People v. Lyons

• Decision Date: 30 September 2014
• Docket Number: No. 1-12-1030,1-12-1030
• Citation: People v. Lyons, 2014 IL App (1st) 121030-U, No. 1-12-1030 (Ill. App. Sep 30, 2014)
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN LYONS, Defendant-Appellant.
• Court: Appellate Court of Illinois

2014 IL App (1st) 121030-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN LYONS, Defendant-Appellant.

No. 1-12-1030

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT SECOND DIVISION

September 30, 2014

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County.

No. 08 CR 10442

The Honorable Nicholas R. Ford, Judge Presiding.

JUSTICE NEVILLEdelivered the judgment of the court.

Presiding Justice Simon and Justice Pierce concurred in the judgment.

ORDER

¶ 1Held:Defendant waived claim that trial court violated Rule 402;counsel strictly complied with Rule 604(d) certification requirement; judgment affirmed.

¶ 2Martin Lyons, the defendant, entered a negotiated plea of guilty to first degree murder and aggravated kidnaping and was sentenced to respective, consecutive terms of 32 and 10 years' imprisonment.On appeal, he contends that his plea must be vacated because the circuit courtfailed to inform him that his sentences would run consecutively in violation of Supreme Court Rule 402(eff. July 1, 1997).He also contends that the denial of his motion to vacate his guilty plea must be vacated because his counsel failed to strictly comply with Supreme Court Rule 604(d)(eff. Feb. 6, 2013).

¶ 3 The record shows that defendant and his codefendant, Nico Lewis¹, were charged by indictment with 11 counts of first degree murder, 8 counts of attempted aggravated criminal sexual assault, and one count each of aggravated kidnaping, vehicular hijacking, robbery, possession of a stolen motor vehicle, burglary, and concealment of a homicidal death.These acts took place in May 2008, and involved a single victim, 21-year-old Tenika Hinton.

¶ 4 On June 22, 2010, defendant, through private counsel, requested a Rule 402 conference.Thereafter, defense counsel indicated on the record that he had conveyed the court's offer of 32 years' imprisonment for first degree murder, 8 years' imprisonment for aggravated kidnaping, and the dismissal of the remainder of the counts to defendant, who then indicated his understanding of these terms, but informed the court that he was rejecting the offer.

¶ 5 Defense counsel subsequently filed a motion to suppress statements, and following a hearing on that motion, on February 23, 2011, defendant informed the court that he wished to plead guilty and accept the former offer.Defendant then withdrew his plea of not guilty, and the court admonished him, in relevant part, that he would be sentenced to 32 years' imprisonment forfirst degree murder at 100%, and 10 years for aggravated kidnaping at 85%, followed by a period of 3 years mandatory supervised release (MSR).When the court asked defendant if he wanted to accept that offer and enter a plea of guilty, he responded, "[y]es."

¶ 6The court then advised defendant that the murder charge was a Class X offense with a sentencing range of 20 to 60 years' imprisonment at 100%, that aggravated kidnaping had a sentencing range of 6 to 30 years' imprisonment, and that both sentences would be followed by a three-year period of MSR.Defendant indicated that he understood these sentencing provisions.

¶ 7 The record shows that the parties stipulated to the factual bases for the plea, which the court found sufficient to prove defendant's guilt of first degree murder and aggravated kidnaping beyond a reasonable doubt.The court then accepted defendant's guilty pleas, entered a conviction on the two elected offenses, and sentenced defendant to a term of 32 years' imprisonment for first degree murder and 10 years for aggravated kidnaping.The mittimus reflected that the sentences were to run consecutively.

¶ 8 On March 22, 2011, defendant, through the same counsel, filed a motion to withdraw his guilty pleas, alleging that he believed he was intimidated by threats of receiving the maximum sentence if he did not plead guilty, that he did not fully understand the court system or the extent of his guilty plea, that he has a defense worthy of consideration by a jury, and that he feels the ends of justice will be better served by submitting his case to a jury.Before any action was taken on this motion, defendant filed a pro se motion to withdraw the guilty plea on May 2, 2011, alleging that his lawyer misled him and told him he was not going to have to serve all the time given to him, that he was also told that he was going to receive good time credit if he"copped out," but has since learned at the prison law library that he has to serve all the time he was given.He further alleged that counsel provided inadequate representation, and that he(defendant) wasnot mentally competent to enter a guilty plea.In support of his motion, defendant attached his own affidavit in which he stated that he did not know that the sentences were consecutive, and was told they would run concurrently.He thus requested that his sentences run concurrently, and if not, that the matter proceed to trial.

