People v. Johnson

• Decision Date: 25 January 2019
• Docket Number: Docket No. 122956
• Citation: 2019 IL 122956,432 Ill.Dec. 696,129 N.E.3d 1239
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Octavius Lorenzo JOHNSON, Appellee.
• Court: Illinois Supreme Court

2019 IL 122956

129 N.E.3d 1239

432 Ill.Dec. 696

The PEOPLE of the State of Illinois, Appellant,

v.Octavius Lorenzo JOHNSON, Appellee.

Docket No. 122956

Supreme Court of Illinois.

Opinion filed January 25, 2019

Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Erin M. Levin, Assistant Attorneys General, of Chicago, of counsel), for the People.

James E. Chadd, State Appellate Defender, Jacqueline L. Bullard, Deputy Defender, and Daaron V. Kimmel, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.

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

¶ 1 In this case, we consider whether a defendant who enters into a negotiated plea agreement may challenge a sentence that conforms to the plea agreement, on the ground that the trial court relied on improper aggravating factors, without withdrawing his guilty plea under Illinois Supreme Court Rule 604(d) (eff. Dec. 11, 2014). The appellate court recognized a split of authority on the issue and held that Rule 604(d) did not bar a defendant under these circumstances from challenging the sentence. 2017 IL App (4th) 160920, 417 Ill.Dec. 321, 87 N.E.3d 1073. For the following reasons, we reverse in part and vacate in part the judgment of the appellate court.

¶ 2 BACKGROUND

¶ 3 In October 2013, defendant Octavius Lorenzo Johnson was charged by indictment in connection with several controlled drug incidents occurring on two separate days. The charges included possession with intent to deliver between 1 and 15 grams of a controlled substance within 1000 feet of a church ( 720 ILCS 570/401(c), 407(b)(1) (West 2012) ), a Class X felony; three counts of delivery of less than 1 gram of a controlled substance within 1000 feet of a church (id. §§ 401(d), 407(b)(2) ), a Class 1 felony; and five counts of lesser-included offenses.

¶ 4 In November 2014, defendant entered into a negotiated plea agreement in which he agreed to plead guilty to two counts of unlawful delivery of a controlled substance within 1000 feet of a church—a Class 1 felony with a sentencing range of 4 to 15 years. Id. ; 730 ILCS 5/5-4.5-30(a) (West 2012).¹ In exchange, the State agreed to dismiss the seven remaining charges and to recommend a sentencing cap of 13 years' imprisonment.

¶ 5 After the McLean County circuit court delivered Illinois Supreme Court Rule 402 (eff. July 1, 2012) admonishments and received a factual basis for the pleas, defendant acknowledged that he understood he was agreeing to a sentence of no less than 4 years and no more than 13 years. The court accepted defendant's guilty pleas and entered findings of guilt.

¶ 6 At the sentencing hearing, the court was presented with defendant's presentence investigation report. Defendant's prior convictions included resisting a peace officer, criminal trespass to property, four counts of aggravated driving under the influence involving two fatalities and two counts of great bodily harm, operating an uninsured motor vehicle, and unlawful restraint. He was appearing before the court for sentencing on his sixth felony and second driving under the influence (DUI) conviction.

¶ 7 The State recommended that the court impose a 13-year sentence, citing protection of the public and defendant's extensive prior criminal history. The State also informed the court that the current offenses were committed while defendant was on probation for the offense of unlawful restraint and that the unlawful restraint was committed while defendant was on "parole" from the DUI offense. There was also a joint recommendation by both parties to terminate and discharge defendant unsuccessfully from probation.

¶ 8 Defendant sought a six-year sentence, noting mitigating factors. Defense counsel argued that "defendant caused no physical harm by his actions here," although "there may be said to be a potential for harm." Counsel pointed out a substantial history with alcohol abuse without any meaningful intervention, defendant's age of 31 years, his difficult childhood circumstances, and his poor education. Counsel also noted defendant's participation in a number of rehabilitation programs while in pretrial custody. Defendant also made a statement in allocution. He acknowledged his alcoholism and expressed his remorse and his desire to be accountable and to apply what he has learned to better himself. He stated that his "intentions and motives were never to hurt [anybody]."

