People v. Hammons

• Citation: 434 Ill.Dec. 872,2018 IL App (4th) 160385,138 N.E.3d 31
• Decision Date: 16 November 2018
• Docket Number: NO. 4-16-0385,4-16-0385
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary G. HAMMONS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (4th) 160385

138 N.E.3d 31

434 Ill.Dec. 872

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Gary G. HAMMONS, Defendant-Appellant.

NO. 4-16-0385

Appellate Court of Illinois, Fourth District.

FILED November 16, 2018

James E. Chadd, Jacqueline L. Bullard, and Jessica L. Fangman, of State Appellate Defender’s Office, of Springfield, for appellant.

Kyle P. Hutson, State’s Attorney, of Marshall (Patrick Delfino, David J. Robinson, and Luke McNeill, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

JUSTICE CAVANAGH delivered the judgment of the court, with opinion.

¶ 1 Defendant, Gary G. Hammons, challenges the reasonableness and constitutionality of some conditions the Clark County circuit court imposed on his probation. Also, he requests that we vacate some fines the circuit clerk purported to levy against him and that we order the correction of an erroneous notation the clerk made in the record as to the amount of restitution he still owes.

¶ 2 We hold that (1) defendant has procedurally forfeited his objections to the probationary conditions; (2) the doctrine of plain error, invoked by him, does not avert the forfeiture; and (3) we lack subject-matter jurisdiction to address his remaining arguments.

¶ 3 I. BACKGROUND

¶ 4 On June 10, 2014, defendant entered a negotiated plea of guilty to two counts of the information: count II, residential burglary ( 720 ILCS 5/19-3(a) (West 2012) ), and count III, theft (id. § 16-1(a)(1) ).

¶ 5 On September 22, 2014, the trial court sentenced him to eight years' imprisonment for count II, to be followed by 30 months' probation for count III.

¶ 6 Two conditions of the probation were that defendant (1) "not associate with any person who ha[d] a misdemeanor or felony drug conviction" and (2) "[s]ubmit to warrantless searches by [the] probation officer of his/her person, property (real estate and personal), [and] vehicles[,] including[,] but not limited to[,] the residence and curtilage." He never objected to those conditions.

¶ 7 The trial court ordered defendant to pay "[c]osts," which "the State previously estimated in the amount of $857" (the record does not appear to contain an itemization of these "[c]osts"). The court also ordered him to pay $42,529 in restitution but gave him credit against that amount for $21,382 in restitution previously paid, i.e. , $15,000 that codefendant Joshua Houle had paid, $1275 from codefendant Jessica Creech's bond, $953 from codefendant Shawn Morris's bond, $1654 in currency and coins seized from defendant after his arrest, and defendant's bond of $2500. Thus, the court calculated the net amount of restitution owed by defendant to be $21,147 ($42,529 minus $21,382 equals $21,147).

¶ 8 Afterward, the circuit clerk imposed additional assessments on defendant, including a court finance assessment of $100, a violent crime victim's fund assessment of $200, a medical cost assessment of $20, and two circuit clerk fees of $80 apiece. The clerk also represented, in a certified printout dated January 16, 2018, that defendant still owed the full amount of $42,529 in restitution—although, as the trial court had acknowledged in the sentencing hearing, a total of $21,382 in restitutionary payments already had been made.

¶ 9 II. ANALYSIS

¶ 10 A. Defendant's Procedural Forfeiture of the Issue of Whether the Conditions of Probation Are Reasonable and Constitutional

¶ 11 Defendant challenges the reasonableness and constitutionality of two of the conditions the trial court imposed on his probation. Those two conditions were that he (1) "not associate with any person who ha[d] a misdemeanor or felony drug conviction" and (2) "[s]ubmit to warrantless searches by [the] probation officer of his/her person, property (real estate and personal), [and] vehicles[,] including[,] but not limited to[,] the residence and curtilage."

¶ 12 In his motion to reconsider the sentence, defendant never mentioned either of those probationary conditions. Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) required him to raise any sentencing issues in his motion to reconsider the sentence and warned that omitting any such issues from the motion would result in their forfeiture on appeal. The rule provides as follows:

"(d) Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty. No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate the judgment.

* * *

The motion shall be in writing and shall state the grounds therefor. * * *

* * *

* * * Upon appeal[,] any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived." Ill. S. Ct. R. 604(d) (eff. July 1, 2012).

