People v. Porter

• Citation: 2019 IL App (4th) 170546 -U
• Decision Date: 12 November 2019
• Docket Number: NO. 4-17-0546,4-17-0546
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSIAH DANIEL PORTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (4th) 170546-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSIAH DANIEL PORTER, Defendant-Appellant.

NO. 4-17-0546

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

November 12, 2019

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 McLean County

No. 15CF103

Honorable Robert L. Freitag, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court.

Presiding Justice Holder White and Justice Steigmann concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, finding there was no ineffective assistance of counsel, the trial court did not err in denying defendant's motion to withdraw his guilty plea, and it did not err in sentencing defendant to seven years on each count of criminal sexual assault to be served consecutively.

¶ 2 On July 15, 2016, defendant pleaded guilty to two counts of criminal sexual assault. The trial court sentenced him to seven years in prison for each count to be served consecutively. Defendant filed a motion to reconsider the sentence, which was denied. Defendant then filed a motion to withdraw his guilty plea, which was denied.

¶ 3 On appeal, defendant argues the trial court erred in denying his motion to withdraw because his attorney was ineffective and he had "a defense worthy of consideration." Defendant alternatively argues the seven-year sentences for each count were excessive. We affirm.

¶ 4 I. BACKGROUND

¶ 5 On February 4, 2015, a grand jury indicted defendant on two counts of criminal sexual assault (counts I and II) (720 ILCS 5/11-1.20(a)(1) (West 2014), alleging he committed "an act of sexual penetration between his penis and the vagina of P.H. by the use of or threat of force, and committed an act of sexual penetration between his penis and the mouth of P.H. by the use of or threat of force." The State alleged these offenses occurred on or about January 25, 2015.

¶ 6 On July 15, 2016, defendant agreed to enter a blind plea of guilty to counts I and II. The trial court admonished defendant that both counts were non-probationable, informed him of the minimum and maximum term of sentence for each count, and informed him of the mandatory supervised release term of three years up to natural life. Additionally, the court told defendant he would be required to serve 85% of the sentence imposed for each count, both counts must be served consecutively, and defendant would be required to register as a sex offender for the rest of his life. When asked if he understood each admonishment, defendant answered in the affirmative. In response to whether defendant had any questions about the admonishments or his trial rights, he said, "No." When asked if anybody forced, threatened, or coerced defendant to make him plead guilty, defendant said, "No, your Honor." The court also asked if anyone, including his lawyer, promised him anything about what was going to happen in his case to try to get defendant to plead guilty. Defendant responded, "No, your Honor." The State presented a factual basis as follows:

"This defendant has two codefendants. The victim in this case, P.H., was with her friend, M.R. They went back to M.R's boyfriend's apartment. When they got back to the apartment, thethree suspects, this defendant and his two codefendants, began to follow P.H. around. P.H. told them to leave her alone, and they refused. The three suspects then took her into one of the suspect's bedrooms and took turns having vaginal intercourse with her while holding her down and not allowing her to get up. According to P.H., they also were forcing her to perform oral sex on the three of them. This defendant, Mr. Porter, was interviewed, and he admits that his penis might have touched her lips. He further indicated that he did, in fact, put his penis in the victim's vagina and later said that the victim, also, quote, "sucked his penis," unquote. Porter said that all of the suspects were standing around "her," the victim, P.H., taking turns having sex with her."

After the factual basis was recited, the trial court inquired of defendant as follows:

THE COURT: "Mr. Porter, now that you and I have gone over the charges in this case, we have gone over the penalties that could be imposed, we have talked about all those trial rights you have that you give up by pleading guilty, understanding all of that now, sir, how do you plead to these two charges of criminal sexual assault? Do you plead guilty or not guilty?

DEFENDANT: Guilty, your Honor."

The court found defendant's guilty plea to be knowing and voluntary.

