Court of Appeals of Illinois, First District, Fifth Division
Modified upon denial of rehearing January 30, 2015.
Appeal from the Circuit Court of Cook County. Nos. 12 CR 19528 (02). Honorable Michael Brown, Judge Presiding.
Reversed and remanded.
Michael J. Pelletier, Alan D. Goldberg, and Cassidey Davis Keilman, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Jon Walters, John E. Nowak, and Christopher R. Sullivan, Assistant State's Attorneys, of counsel), for the People.
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
[¶1] Defendant Rashiem Holloway pled guilty to one count of unlawful use of a weapon by a felon (UUWF) and received a sentence of seven years in the Illinois Department of Corrections. Defendant filed a motion to withdraw his guilty plea, but the trial court denied his motion.
[¶2] Defendant appeals, arguing that: (1) his UUWF conviction should be reversed because the alleged predicate offense, aggravated unlawful use of a weapon, was found to be unconstitutional and void ab initio by the Illinois Supreme Court in People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321; (2) defendant was never fully informed of the terms of his negotiated plea agreement in open court in violation of Supreme Court Rule 402(b) (Ill. S.Ct. R. 402(b) (eff. July 1, 2012)); (3) trial counsel's failure to amend the motion to withdraw the guilty plea when the report of proceedings showed a clear Rule 402(b) violation constituted noncompliance with Supreme Court Rule 604(d) (Ill. S.Ct. R. 604(d) (eff. Jan. 1, 2013)); and (4) defendant's fines and fees should be reduced to reflect credit for the days he spent in presentence custody.
[¶3] In October 2012, defendant was charged by indictment with one count of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 2010)) and three counts of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6 (West 2010)).
[¶4] On December 11, 2012, both defendant and his codefendant, Epigmenio Garcia, appeared before the trial court for a status hearing. At that time, defense counsel requested a conference pursuant to Supreme Court Rule 402 (Ill. S.Ct. R. 402 (eff. July 1, 2012)). The trial judge explained to defendant that a Rule 402 conference was between the attorneys and the judge, and the judge would " learn things that I wouldn't know unless there was a trial." The judge further explained
that after the conference, an offer in exchange for a guilty plea will be made to defendant and he could accept or reject the offer.
[¶5] The judge then asked if defendant wished to have a conference. Defendant responded that he wanted " to ask for a continuance." The judge stated that he could not hear defendant and asked defendant if he did not want a conference. Defendant then answered, " Yeah, I will take the conference." The case was then passed for the Rule 402 conference.
[¶6] When the case was recalled, defense counsel stated:
" I explained to [defendant] the offer from the 402 conference, which is on Count 1 of the charges before the Court. I believe at this time [defendant] wishes to change his plea from not guilty to guilty and accept the Court's offer of Cook County boot camp.
There's a necessary condition that [defendant] swear under oath to the facts given to him--read to him by the State's Attorney and he may also have to answer some questions as well."
[¶7] Defendant then indicated that he understood and wished to plead guilty. The State then nol-prossed the remaining charges. The trial court advised defendant that he had a right to continue to plead not guilty and he was pleading guilty to a Class 2 felony, which was punishable by up to 7 years in prison, which under certain circumstances, could be extended to 14 years, a fine up to $25,000, and a 2-year period of mandatory supervised release (MSR). The trial court admonished defendant that by pleading guilty he was giving up his rights to a bench trial or a jury trial, to confront witnesses against him or call his own witnesses, and present his own defense, and the right to a presentence investigation report. After these admonitions, the trial court asked defendant if he still wished to plead guilty, and defendant responded that he did. Defendant also ...