¶ 9 The circuit court then made the following findings. In mitigation, the trial court commended defendant's actions taken toward rehabilitation while in custody but disagreed with defendant's assertion that there was a lack of harm or threat of harm. The court explained the harm in "hurting others" that cared for him in his life and the harm, "as you have pointed out to a lesser degree," from

"preying, in essence, upon the addictions of others, and so when you are selling drugs, in essence, to individuals who are addicted, you know that you're not helping them. It's for profit; it's for gain. It could, or might, cause serious physical harm to them depending upon how they use or abuse those drugs, so that isn't a factor in mitigation."

¶ 10 In aggravation, the trial court found, "the conduct threatened serious harm. You did receive compensation, that being for committing the offense, that being of selling drugs." The court then referenced defendant's "revolving door" criminal history—this was defendant's sixth felony, he was on "parole" for the offense of aggravated DUI at the time he committed the unlawful restraint, and he was on probation for the unlawful restraint at the time he committed the current drug offenses. The trial court further found, as defendant had acknowledged in allocution, that there was a necessity to deter others from committing the same types of crimes and the need to balance the factors in aggravation and mitigation.

¶ 11 Although the court expressly stated that the State's recommendation for a 13-year sentence was justified in this case, the trial court recognized that defendant had utilized the resources available to him while in custody to try to better himself. The court imposed concurrent prison terms of 11 years—2 years below the maximum agreed-upon sentencing cap. The trial court then admonished defendant with respect to his right to appeal and explained that, to preserve his right to appeal, defendant must first file a motion to withdraw the plea and vacate the judgment.

¶ 12 Thereafter, despite the admonishment, defendant filed a pro se motion to reduce his sentence, arguing that the sentence was excessive in light of his rehabilitative potential. At a hearing on the motion, where defendant was represented by counsel, the court indicated that, because defendant's sentence was pursuant to a plea agreement, the court could not simply reconsider his sentence. The court informed defendant that, if he wished to try to "go back to square one," he must move to withdraw his plea. The court explained that, if defendant's motion were granted, all nine charges would be reinstated, the court would no longer be limited to a cap of 13 years, and defendant faced a potential penalty on the Class X charge of 6 to 30 years in prison, if convicted. After discussing the matter with counsel, defendant was granted leave to file an amended motion to withdraw his plea.

¶ 13 At the hearing on the motion to withdraw his plea, defendant argued that his plea was not knowing and voluntary. He testified that his counsel was ineffective because he did not inform him about all of the facts of his case, failed to sufficiently argue his rehabilitative potential, and told him that, notwithstanding the agreed-upon cap of 13 years, his sentence would not be double digits. He acknowledged that he was informed by the court that any sentence imposed would not be less than 4 years and would not be more than 13 years in the event the court concurred in the agreement, and he indicated that he had understood that the State was recommending the maximum 13-year sentence under the agreement at that time.

¶ 14 The circuit court denied the motion, finding no legal basis to allow the plea to be withdrawn. In reaching its conclusion, the court noted that the State had already made certain concessions at the time of the plea agreement from a 15-year maximum penalty to a 13-year maximum penalty and that the court specifically took into consideration the rehabilitation offered by counsel in reducing the sentence. The court continued to find that an 11-year sentence was appropriate.

¶ 15 On initial appeal, the appellate court remanded for counsel's strict compliance with the certificate requirement of Rule 604(d). On remand, defendant chose not to file any new postplea motion or amend his motion. The court once again denied the motion to withdraw the plea.

¶ 16 On appeal after remand, defendant abandoned any claim that the trial court erred in denying his motion to withdraw his plea. Instead, for the first time, he argued that he need not withdraw his plea where the trial court erred in sentencing him. He argued that the court improperly relied on two statutory aggravating factors—that his conduct caused or threatened serious harm and that he received compensation for committing the offenses—inherent in his drug offense. Although he recognized that he never raised this argument in the circuit court, he requested that the claim be reviewed for plain error.

¶ 17 The State did not refute the merits of defendant's argument that the circuit court relied on improper sentencing factors, nor did it respond to defendant's request for plain-error review. Rather, the State raised a threshold issue, contending that defendant's negotiated plea barred him from raising his sentencing challenge pursuant to Rule 604(d).

¶ 18 After examining the applicable rules and the relevant case law, the appellate court held that a defendant who enters into...