People v. Reed

• Decision Date: 27 March 2019
• Docket Number: NO. 4-17-0090,4-17-0090
• Citation: 2019 IL App (4th) 170090,429 Ill.Dec. 774,125 N.E.3d 480
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Demario D. REED, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (4th) 170090

125 N.E.3d 480

429 Ill.Dec. 774

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Demario D. REED, Defendant-Appellant.

NO. 4-17-0090

Appellate Court of Illinois, Fourth District.

Opinion filed March 27, 2019

Modified upon denial of Rehearing May 8, 2019

James E. Chadd, Patricia Mysza, and Alexander G. Muntges, of State Appellate Defender’s Office, of Chicago, for appellant.

Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J. Robinson, and Linda Susan McClain, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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

¶ 1 After an evidentiary hearing, the Macon County circuit court denied postconviction relief to defendant, Demario D. Reed, who is serving a prison sentence of 15 years for armed violence ( 720 ILCS 5/33A-2(a), 33A-3(a) (West 2014)). He appeals, arguing that newly discovered evidence he presented to the court in the postconviction hearing proved, clearly and convincingly, that he actually was innocent of armed violence despite his earlier negotiated guilty plea to that offense.

¶ 2 Because the validity of defendant's guilty plea is undisputed on appeal, we hold, de novo , that he remains bound by his guilty plea and that his claim of actual innocence cannot be entertained. See People v. Pendleton , 223 Ill. 2d 458, 473, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006) ; People v. Cannon , 46 Ill. 2d 319, 321, 263 N.E.2d 45 (1970). Therefore, we deny defendant's petition for rehearing, and we affirm the judgment.

¶ 3 I. BACKGROUND

¶ 4 In count I of the information, the State alleged that on September 23, 2014, defendant committed armed violence in that while armed with a shotgun, he knowingly possessed cocaine (an amount less than 15 grams).

¶ 5 In April 2015, defendant appeared with appointed defense counsel, who announced:

"MR. WHEELER: Judge, the defendant is going to offer to enter a plea of guilty to Count I of [Macon County case No. 14-CF-]120[5], be sentenced to the Illinois Department of Corrections for a period of 15 years. * * * The remaining charges [ (in Macon County case Nos. 14-CF-903 and 14-CF-1206) ] will be dismissed.

THE COURT: [Defendant], you heard what your attorney said. Is that your understanding of the plea agreement?

THE DEFENDANT: Yes."

¶ 6 The circuit court then recited count I to defendant and told him the minimum and maximum punishments for the offense it alleged, armed violence. The court further admonished him:

"THE COURT: If you plead guilty, you would be giving up your right to a trial of any kind by a judge or a jury . You would be giving up the right to confront and cross-examine witnesses who would testify against you in court during your trial. By pleading guilty, you would be giving up the privilege against self-incrimination and the presumption of innocence. You would be giving up the right to subpoena witnesses to come into court to testify for you and to present any defenses you might have to this charge , and by pleading guilty, you would be giving up the right to require the [S ]tate to prove you committed this offense beyond a reasonable doubt . Do you understand the rights you are giving up by pleading guilty?

THE DEFENDANT: Yes.

THE COURT: Do you have any questions about your rights this morning?

THE DEFENDANT: No.

THE COURT: Are you telling me you wish to give up your rights and plead guilty?

THE DEFENDANT: Yes." (Emphases added.)

Then, at the court's request, defendant signed a jury waiver.

¶ 7 Next, the circuit court requested a factual basis. The prosecutor responded:

"MS. DOMASH: The [S]tate would present the testimony of Officer Daniels of the Decatur Police Department. Officer Daniels would testify that he observed this defendant on September 23rd of 2014 on a porch in Decatur, Illinois. He observed the defendant flee upon sight of him. The defendant was running oddly. When he entered the house, he located a shotgun and cocaine. The defendant was located in a bedroom, and the shotgun had the defendant's DNA [ (deoxyribonucleic acid) ] on it."

¶ 8 After the prosecutor provided that factual basis, defendant confirmed to the circuit court that no one had forced him, in any way, to plead guilty and that the plea agreement was the only promise ever made to him in return for his proposed guilty plea. He also denied having any questions about his "rights, the possible sentences, or anything else." The court then asked defendant a final time:

"THE COURT: Are you telling me you wish to continue to plead guilty this morning?

THE DEFENDANT: Yes."

¶ 9 Finding a factual basis for the guilty plea to count I and further finding the guilty plea to be knowing and voluntary, the circuit court accepted the guilty plea and sentenced defendant to imprisonment for the agreed-upon term of 15 years. (The parties also had agreed to proceed immediately to sentencing, to waive a presentence investigation report, and to have the pretrial bond report stand as a prior history of criminality.)

