People v. Hotwagner

• Decision Date: 22 October 2015
• Docket Number: No. 5–13–0525.,5–13–0525.
• Citation: 40 N.E.3d 1235
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. John HOTWAGNER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

40 N.E.3d 1235

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.John HOTWAGNER, Defendant–Appellant.

No. 5–13–0525.

Appellate Court of Illinois, Fifth District.

Oct. 22, 2015.

Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Maggie A. Heim, Assistant Appellate Defender, Office of the State Appellate Defender, Mt. Vernon, IL, for Appellant.

Christopher M. Quick, State's Attorney, Lawrenceville, IL, Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Jennifer Camden, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL, for Appellee.

OPINION

Justice SCHWARM delivered the judgment of the court, with opinion.

¶ 1 I. FACTS

¶ 2 Following a domestic incident that occurred in October 2007, the defendant, John Hotwagner, was charged in Lawrence County case number 07–CF–152, with two counts of aggravated criminal sexual assault (720 ILCS 5/ 12–13(a)(1) (West 2006)) (counts I and II) and one count of aggravated unlawful restraint (720 ILCS 5/10–3.1(a) (West 2006)) (count III). At the defendant's first appearance, he requested counsel, and the trial court appointed public defender Brad Vaughn to represent him. The defendant was subsequently represented by private counsel, Roscoe Cunningham, until February 2008, when citing “no payment for legal services rendered,” Cunningham was granted leave to withdraw.

¶ 3 In March 2008, the defendant appeared pro se at his final pretrial conference and pled guilty to count II in exchange for a 12–year sentence and the State's dismissal of counts I and III. When discussing the terms of the plea agreement, then-State's Attorney Patrick Hahn advised the trial court that he and the defendant had reached the agreement after talking outside the courtroom. Noting that Cunningham had recently withdrawn, Hahn further advised that he had asked the defendant if he wanted a court-appointed attorney or if he wanted to speak with him and that the defendant had advised that he wanted to speak with him. Hahn did not, however, indicate who had initiated the conversation or the plea negotiations. Before entering his plea, the defendant was admonished pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997) and waived his right to counsel in open court.

¶ 4 In September 2009, the defendant filed a pro se petition for relief pursuant to the Post–Conviction Hearing Act (the Act) (725 ILCS 5/122–1 et seq. (West 2008)). In his pro se petition, the defendant alleged that when he appeared for his final pretrial conference in March 2008, he had “expected to be met by his attorney, Roscoe D. Cunningham, [but] instead was met by State's Attorney Patrick Hahn outside the courtroom.” The defendant further alleged that after informing him that Cunningham had “ ‘quit [him],’ ” Hahn had “then said[,] ‘You can take 12 years now[,] or I'll give you 20 or better next week at trial.’ ” Claiming that he had not previously been informed that he “no longer had legal representation” and that he had felt “ambushed and threatened” by Hahn, the defendant suggested that his guilty plea had been coerced rather than knowingly and voluntarily entered. The defendant further alleged that “[f]eeling abandoned and unsure of what [he] should do,” he had “mentally blanked out” and was thus “incompetent and unable to cope with the legal proceedings.”

¶ 5 The defendant's pro se petition included an affidavit from inmate Tyler Newlin, who indicated that he had been outside the courtroom along with the defendant and had witnessed the encounter between the defendant and Hahn. Newlin maintained that he had “witnessed the State[']s Attorney, Mr. Patrick Hahn[,] approach [the defendant] and inform him that his attorney had ‘quit.’ ” According to Newlin's affidavit, Hahn had “then made the following statement in a threatening tone[:] ‘You can take the 12 years today, or I will give you 20 years next week at trial.’ ” Newlin further asserted that the defendant had not been “allowed the chance to consult with [an attorney] before going to trial and accepting the State's offer.”

¶ 6 In March 2010, the trial court appointed attorney Matthew Hartrich to represent the defendant on his postconviction petition. In June 2010, Hartrich filed an amended petition on the defendant's behalf. The amended petition incorporated by reference “all of the allegations” in the defendant's pro se petition and specifically alleged the following:

“The State's Attorney spoke with [the defendant] without his attorney being present and obtained the guilty plea with [the defendant] without his attorney being present, which violated [the defendant's] right to counsel. U.S. Const., amend. VI, XIV ; Ill. Const. 1970, art. I, sec. 8.”

