People v. Kinard

• Docket Number: 4-21-0577
• Decision Date: 02 May 2023
• Citation: 2023 IL App (4th) 210577 U
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. COURTNEY MISCELLE KINARD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

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2023 IL App (4th) 210577-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. COURTNEY MISCELLE KINARD, Defendant-Appellant.

No. 4-21-0577

Court of Appeals of Illinois, Fourth District

May 2, 2023

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of McLean County No. 20CF285 Honorable William G. Workman, Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court. Justices Cavanagh and Steigmann concurred in the judgment.

ORDER

LANNERD JUSTICE.

¶ 1 Held: Defendant's counsel labored under an actual conflict of interest when arguing his own ineffective assistance during postplea proceedings in connection with his act of misinforming defendant about the consequences of her guilty plea. The appellate court vacated the order denying defendant's motion to withdraw her guilty plea and remanded for the appointment of conflict-free counsel and further postplea proceedings.

¶ 2 In January 2021, defendant, Courtney Miscelle Kinard entered a fully negotiated guilty plea to criminal trespass to a residence (720 ILCS 5/19-4(a)(2) (West 2020)) in exchange for the dismissal of other charges, 24 months of second chance probation, and community service. Defendant moved to withdraw the plea, contending she did not understand that surrender of her firearm owner's identification (FOID) card and thus her ability to legally possess a firearm was a consequence of the plea. The trial court denied the motion based on defendant's acknowledgment during the plea proceedings that "a conviction" could have an impact on her ability to retain or obtain a firearm and because defendant did not show there was new evidence or that she was innocent.

¶ 3 On appeal, defendant contends the trial court erred because the record establishes her trial counsel rendered ineffective assistance by affirmatively misinforming her of the consequences of the plea when counsel told her "a conviction" would not enter at the time of the plea and she would be able to keep her FOID card. Thus, defendant maintains her counsel inaccurately led her to believe she would be able to retain her FOID card and legally possess a firearm while serving probation. In the alternative, she argues counsel was ineffective during the postplea proceedings when he acted under an actual conflict of interest by failing to sufficiently argue he provided ineffective assistance in connection with the guilty plea, thus denying her of her constitutional right to conflict-free counsel.

¶ 4 For the reasons that follow, we agree counsel labored under an actual conflict of interest when he argued the postplea motion, which also led the trial court to apply an inaccurate rule of law in denying the motion to withdraw. Accordingly, we vacate the court's denial of defendant's motion to withdraw her guilty plea and remand for the appointment of conflict-free counsel and further postplea proceedings.

¶ 5 I. BACKGROUND

¶ 6 In April 2020, the State charged defendant with a Class 4 felony, criminal trespass to a residence, alleging she knowingly and without authority entered the residence of the victim, Brian Greer, when she knew or had reason to know that one or more persons were present. The State also charged defendant with a Class A misdemeanor, battery (id. § 12-3(a)(1)), alleging she caused bodily harm to Greer by striking him with shovel, and a Class A misdemeanor, criminal damage to property (id. § 21-1(a)(1)), alleging she damaged a vase and drywall. On January 6, 2021, defendant entered a fully negotiated guilty plea to the trespass charge in exchange for dismissal of the other charges and 24 months of "second chance probation."

¶ 7 At the plea hearing, the trial court informed defendant she was pleading guilty to a Class 4 felony punishable by 1 to 3 years of incarceration, with the possibility of up to 30 months of probation or conditional discharge. Defendant expressed concern about the offense being a felony and asked whether it would show on her record during a background check. Counsel stated if she successfully completed second chance probation, it would never be on her record, and a brief recess was taken for counsel to discuss the matter with defendant. When proceedings resumed, defendant stated she still wanted to proceed and had no questions about the charge.

