Appeal from the Circuit Court OF ILLINOIS, of Du Page County. No. 07-CF-430 Honorable George J. Bakalis, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
JUSTICE BOWMAN delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Hutchinson concurred in the judgment and opinion.
¶ 1 Defendant, James Presley, entered an open guilty plea to one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2006)). Defendant subsequently moved to withdraw his guilty plea based on ineffective assistance of counsel; namely, his attorney's failure to advise him that his guilty plea would result in lifetime sex offender registration. Following a hearing on defendant's motion, the trial court granted a directed finding in favor of the State. Defendant appeals that finding, and we affirm.
¶ 3 On March 27, 2007, defendant was charged by indictment with two counts of aggravated criminal sexual abuse. The charges alleged that defendant, who was at least 5 years older than the victim, S.D., knowingly committed an act of sexual conduct with S.D., who was at least 13 years of age but was under 17 years of age, in that he placed his hand on her breast and his finger in her sex organ.
¶ 4 Due to a variety of issues and ongoing plea negotiations, the matter was continued on numerous occasions. On April 7, 2009, the parties appeared in court as the case was set for trial. Defense attorney Ronald Merel stated that, after extensive communications with defendant and the State, defendant had wished to enter a plea, as recently as the day before. However, defendant, who was in psychiatric care, had just changed his mind after a meeting with his doctor and now wished to have a different attorney appointed to represent him. The court refused "to do that," noting that for one reason or another the case had been set for trial seven times. Defendant then entered a plea of guilty to count II, a Class 2 offense, and the State agreed to nol-pros count I. The court admonished defendant pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997) but did not mention that, as a consequence of his plea, he would be subject to lifetime registration as a sex offender under the Sex Offender Registration Act (Act). See 730 ILCS 150/art. 1 (West 2006).
¶ 5 As a factual basis for the plea, S.D. would testify that she met defendant around Christmas in 2006. At the time, S.D. told defendant that she was 16 years old even though she was only 14 years old. Defendant told her that he was 24 years old. In early January 2007, S.D. arranged to meet with defendant. He picked her up in his car, and they drove to a side street in Elmhurst. While in the car, defendant placed his finger in S.D.'s sex organ. Elmhurst detective Mike Campise would testify that he met twice with defendant in February 2007. Initially, defendant gave one version of events to the detective. Ultimately, defendant admitted to placing his finger in S.D.'s sex organ. Defendant thought that S.D. was 16 years old. The court accepted the plea and entered a finding of guilty. The matter was continued for sentencing.
¶ 6 As part of the presentence investigation, defendant was interviewed by Dr. Leslie Kane on several occasions. On June 30, 2009, at a status hearing, defense attorney Merel explained to the court what had transpired between defendant and Dr. Kane. According to defense attorney Merel, Dr. Kane told defendant that she did not believe that "the potential sentence of branding [defendant] on a plea of guilty as a lifetime sexual offender was a fair and appropriate sentence." Defense attorney Merel continued, "We know that the plea of guilty was entered. And it was entered with the idea of [defendant] being aware of what the consequences [were]. However, his discussions with Dr. Kane during their interviews, I guess, potentially changed his mind about the plea that was entered to this charge on April 7." Defense attorney Merel went on to say that he had spoken with Dr. Kane, who confirmed that she had communicated to defendant the idea of withdrawing his plea. The court noted that Dr. Kane had found defendant to be a very low risk to repeat. However, the court further noted that Dr. Kane was not in a position to give any recommendation as to sentence; her job was to evaluate him as a sex offender and predict his potential for reoffending. Still, the court recognized that defendant had the right to file a motion to withdraw his plea.
¶ 7 Defense attorney Merel advised the court that he was not sure he would continue to represent defendant; it put him in "a rather tenuous position." Defense attorney Merel explained that he had been on the case from its inception, which was nearly 21/2 years earlier, and that he had several meetings with defendant and his mother. Defense attorney Merel stated:
"And I have had several meetings, the latest of which was this past Saturday, where [defendant] and his mother and I spent several hours together. And I explained to him what we are looking at here. And as I indicated, I, in fact, had some discussion with Dr. Kane, as well, yesterday. And I am not suggesting, your Honor-and I agree wholeheartedly that her evaluations are just that, and that is to enable the Court to make a better determination of what an appropriate sentence is.
I am pretty sure that [defendant] was aware upon entering the plea of guilty, based on my conversations with him, that, based on the plea that he was entering, that he would have to register as a lifetime sexual offender. There had been some discussions between myself and the State about certainly modifying some of the sentences. Those never came to fruition. And in fact, the actual sentence that he pled guilty to would require him to register as a lifetime sexual offender. And I believe that I imparted that to [defendant] and his mother.
What occurred during those discussions between Dr. Kane and [defendant], I was not there and I cannot comment on."
¶ 8 In August 2009, defendant obtained new counsel, defense attorney Frank Scarpino, and defense attorney Merel withdrew. Defense attorney Scarpino advised the court that he would be filing a motion to withdraw defendant's guilty plea.
¶ 9 Defense attorney Scarpino filed such a motion on October 9, 2009, alleging that defense attorney Merel was "ineffective in that he failed to fully advise [defendant] of all his obligations under a plea of guilty to a Felony Sex Offense." The State moved to strike defendant's motion, arguing that it failed to articulate a recognized basis for withdrawal of his guilty plea. At the hearing on defendant's motion, defense attorney Scarpino argued that defendant was not "apprised of all of his rights and obligations under the plea of guilty under the sex offender statute." The trial court granted the State's motion to strike on November 16, 2009. According to ...