People v. Smith

• Decision Date: 20 January 2011
• Docket Number: No. 1–08–0758.,1–08–0758.
• Citation: 347 Ill.Dec. 106,406 Ill.App.3d 879,941 N.E.2d 975
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Robert SMITH, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

406 Ill.App.3d 879

941 N.E.2d 975

347 Ill.Dec. 106

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

v.Robert SMITH, Defendant–Appellant.

No. 1–08–0758.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 23, 2010.Rehearing Denied Jan. 20, 2011.

Anita Alvarez, State's Attorney, Alan Spellberg, Mary Needham, Stacia Weber, ASA's, Chicago, IL, for Plaintiff–Appellee.Michael Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Michael G. Soukup, Assistant Appellate Defender, Chicago, IL, for Defendant–Appellant.Justice LAVIN delivered the opinion of the court:

[406 Ill.App.3d 879 , 347 Ill.Dec. 108] Here, we consider the appeal of a defendant who pled guilty to murder during the middle of his trial for the beating and death by drowning in a bathtub of a two-year-old child, after which defendant was sentenced to 32 years in prison. Defendant subsequently filed a motion to withdraw his guilty plea and the trial court found defendant had not been admonished that a three-year mandatory supervised release (MSR) term would be added to his sentence. To deal with this issue, the trial court reduced the sentence by three years and did not allow defendant to withdraw his guilty plea. On appeal, defendant asserts he is entitled to withdraw his guilty plea because it was based on a plea agreement that was improperly negotiated with the trial court, rather than the State, and that he was entitled to the remedy of his choice for the court's failure to admonish him regarding his MSR term. We affirm.

BACKGROUND

In 2001, defendant and Maria Moon were charged with six counts for the first degree murder of Maria's daughter Miracle Moon on December 7, 2000. Those counts alleged that Miracle was killed when codefendants inflicted blunt trauma injuries upon her and held her head under water. Codefendants were also charged with two counts of aggravated battery of a child based on beating Miracle with their hands, a cord and a belt on the same day. Codefendants were further charged with aggravated battery of a child based on holding Miracle's head under water on December 5, 2000. Codefendant Maria, who is not a party to this appeal, was granted a

[347 Ill.Dec. 109 , 941 N.E.2d 978]

severed trial while the State sought the death penalty in defendant's case.

Immediately prior to beginning jury selection on April 28, 2005, the following colloquy ensued:

“MR. HICKS [Defense Counsel]: Your Honor, previous to today, there have been some informal talks between myself and the prosecution about maybe resolving this matter. My client was desirous to be admonished to do a [Rule] 402 to see what the Court's position might be.

THE COURT: Mr. Smith, based on what your attorney stated I'll join into a conference with your attorney and the State's Attorney. I may hear evidence about you, about the case I wouldn't normally hear at trial. At the end of the conference, if you're not satisfied with what offer comes out of the conference, the case will remain in this courtroom. The jury is outside the courtroom right now. We'll go right to jury selection, do you understand that?

DEFENDANT: Yes.

THE COURT: And you're granting permission for your attorney to enter into the conference?

DEFENDANT: Yes.”

The case was then passed for a pretrial conference pursuant to Supreme Court Rule 402 (177 Ill.2d R. 402). When the proceedings resumed on the record, the court began jury selection. Neither the parties nor the trial court stated for the record what had ensued during the conference.

On April 29, 2005, trial began and the State presented the bulk of its tragic but straightforward case, including nine witnesses and defendant's videotaped statement, which was published for the jury. The evidence presented at trial revealed that in December 2000, defendant was living with codefendant, their daughter, and the victim, Maria Moon's two-year-old daughter. Defendant, who would whip the victim when she misbehaved, was trying to potty train her. The victim, however, would frequently “doo doo” in their apartment. When these accidents occurred, defendant would force the victim to sit on a “training potty” for three to four hours, would spank her lower body and would occasionally punish her by bathing her in cold water. Defendant and codefendant sometimes used an extension cord to discipline the child. On the fifth or sixth of December, defendant discovered that the victim had defecated on herself and, as punishment, gave her a cold bath. He pushed her head under water several times until she was no longer breathing. Defendant said that he successfully performed cardiopulmonary resuscitation on the victim but declined to take her to the doctor because there were too many bruises on her body.

