                                     2016 IL App (1st) 133201


                                                                           FIRST DIVISION
                                                                           March 14, 2016



No. 1-13-3201

THE PEOPLE OF THE STATE OF ILLINOIS,                 )       Appeal from the
                                                     )       Circuit Court of
       Plaintiff-Appellee,                           )       Cook County.
                                                     )
v.                                                   )       No. 03 CR 16999 (02)
                                                     )
KARL HAYWOOD,                                        )       Honorable
                                                     )       Vincent M. Gaughan,
       Defendant-Appellant.                          )       Judge Presiding.

       JUSTICE HARRIS delivered the judgment of the court, with opinion.
       Justices Cunningham and Connors concurred in the judgment and opinion.


                                            OPINION

¶1     Defendant, Karl Haywood, appeals the judgment of the circuit court denying his motion

to withdraw his guilty plea.    On appeal, defendant contends that he is entitled to a new hearing

on his motion where he never received a ruling on his prior motion for substitution of judge.

Defendant contends that the hearing on his motion was also deficient because the judge had a

duty to recuse himself where he had personal knowledge of the underlying motion for

substitution of judge.   He further contends that he is entitled to a new hearing because during

the hearing (1) the trial court considered information from his codefendant's trial; (2) the trial

court improperly permitted testimony regarding statements defendant made during a fitness

examination; and (3) the trial court misrepresented to defendant that his right to substitution of

judge would be protected.      Finally, defendant contends that he is entitled to a new sentencing
No. 1-13-3201


hearing because the trial court sentenced him without a written presentence report or a finding as

to his criminal history.    For the following reasons, we affirm.

¶2                                         JURISDICTION

¶3      The trial court denied defendant's motion to withdraw his guilty plea on September 26,

2013.    Defendant filed a notice of appeal on September 26, 2013.        Accordingly, this court has

jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI,

§ 6) and Illinois Supreme Court Rules 603, 606 (eff. Feb. 6, 2013), governing appeals from a

final judgment of conviction in a criminal case entered below.

¶4                                         BACKGROUND

¶5      Defendant and his brother, Donald Haywood, were charged with first degree murder in

the July 5, 2003, death of Ruby Lasecki, but had separate proceedings before Judge Vincent

Gaughan.     In pretrial proceedings, defendant was represented by Stuart Katz, presently a judge

in the juvenile court.     At a court appearance on February 3, 2005, the trial court held defendant

in direct contempt for "showing utter disrespect" to the court and attempting to walk out of the

courtroom.        Due to defendant's behavior, defense counsel Katz requested that defendant be

reexamined for fitness to stand trial. The report subsequently concluded that defendant was fit

to stand trial.

¶6      At a hearing on April 6, 2005, while represented by Katz, defendant presented the trial

court with two pro se motions: a motion for substitution of judge and a motion for the

appointment of new counsel.        Defense counsel stated that he was "not joining in those motions,

[he was] not filing those on [defendant's] behalf."     In support of the motion for substitution of

judge, defendant alleged that he "heard racise [sic] remarks" as he entered the courtroom.         The



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trial court entered and continued the motions, and the circuit court clerk stamped them as filed on

April 6, 2005.   The record does not show that the trial court ruled on defendant's motions.

¶7     While defendant's case was pending, his brother was tried and convicted of first degree

murder on the basis of accountability and sentenced to 55 years in prison.   Defendant's trial was

scheduled to begin on June 2, 2006; however, on that day defendant and his counsel requested a

plea conference pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997).    The trial court

specifically asked defendant whether he requested the conference and defendant answered,

"Yes." The trial court admonished defendant that "[b]ased solely upon what I hear at that

conference you will not be allowed to substitute judges but all your other rights concerning

substitution of judges will be protected, do you understand that?" Defendant answered, "No."

This exchange followed:

             "THE COURT: Okay. What don't you understand?

             DEFENDANT: You said about substitution of judge.

             THE COURT: All your other rights – you cannot say, Judge, you heard this at the

       conference, I want to substitute judges.