¶ 9 Defense counsel was subsequently allowed to withdraw and defendant was appointed counsel, who adopted private counsel's motion to withdraw the guilty plea.On March 21, 2012, counsel filed a Rule 604(d) certificate in which he stated that he had consulted with defendant in person and on numerous occasions to ascertain his contentions of error in his guilty plea and sentence, that he examined the trial court file and the report of the of the guilty plea and sentencing proceeding, and, after reviewing the above, he"adopted the initial motion to withdraw" filed by private counsel.

¶ 10 At the proceeding on the motion to withdraw the guilty plea, counsel argued, in relevant part, that the crux of this motion was that defendant did not fully understand the court system or the extent of his guilty plea in that he believed he was receiving concurrent, and not consecutive sentences.Counsel maintained that defendant was unaware that his sentences were to run consecutively until he went to prison.The State responded that defendant failed to present this argument in his motion to withdraw the guilty plea or in the Rule 604(d) certificate, and on the face of the petition, defendant did not meet his burden.

¶ 11Defendant testified that after the Rule 402 conference, his attorney told him that he would receive a 32-year sentence at 100% and a 10-year sentence at 85%, and when he asked him if it was to run concurrently or consecutively, he told him that he was going to look into it, but he never came back and explained how the sentences would run.Defendant testified that at the time he entered the guilty plea and was sentenced, he did not know that the sentences would runconsecutively to each other, and that there would be a maximum sentence of 32 years' imprisonment for all the offenses.He maintained that he did not learn that the sentences would run consecutively until he went to prison.

¶ 12Defendant's private plea attorney testified that prior to the Rule 402 conference, he advised defendant that the sentencing range for first degree murder was 20 to 60 years and 6 to 30 years for aggravated kidnaping, with the sentences running consecutively.Following the Rule 402 conference, counsel told defendant that he would receive 32 years' imprisonment for the murder offense and 10 years' imprisonment for the aggravated kidnaping, and that the sentences would run consecutively.Counsel explained to defendant what "consecutive" meant, i.e., that the time for the two offenses did not run together, or simultaneously.At that point, defendant rejected the offer, and decided to plead not guilty.On February 23, 2011, however, defendant asked if the court would reinstate the original offer.Counsel again explained to defendant that the sentences would run consecutively, and never told him that the sentences would run concurrently.He also denied advising defendant that he would look into whether the sentences could run concurrently because the law mandated consecutive sentences, and defendant never told him that he believed he was receiving concurrent sentences.

¶ 13 Appointed counsel then argued his motion noting that he did not adopt defendant's pro se affidavit, but that it discusses the consecutive versus concurrent sentencing issue which was "modified" by private counsel in his motion to withdraw the guilty plea, that he did adopt.Counsel further argued that defendant testified to what he perceived happened, and that the transcript indicates separate sentences, but is unclear as to whether they run consecutively.

¶ 14The court denied the motion to withdraw the guilty plea, finding that it knew for a fact that defendant was under no misconception as to the sentences he would receive, and was toldthat the sentences would run consecutively by his private counsel again and again.The court concluded that defendant knew exactly what he was doing when he was sentenced.

¶ 15 On appeal, defendant first contends that his guilty plea must be vacated because the trial court violated Rule 402, by failing to inform him that his sentences would run consecutively, rendering his plea unknowing and involuntary.

¶ 16We initially observe that defendant did not expressly raise this issue in his motion to withdraw the guilty plea.Supreme Court Rule 604(d) provides, in relevant part, that no appeal from a judgment entered upon a plea of guilty shall be taken unless defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw the plea of guilty and vacate the judgment, and that upon appeal, any issue not raised by defendant in the motion to withdraw the guilty plea and vacate the judgment shall be waived.(Emphasis added.)Ill. S. Ct. R. 604(d)(eff. Feb. 6, 2013).Rule 604(d) further provides that the motion shall be in writing and state the grounds therefor.

¶ 17 Here, defendant initially filed a motion to...