People v. Wolfe

Citation2021 IL App (4th) 190277 -U
Decision Date29 April 2021
Docket NumberNO. 4-19-0277,NO. 4-19-0278 cons.,4-19-0277,4-19-0278 cons.
PartiesTHE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARRY WOLFE, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

2021 IL App (4th) 190277-U

BARRY WOLFE, Defendant-Appellant.

NO. 4-19-0277
NO. 4-19-0278 cons.


April 29, 2021


This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Coles County
Nos. 17CF420 17CF433

Honorable Brien J. O'Brien, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court.
Justices Cavanagh and Holder White concurred in the judgment.


¶ 1 Held: The appellate court affirmed, concluding the trial court properly denied the defendant's motion to withdraw his guilty plea and his sentence was not excessive.

¶ 2 In June 2018, defendant, Barry Wolfe, entered an open plea of guilty to two counts of criminal sexual assault in Coles County case No. 17-CF-420 (see 720 ILCS 5/11-1.20(a)(4) (West 2016)), and two counts of criminal sexual assault in Coles County case No. 17-CF-433 (see id.). In August 2018, the circuit court sentenced defendant to 15 years in prison on each of the four counts, to be served consecutively. Following sentencing, defendant mailed a letter to the court alleging his plea counsel misrepresented the terms of his plea agreement and requesting to withdraw his guilty plea. The circuit court then allowed defendant's

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plea counsel to withdraw and appointed new counsel for defendant, who filed motions to withdraw defendant's guilty plea or, in the alternative, reconsider his sentence. The circuit court denied the motions.

¶ 3 Defendant appealed, and this court allowed his motion to consolidate the two cases for review. Defendant argues this court should reverse the circuit court's denial of his motion to withdraw his guilty plea because the court failed to properly admonish him as required by Illinois Supreme Court Rule 402(a) (eff. July 1, 2012), and defendant had an objectively reasonable misapprehension of the law regarding the mandatory consecutive nature of the sentences he faced. Alternatively, defendant argues his sentence is excessive because the court considered improper aggravating factors, failed to consider relevant mitigating factors, and considered improper and irrelevant evidence at his sentencing hearing. Defendant further argues his attorneys were ineffective for failing to preserve certain issues for appeal. We affirm.

¶ 5 A. Charges and Guilty Plea

¶ 6 In October and November 2017, the State charged defendant by information with 38 counts of criminal sexual abuse and 17 counts of criminal sexual assault with two alleged victims: S.T. and M.S. 720 ILCS 5/11-1.20(a), 11-1.60(d), 11-1.60(f) (West 2016). Both alleged victims were members of various basketball teams coached by defendant. D.B., another young woman who had been coached by defendant, also alleged she was sexually abused by defendant and was interviewed by police at her college campus in November 2017. However, D.B. did not allege any conduct occurring in Coles County, and no charges were filed in connection with those allegations.

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¶ 7 In June 2018, defendant entered into an open plea agreement with the State. In exchange for defendant's plea of guilty to four counts of criminal sexual assault (id. § 11-1.20(a)(4)), the State agreed to dismiss all of the remaining charges.

¶ 8 At the plea hearing, the State set forth the terms of the plea agreement and stated the following:

"Your Honor, so that we are clear of the record, these counts *** by agreement would be consecutive to each other, and it would create a sentencing range of 16 years minimum, in the Illinois Department of Corrections and a 60-year maximum in the Illinois Department of Corrections; each of these Class 1 felonies containing a 4[-] to 15[-year] sentencing range."

The State noted that there was a "split in the districts" as to whether defendant's potential sentences would be required to be served consecutively, citing this court's decision in People v. Glass, 239 Ill. App. 3d 916, 606 N.E.2d 655 (1992) (holding the defendant's sentences for criminal sexual assault were required by statute to be served consecutively). The State concluded that "these [counts,] by agreement, by statute, by caselaw, and most importantly by agreement, each count would be mandatory consecutive to each other." After a brief off-the-record discussion about scheduling, the State once again summarized the agreement as follows: "[I] [b]elieve that would be the open agreement as to the counts that I have recited and the agreement that the same be consecutive within each cause and consecutive to each other in the other causes, in the combining causes." Defense counsel agreed, stating, "And I believe that is the agreement and the intent of the agreement." When asked by the court whether defense counsel agreed the counts were mandatorily consecutive to each other, he responded: "I believe that is correct, Your Honor. I think counsel and I are in agreement we think they are concurrent. However, because of

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the split of the opinions, we figure it better be safe than sorry, and I do believe Justice Steigmann has said that he believes they are consecutive, and so we should err on the side of caution."