             MR. KATZ [Defense attorney]: Another judge.

             THE COURT: That will not be the basis for a substitution of judges, do you

       understand that?

             DEFENDANT: Yes, sir.

             THE COURT: But all your other rights, if you have them, would be protected

       concerning substitution of judges, do you understand that?

             DEFENDANT: Yes, sir.

             THE COURT: All right.       Now, do you still want the conference?

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              DEFENDANT: Yes, sir."

¶8      Following the Rule 402 conference, defendant agreed to plead guilty.           The trial court

proceeded to admonish defendant.         The court asked him whether he understood that he was

pleading guilty to first degree murder and could be sentenced from 20 to 60 years' imprisonment.

Defendant answered, "Yes, sir." The trial court also admonished that defendant must serve

three years of mandatory supervised release in addition to his sentence, and probation or

conditional discharge was not available.      It informed defendant that by pleading guilty, he has

given up his right to a bench trial and a jury trial.   The trial court told defendant that he was "the

only person in the world" who could give up his right to a jury trial, and that neither the court or

defense counsel could order him to give up that right.         Defendant stated that he understood.

When the trial court asked whether he understood that by signing the jury waiver he was giving

up his right to a jury trial, defendant answered, "Yes, sir." The following exchanged then

occurred:

              "THE COURT: Other than the agreement made to you by your attorney, Mr.

        Haywood, has any other promises or agreements been made to you to make you plead

        guilty here today?

              DEFENDANT: No.

              THE COURT: Has anybody forced you to plead guilty?

              DEFENDANT: No, sir.

              THE COURT: Are you pleading guilty of your own free will?

              DEFENDANT: Yes, sir."

¶9      The trial court took into consideration "the motions that have been filed in both

[defendant's] and [his] brother's cases, the evidence presented there, the evidence presented at

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Donald Haywood's jury trial and the additional evidence presented at this conference" and found

a sufficient basis for defendant's plea.    It indicated that during the plea conference the State

presented information about defendant's family and work background, his educational status, and

his past and present criminal background.          It further found that defendant understood "the

nature of the charges, the possible penalties, his legal rights and that he's pleading guilty

voluntarily and knowingly" and it accepted defendant's plea.            The trial court stated that

defendant had signed a waiver of presentence report and both defendant and the State agreed that

they were giving up their rights to that report.    After hearing evidence in mitigation, and asking

defendant whether he wanted to make a statement (he did not), the trial court sentenced

defendant to 50 years' imprisonment for first degree murder.     The trial court informed defendant

that he could file a written motion to vacate his guilty plea within 30 days.         The trial court

further stated that if it agreed to vacate defendant's plea upon a written motion to vacate, all other

counts against defendant would be reinstated.      Defendant stated that he understood.

¶ 10    On June 23, 2006, defendant filed a pro se "Motion To Withdraw Guilty Plea and Vacate

Sentence."     In the motion, defendant alleged "failure of Attorney counsel" to "put up a [sic]

argument at all for his client" and counsel "did not call the defendant witness for his upcoming

trial for testimony."   Defendant also alleged that he "was currently taking medication and had

no knowledge of the Law and his rights were violated." At the hearing on the motion, defense

counsel did not make arguments or amend the pro se petition.       Counsel also filed a Rule 604(d)

certificate.   Ill. S. Ct. R. 604(d) (eff. Dec. 13, 2005). The trial court denied defendant's motion

to withdraw the guilty plea and defendant appealed.        On appeal, this court found that defense

counsel should not have represented defendant at the hearing on the motion to withdraw because



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defendant alleged ineffective assistance of counsel.    The dismissal of defendant's motion was

vacated and the cause remanded for appointment of new counsel and further proceedings.

