Court of Appeals of Illinois, First District, Fifth Division
Rehearing denied January 23, 2014
In proceedings on defendant’s postconviction petition in which he alleged for the first time on appeal that his sentences were void due to the trial court’s failure to include the mandatory statutory firearm enhancement and that he was entitled to withdraw his negotiated pleas and plead anew or have a trial, the denial of the petition was upheld, since defendant had the benefit of a more lenient sentence for almost a decade before seeking rescission of his plea agreement, and that unreasonable delay barred him from now seeking such relief.
Appeal from the Circuit Court of Cook County, No. 00-CR-15730; the Hon. Garritt E. Howard, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Jessica A. Hunter, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Amy M. Watroba, and Sheilah O’Grady-Krajniak, Assistant State’s Attorneys, of counsel), for the People.
Presiding Justice Gordon and Justice Palmer concurred in the judgment and opinion.
¶ 1 Defendant Richard Young appeals from an order of the circuit court of Cook County denying his petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)) after an evidentiary hearing. On appeal, defendant has abandoned the allegations in his petition and contends, for the first time, that the sentences he received as a result of his negotiated guilty pleas were void because they did not include the mandatory statutory firearm enhancement compelled by the indictments and factual basis for the offenses. He, therefore, requests that his cause be remanded to the circuit court where he can withdraw his guilty pleas and plead anew, or proceed to trial on the charges.
¶ 2 On January 5, 2004, defendant entered negotiated pleas of guilty to first degree murder and attempted murder and was sentenced to consecutive terms of 25 and 10 years' imprisonment, respectively. The trial court admonished defendant as to the charges for which he was entering a guilty plea and the sentence guidelines. Specifically, the court told defendant that the sentencing range for first degree murder was 20 to 60 years with 3 years of mandatory supervised release, and the sentencing range for attempted first degree murder was 6 to 30 years with 3 years of mandatory supervised release. The court also stated that the sentences would be served consecutively. The court also advised defendant that by pleading guilty, defendant was giving up his right to a trial in front of either a judge or a jury and specifically asked defendant if he understood what a jury trial was. The court asked defendant if he wished to have a trial or plead guilty, and defendant responded that he wished to plead guilty. Defendant confirmed that his signature was on the jury waiver form. The court also inquired of defendant if anyone had said or done anything to force defendant to plead guilty. Defendant said that he understood his jury waiver and denied that anyone had forced him to plead guilty. The State offered the following factual basis for the plea.
¶ 3 Pam Waters would testify that on June 6, 2000, she was in the area of 1206 Pitner in Evanston, Illinois, with a number of other individuals, including Richard Tinch. She was seated in a car with the door open. A dark blue Oldsmobile with a driver and passenger slowly drove by and then stopped. The passenger then fired multiple gunshots out of the window and gang slogans were yelled. Waters suffered a gunshot to her leg and Tinch died as a result of a gunshot wound.
¶ 4 An investigator would testify that defendant was arrested in connection with the shooting and on June 8, 2000, he gave a court-reported statement. In the statement, he admitted that he was the passenger in the Oldsmobile and codefendant Kevin Jones was the driver. Defendant was in possession of a loaded gun and his intention was to shoot a rival. Defendant and Jones went to an area where they believed they could find the rival. Jones drove into the alley at 1206 Pitner and stopped the car. Defendant then fired a number of shots out of the car window and into a crowd of people. Defendant told the investigator that he later learned that he had shot and killed Tinch.
¶ 5 The trial court then entered the finding of guilty for the first degree murder of Tinch and the attempted murder of Waters.
¶ 6 Defendant filed a pro se motion to withdraw his pleas, alleging that they were the result of coercion and ineffective assistance of trial counsel. Defendant was appointed other counsel on his motion, who filed a supplemental motion alleging that defendant was coerced into pleading guilty and had a valid alibi defense that trial counsel failed to investigate. On March 1, 2005, defense counsel filed an amended motion to withdraw the guilty pleas in which he realleged the allegation of coercion.
¶ 7 At the hearing on the motion to withdraw his guilty pleas, defendant and three public defenders, including the attorney who represented him at the guilty plea proceedings, testified. Following that hearing, the court denied defendant's motion to withdraw finding that defendant's responses to the court's inquiries regarding the voluntariness of his pleas contradicted his claims.
¶ 8 On appeal, defendant argued that he should be allowed to withdraw his guilty pleas because trial counsel was ineffective for failing to investigate his alibi defense, that there was other exculpatory evidence, that he was innocent, and that he was coerced into pleading guilty by trial counsels' strong-arm tactics. This court affirmed, finding, in particular, that defendant was not coerced into pleading guilty. People v. Young, No. 1-05-0620 (2006) (unpublished order under Supreme Court Rule 23).
¶ 9 On January 5, 2007, defendant, through private counsel, filed a postconviction petition alleging ineffective assistance of trial counsel for failing to properly investigate and present his alibi defense. Counsel also filed an amended postconviction petition, alleging that defendant was coerced into pleading guilty, that there was no probable cause for his arrest, and that he received ineffective assistance of trial counsel.
¶ 10 In support of the petition, defendant attached the affidavit of Earl Arthurs, who averred that defendant was with him on June 6, 2000, "all day long; from early morning to late in the evening." Defendant also attached his own affidavit in which he attested that he was coerced into pleading guilty. He averred that he told his attorney about his alibi defense and that his attorney claimed that she contacted Arthurs and that he would not cooperate in his defense. Defendant averred that Arthurs never told him that his attorney contacted him or asked him to be a witness at his trial. Defendant further averred that his attorney told him that she could not defend him because she could not come up with a defense for him and that she, along with another attorney and their supervisor, ganged up on him to try to convince him to plead guilty, telling him that the only chance he had at seeing the world again was if he pleaded guilty.
¶ 11 Defendant also attached the affidavit of Assistant Public Defender Frederick Weil, who averred that, based on his investigation and the accompanying affidavits, he concluded that defendant did not want to plead guilty to the charged offenses, that he had a valid alibi defense that he wished to present at trial, and that his appointed counsel failed to properly investigate the alibi defense. Weil further averred that defendant's guilty plea was not voluntarily and willingly ...