On December 6, 2000, defendant and codefendant left the victim alone in the apartment for six hours. They returned home at 11 p.m. to find that the victim had defecated in her bed. Defendant and codefendant each hit the victim five or six times with a belt, forced her to eat dinner on her training potty and forced her to stay on the training potty all night. At 8 a.m. the next day, defendant discovered the victim had gotten up from the training potty, defecated on herself and in the kitchen. Defendant spanked her with his hands when he could not find his belt. He then filled the bathtub with cold water and held her under the water for two to three minutes. When the child eventually floated to the surface, she did not look normal and lay motionless. Believing she was dead, defendant told codefendant not to forget that the victim was in the bathtub and then left for work. Defendant believed that if codefendant discovered the victim's body in the bathtub, codefendant

[347 Ill.Dec. 110 , 941 N.E.2d 979]

would believe she was responsible for the victim's drowning.

After the State had presented the aforementioned evidence, defendant apparently reconsidered the possibility of pleading guilty to the charges because, on May 3, 2005, the following colloquy ensued outside the presence of the jury:

“MR. HICKS: At this time, Judge, we recognize the previous offer that you have made in this case of 32 years on a plea of guilty to first degree murder. At this time my client is asking leave to withdraw his previously entered plea of not guilty, waive the jury trial in progress with [ sic ] now and enter a plea of guilty.

THE COURT: Is that correct, Mr. Smith[?]

DEFENDANT: Yes.”

Defendant was immediately admonished, in pertinent part, as follows:

“THE COURT: Mr. Smith, the charge that I am informed you're pleading guilty [to] is [that] on December 7, 2000[,] in Cook County, you committed of [ sic ] offense of first degree murder in that you, without lawful justification intentionally or knowingly inflicted blunt trauma injuries to Miracle Moon and held her head under the water which killed Miracle Moon. Is that the charge you are pleading guilty to?

DEFENDANT: Yes.

THE COURT: Do you understand that charge, first degree murder, is a class unto itself; that is, that you could be sentenced in a normal case between 20 and 60 years, however based on the charges in this case, you were looking at the death penalty. So you could be sentenced anywhere from death to life to a number of years up to 100 years, do you understand those are the possible penalties involved in your plea of guilty?

DEFENDANT: Yes.”

Following further admonishments, the court proceeded to the factual basis for the plea.

“THE COURT: I'm not sure if we should put more of a factual basis on than we have heard already.

MR. MURPHY [Assistant State's Attorney]: Judge, there isn't really that much left.

MR. MAGATS [Assistant State's Attorney]: We stand on the evidence that was presented to this Court and the defendant on Friday the 29th, yesterday, the 2nd and today, May 3rd.

THE COURT: Defense?

MR. HICKS: We will stipulate to that.

THE COURT: Stipulate to that evidence?

MR. HICKS: Yes.

THE COURT: Mr. Smith, let the record reflect you have been advised of the possible consequences of the plea of guilty and after being so advised you persisted in the plea; I will therefore accept your plea of guilty to the murder charge, and there will be a judgment on the finding.”

After defendant waived a presentence investigation report, the following colloquy ensued:

“THE COURT: State, in aggravation.

MR. MAGATS: Judge, he has a prior conviction, 1986 for burglary and 1997 received a concurrent four-year IDOC term for delivery of controlled substance, aggravated battery, aggravated battery did not involve a child.

MR. HICKS: We stand on the previous conference we had Thursday, Judge.

THE COURT: Mr. Smith, is there anything you wish to state before I impose sentence?

DEFENDANT: Just I don't know how it came about, but, I didn't, you

[347 Ill.Dec. 111 , 941 N.E.2d 980]

know hold this child under the water. And all that what I seen, I could never do a child like that.

THE COURT: Well, Mr. Smith, you have a right to have this trial continue. When you plead guilty you're saying that you did in fact did [ sic ] this act. It's your right to have the trial continue or you can plead guilty.

DEFENDANT: I just want to plead guilty.

THE COURT: You're doing that of your own free will, no one is forcing you to plead guilty in this case?

DEFENDANT: No.

THE COURT: You're making admission to the facts that have already been presented to the Court, is that correct?

DEFENDANT: Yes.

THE COURT: Mr. Smith, I will accept your plea of guilty to the Count 1 murder charge and as I informed your attorney this afternoon, I would reinstate the offer I made before trial.

I will sentence you to 32 years, Illinois Department of Corrections, that is 100 percent time on a murder sentence.

Even though you pled guilty, you have a right to appeal, if you wish to appeal, you must within 30 days file a written motion asking to withdraw this plea of guilty. That must be in writing and contain all the reasons you wish to set forth...