People v. Nixon

• Decision Date: 02 August 2016
• Docket Number: NO. 4-15-0338,4-15-0338
• Citation: 2016 IL App (4th) 150338 -U
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL E. NIXON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (4th) 150338-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL E. NIXON, Defendant-Appellant.

NO. 4-15-0338

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

August 2, 2016

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 Circuit Court of Macon County

No. 12CF1224

Honorable Thomas E. Griffith, Jr., Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court.

Justices Turner and Harris concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, concluding defendant was not entitled to a second remand for compliance with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013) as he received a full and fair opportunity to raise his claims of error.

¶ 2 In October 2013, defendant, Michael E. Nixon, pleaded guilty to residential burglary (720 ILCS 5/19-3 (West 2010)). In November 2013, the trial court sentenced defendant to 20 years' imprisonment. Defendant appeals a second time from the denial of his motions to withdraw his guilty plea and reduce his sentence, arguing defense counsel did not properly certify compliance with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). We affirm.

¶ 3 I. BACKGROUND

¶ 4 In August 2012, the State charged defendant by information with residential burglary (720 ILCS 5/19-3 (West 2010)).

¶ 5 Between February and May 2013, the trial court continued multiple status hearings as defendant's counsel, assistant public defender Steven Langhoff, was in negotiations with the State.

¶ 6 In June 2013, the trial court appointed assistant public defender David Ellison to represent defendant as Langhoff was leaving the public defender's office.

¶ 7 In July and August 2013, the trial court continued multiple pretrial hearings as Ellison was in negotiations with the State.

¶ 8 In October 2013, the trial court held a jury trial. Following opening statements and the commencement of the State's case in chief, defendant indicated he wished to enter an open plea of guilty. Defendant acknowledged he was subject to Class X sentencing due to his criminal record (730 ILCS 5/5-4.5-95(b) (West 2012)). Defendant acknowledged Ellison had tried to answer his questions prior to seeking to plead guilty. Upon finding a factual basis and the plea to be knowingly and voluntarily made, the court accepted defendant's plea and entered judgment against him.

¶ 9 In November 2013, the trial court held a sentencing hearing. In aggravation, the State elicited testimony from a detective and a police officer regarding the nature of the offense and defendant's extensive criminal record. With respect to defendant's criminal record, the State's evidence indicated, in relevant part, defendant (1) had previously assaulted corrections officers, and (2) was convicted of a 1995 federal weapons offense for his involvement in a burglary where multiple firearms were stolen. In mitigation, Ellison elicited testimony from defendant, defendant's uncle, and defendant's cousin regarding defendant's difficult childhood and drug addiction. The State recommended the maximum 30-year sentence of imprisonment,while defendant requested between 10 and 15 years' imprisonment. The trial court sentenced defendant to 20 years' imprisonment.

¶ 10 In December 2013, defendant filed pro se motions to withdraw his guilty plea and reduce his sentence. As to his motion to withdraw his guilty plea, defendant alleged Ellison provided ineffective assistance by failing to (1) discuss his case, (2) allow him to review the police report, (3) allow him to review the State's evidence, and (4) file any motions to suppress evidence. As to his motion to reduce his sentence, defendant alleged Ellison provided ineffective assistance by failing to meet with him after he pleaded guilty, which prevented defendant from disclosing character witnesses. Defendant's motion to reduce his sentence further alleged the State's evidence (1) suggesting he was involved in a burglary of a gun store was prejudicial, and (2) indicating he assaulted corrections officers was fabricated by the State.

¶ 11 In May 2014, the trial court conducted a preliminary inquiry into defendant's pro se claims of ineffective assistance as required by People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), and its progeny. The court indicated it did not need transcripts as it presided over the case. As a matter of process, the court allowed defendant to elaborate on his claims, and Ellison was given the opportunity to respond.

¶ 12 In elaborating on his claims, defendant acknowledged Ellison (1) presented him with the State's plea deal, (2) obtained multiple continuances at his request, (3) obtained a plea conference pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012), (4) met with him at the jail, and (5) prepared a defense of mistaken identity. Defendant asserted Ellison did not provide him with the opportunity to review the police report or suggest a strategy of motions to suppress. Defendant further added, when he first met with Ellison in the jail, Ellison asked himif he recalled why he had a conflict of interest in case No. 03-CF-607, but neither he nor Ellison could determine the basis of the conflict.

