                                  Illinois Official Reports

                                          Appellate Court



                             People v. McCaslin, 2014 IL App (2d) 130571



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      TODD McCASLIN, Defendant-Appellant.


District & No.               Second District
                             Docket No. 2-13-0571


Filed                        December 11, 2014


Held                         Where defendant waived his right to appeal as part of his plea
(Note: This syllabus         agreement, which provided for his entry into a drug-court program
constitutes no part of the   that would result in a sentence to 1 year of conditional discharge on a
opinion of the court but     conviction for one count of burglary if he successfully completed the
has been prepared by the     program, but a 10-year sentence for burglary if he was discharged
Reporter of Decisions        from the program for being charged with a new felony offense, no
for the convenience of       particular admonishments were required and the waiver of his right to
the reader.)                 appeal was valid and enforceable, especially when defendant initialed
                             the waivers after reviewing them with his counsel and defendant’s
                             counsel indicated that defendant understood the waivers, had
                             reviewed them and voluntarily agreed to participate in the program;
                             therefore, defendant’s appeal from his sentence to 10 years in prison
                             for violating the plea agreement by being charged with a new felony
                             offense was dismissed.



Decision Under               Appeal from the Circuit Court of De Kalb County, No. 12-CF-19; the
Review                       Hon. Robbin J. Stuckert, Judge, presiding.



Judgment                     Appeal dismissed.
     Counsel on              Thomas A. Lilien and Paul J. Glaser, both of State Appellate
     Appeal                  Defender’s Office, of Elgin, for appellant.

                             Richard H. Schmack, State’s Attorney, of Sycamore (Lawrence M.
                             Bauer and Aline Dias, both of State’s Attorneys Appellate
                             Prosecutor’s Office, of counsel), for the People.



     Panel                   PRESIDING JUSTICE SCHOSTOK delivered the judgment of the
                             court, with opinion.
                             Justice Hutchinson concurred in the judgment and opinion.
                             Justice Jorgensen specially concurred, with opinion.



                                              OPINION

¶1         Defendant, Todd McCaslin, appeals from an order of the circuit court of De Kalb County
       granting the State’s petition to terminate defendant from the De Kalb County drug-court
       program, to which he had been admitted under the terms of a plea agreement. Defendant
       argues that the State failed to prove that defendant “commit[ted] a new felony offense” in
       violation of the plea agreement. For the reasons that follow, we dismiss the appeal.

¶2                                        I. BACKGROUND
¶3          On January 6, 2012, defendant was charged by information with three counts of burglary
       (720 ILCS 5/19-1(a) (West 2010)). On March 12, 2012, defendant pleaded guilty to one
       count of burglary (with the State nol-prossing the remaining counts), and, as part of the plea
       agreement, he was accepted into the De Kalb County drug-court program.
¶4          The plea agreement provided that defendant’s sentencing would be “deferred until either
       the completion of or unsuccessful discharge from the program.” If defendant successfully
       completed the program, a conviction would enter on one count of burglary with a sentence of
       one year of conditional discharge. If defendant were unsuccessfully discharged from the
       program, defendant would be sentenced to 10 years in prison. The plea agreement further
       provided: “If the defendant commits a new felony offense, or DUI, the [S]tate shall
       immediately file a Petition to Unsuccessfully Discharge the defendant from the program. The
       case shall proceed to the sentencing hearing pursuant to the plea and predetermined
       sentence.”
¶5          As a condition of entering the drug-court program, defendant executed a document
       entitled “Waivers and Agreements.” The document included, inter alia, the following
       provision: “I waive any and all rights to appeal I may have in the event I am dismissed from
       the De Kalb County Drug Court, and understand and consent to the Court and De Kalb
       County Drug Court Team being the sole authority for determining such dismissal.” The
       initials “TM” were handwritten next to each provision. The document contained defense