¶ 10 In January 2016, with the circuit court's permission (see 725 ILCS 5/122-1(f) (West 2016)), defendant filed a successive postconviction petition, in which he claimed to be innocent of count I, armed violence, the offense to which he had entered the negotiated guilty plea. He submitted, as proof of his innocence, an affidavit by his codefendant, Davie Callaway. In the affidavit, which was dated October 15, 2015, Callaway averred that he alone was the one who had possessed the cocaine referenced in count I and that defendant had been unaware the presence of the cocaine.

¶ 11 The State moved to dismiss the postconviction petition. One of the reasons the State gave for its motion was waiver. The State argued that by knowingly and voluntarily pleading guilty to armed violence, defendant had waived all nonjurisdictional errors, including errors of a constitutional nature.

¶ 12 The circuit court denied the State's motion for dismissal, and the petition advanced to the third stage of the postconviction proceeding, in which the parties adduced evidence for the court to weigh as the trier of fact. See People v. Harris , 2013 IL App (1st) 111351, ¶¶ 46-47, 376 Ill.Dec. 76, 998 N.E.2d 618 (describing the three stages of a postconviction proceeding).

¶ 13 On January 20, 2017, after hearing the evidence, including Callaway's testimony, the circuit court denied defendant's successive petition for postconviction relief. Although the court held that Callaway's affidavit and testimony "qualified as new evidence based on his unavailability at trial in view of his Fifth Amendment Right against self-incrimination" (see U.S. Const., amend. V ; People v. Edwards , 2012 IL 111711, ¶ 38, 360 Ill.Dec. 784, 969 N.E.2d 829 ), the court simply did not believe Callaway. The court wrote in its judgment:

"The court * * * does not find that testimony of Mr. Callaway to be credible as Mr. Callaway did not come forward with this information until after he pled and he and the petitioner were in prison together. As such, the court does not find the petitioner has established a colorable claim of actual innocence."

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant does not challenge the validity of his negotiated guilty plea to armed violence; he does not claim that his guilty plea was uninformed or involuntary. Rather, he claims that his guilty plea was false. He claims he really was innocent of armed violence when he solemnly declared to the circuit court that he was guilty of that offense. He cites People v. Shaw , 2018 IL App (1st) 152994, ¶ 41, ––– Ill.Dec ––––, ––– N.E.3d ––––, in which the First District held that "a freestanding actual innocence claim may be brought [in a postconviction proceeding] after a guilty plea, and that a defendant need not challenge the knowing and voluntary nature of his or her plea to bring such a claim." On March 19, 2019, however, after defendant filed his brief, the First District withdrew its opinion in Shaw , as defendant informs us in his petition for rehearing. A withdrawn opinion lacks precedential value. People v. Jordan , 103 Ill. 2d 192, 205, 82 Ill.Dec. 925, 469 N.E.2d 569 (1984).

¶ 17 That leaves only one Illinois case, People v. Barnslater , 373 Ill. App. 3d 512, 311 Ill.Dec. 619, 869 N.E.2d 293 (2007), that (albeit in dicta ) has addressed the question of whether, in a postconviction proceeding, a defendant may raise a claim of actual innocence after being convicted on a valid, i.e. , knowing and voluntary, guilty plea. (Although it is true that in People v. Knight , 405 Ill. App. 3d 461, 471-72, 344 Ill.Dec. 766, 937 N.E.2d 789 (2010), the Third District allowed the defendant to raise a postconviction claim of actual innocence after pleading guilty, the defendant in that case additionally attacked the validity of his guilty plea, claiming his guilty plea had been coerced.) In Barnslater , the First District remarked: "If a defendant claims that his guilty plea was coerced, then that coercion provides the necessary constitutional deprivation for which postconviction relief would be appropriate, but not where he claims actual innocence in the face of a prior, constitutionally valid confession of guilt." Barnslater , 373 Ill. App. 3d at 527, 311 Ill.Dec. 619, 869 N.E.2d 293. In support of the proposition that a valid guilty plea foreclosed a postconviction claim of actual innocence, Barnslater quoted from Cannon , a decision by the supreme court: " ‘Before his plea of guilty was accepted, the defendant, represented by appointed counsel, was fully and carefully admonished by the trial judge, and in the light of that admonition, the defendant's present [postconviction] claim [of actual innocence] cannot be entertained.’ " (Emphasis omitted.) Id. at 528, 311 Ill.Dec. 619, 869 N.E.2d 293 (quoting Cannon , 46 Ill. 2d at 321, 263 N.E.2d 45 ).

¶ 18 The quoted sentence is, in Cannon , an obiter dictum , an inessential remark on a point not argued by counsel ( ...