¶ 11   On March 25, 2010, defendant's new counsel filed an amended motion to withdraw,

arguing that defendant's plea was involuntary because his trial counsel was ineffective for not

ensuring that his pro se motions for substitution of judge and for new counsel were ruled on, and

for failing to contact alibi witnesses. Defendant alleged that "he heard racist remarks as he was

entering the courtroom" and that he and the Judge Gaughan "exchanged very negative and

hostile words when [defendant] tried to say important things about his case." Defendant also

averred that had he received a new judge or appointed counsel, he would not have pled guilty.

¶ 12   Counsel filed a supplemental motion to withdraw on October 6, 2010, further alleging

that defendant's plea was involuntary because "he had no choice" and that the trial court never

ruled on his pro se motion for new counsel where counsel refused to argue issues on defendant's

behalf, failed to investigate nine potential witnesses, and would not arrange to visit defendant to

develop his defense.   Defendant also alleged that the trial court never ruled on his pro se motion

for substitution of judge and that in the summer of 2004, "he thought he heard Judge Vincent

Gaughan say something like the following: nigger wasting taxpayer money, he's guilty

anyways." He stated that Judge Gaughan was speaking to the assistant State's Attorney, who

was a pregnant woman.      Defendant alleged that he also heard Judge Gaughan state "something

like *** nigger going to IDOC."         He further alleged that he was "misled regarding the

consequences of his plea" on the issue of his motion for substitution of judge and did not realize

that once he pled guilty, "it would be too late for a motion for a new judge."

¶ 13   On December 29, 2010, defendant filed a motion for recusal pursuant to Illinois Supreme

Court Rule 63(C)(1) (eff. Apr. 16, 2007), requesting that Judge Gaughan recuse himself to avoid

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No. 1-13-3201


the appearance of impropriety and because he may be a material witness in the motion to

withdraw proceeding.     The motion was transferred for hearing to Judge Evelyn Clay.         At the

hearing, Judge Clay noted that defendant filed his pro se motion for substitution of judge "a year

before final disposition" and at the time defendant was represented by an attorney.       Therefore,

Judge Clay did "not consider those valid motions. They were actually complaints and requests,

because at all times, at all times, defendant was represented by an attorney of record, Mr. Katz."

She found that Judge Gaughan properly admonished defendant at the Rule 402 conference

regarding the substitution of judges.

¶ 14     Judge Clay also considered defendant's claim that he heard the trial court use a racial

epithet and that "he is going to IDOC" and is "wasting taxpayer money." She also noted that

the remarks were "not of record" and defendant did not specify or allege that those remarks were

directed at him.   She reasoned that defendant "did not even say the trial judge used his name,

defendant does not know whether the trial court was referencing the defendant." Judge Clay

denied the motion to recuse, finding "a lack of specificity" in the motion as to the improper

remarks, and that the remarks were too remote in time to affect the trial court's impartiality at the

Rule 402 conference.     The matter was returned to Judge Gaughan for a hearing on defendant's

motion to withdraw his guilty plea.

¶ 15     At the hearing, defendant testified that in the summer of 2004, as he was being brought

into the courtroom, he heard Judge Gaughan say to the prosecutors, "The nigger guilty.           He

going to IDOC anyway."      In the spring of 2005, defendant heard Judge Gaughan tell Katz and a

male prosecutor that, "the nigger guilty anyway.      He wasting taxpayer's money." Defendant

later spoke with Katz about the judge's remarks but Katz told him he was not going to get a new

judge.    Defendant then filed his pro se motions for substitution of judge and for new counsel.

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Defendant testified that Katz told him he might as well plead guilty because Katz would not be

calling any witnesses.   He informed Katz that he wanted his pro se motions heard.       Defendant

testified that he was confused by the trial court's admonishments at the Rule 402 conference.

Specifically, when the trial court explained to defendant his rights concerning the substitution of

judge, he believed the trial court was saying defendant's right to file the substitution of judge

motion would be "protected" and his pro se motions would be heard after he pled guilty.