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       counsel’s signature, indicating: “I have reviewed this with my client. (S)he understands it and
       voluntarily agrees to participate[.]”
¶6         During the plea hearing, prior to the trial court’s acceptance of defendant’s guilty plea,
       the following colloquy took place between the court and defendant concerning the waivers
       and agreements signed by defendant:
                   “THE COURT: I know your attorney has gone over all of the documents, and
               there are several things that you’ve been signing this morning.
                   First of all, you understand that by entering drug court, you are giving up many
               constitutional rights that you have regarding hearings, and I’m showing you a
               three-page document. It has the initials TM next to each of the paragraphs. Are those
               your initials?
                   DEFENDANT: Yes.
                   THE COURT: And did you initial each and every one of the paragraphs after
               going over this with [defense counsel]?
                   DEFENDANT: Yes.
                   THE COURT: And understand all of the waivers that you are entering into by
               coming into the drug court, as well. Is that correct?
                   DEFENDANT: Yes.”
¶7         On April 10, 2013, the State filed a petition to terminate defendant from the drug-court
       program, alleging that defendant failed to comply with the terms of the plea agreement in
       that: “On or about February 1, 2013, Defendant was charged in Ogle County, Illinois with the
       felony offense of Theft in Ogle County Case No. 13 CF 27.”
¶8         At the hearing on the petition, the State tendered a copy of the information filed in case
       No. 13-CF-27, showing that defendant had been charged with felony theft. Defendant argued
       that, under the plea agreement, the State was required to show that defendant had committed
       a new felony offense, not that he had been charged with a new felony offense. The trial court
       granted the State’s petition, finding that “past practices” have been that “[a]ny individual
       who has been charged with a felony offense has been discharged unsatisfactorily from the
       program based on that offense.”
¶9         On May 14, 2013, the trial court sentenced defendant to 10 years in prison.
¶ 10       Defendant appealed.

¶ 11                                         II. ANALYSIS
¶ 12       Defendant argues that the State failed to prove that he “commit[ted] a new felony
       offense” in violation of the plea agreement. According to defendant, the State proved only
       that defendant had been charged with a new felony offense. In response, the State argues that
       defendant validly waived his right to appeal. We agree with the State.
¶ 13       A defendant has a constitutional right to appeal a criminal conviction. Ill. Const. 1970,
       art. VI, § 6. However, “the right to appeal may be waived, whether by neglect or by
       conscious choice.” People v. Fearing, 110 Ill. App. 3d 643, 644 (1982). Therefore, “unless
       the defendant can show that [an] agreement not to appeal was made involuntarily or
       unintelligently or suffers from some similar infirmity, it may be enforced.” Id. at 645.



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¶ 14       It is clear from the record that defendant’s waiver of his right to appeal was made
       voluntarily and intelligently. At the plea hearing, the trial court specifically addressed the
       waivers and agreements signed by defendant. The court advised defendant that by pleading
       guilty and entering drug court he was giving up many constitutional rights. The court
       inquired as to whether the initials next to each waiver belonged to defendant, and defendant
       agreed that they did. The court asked defendant whether he initialed the waivers after going
       over them with his counsel, and defendant agreed that he did. The court asked defendant
       whether he understood the waivers, and defendant agreed that he did. Given this record, we
       find that defendant voluntarily and intelligently waived his right to appeal.
¶ 15       Nevertheless, defendant argues that his waiver is not a “procedural bar” to the appeal.
       According to defendant, because the trial court failed to specifically admonish him about the
       appellate rights that were being waived as a condition of entering drug court, his waiver
       should not be enforced. In support of his argument, defendant relies on Fearing and People v.
       Houle, 257 Ill. App. 3d 721, 726-27 (1994). We review each in turn.
¶ 16       In Fearing, following a jury trial, the defendant was found guilty of burglary and felony
       theft. Fearing, 110 Ill. App. 3d at 644. Thereafter, the defendant entered into a plea
       agreement involving the two convictions and six pending charges. Id. The plea agreement
       waived a presentencing report and a sentencing hearing and included the defendant’s promise
       not to appeal his convictions of burglary and theft. Id. Notwithstanding his promise, the
       defendant appealed. The State moved for dismissal of the appeal, arguing that the defendant
       waived his right to appeal. In response, the defendant maintained that the trial court should
       have admonished him about the specific rights being lost. Id. at 645-46. The Fourth District
       found that the trial court did admonish the defendant, noting that the trial court had advised
       the defendant of the right to appeal, the right to have a copy of the transcript furnished free of
       charge if the defendant could not afford it, and the right to have an attorney to represent him
       free of charge if the defendant could not afford one. Id. at 646. The reviewing court
       concluded that, because the trial court fully explained to the defendant the appellate rights
       waived by the agreement, and because the defendant was represented by counsel, the
       defendant knowingly and voluntarily waived his right to appeal. Id.
¶ 17       In Houle, the defendant entered into a plea agreement and waived his right to appeal his
       convictions. Houle, 257 Ill. App. 3d at 726. At the plea hearing, the trial court acknowledged
       the waiver as follows: “ ‘In this case I do believe that the waiver of the rights and the plea of
       guilty are voluntarily and knowingly made. Additional conditions that were stated to this
       Court, [defendant], that is you are giving up all rights to appeal. You’re accepting this
       without being able to change your mind later ***.’ ” Id. at 725. The trial court accepted the
       defendant’s guilty plea and imposed sentence. Id. at 723. Subsequently, the defendant filed
       an appeal in this court. On appeal, the State argued that the appeal should be dismissed due to
       the defendant’s waiver. Id. at 724. We declined to enforce the waiver. We found that, unlike
       in Fearing, the record was “void of substantially all of the advice required to be given to the
       defendant by the trial court.” Id. at 727. More specifically, we noted the trial court’s
       complete failure to comply with Illinois Supreme Court Rule 605(b) (eff. Aug. 1, 1992),
       which set forth the admonishments that must be given by the trial court, at the time of
       imposing sentence, concerning the right to appeal. Houle, 257 Ill. App. 3d at 727.
¶ 18       Defendant attempts to extrapolate from Fearing and Houle the proposition that, when a
       defendant waives his right to appeal, the trial court is required to provide certain

