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The People of the State of Illinois v. Demarco C. Gray

December 24, 2012


Appeal from Circuit Court of Champaign County No. 07CF437 Honorable Heidi N. Ladd, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

Carla Bender 4th District Court, IL Appellate

JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Pope and Knecht concurred in the judgment and opinion.


¶ 1 Defendant, DeMarco C. Gray, appeals from the summary dismissal of his petition for post-conviction relief. In our de novo review (People v. Edwards, 197 Ill. 2d 239, 247 (2001)), we find the petition to be "frivolous" and "patently without merit" (725 ILCS 5/122-2.1(a)(2) (West 2010)), and therefore we affirm the trial court's judgment.


¶ 3 A. The Charge

¶ 4 The State charged that, on March 16, 2007, defendant committed the offense of unlawful possession of a firearm by a felon (720 ILCS 5/24-1.1(a) (West Supp. 2007)) in that, having previously been convicted of unlawful delivery of a controlled substance, which was a Class 1 felony and a violation of the Illinois Controlled Substances Act (720 ILCS 570/401 to 413 (West 2006)), he knowingly possessed a handgun.

¶ 5 B. The Guilty-Plea Hearing

¶ 6 The morning of August 27, 2007, when jury selection was scheduled to begin, defendant's attorney, Harvey C. Welch, told the trial court that defendant wished to enter an open plea of guilty. The court admonished defendant pursuant to Illinois Supreme Court Rule 402(a) (eff. July 1, 1997) and requested the prosecutor, Troy Lozar, to provide a factual basis for the proposed guilty plea.

¶ 7 Lozar replied:

"MR. LOZAR: Judge, the offense in this case occurred on March 16th, 2007, approximately 8:30 in the evening at 607 Heath Drive in Rantoul.

The victim, an individual by the name of Timothy Johnson, reported to Rantoul Police Department that this Defendant had pulled a gun on him and pointed it at the side of his head while he was at that address.

An officer who happened to be right in the area overheard the radio traffic, went outside and made contact and took that statement from Mr. Johnson.

This Defendant was located in the area, contacted, as well as an individual by the name of Nacami Gray (phonetic), the Defendant's sister, and who was dating Mr. Johnson.

The indication from information collected from the Defendant and Ms. Gray is that Mr. Johnson had come to-had been there with Ms. Gray and that this Defendant, DeMarco Gray, had come over to confront Mr. Johnson about what he'd perceived as being abuse towards Ms. Nacami Gray.

During that altercation, he had taken out a nine millimeter Glock handgun, pointed it at the victim's head, and, in his own words, the Defendant's word, [']checked him on his behavior.[']

Then officers made contact with him, he denied having any gun whatsoever, denied any physical confrontation with the-Mr. Johnson.

He was arrested.

Officers canvassed the area. Officer eventually found the handgun in question[,] which was a nine millimeter Glock semiautomatic pistol with a laser sight left in the area underneath a car.

The Defendant was eventually interviewed at RPD and did admit that was, in fact, the weapon he had used.

The Defendant also made statements on the way to the jail indicating to the officer and to other persons in the car without being questioned on it that he should have fired the gun at Mr. Johnson, thereby, giving the officers a [']real reason['] to arrest him.

The weapon was recovered. It was checked in. It matched consistent-it matched the description of that had also been previously provided by the Defendant without actually seeing the recovered handgun. That also corroborated the fact that this was the correct handgun used in this offense. Again, it was a fairly specific gun, being a nine millimeter Glock with a laser sight on it.

The Defendant presents with the prior conviction that's listed in the information, that being for a violation of the Illinois Controlled Substances Act, specifically, delivery of a controlled substance, Class 1 felony, in [No.] 99-CF-1435 out of Champaign County.

THE COURT: Mr. Welch, from your investigation, would you stipulate the People have evidence and witnesses who would testify substantially as indicated?

MR. WELCH: We do."

¶ 8 The trial court found a factual basis for the guilty plea and found the guilty plea to be knowing and voluntary. Therefore, the court accepted the guilty plea and entered judgment on it.

¶ 9 C. Defendant's Pro Se Motion To Withdraw His Guilty Plea and the Appointment of a New Defense Attorney

ΒΆ 10 On September 17, 2007, defendant wrote the trial court a pro se letter stating he would like to withdraw his guilty plea and requesting the appointment of substitute counsel. The letter complained of Welch's ...

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