¶ 16   On cross-examination, defendant stated that he did not recall whether he was given any

warnings or if he signed any waivers prior to the conference.   He did not recall whether the trial

court informed him of what a Rule 402 conference entailed, but he recalled that his rights

concerning the substitution of judge would be protected.    Defendant did recall that his counsel

informed him that his sentence would be 50 years' imprisonment if he pled guilty.        However,

when asked whether he was aware of what offenses the State charged him with Defendant

answered, "No.    I was – I was currently taking medication.         No, I wasn't aware."     This

exchanged followed:

             "MR. MURPHY [Assistant State's Attorney]: You just said you were currently

       taking medication?

             DEFENDANT: I was – I was on medication then at the time.

             MR. MURPHY: When, what time?

             DEFENDANT: At the time before or after, now, still – still – still today.

             MR. MURPHY: Okay.          Well, so is it your testimony that you didn't know what –

       what charges you were facing?

             DEFENDANT: I don't remember, man."



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No. 1-13-3201


  He also stated that he was not aware that he was eligible for the death penalty.      He did not

remember whether his brother had a jury trial and he did not remember the State's evidence

against him, including his handwritten confession and that two eyewitnesses identified him in a

lineup.

¶ 17      Defendant also called defense counsel Katz to testify at the hearing.                Katz

acknowledged that defendant had filed pro se motions for substitution of judge and for new

counsel, but he did not recall if the trial court ruled on the motions before defendant pled guilty.

Katz testified that while defendant's case was pending, his codefendant brother had a jury trial

with almost identical evidence, and was found guilty and sentenced to 55 years' imprisonment.

When he met with defendant, they discussed options including a Rule 402 conference.

Defendant agreed to the conference and Katz reviewed each paragraph of the Rule 402

conference waiver form with defendant.       Defendant stated that he understood and he signed the

form.     The trial court offered defendant a sentence of 50 years' imprisonment in exchange for

his guilty plea to one count of first degree murder with all other counts being dismissed.    When

informed of the trial court's offer, defendant responded, "let's roll with it."

¶ 18      Regarding defendant's motion for new counsel, Katz stated that he met with defendant 8

to 10 times, not including the times defendant was in court.         He spoke with one of the alibi

witnesses provided by defendant, Desiree Moody, but she told him that she had not seen

defendant at all on the day of the murder.     Defendant gave him a list of nine witnesses but Katz

could not locate any of them and even sent out an investigator to try to find them.    Katz denied

that defendant repeatedly asked about the progress of his pro se motions prior to the plea.    Katz

also testified that he never heard Judge Gaughan make racist comments, and if he had he would

have filed a motion for substitution of judge along with a complaint to the Judicial Inquiry

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Board.    Defendant never discussed with Katz the racist comments mentioned in his pro se

motion for substitution of judge.

¶ 19     The State called three assistant state's attorneys who assisted with defendant's case to

testify, and they all stated that they never heard Judge Gaughan make racist comments towards

defendant.    A court reporter assigned to the courtroom stated that she never heard the judge

make racist comments.

¶ 20     Over the defense's objection, the State called Dr. Erick Neu to testify.   Prior to Dr. Neu's

testimony defendant filed a motion to bar the testimony pursuant to section 104-13 of the Code

of Criminal Procedure of 1963 (Code) (725 ILCS 5/104-13 (West 2010)), which states that

defendant's statements during a fitness examination cannot be used against him unless he alleges

an insanity defense or a defense of drugged or intoxicated condition. The trial court denied the

motion, finding that the provision is limited to use of the statements during trial as opposed to a

hearing on a motion to vacate a guilty plea, and that defendant was informed that the interview

would not be confidential.

¶ 21     Dr. Neu testified that he interviewed defendant on October 27, 2003, due to a court order

requesting the assessment of defendant's fitness to stand trial.    Although defendant did not sign

anything, Dr. Neu informed defendant of the nonconfidential nature of the interview and what

parties would be privy to the information, and defendant was able to paraphrase his

understanding.     When asked about his understanding of his trial counsel's role, defendant stated,

"Fuck him." When explaining what happened at his last court appearance, defendant responded,

"this is bullshit, I was going to fight the police.   They're bitches." Defendant also stated that

he would "attack the judge" if he did not like what the judge told him and he would "fuck up

[his] brother for lying."      After the interview, Dr. Neu spoke with his supervisor about

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defendant's threats and his supervisor advised him "to contact the parties involved as well as

write a letter to the Court describing the threats."