¶ 8 The trial court fully admonished defendant of her rights and determined the voluntary nature of the plea, including ascertaining that no one promised her anything other than the promises made in the plea agreement. The court then told defendant:

"[A]s a result of a conviction, any future conviction could have an increased penalty and there could be a higher possibility of a consecutive sentence. As a result of a conviction, there could be a registration requirement that restricts where you may work, live or be present. As a result of a conviction, there could be an impact upon your ability to retain or obtain housing in the public or private market, to retain or obtain employment, or to retain or obtain a firearm, an occupational license or a driver's license."

The court asked defendant if she had "[a]ny questions about any of those," and she responded, "No."

¶ 9 In providing the factual basis for the plea, the State offered that Lashantae Gibson, defendant's cousin and codefendant, was previously in a dating relationship with Greer, and they shared an infant child. On March 31, 2020, Gibson was angry due to a custody issue involving the child, and she and defendant forced entry into Greer's residence without permission. Defendant stipulated to the sufficiency of the factual basis and waived preparation of a presentence investigation.

¶ 10 The trial court accepted the plea and sentenced defendant in accordance with the plea agreement. The court advised defendant of her appeal rights, including the requirement that, to appeal, she must first provide a written motion to withdraw the plea, and that "any claim of error not cited in that written motion would be deemed to be waived or given up later on appeal." Defendant stated she had no questions about her appeal rights or any other aspect of the plea hearing.

¶ 11 The record contains a signed plea agreement and jury waiver, dated January 6, 2021, stating defendant agreed to plead guilty in exchange for second chance probation and the dismissal of the other charges. A line pertaining to "[a]dditional conditions" was silent concerning any matters pertaining to possession of firearms or a FOID card. Also on that date, defendant signed an application for waiver of criminal court assessments. The record shows those documents were signed before the court accepted the plea. Also appearing in the record is an "Order For Probation" signed by defendant. That order stated in part that defendant was sentenced to 24 months of probation upon the condition that, during that period, defendant shall "[n]ot possess a firearm or other dangerous weapon." The order further stated, "[i]n all felony and/or domestic battery convictions, the defendant shall surrender his/her [FOID] card to the Probation Officer as directed." The record does not show when that document was signed in relation to the trial court's acceptance of the plea.

¶ 12 On January 21, 2021, defendant's trial counsel filed a motion to withdraw the plea, stating only "[d]efendant did not understand the consequences of her plea." On February 10, 2021, the trial court held a hearing on the motion.

¶ 13 At the hearing, counsel told the trial court there were aspects of the probation terms that defendant did not understand. Defendant testified that, shortly after pleading guilty, she went "up to [p]robation to do an intake." Afterwards, she "came by the [p]ublic [defender's [office almost immediately" and informed them she wished to withdraw her plea. When asked what it was about the terms and conditions of probation she did not understand, defendant stated:

"I didn't know that I was going to have to give my DNA and it has to be sent to the State. I still don't understand why. I asked them why. All they told me was because it has to be entered into their database. And if I finish probation, then they will take it or send it back to me. I don't believe that.

Then, before I said I was going to agree to probation, I asked the Public Defender about my FOID card."

Counsel asked defendant if she recalled the admonitions given at the plea hearing, during which she was told a conviction for the offense could affect her ability to own a firearm. Defendant replied, "[r]ight. And I was under the-like under the influence that since I am not convicted, that that wouldn't, like, affect my FOID card." The following colloquy then occurred:

"Q. And what, if anything, did you learn from Probation?

A. As soon as I got up to Probation, they said I had to hand over my FOID card right away. And I was not aware of that. And that is what I asked before I agreed to my probation term.

Q. And I believe in our discussions I confirmed to you my understanding that a conviction could affect your FOID card. And I affirmed for you that if successfully completed, Second Chance Probation would not result in a conviction?

A. Right. And then I would have to give it up if I didn't complete the probation. Q. Were there any other specific terms or conditions of probation that you weren't aware of?

A. Yes. I wasn't aware that the probation officer was going to periodically come to my home where me and my kids are. I did not want my kids to all see or be aware of anything like that. I wasn't aware of that. I wasn't aware that I have to get permission to go in and out [of] the state whenever I feel like I need to travel.

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