¶ 13 In responding to defendant's allegations, Ellison noted his records indicated, on September 20, 2012, defendant reviewed the police report.

¶ 14 Following its inquiry, the trial court found no basis to support defendant's claims of ineffective assistance and declined to appoint new counsel.

¶ 15 That same month, defendant filed a pro se motion for substitution of judge for cause (725 ILCS 5/114-5(d) (West 2012)), alleging Judge Thomas E. Griffith, Jr. was prejudiced against him as shown by his failure to find Ellison had provided ineffective assistance.

¶ 16 In June 2014, the trial court held a hearing on defendant's motions to substitute the judge, withdraw his guilty plea, and reduce his sentence. A Rule 604(d) certificate was not filed. As to defendant's motion for substitution, the court struck the motion as it failed to be supported by affidavit. The court otherwise denied defendant's motions, and defendant appealed.

¶ 17 In October 2014, on an agreed motion for summary remand, this court remanded the matter to the trial court "for the filing of a 604(d) certificate, the opportunity to file a new post-plea motion, if counsel concludes that a new motion is necessary, a new hearing on the motion, a[]new judgment, and strict compliance with the requirements of Rule 604(d)." People v. Nixon, No. 4-14-0518 (summary order under Supreme Court Rule 23(c)(2)).

¶ 18 In November 2014, defendant filed a pro se motion for substitution of judge for cause (725 ILCS 5/114-5(d) (West 2014)), (1) asserting Judge Griffith improperly struck his May 2014 motion for substitution without allowing a separate judge to review the motion, and (2) alleging additional facts in support of his claim Judge Griffith was prejudiced against him.

As evidence of prejudice, defendant cited the following procedural irregularities occurring during his May 2014 preliminary Krankel hearing: (1) the trial court's limitation of his ability to present argument by stating he could not read "all day"; (2) the court's indication it did not need to review transcripts as it presided over the matter; and (3) the court's denial of his request to respond to Ellison's comments. Defendant attached to his motion an affidavit asserting his belief Judge Griffith was prejudiced against him given his failure to find Ellison had provided ineffective assistance.

¶ 19 At a November 12, 2014, status hearing, the trial court assigned defendant's motion for a substitution to Judge Albert Webber. A November 13, 2014, docket entry by Judge Webber indicates:

"CLERK presents Defendant's 'Motion for Substitution of Judge' for review by the Court. Court finds that the Motion essentially recites that Judge Thomas Griffith entered an order with which the Defendant disagrees. The remainder of the Petition consists of unverified opinions concerning Judge Griffith. As a matter of law, an adverse decision alone is not evidence of prejudice by the court against any party. Defendant's Motion for Substitution of Judge filed November 6, 2014, is denied. Cause referred back to Judge Griffith for further proceedings."

¶ 20 At a December 12, 2014, status hearing, Ellison adopted the previously filed motion to reduce sentence and filed a Rule 604(d) certificate.

¶ 21 On December 29, 2014, defendant sent the trial court a letter asserting Ellison failed to file his motion to withdraw his guilty plea. Defendant believed Ellison failed to file the motion as it alleged claims of ineffective assistance.

¶ 22 In March 2015, the trial court held a preliminary Krankel hearing. The court indicated it had reviewed defendant's file and recalled the prior proceedings. As a matter of process, the court allowed defendant to elaborate on his allegations, Ellison the opportunity to respond, and defendant the opportunity to address Ellison's response.

¶ 23 Defendant asserted Ellison failed to file his motion to withdraw his guilty plea. Defendant also noted Ellison's failure to (1) discuss the case with him, (2) allow defendant to review discovery material, (3) file motions to suppress, and (4) discover and disclose why he had a conflict in defendant's 2003 case. Defendant acknowledged the latter allegations were addressed in prior proceedings.

¶ 24 Ellison indicated, on December 12, 2014, he intended and was under the belief that he had adopted defendant's previously filed motions. Ellison otherwise maintained defendant's claims were previously addressed by the trial court.

¶ 25 In response to Ellison's comments, defendant indicated his motion alleged additional issues not previously addressed by the trial court.

¶ 26 Following its inquiry, the trial court found defendant's claims did not indicate possible neglect. The...