¶ 22    The trial court denied defendant's motion to withdraw his guilty plea, finding that he

failed to show that defense counsel did not investigate alibi witnesses and that if counsel had

presented an alibi defense it would have failed because there were no witnesses to support it.

The trial court further found that defendant's motion for substitution of judge would have been

denied because defendant's allegation that Judge Gaughan made racist remarks was refuted by

multiple witnesses. The trial court also determined that had defendant proceeded to trial "he

would have been found guilty" because his brother was found guilty and sentenced to 55 years'

imprisonment.     The trial court stated that the evidence against defendant made him even more

culpable for the murder than his brother.     Defendant filed this timely appeal.

¶ 23                                         ANALYSIS

¶ 24    On appeal, defendant alleges that his guilty plea is void because the trial court never ruled

on the pro se motions he filed prior to the Rule 402 plea conference.           When the issue arose

during the hearing on defendant's motion for recusal, Judge Clay noted that defendant filed his

pro se motions while he was represented by an attorney.        Therefore, she did "not consider those

valid motions." At the time defendant presented the motions to the trial court, defense counsel

stated that he was "not joining in those motions, [he was] not filing those on [defendant's]

behalf." The trial court need not consider defendant's pro se motions while he is represented by

competent counsel.      People v. Pondexter, 214 Ill. App. 3d 79, 87 (1991) (the right to

self-representation and the right to assistance of counsel "cannot be exercised at the same time").

¶ 25    Furthermore, although defendant's pro se motions were filed with the clerk, the mere act

of filing in the clerk's office does not constitute a sufficient application.   People v. Taggart, 268

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Ill. App. 3d 84, 85 (1994). The party filing the motion has the responsibility "to request the

trial judge to rule on it, and when no ruling has been made on a motion, the motion is presumed

to have been abandoned absent circumstances indicating otherwise."          Rodriguez v. Illinois

Prisoner Review Board, 376 Ill. App. 3d 429, 433 (2007); see also People v. Johnson, 159 Ill. 2d

97, 123 (1994) (supreme court found that defendant's failure to pursue his motion for substitution

of judge in the four months from the time he filed it to the beginning of his trial, without good

reason, constituted abandonment of the motion). Here, defendant filed his motions one year

prior to his plea conference. Defense counsel stated that defendant never asked about the

progress of his pro se motions prior to the plea.   Defendant also could have asked about his pro

se motions during his conference when the trial court admonished him on the subject of

substitution of judges, but he did not do so.       The exchanges between the trial court and

defendant throughout the record show that defendant had no reservations about making his

opinions and thoughts about the proceedings known, and he never brought up the issue prior to

his plea.   We find that defendant abandoned his previously filed pro se motions.

¶ 26    Defendant also argues that Judge Gaughan should not have heard his second motion to

withdraw his guilty plea, but rather should have recused himself because he had personal

knowledge of the facts in the underlying issue of defendant's motion for substitution of judge,

and to avoid the appearance of impropriety.         "The right of a defendant to an unbiased,

open-minded trier of fact is so fundamental to our system of jurisprudence that it should not

require either citation or explanation." People v. Eckert, 194 Ill. App. 3d 667, 673 (1990).

This right to a fair hearing extends to an evidentiary hearing on a motion to withdraw a guilty

plea.   People v. Harris, 384 Ill. App. 3d 551, 560 (2008).



