Appeal from the Circuit Court of Winnebago County. No. 08-CF-1155 Honorable Rosemary Collins, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Hutchinson concurred in the judgment and opinion.
¶ 1 Defendant, Maurice A. McRae, appeals his conviction of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2008)) involving the November 11, 2007, shooting death of Larry Starks. Defendant's conviction was the result of a negotiated plea of guilty in exchange for a sentence of 27 years in the Illinois Department of Corrections. On appeal, defendant contends that his plea of guilty was involuntary because it was based upon erroneous legal advice of trial counsel, namely, that a letter defendant wrote to counsel, which was confiscated from his jail cell, could be used against him at trial. We find that, because the agreed-upon sentence fell below the minimum sentence of 45 years, the entire plea agreement is void, and we remand the cause to allow defendant to withdraw his plea and proceed to trial if he so chooses. Because the issue of the admissibility of the letter will likely recur on remand, we also address the trial court's ruling that the letter was not privileged because it was not kept in an envelope marked "legal mail."
¶ 3 On April 1, 2008, defendant, then 17 years of age, was arrested for the November 11, 2007, murder of Larry Starks. Bail was set at $1 million, which defendant was unable to post. The public defender was appointed to represent defendant. On May 1, 2008, the Winnebago County grand jury returned an eight-count indictment charging defendant with six counts of first-degree murder, each alleging that defendant shot Larry Starks in the upper body, thereby causing his death. 720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2008). Counts VII and VIII of the indictment charged co-defendant James Houston with the offenses of mob action (720 ILCS 5/25-1(a)(1) (West 2008)) and aggravated battery (720 ILCS 5/12-4(b)(8) (West 2008)). A 14-count superseding bill of indictment was returned on May 28, 2008. Count I alleged that defendant "personally discharged a firearm that proximately caused great bodily harm or death to Larry Starks, in violation of 720 ILCS 5/9-1(a)(1) and 730 ILCS 5/5-8-1(a)(1)(d)(iii) *** sentencing enhancement range of an additional 25 years to natural life pursuant to 730 ILCS 5/5-8-1(a)(1)(d)(iii)." Counts II through VII also alleged first-degree murder involving the shooting death of Larry Starks and, with the exception of count IV, alleged an enhanced sentencing range predicated upon the use of a firearm. Count VIII, to which defendant entered a negotiated plea of guilty, read:
"That on or about the 11th day of November, 2007, in the County of Winnebago, State of Illinois, MAURICE A. McRAE committed the offense of FIRST DEGREE MURDER, in that he, without lawful justification, shot Larry Starks in the upper body with a firearm, knowing such acts created a strong probability of death or great bodily harm to Larry Starks, thereby causing the death of Larry Starks, in violation of 720 ILCS 5/9-1(a)(2) (Class M Felony) (minimum sentence of 20 years imprisonment)."
¶ 4 Counts XIII and XIV recharged Houston with mob action and aggravated battery. The record reveals that the case was continued several times on defense motions, for the purpose of reviewing the discovery material tendered by the State. On March 17, 2009, defendant's attorney Frank Perri informed the trial court that he was in the process of negotiating a resolution of the case. Counsel also informed the court that the busy "high volume" courtroom that he was assigned to left him with insufficient time to devote to defendant's case. The assistant State's Attorney had no objection to the continuance and confirmed that there had been "some meaningful discussions" with defense counsel. The trial judge told the parties that she was giving the case a short date, "[b]ut if it's not resolved, we're going to go to trial on it." The case was continued to April 20, 2009, for a final pretrial conference along with a June trial date.
¶ 5 On April 20, 2009, defense counsel informed the court that he had "gotten what [he] want[ed]" and said "we're trying to resolve the case. We're still in negotiations. I'm going to talk to Mr. McRae about this matter. If not, just leave it on for trial." On May 5, 2009, defense counsel filed a supplemental answer to discovery, listing: "Affirmative Defense: Self-Defense." On May 21, 2009, the parties appeared in open court and announced that they had arrived at an agreement. Defense counsel described the details of the agreement: that defendant would be "pleading to count 8 of the Bill of Indictment, and all other counts will be dismissed per plea. He had accepted the offer of 27 years in the Department of Corrections in this case." Defense counsel informed the court that he and co-counsel Coates had spent a considerable amount of time with defendant and had answered all the questions they could for him. The trial court carefully admonished defendant pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1999). During the admonitions, the court advised defendant that the sentencing range on count VIII was 20 to 60 years in the Department of Corrections. In response to the court's questions, defendant informed the court that he understood the charge; that he had no additional questions; that he was satisfied with defense counsel's representation; that no threats or promises had been made in order to get him to enter his plea; that no threat or force had been used against him; and that he was entering into the plea of his own free will. The State then presented the statement of facts to support the plea:
"On March 10, 2008, detectives met with Douglas Bell, who told police in summary that he had spoken to Maurice, who he called Big Boy, around November 13 of 2007. That person is the defendant, Maurice McRae. He said that Big Boy pulled him aside and told him that he had just murdered a cluck, which is a slang word for someone who uses crack, and that happened on Lee Street, and that he had used a gun." (Emphasis added.)
