a sentencing range of 6 to 30 years in prison-based upon his criminal history. Defendant asserted that he understood the court's admonishments and persisted in his plea. According to the State's factual basis, on June 3, 2017, a Boone County Sheriff's deputy heard a call about a retail theft "where the offender, a black female, left in a red Ford truck being driven by a black male." The deputy subsequently "saw that vehicle *** and stopped it." The driver identified himself as defendant. The deputy "had dispatch run [defendant's] information" and learned that defendant's driver's license was revoked for a DUI conviction and that defendant had "at least 14 prior violations" for DWLR. Ultimately, the court accepted defendant's guilty plea, finding defendant understood his rights and that his plea was voluntary.

¶ 5 In November 2019, the trial court conducted defendant's sentencing hearing. At the time of sentencing, section 5-4.5-95(b) of the Code (730 ILCS 5/5-4.5-95(b) (West 2018)) provided as follows:

3

"When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony *** after having twice been convicted in any state or federal court of an offense that contains the same elements as an offense now (the date the Class 1 or Class 2 felony was committed) classified in Illinois as a Class 2 or greater Class felony *** and those charges are separately brought and tried and arise out of different series of acts, that defendant shall be sentenced as a Class X offender. This subsection does not apply unless

(1)the first felony was committed after February 1, 1978 ***;

(2) the second felony was committed after conviction on the first; and

(3) the third felony was committed after conviction on the second."

¶ 6 Defendant's presentence investigation report (PSI) showed defendant was 64 years old and had a lengthy criminal history that dated back to 1972. His criminal history included convictions for burglary, theft, battery, disorderly conduct, rape, robbery, forgery, DUI, and multiple convictions for driving with his license suspended or revoked. Several times, defendant had been sentenced to terms of imprisonment in the Illinois Department of Corrections (DOC). In 2009, he was sentenced to seven years in prison for the offenses of forgery and DWLR. In March 2017, he was arrested for DWLR in Winnebago County case No. 17-CF-607, and, in 2019, sentenced to six years in prison for that offense. While case No. 17-CF-607 was pending, defendant committed the underlying offense.

¶ 7 In presenting evidence to the trial court, the State submitted a certified copy of defendant's driving abstract, which showed his driver's license was revoked in July 1997 for a DUI offense and that he subsequently had 14 DWLR violations. To support defendant's eligibility for Class X sentencing, the State presented exhibits showing that defendant had prior felony

4

convictions for (1) burglary, a Class 2 offense committed in September 1978, and (2) rape, a Class X offense committed in July 1981. Finally, the State also submitted an exhibit containing information pertaining to Winnebago County case No. 17-CF-607, which indicated defendant was on bond in that case at the time he committed the underlying offense. Defendant's evidence included his own testimony and the testimony of several of his family members.

¶ 8 The State recommended that the trial court sentence defendant to a 10-year term of imprisonment, noting defendant's criminal history, the need for deterrence, and that defendant committed the underlying offense "while out on bond on another felony." Defendant's counsel asked the court to impose a six-year prison sentence based on defendant's history of drug addiction and his family ties. The record reflects counsel also advocated for sentencing defendant as a Class 2 offender, arguing that imposition of a Class X sentence would result in an improper "double enhancement." The court rejected defense counsel's argument, stating Class X sentencing applied. It sentenced defendant to nine years in prison and ordered his sentence to be served consecutively with the sentence imposed in Winnebago County case No. 17-CF-607.

¶ 9 In December 2019, defendant pro se filed motions to withdraw his guilty plea and vacate his sentence, reduce his sentence, and for the appointment of counsel. In connection with his motion to withdraw, defendant alleged he was forced to plead guilty because his attorney told him he would be given a 20-year prison sentence if he elected to go to trial and lost. Defendant's motion for a reduction of his sentence did not set forth any specific allegations. The same month, the trial court appointed new counsel, attorney Russell Luchtenberg, to represent defendant during his postplea proceedings.

¶ 10 In July 2020, Luchtenberg filed a certificate of compliance pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), representing that he had consulted with defendant

5

by phone "to ascertain defendant's contentions of error in the sentence," "examined the trial court file and *** report of proceedings in the sentencing hearing," and elected not to file any amended motion.

¶ 11 The same date the certificate was filed, the trial court conducted a hearing on defendant's postplea motions. Luchtenberg asserted he had spoken with defendant and found no basis upon which to amend defendant's pleadings. He also indicated defendant wanted to pursue only his motion to reduce his sentence and not his motion to withdraw his guilty plea and vacate his sentence. Upon inquiry by the court, defendant acknowledged that he no longer wanted to withdraw his guilty plea. Regarding defendant's sentence, Luchtenberg stated it was defendant's belief that there were "improper calculations made" regarding his eligibility for Class X sentencing, that his nine-year sentence was excessive, and that he should have been sentenced as a Class 2 offender. Luchtenberg also asked the court to "take a look at the sentencing again and *** reconsider" defendant's sentence. He noted defendant was "not a young man" and "currently going to be incarcerated for six years" in connection with his previous DWLR case. The court denied defendant's motion, finding he had been eligible for Class X sentencing based on his criminal history and that a nine-year sentence "was appropriate."

¶ 12 Defendant appealed the trial court's denial of his postplea motion. On appeal, he filed an unopposed motion for summary remand, alleging Luchtenberg failed to comply with Rule 604(d) by filing a deficient certificate of compliance. In particular, he noted that Luchtenberg failed to "certify that he consulted with [defendant] about both his contentions of error in the guilty plea and the sentencing hearing." Defendant requested the matter be remanded for compliance with Rule 604(d) and further postplea proceedings.

¶ 13 In December 2020, the appellate court granted defendant's motion for summary

6

remand. In doing so, it vacated the trial court's denial of defendant's postplea motion and remanded the matter to the trial court for the filing of a valid Rule 604(d) certificate, the opportunity for defendant to file new postplea motions, and a new postplea motion hearing. People v. Brown, No. 2-20-0432 (Dec. 4, 2020) (unpublished summary order...