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¶ 27   Defendant filed a motion to recuse pursuant to Rule 63(C)(1), which directs judges to

voluntarily recuse themselves where their impartiality may reasonably be questioned, including

situations involving the appearance of impropriety.     See In re Marriage of O'Brien, 2011 IL

109039, ¶ 43.     However, the judge named in defendant's motion, Judge Gaughan, had

previously conducted hearings at the plea conference, entered defendant's guilty plea, and denied

defendant's initial motion to withdraw his guilty plea.     As our supreme court determined in

O'Brien, the legislature did not find the "lower, appearance of impropriety standard" appropriate

"once a substantive ruling in a case has been made."      Id.     In that situation, the issue is better

addressed by a petition for substitution of judge for cause under the Code.      Id. ¶ 46.

¶ 28   Although defendant filed a motion to recuse, it appears from the record that the motion

was properly treated as a petition for substitution of judge pursuant to section 114-5(d) (725

ILCS 5/114-5(d) (West 2006)).      This section allows for a second judge to hear the petition,

allaying due process concerns, and "ensures that any substitution coming after a substantive

ruling has been made is the result of a proven bias or high probability of the high risk for actual

bias and is not a mere ploy for tactical advantage."    O'Brien, 2011 IL 109039, ¶ 46.         In other

words, the forced removal of a judge in such circumstances requires that actual prejudice, "that

is, either prejudicial trial conduct or personal bias," be established.     Id., ¶ 30. Although the

supreme court in O'Brien referred to section 2-1001(a)(3) of the Code of Civil Procedure (735

ILCS 5/2-1001(a)(3) (West 2006)), that section is merely the civil counterpart to section

114-5(d).   In re Estate of Wilson, 238 Ill. 2d 519, 553 (2010).

¶ 29   Therefore, to prevail on a motion for substitution of judge for cause, defendant must

"demonstrate that there are facts and circumstances which indicate that the trial judge was

prejudiced." People v. Jones, 219 Ill. 2d 1, 18 (2006).         "Prejudice" is defined as "animosity,

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hostility, ill will, or distrust towards this defendant." (Internal quotation marks omitted.) People

v. Patterson, 192 Ill. 2d 93, 131 (2000).     Defendant bears the burden of establishing actual

prejudice, not just the possibility of prejudice, and a reviewing court will not reverse the trial

court's determination on the motion unless its finding was against the manifest weight of the

evidence.   Jones, 219 Ill. 2d at 18.   Findings are against the manifest weight of the evidence if

they are clearly erroneous or the record supports an opposite conclusion.      People v. Mercado,

244 Ill. App. 3d 1040, 1047 (1993).

¶ 30   Defendant's motion was transferred for a hearing to a second judge, Judge Clay.           In

making her determination, Judge Clay considered defendant's claim that he heard Judge Gaughan

use a racial epithet and state that "he is going to IDOC" and is "wasting taxpayer money." She

noted that the remarks were "not of record" and defendant did not specify or allege that those

remarks were directed at him.     She reasoned that defendant "did not even say the trial judge

used his name, defendant does not know whether the trial court was referencing the defendant"

in making those remarks. No other person present in the courtroom when Judge Gaughan

allegedly made the racist remarks testified to hearing the judge make such remarks.     Judge Clay

denied the motion to recuse, finding "a lack of specificity" in the motion as to the improper

remarks, and that the remarks, allegedly made a year prior to defendant's plea, were too remote

in time to affect the trial court's impartiality at the Rule 402 conference.   Judge Clay's finding

that defendant failed to establish actual prejudice was not against the manifest weight of the

evidence.

¶ 31   Defendant also argues that he should have been granted a substitution of judge because

Judge Gaughan had personal knowledge about the racist comments he allegedly made, citing as

support People v. Wilson, 37 Ill. 2d 617, 621 (1967), and People v. Washington, 38 Ill. 2d 446

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(1967).     These postconviction cases were decided prior to the existence of section 114-5(d) of

the Code, and were based on the law at the time that "the right to a change of venue on account

of the alleged prejudice of the judge is absolute if" the petition complied with certain statutory

provisions. People v. Moore, 26 Ill. 2d 236, 237 (1962).      This right to substitution is no longer

absolute (see People v. Melka, 319 Ill. App. 3d 431, 442 (2000)), and as discussed above, our

supreme court in O'Brien has more recently required a showing of actual prejudice before a

petition for substitution of judge is granted.   There is no evidence in the record that the alleged

remarks referenced defendant, or even that Judge Gaughan made the remarks at all.         Defendant

did not meet his burden of establishing actual prejudice.