¶ 6 The factual basis also included a summary of statements from alleged eyewitness Antwon Donohue:
"On April 3, 2008, detectives met with Donohue. Donohue indicated that he was at the party, that earlier at the party he gave Big Boy, McRae, the gun. He stated that Big Boy was kicked out of the house that the party was at. And he indicated that later Big Boy came to the door of the party and that James Houston went outside. He looked outside and saw James Houston and Big Boy with two white males. He indicated that Big Boy and James were fighting with the white males. He advised that he went after the white male with the hoodie, grabbed him, and that this was on the sidewalk. He indicated that he swiveled and looked over his left shoulder and that this is when he saw Big Boy, McRae, pull out a gun. Big Boy said, 'Move, James.' And as the guy who Big Boy and James were with got up, Big Boy pointed the gun at him and shot him."
The prosecutor then summarized the proposed testimony of Houston:
"Among other things, Houston stated that Big Boy was punching the guy with the book bag. He stated that when he went to help him that Houston hit the man three to four times. He also stated that Big Boy had the gun and shot the victim."
Finally, the prosecutor stated that the autopsy performed on Starks determined that the cause of death was "hemorrhagic shock as a consequence of a gunshot wound to the abdomen."
¶ 7 The trial court then further inquired of defendant, admonished him that he must serve 100% of his sentence, accepted defendant's formal plea of guilty, and entered a judgment of conviction for the offense of first-degree murder. Pursuant to the agreement, the court sentenced defendant to 27 years in the Department of Corrections plus 3 years of mandatory supervised release. Defendant was admonished of his right to appeal and how to perfect an appeal by first filing a motion to withdraw his plea of guilty.
¶ 8 On June 1, 2009, defendant filed a pro se "Motion to Vacate Plea." The motion alleged, in part, that his attorney provided "ineffective assistance of counsel, in regards to his plea of guilty." In support of this claim, defendant alleged that his attorney failed to file "standard motions of defense on behalf of his client." The motion also alleged that counsel induced defendant to plead guilty by telling him that "there was no hope for him in trial" and that if he did not take the "deal" he would spend "most of his life locked up." Defendant alleged that if trial counsel "would have made any effort to defend him he would not have plead [sic] guilty."
¶ 9 The motion also accurately set out the legal standard for the trial court to permit the withdrawal of a plea of guilty that "was entered on misapprehension of the facts or the laws, or in consequence of misapprehension by counsel." On June 2, 2009, Perri filed a "Motion Pursuant to Supreme Court Rule 604D," alleging that defendant did not "knowingly, intelligently and voluntarily waive his right to a jury trial" and did not fully "understand or comprehend" the court's admonitions. The motion requested that the court allow defendant to withdraw his plea or in the alternative reduce the sentence imposed.
¶ 10 On July 29, 2009, the trial court conducted a hearing on defendant's motion to withdraw his guilty plea. The State reminded the court that defense counsel had also filed a motion. Defense counsel filed a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2006), and the trial court indicated that it had read the entire transcript of the plea. The trial court then inquired which of the two motions the defense would be proceeding on. Defense counsel stated, "[J]udge, it was his belief that he was gonna get to address his own motion." The assistant State's Attorney pointed out that the pro se motion's allegations of ineffective assistance of counsel would have to be addressed before a notice of appeal could be filed. Defense counsel then replied, "we'll incorporate his motion with ours so that we can address it all." The case was passed so that defendant could review the allegations made in the motion filed by defense counsel. When the hearing resumed, the trial court questioned defendant regarding the factual basis for his claims of ineffective assistance of counsel, in order to determine whether new counsel should be appointed.
¶ 11 Defendant, the court, and counsel discussed at length the letter defendant had written to defense counsel, which was confiscated from his jail cell. Defendant informed the court that the letter contained information "about my case that happened, admittin' to it, and they confiscated it an they was usin' it against me as evidence. So they didn't file no motion for-my lawyer didn't file no motion for me to get that, you know what I'm sayin', get it dismissed from me, about the letter." The court noted that the letter was not brought up at the time of the plea and was not part of the factual basis. Defendant told the court that before the plea his attorneys told him that the letter "was gonna be used against" him if he went to trial. He told the court that his attorneys told him that the letter "was probably the reason [he] was gonna lose [his] case is because it is a confession or-whatever you wanna call it." The court then asked a series of questions clarifying defendant's position that the letter was to counsel; that it was ...