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People v. Kimble

June 09, 2004

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GARY D. KIMBLE, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County. No. 00CF668. Honorable Robert J. Eggers, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

PUBLISHED

In August 2001, pursuant to a plea agreement, defendant, Gary D. Kimble, pleaded guilty to aggravated battery of a child (720 ILCS 5/12-4.3(a) (West 2000)), and the trial court sentenced him to 10 years' imprisonment. After an October 2001 hearing, the court denied defendant's motion to withdraw his guilty plea. In March 2003, defendant filed a pro se post-conviction petition. In April 2003, the court summarily dismissed defendant's petition, finding his claim was frivolous and patently without merit.

Defendant appeals, contending the trial court erred in summarily dismissing his post-conviction petition. We affirm.

I. BACKGROUND

In July 2000, the State charged defendant with aggravated battery of a child in relation to a June 24, 2000, incident. On that date, defendant's daughter, Alexis C., sustained permanent injuries that doctors diagnosed were the result of shaken-baby syndrome.

Defendant and the State entered into a plea agreement, under which defendant was to plead guilty to aggravated battery of a child, and the State would dismiss other pending charges and recommend a sentence of 10 years' imprisonment. At the August 2001 guilty plea hearing, defendant denied several times that he intended to harm Alexis, and the trial court refused to accept his guilty plea. Defendant eventually approached the court and admitted "knowing that I shook and that would cause great bodily harm to Alexis [C.]" The court asked defendant if his plea was voluntary, and defendant replied in the affirmative. The court also asked if defendant was satisfied with the performance of his hired attorney, John Alvarez, and defendant again replied in the affirmative. Defendant then pleaded guilty to aggravated battery of a child.

In August 2001, defendant filed a pro se motion to withdraw his guilty plea. In October 2001, Robert Scherschligst, defendant's counsel on the postplea motion, filed an amended motion to withdraw defendant's guilty plea, asserting (1) the factual basis for the guilty plea was insufficient, (2) the guilty plea was not knowing and voluntary, (3) the guilty plea was based on a misapprehension of fact and law, (4) defendant's trial counsel coerced him to plead guilty, and (5) defendant's trial counsel was ineffective.

The trial court held a hearing on the amended motion. Defendant testified Alvarez did not (1) provide him with discovery materials, (2) accept his collect calls, and (3) discuss the facts of the case or the nature of the offense with him. According to defendant, Alvarez kept telling him to accept the plea agreement or he would get 15 to 20 years' imprisonment.

The State presented the testimony of Alvarez who testified that, while he was not sure if he provided defendant copies of the discovery materials, he was certain he went through and discussed the medical reports with defendant. Based on those reports, Alvarez informed defendant he expected a guilty verdict if they went to trial and recommended defendant accept the plea agreement.

After the hearing, the trial court denied defendant's motion. Defendant appealed the court's judgment, alleging the court erred in denying his motion to withdraw his guilty plea. In October 2002, this court affirmed that judgment. People v. Kimble, No. 4-01-0912, slip order at 11 (October 31, 2002) (unpublished order under Supreme Court Rule 23).

In March 2003, defendant filed a pro se post-conviction petition, asserting he was denied effective assistance of appellate counsel because his appellate counsel did not argue he was denied effective assistance of trial counsel. Specifically, he argued his trial counsel coerced him into pleading guilty, and despite his request, his counsel did not provide him with the victim's medical reports that indicated she had been injured prior to having contact with defendant. Defendant also attached to his petition two medical documents regarding his daughter's injuries.

In April 2003, the trial court summarily dismissed defendant's petition as frivolous and patently without merit because the issue of trial counsel's effectiveness was raised in both the ...


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