¶ 32      Defendant next contends that he is entitled to a new hearing on his motion to withdraw

his guilty plea where the trial court relied in part on evidence adduced from his brother's trial.

Defendant argues that rulings based on information outside of the record violates due process,

citing as support People v. Dameron, 196 Ill. 2d 156 (2001); People v. Yarbrough, 93 Ill. 2d 421

(1982); People v. Cunningham, 2012 IL App (3d) 100013; People v. Jackson, 409 Ill. App. 3d

631 (2011); People v. Sullivan, 72 Ill. 2d 36 (1978); and People v. Barham, 337 Ill. App. 3d

1121 (2003).      However, these cases involve the trial court considering evidence obtained

outside of the courtroom and not presented by counsel, in making a determination of the

sufficiency of the evidence to convict the defendant of a crime beyond a reasonable doubt.      The

trial court's actions were improper because "[d]ue process requires that a criminal defendant have

all the evidence against him considered in open court." Barham, 337 Ill. App. 3d at 1135.

The case before us involves a hearing on a motion to withdraw a guilty plea, not a proceeding to

determine whether the evidence is sufficient to convict defendant of the crime charged.       Leave

to withdraw a guilty plea is not granted as a matter of right, but rather to correct a manifest

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injustice.    People v. Pullen, 192 Ill. 2d 36, 39 (2000).       Defendant does not cite to a case

precluding the trial court from taking into account evidence adduced at a codefendant's trial, over

which the court also presided, involving the same victim, the same facts, and the same witnesses,

to determine whether a manifest injustice occurred when defendant pled guilty.

¶ 33      Defendant also contends that during the hearing, the trial court improperly allowed the

testimony of Dr. Neu in violation of section 104-14 of the Code (725 ILCS 5/104-14 (West

2010)).      This section provides that statements made by the defendant and information obtained

in the course of court-ordered fitness examinations "shall not be admissible against the defendant

unless he raises the defense of insanity or the defense of drugged or intoxicated condition." 725

ILCS 5/104-14(a) (West 2010).       The parties argue whether this provision applies to hearings on

a motion to withdraw a guilty plea, or only to criminal trial proceedings.      However, we need not

address the applicability of section 104-14 to this hearing because defendant first raised the issue

of his drugged condition and state of mind.

¶ 34      During defendant's cross-examination at the hearing to withdraw his plea, he was asked

whether he was aware of what offenses the State charged him with and Defendant answered,

"No.   I was – I was currently taking medication.        No, I wasn't aware."   He also stated that he

was not aware that he was eligible for the death penalty and he did not remember the State's

evidence against him, including his handwritten confession and that two eyewitnesses identified

him in a lineup.     When asked when he was on the medication, defendant answered "before or

after" and "still today."   In response, the State presented Dr. Neu who testified about his fitness

examination of defendant.      During the examination, when Dr. Neu asked defendant about his

understanding of trial counsel's role and what had happened at the last court proceeding,

defendant cursed and made the threatening statements as detailed above.          Since defendant first

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raised the issue of his drugged condition and how it affected his state of mind during the

proceedings and at the plea conference, allowing testimony regarding his fitness examination did

not deprive him of a fundamental right regardless of whether defendant raised the issue as an

affirmative defense.     People v. Pulliam, 176 Ill. 2d 261, 278, 280 (1997), citing as support

Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987) (prosecution may constitutionally present

evidence from a court-ordered fitness examination if defendant first presents psychiatric

evidence); People v. Kashney, 111 Ill. 2d 454, 461 (1986) (whether or not defendant raised the

affirmative defense of insanity not dispositive on this issue where defendant first introduced

psychiatric evidence).