¶ 9 The trial court then began discussing the plea agreement with defendant and asked if he understood there was no agreement as to the sentence to be imposed. Defendant said he had a question, and after an off-the-record discussion, he responded "Yes, Sir. I understand and am in agreement." The court then reviewed the charges, admonishing defendant that the first charge was a Class 1 felony, and for that offense he could be sentenced to 4 to 15 years in prison. The court then stated the "same penalties appl[ied]" when it reviewed each of the other three charges. The following colloquy occurred between the court and defendant:

"THE COURT: Do you understand that by agreement, the sentence on each count would be consecutive? In other words, the time would be added together? Do you understand that?

THE DEFENDANT: Yes, sir. That's not what it was prior, but yes, sir, yes.

THE COURT: Do you understand that is the disposition as suggested by the State today?

THE DEFENDANT: I understand that, yes, it's from the State.

THE COURT: And are you consenting to that, sir?


¶ 10 The trial court once again repeated there was no agreement regarding the sentence and continued with its detailed Rule 402 admonishments, receiving defendant's repeated acknowledgement he understood the rights he was waiving, and ultimately agreeing his plea was

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being entered free of any threats, force or promises, and that it was "voluntary and of [his] own free will."

¶ 11 The State's factual basis consisted of previously recorded statements from each of the two victims. These had already been reviewed by the trial court in preparation for a suppression hearing scheduled for the same day and the court confirmed with defendant's counsel the statements contained sufficient evidence, if believed by the jury, to substantiate the two counts to which defendant was pleading. The court then accepted defendant's plea as knowing and voluntary and set the matters for sentencing.

¶ 12 B. Sentencing Hearing
¶ 13 1. Evidence

¶ 14 Defendant's case proceeded to a sentencing hearing in August 2018. The State presented People's Exhibits 1, 1A, 2, and 3, which consisted of the recorded interviews with S.T., M.S., and D.B. The State also presented video recorded interviews of J.L. and P.S., who were also former participants in Wolfe's basketball program and alleged defendant had sexual contact with them, which were admitted as People's Exhibits 4 and 5.

¶ 15 The State then called D.B. to testify. The State introduced text messages purportedly sent to D.B. from defendant as People's Exhibit 7, which was admitted and published over defendant's objection. The State also introduced People's Exhibit 8, D.B.'s victim impact statement, which the court allowed D.B. to read into the record.

¶ 16 S.T. testified next. The State introduced People's Exhibit 9, a letter S.T. indicated had been sent to her by defendant and was admitted without objection. The State then introduced People's Exhibit 10, which contained text messages S.T. claimed defendant sent to her, which

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was admitted over defendant's objection. Similarly, People's Exhibit 11, an email defendant allegedly sent to S.T., was admitted over objection.

¶ 17 The State's next witness was M.S. During her testimony, People's Exhibit 12, letters defendant allegedly mailed to M.S., were admitted and published over defendant's objection. The State additionally introduced People's Exhibit 13, containing text messages purportedly sent to M.S. from defendant, which were also admitted—and selected messages published—over defendant's objection. The State also introduced People's Exhibit 14, a picture of female genitalia with the following text she identified as defendant's handwriting: "coming to a campus near you," M.S.'s phone number, and the words "it's free." M.S. testified defendant sent her the picture. Lieutenant Jeremy Clark from the Mattoon Police Department (MPD) testified that he discovered an image consistent with this photograph on defendant's cell phone and could determine the website defendant had accessed to obtain it. The State then introduced People's Exhibit 6, containing a recording of defendant's interrogation with MPD, which was also admitted over defendant's objection.

¶ 18 The court reviewed victim impact statements from S.T.'s mother and from M.S.'s parents, and S.T. and M.S. were allowed to read their respective victim impact statements into the record.

¶ 19 The court allowed the admission of defendant's Exhibits A, B, and C, which were letters written by Sean McHenry, A.J. McNeil, and Brooke Ray, respectively. Finally, defendant made a statement in allocution.

¶ 20 2. Arguments

¶ 21 The State argued...

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