Notably, the State did not address this allegation in its motion to dismiss the defendant's amended petition for postconviction relief, which was filed by then-State's Attorney Lisa Wade in July 2010. The State observed, however, that the defendant had waived his right to counsel when entering his guilty plea.

¶ 7 In July 2010, Hartrich filed a certificate attesting that he had complied with the requirements of Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984). Hartrich specifically certified that he had “consulted with the [defendant] in person to ascertain his contentions of deprivation of constitutional rights,” had “examined the trial court file and report of proceedings of the plea of guilty,” and had “made any amendments to the petition filed pro se that [were] necessary for an adequate presentation of [the defendant's] contentions.”

¶ 8 In September 2010, following a hearing, the trial court granted the State's motion to dismiss the defendant's amended petition for postconviction relief and thus denied the defendant an evidentiary hearing on his underlying claims. When dismissing the amended petition, the trial court noted that when entering his guilty plea, the defendant had been “offered appointed counsel, and he waived his right to appointed counsel.”

¶ 9 The defendant subsequently appealed the trial court's dismissal of his amended postconviction petition. Citing People v. Card, 188 Ill.App.3d 213, 135 Ill.Dec. 737, 544 N.E.2d 94 (1989), the defendant argued that the trial court erred in dismissing the petition because he had made a substantial showing that the State had violated his sixth amendment right to counsel by “contacting him directly and negotiating a guilty plea with him.”

¶ 10 In August 2012, this court reversed the trial court's second-stage dismissal of the defendant's amended postconviction petition, noting that under Card, a defendant who has previously invoked his sixth amendment right to counsel can validly waive that right in the context of plea negotiations “only if he, rather than the State, ‘initiated the plea bargaining.’ ”

People v. Hotwagner, 2012 IL App (5th) 100461–U, ¶ 21, 2012 WL 7062611 (quoting Card, 188 Ill.App.3d at 215, 135 Ill.Dec. 737, 544 N.E.2d 94 ). Accepting the factual allegations in the defendant's amended petition as true, we thus determined that the defendant had made a substantial showing that the State had violated his sixth amendment right to counsel by improperly initiating the negotiations that resulted in his guilty plea. Id. ¶¶ 18, 23. Accordingly, we remanded the cause for an evidentiary hearing on the claim. Id. ¶¶ 24, 26.

¶ 11 In November 2012, the trial court granted Hartrich leave to withdraw and entered an order appointing Abbey Brian as third-stage postconviction counsel. In April 2013, the cause proceeded to an evidentiary hearing, where the following evidence was adduced.

¶ 12 The defendant testified that he was 44 years old and was incarcerated at the Centralia Correctional Center. Following his October 2007 arrest, the defendant was initially represented by court-appointed attorney Vaughn, but the defendant's family later hired Cunningham to represent him. Cunningham appeared with the defendant at his preliminary hearing in November 2007 and at his formal arraignment in December 2007. The defendant stated that when he appeared for his final pretrial conference in March 2008, he had not spoken with Cunningham since December 2007 and had not received word that Cunningham had withdrawn his representation. The defendant further stated that he had never received written notice of Cunningham's intent to withdraw. The defendant testified that the last time he had spoken with Cunningham, Cunningham had indicated that he had negotiated a plea agreement with Hahn and that at the final pretrial conference, the defendant would plead guilty to a charge of “regular battery” and “everything [else] would be dropped.” According to the defendant, “[t]hat's what [he] was expecting” would happen at the final pretrial conference. The defendant testified that while waiting for Cunningham outside the courtroom, however, Hahn had approached him and asked to speak with him. The defendant testified that Hahn had initiated the contact. The defendant stated that after advising him that Cunningham had “quit on [him],” Hahn had asked him if he wanted an attorney appointed or if he was willing to talk without one. The defendant testified that he had subsequently spoken with Hahn because he did not want to make him “mad.” The defendant stated that approximately 20 minutes later, he was brought into the courtroom, where he pled guilty to count II and received a 12–year sentence.

¶ 13 When cross-examined, the defendant testified that Hahn had “ambushed” him by approaching him in the hallway and basically saying, “[E]ither take this deal or we're going to slam you.” The defendant stated that he had been unaware that Cunningham was no longer his attorney until Hahn had informed him that such was the case. The defendant acknowledged that while he was incarcerated following his arrest, he had spoken with Cunningham over the telephone. He testified that after December 2007, however, “every time [he] would call [Cunningham's] office[,...