¶ 7 At the sentencing hearing, the State corrected the presentence report to reflect defendant was sentenced to two years in the Illinois Department of Corrections earlier the same morning for manufacture/delivery of cannabis in case number 15-CF-184. The State alsopresented aggravation in the form of two victim impact statements, one from the victim and the other from her mother. Reading from her statement at the sentencing hearing, the victim provided a detailed explanation of how the sexual assault impacted her life and told the court how the sexual assault continues to negatively affect her. The victim's mother also read her statement aloud and gave a detailed account of how the sexual assault affected her daughter, the family, and how her daughter's assault continues to have a lasting and detrimental impact on the family. Defendant presented a mitigation packet consisting of a number of letters from defendant, his parents, and others. Defendant also gave a statement in allocution. The State recommended a sentence of seven years on each count, while defendant's counsel argued for four years on each count.

¶ 8 The court indicated it considered the information in the presentence investigation report, all of the evidence presented at the hearing, the recommendations of counsel, defendant's statement in allocution, and all the relevant statutory factors in aggravation and mitigation in this case. The court also noted defendant's criminal record was not significant. The court identified defendant's recent cannabis felony, for which he was sentenced earlier that morning, as an aggravating factor appropriate for the court to consider, but commented it was not as significant as in some other cases. When considering the mitigation presented on behalf of defendant, the court considered defendant's willingness to plead guilty and accept responsibility, the relevant statutory factors in mitigation, and the mitigation packet submitted by defendant. The court stated the following during the sentencing hearing:

"Of all of the crimes that can be committed, in my view, this type of crime, a sexual assault of any kind, is about the most selfish act that any human being can make. Because you made a choice to dosomething for yourself with a total disregard for how it was going to affect all the people in this room. This is tragic ***. Everyone has been affected by your choice that night. And in my view it was just an absolutely selfish and unjustifiable choice that you made that night. I think it's with that in mind that the court is going to impose a sentence in this case that reflects the seriousness of your crime, but also reflects the mitigation that's been presented here today. And the record is not going to show this, but after you finished your statement there was a bit of a pause. The court didn't immediately begin my comments. That's because as I told you at the beginning, I was considering very strongly what is appropriate here. And I will tell you that the court believes that this offense was of such a serious nature and had such a lasting impact that a sentence frankly even in excess of what's been recommended here would probably be appropriate in this case, and I think would be justified in this case, and would be upheld on appeal in this case. But because of the mitigation that's been presented I am going to essentially temper what I think would probably be the appropriate sentence. I'm going to sentence you in accordance with what the State has recommended. You will be sentenced on each count to a term of seven years in the Illinois Department of Corrections."

¶ 9 On May 31, 2017, the court heard evidence on defendant's motion to withdraw his guilty plea, which was filed on March 27, 2017. Defendant argued his attorney at the time ofhis guilty plea was ineffective and he should be allowed to withdraw his guilty plea in light of the victim's subsequent testimony during the trial of one of the codefendants. Defendant argued the victim's testimony differed from statements provided in discovery and the State's factual basis recited during the plea, and, therefore, constituted new evidence. Defendant provided an affidavit from the attorney who represented him during the plea. The affidavit alleged a difference between the plea offer tendered on the day of the plea and the attorney's understanding of what the plea was supposed to be, based on previous conversations with the assistant state's attorney (ASA) handling the case. According to defendant's counsel, he informed defendant the plea was an open or "blind" plea to one count of criminal sexual assault, only to discover, when they arrived at the courthouse and began reviewing the paperwork for the plea, it was to be an open plea to both counts of criminal sexual assault. Further, the attorney's affidavit said while informing defendant of this new plea, the affiant failed to inform defendant that a guilty plea would result in a mandatory lifetime sex offender registration, and a mandatory supervised release period of three years to natural life. In his brief, defendant concedes the trial court provided him with proper admonishments pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012) before accepting the plea. However, defendant contends he would not have entered into a plea of...