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       admonishments to the defendant. Defendant essentially claims that a waiver of the right to
       appeal is per se involuntary and unknowing in the absence of those admonishments. We do
       not agree. Although the Fearing court emphasized the trial court’s admonishments to the
       defendant concerning his appellate rights, it did so in response to the defendant’s argument
       that the trial court had not admonished him. Fearing, 110 Ill. App. 3d at 645-46. The Fearing
       court found that, because the trial court had given the admonishments that the defendant had
       claimed were required, his waiver was enforceable. Id. However, the Fearing court did not
       hold that such admonishments were required for a valid waiver.1 Cf. People v. Bannister,
       232 Ill. 2d 52, 66 (2008) (trial court need not give specific admonition for valid jury waiver,
       which instead depends on facts of each case). Indeed, such admonishments could be required
       only by statute or supreme court rule.
¶ 19        To be sure, the Houle court declined to enforce a waiver without the admonishments
       required by Rule 605(b). However, Rule 605 admonishments do not advise the defendant
       that, pursuant to his guilty plea, he is waiving the right to appeal. See Ill. S. Ct. R. 605(b), (c)
       (eff. Oct. 1, 2001). To the contrary, those admonishments, which are required at sentencing,
       advise the defendant how to preserve the right to appeal. See Ill. S. Ct. R. 605(b), (c) (eff.
       Oct. 1, 2001); People v. Breedlove, 213 Ill. 2d 509, 518 (2004).2 Where the defendant,
       pursuant to his guilty plea, has waived the right to appeal, Rule 605 admonishments at
       sentencing would seem to be inapplicable. In any event, to the extent that Houle required
       Rule 605 admonishments for a valid waiver, pursuant to a guilty plea, of the right to appeal,
       we decline to follow it.
¶ 20        Instead, it is the admonishments under Illinois Supreme Court Rule 402 (eff. July 1,
       2012) that advise the defendant of the rights he is waiving pursuant to his guilty plea.
       Specifically, the defendant must be informed “that if he or she pleads guilty there will not be
       a trial of any kind, so that by pleading guilty he or she waives the right to a trial by jury and
       the right to be confronted with the witnesses against him or her.” Ill. S. Ct. R. 402(a)(4) (eff.
       July 1, 2012). Rule 402 does not provide for any admonishment advising the defendant,
       where applicable, that he is waiving the right to appeal. Thus, no specific admonishment is
       necessary to validate that waiver; its validity depends on the facts of each case. Cf. Bannister,
       232 Ill. 2d at 66.
¶ 21        Here, as noted, defendant’s waiver was valid. We find instructive People v. Panizzon, 913
       P.2d 1061 (Cal. 1996). In Panizzon, the defendant pleaded no contest to various felony
       counts pursuant to a plea agreement that specifically provided for the imposition of a certain
       prison sentence. Id. at 1063-64. Prior to entering his plea, the defendant executed an 11-page
       document entitled “ ‘Waiver of Constitutional Rights and Plea of Guilty or “No Contest” ’ ”
       (id. at 1068), wherein he initialed the following provision:



           1
             Thus, our statement in People v. Nichols, 143 Ill. App. 3d 673, 677 (1986), that the Fearing court
       held that a defendant “should be admonished what specific rights are being waived by such an appeal
       waiver,” was misleading. Although such admonishments might be the better practice, the Fearing court
       did not require them.
           2
             Notably, at sentencing here, the trial court purported to admonish defendant under Rule 605. Thus,
       in asserting that he was not admonished that his guilty plea waived the right to appeal, defendant
       implicitly agrees that the Rule 605 admonishments do not serve that purpose.