Although the rule says "waived," it really means "forfeited." Courts tend to use the terms interchangeably, but, to be precise, a "waiver" is the voluntary relinquishment of a known right, whereas a party "forfeits" an issue—voluntarily or not—by failing to raise the issue earlier as procedural rules required. People v. Blair , 215 Ill. 2d 427, 444 n.2, 294 Ill.Dec. 654, 831 N.E.2d 604 (2005).

¶ 13 Because defendant's motion for reconsideration of the sentence never mentioned any conditions of probation, one might assume that, under Rule 604(d), any issue regarding those conditions would be forfeited. In In re J.W. , 204 Ill. 2d 50, 61, 272 Ill.Dec. 561, 787 N.E.2d 747 (2003), however, the supreme court held that when a defendant (or, in that case, a respondent) appealed the conditions of probation, Rule 604(d) was inapplicable because, instead of "appeal[ing] from [the] judgment" of probation ( Ill. S. Ct. R. 604(d) (eff. July 1, 2017), the defendant appealed the conditions of the judgment. The judgment was the sentence, i.e. , probation (cf. People v. Salem , 2016 IL 118693, ¶ 23, 400 Ill.Dec. 32, 47 N.E.3d 997 (the final judgment in a criminal case is the sentence) ), and instead of challenging the sentence itself, the respondent in J.W. challenged some of the conditions of the sentence—he had no objection to being sentenced to probation in lieu of imprisonment; he objected merely to some of the conditions of the probation. For that reason, according to the supreme court, his challenge did not fit within the language of Rule 604(d). J.W. , 204 Ill. 2d at 61, 272 Ill.Dec. 561, 787 N.E.2d 747. In accordance with J.W. , we conclude that Rule 604(d) poses no obstacle to our consideration of defendant's argument that the two conditions of probation are unreasonable and unconstitutional.

¶ 14 Even so, the common law poses an obstacle. Apart from Rule 604(d), there is a common law rule that issues never raised in the trial court are deemed, on appeal, to be procedurally forfeited. People v. Scharlau , 141 Ill. 2d 180, 203, 152 Ill.Dec. 401, 565 N.E.2d 1319 (1990) ; People v. Holloway , 86 Ill. 2d 78, 91, 55 Ill.Dec. 546, 426 N.E.2d 871 (1981). There are exceptions to this common law rule. The constitutionality of a criminal statute can be challenged at any time ( J.W. , 204 Ill. 2d at 61, 272 Ill.Dec. 561, 787 N.E.2d 747 ). In this appeal, however, defendant does not challenge the constitutionality of a criminal statute; rather, he challenges the constitutionality of some probationary conditions that the trial court created on its own. Also, to name another exception, a defendant may raise a claim of ineffective assistance for the first time on appeal. People v. Jarrell , 248 Ill. App. 3d 1043, 1049, 188 Ill.Dec. 374, 618 N.E.2d 944 (1993). (We will address defendant's claims of ineffective assistance later in this opinion.) Otherwise, a constitutional issue, such as the constitutionality of a condition of probation, can be forfeited just like any other issue by failing to raise it in the proceedings below. See People v. McClendon , 197 Ill. App. 3d 472, 482, 143 Ill.Dec. 856, 554 N.E.2d 791 (1990) ; People v. Visnack , 135 Ill. App. 3d 113, 118, 89 Ill.Dec. 901, 481 N.E.2d 744 (1985). Raising no objection, in the trial court, to court-created conditions of probation results in a forfeiture of the issue on appeal, under supreme court precedent. See Scharlau , 141 Ill. 2d at 203, 152 Ill.Dec. 401, 565 N.E.2d 1319 ; Holloway , 86 Ill. 2d at 91, 55 Ill.Dec. 546, 426 N.E.2d 871.

¶ 15 B. Defendant's Invocation of the Doctrine of Plain Error

¶ 16 1. The Threshold Question of Whether There Was an Error That Was "Plain," That Is, Clear or Obvious

¶ 17 Defendant argues that the doctrine of plain error should avert the forfeiture in this case. Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." A "plain error" is an error that is clear or obvious . People v. Piatkowski , 225 Ill. 2d 551, 564-65 n.2, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007). Thus, 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.

"[S]hort of a conclusion that an asserted error is a ‘plain’ one, the so-called plain error doctrine offers no basis to excuse a procedural default. [Citation.] The point is crucial, for while all plain errors are reversible ones, not all reversible errors are also ‘plain’ for purposes of Rule 615(a)." People v. Keene , 169 Ill. 2d 1, 17, 214 Ill.Dec. 194, 660 N.E.2d 901 (1995).

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.

¶ 18 We now will consider the probationary conditions of which defendant complains, to determine whether the trial court committed a ...