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People v. Kibbons

Court of Appeals of Illinois, Third District

April 5, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
WILLIAM N. KIBBONS, Defendant-Appellant

          Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. Circuit No. 12-CF-294. Honorable Susan S. Tungate, Judge, Presiding.

         For Appellant: Mr. Neil J. Adams, Jolier, IL.

         For Appellee: Ms. Laura E. DeMichael-Bialon, State's Attorneys Appellate Prosecutor, Ottawa, IL; Mr. Jamie J. Boyd State's Attorney, Kankakee County State's Attorney, Kankakee, IL.

         PRESIDING JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justices McDade and Schmidt concurred in the judgment and opinion.

          OPINION

         O'BRIEN, PRESIDING JUSTICE.

          [¶1] The defendant, William Kibbons, pled guilty to one count of aggravated driving under the influence (625 ILCS 5/11-501(d)(1)(C) (West 2012)) and was sentenced to eight years in prison. The defendant appealed, challenging the denial of his motion to withdraw his guilty plea and his sentence.

         [¶2] FACTS

          [¶3] The defendant was indicted for two counts of aggravated driving under the influence of alcohol (DUI), resulting in great bodily harm (625 ILCS 5/11-501(d)(1)(C) (West 2012)), and one count of leaving the scene of an accident involving personal injury or death (625 ILCS 5/11-401(a) (West 2012)), for an accident that occurred on June 4, 2012. The defendant entered a plea, pleading guilty to count one (aggravated DUI), in exchange for an agreed sentencing cap recommendation by the State of eight years. The State also agreed to nolle prosequi the other two counts and dismiss charges in another case in exchange for the defendant's guilty plea to aggravated DUI. The trial court accepted the defendant's guilty plea, ordered a presentence investigation (PSI), and continued the matter for sentencing.

          [¶4] At the sentencing hearing, the assistant State's Attorney moved to correct the PSI report because it failed to reflect the defendant's court supervision for a Will County DUI in 1997 that was listed on the driver abstract attached to the PSI. The State argued that the current offense was the defendant's second DUI and that this one involved great bodily harm. It asked for the agreed upon cap of eight years. The defense requested that the defendant be sentenced to probation and time served. In sentencing the defendant to eight years, the trial court noted that the defendant already had his second chance after his first DUI. It also noted the severity of the bodily injuries and its effect on the victim of the accident. The court noted that it would have sentenced the defendant to 10 years if not for the cap.

          [¶5] The trial court advised the defendant of his right to appeal, admonishing him in accordance with Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001). Relevant to this appeal, the trial court admonished the defendant that: " Prior to taking an appeal you would have to file in the trial court within 30 days of today's date, which is the date the sentence was imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw you plea of guilty." After the defendant indicated that he did not understand, the trial court further explained:

" There's two things that [happen]. One: you can file a motion to reconsider the sentence. [Two:] You can have a motion to vacate the whole thing. Okay. You have 30 days from today's date to file that."

          [¶6] Within 30 days of sentencing, on August 13, 2013, defense counsel filed a motion to reconsider the defendant's sentence, arguing that the trial court failed to give sufficient weight to the mitigation evidence and the 8-year sentence was excessive. That motion was denied on October 18, 2013. Thereafter, the defendant retained new counsel. During a conference with the new counsel, it was discovered that Jamie Boyd, the Kankakee County State's Attorney and the office prosecuting the defendant, had represented the defendant in his Will County DUI in 1997.

          [¶7] Based on that information, on November 15, 2013, the defendant filed a motion to withdraw his plea or, alternatively, to reconsider his sentence and for extended time to file an appeal. The defense argued a per se conflict of interest on the part of the State's Attorney, a violation of the Illinois Rules of Professional Conduct, and violations of the Illinois constitution. If the court found no per se conflict, the defendant requested an evidentiary hearing on actual conflict. After a hearing, the trial court entered a written decision on April 24, 2014, denying the defendant's motion, finding no per se conflict but allowing the defendant time to file pleadings regarding actual conflict. On May 22, 2014, the defendant filed his motion to withdraw his guilty plea based upon actual prejudice. That motion, which was amended on November 13, 2014, contained a request for discovery into actual prejudice. The State filed a motion to strike the motion or, alternatively, to strike the discovery request. The trial court found that the motion did not make sufficient allegations of actual prejudice and granted the State's motion to strike. That decision was entered on January 16, 2015. On February 6, 2015, the defendant filed his notice of appeal.

         [¶8]ANAL ...


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