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               “ ‘I hereby waive and give up my right to appeal from the sentence I will receive in
               this case. I also waive and give up my right to appeal the denial of any and all
               motions made and denied in my case.’ ” Id. at 1069.
       The defendant’s attorney also signed the document, indicating that he reviewed the document
       with the defendant. Id. The defendant confirmed at a hearing that he had read, understood,
       and personally initialed the relevant paragraphs of the agreement. Id. at 1070. Defense
       counsel confirmed his signature and his belief that the defendant was knowingly and
       intelligently giving up his constitutional rights. Id. When the defendant later appealed, the
       State argued that the defendant had waived his right to appeal. Id. at 1064. The appellate
       court disagreed with the State but affirmed on the merits. Id.
¶ 22       On appeal to the California Supreme Court, the defendant argued that the record failed to
       demonstrate a valid waiver of the right to appeal, because he was not properly admonished of
       that right. Id. at 1070. The court found this argument “devoid of merit.” Id. The court noted
       that, “[e]ven though the trial court did not admonish defendant regarding the right to appeal,
       the waiver and plea agreement signed by defendant and his attorney contains defendant’s
       representations that he understood the sentence that would be imposed if he pleaded no
       contest, that he had discussed with his attorney both the paragraph specifying the sentence to
       be imposed and the paragraph containing the waiver of the right to appeal the sentence, and
       that he fully understood all matters set forth in the document without exception.” Id. at
       1070-71. The court further noted that defense counsel represented that he had reviewed the
       agreement with the defendant and that he concurred in the defendant’s decision to waive the
       specified rights. Id. at 1071. In addition, the court noted that, at the hearing, both the
       defendant and his attorney attested to the document’s valid execution, and the in-court
       questioning of the defendant and his attorney raised no doubts as to the defendant’s
       understanding of his rights. Id. Thus, the court held: “Under these circumstances, we are
       satisfied that defendant’s waiver of the right to appeal the bargained sentence was knowing,
       intelligent, and voluntary despite the absence of a specific admonishment by the trial court.”
       Id.
¶ 23       So too here. As already noted, at the plea hearing, the trial court specifically addressed
       the waivers and agreements signed by defendant. The court advised defendant that by
       pleading guilty and entering drug court he was giving up many constitutional rights.
       Defendant agreed that he initialed the provision waiving his right to appeal, that he did so
       after reviewing the waiver with counsel, and that he understood the waiver. Further, defense
       counsel indicated on the waivers and agreements that she reviewed the document with
       defendant and that defendant understood it and voluntarily agreed to participate.
¶ 24       Given that no particular admonishments were required, and given the record as noted
       above, we hold that defendant’s waiver of his right to appeal is valid and enforceable.

¶ 25                                     III. CONCLUSION
¶ 26      For the reasons stated, we dismiss the appeal.

¶ 27      Appeal dismissed.




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¶ 28       JUSTICE JORGENSEN, specially concurring.
¶ 29       I agree with the majority’s analysis and concur that the appeal must be dismissed.
       Pursuant to the terms of his plea agreement, defendant waived his appellate rights.
¶ 30       I write separately to comment that, while I understand that waivers of constitutional and
       procedural rights are a common and integral component of drug-court agreements, such
       sweeping waivers can have a detrimental effect on the integrity and sustainability of
       drug-court programs. My concern is that the waiver of appellate rights effectively gives the
       program virtually unfettered authority, including over the burden of proof necessary to
       terminate a defendant from the program. In my opinion, if future offenders are to be
       encouraged to undertake the arduous journey of intensive treatment, the program must not
       only be fair, it must be perceived as fair. This includes expecting a commitment by the State
       that it will shoulder a reasonable burden of proof in attempting to terminate an offender from
       the program.
¶ 31       Here, the waiver leaves defendant without any recourse to challenge whether the State
       proved that he violated the terms of the agreement by “committing” another offense, where
       he was merely charged with doing so. The broad waiver precludes us from examining
       whether the State met its burden and whether the termination decision was appropriate.
       Critically, it matters not what the result of such an inquiry might be. Rather, in my view, the
       harm is that, by shielding the process from appellate review, its perceived fairness has been
       jeopardized.




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