¶ 35   Defendant also argues that he should be allowed to withdraw his guilty plea because the

trial court misrepresented the law regarding substitution of judges during the conference, and it

failed to rule on defendant's previously filed pro se motions.     Entering a guilty plea is a grave

and serious endeavor, not a " 'temporary and meaningless formality reversible at the defendant's

whim.' " People v. Evans, 174 Ill. 2d 320, 326 (1996) (quoting United States v. Barker, 514

F.2d 208, 221 (D.C. Cir. 1975)).      Therefore, defendant does not have an automatic right to

withdraw a guilty plea, but rather must show a manifest injustice under the circumstances.

People v. Jamison, 197 Ill. 2d 135, 163 (2001).         A reviewing court will not reverse the trial

court's decision whether to grant or deny a motion to withdraw a guilty plea absent an abuse of

discretion.   People v. Delvillar, 235 Ill. 2d 507, 519 (2009).

¶ 36   Due process requires that the court accept defendant's guilty plea only upon an

affirmative showing that defendant entered his plea voluntarily and knowingly.            People v.

Davis, 145 Ill. 2d 240, 249 (1991).       Illinois Supreme Court Rule 402 (eff. July 1, 2012),

addresses this requirement.     Rule 402(a) provides that the court admonish defendant and

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ensures he understands (1) the nature of the charge; (2) the minimum and maximum sentence

prescribed by law; (3) that he has a right to plead not guilty or guilty; and (4) if he pleads guilty

he 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) (eff. July 1, 2012).      Rule 402(d)(1) states that regarding plea

discussions and agreements, the court may make a recommendation as to the appropriate

sentence.     Ill. S. Ct. R. 402(d)(1) (eff. July 1, 2012).    "However, if the defendant rejects the

judge's recommendation and he or she wishes to have a trial on the charges, the defendant may

not obtain another judge solely on the basis that the judge participated in the conference and is

aware of the facts and circumstances surrounding the incident as well as the defendant's

background.      This means that the defendant will be waiving his or her right to request a

substitution of judge based upon the judge's knowledge of the case." Id.

¶ 37      Defendant first contends that the trial court misrepresented the law regarding defendant's

right to substitution of judges after pleading guilty, and therefore he believed his right to a

substitution of judge would be protected if he pled guilty.         At the conference, the trial court

informed defendant that he could not say, "Judge, you heard this at the conference, I want to

substitute judges" and "[t]hat will not be the basis for a substitution of judges, do you understand

that?" Defendant answered, "Yes, sir." The court continued, "But all your other rights, if you

have them, would be protected concerning substitution of judges, do you understand that?"

When asked whether he still wanted the plea conference defendant responded, "Yes, sir."

¶ 38      The trial court, however, did not inform defendant that the substitution of judge issue

would remain relevant only if he rejects the plea recommendations and elects to have a trial on

the charges, which may have confused defendant.           Defendant does not provide, and we have not

found, any cases holding that the court's admonishment here was improper.            Even if the trial

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court did not properly admonish defendant about the substitution of judges, "the failure to

properly admonish a defendant, standing alone, does not automatically establish grounds for

reversing the judgment or vacating the plea." Delvillar, 235 Ill. 2d at 520. Rather, defendant

must show that he was prejudiced by the inadequate admonishment.        Davis, 145 Ill. 2d at 250.

¶ 39    Defendant argues that he was prejudiced because he would not have pled guilty if the

trial court had ruled on his pro se motion for substitution of judge.   However, in his initial pro

se motion to withdraw his guilty plea filed about two weeks after the trial court entered his plea,

defendant stated that his only reason for withdrawing his plea was "failure of Attorney Counsel"

which is an issue not on appeal in this case.    Defendant also has not shown that he would have

prevailed on his motion for substitution of judge given that he filed the same motion based on the

same allegations during the proceedings on his motion to withdraw, the motion was heard before

a second judge, and that judge denied defendant's motion.      Defendant has not established that

he was prejudiced by the trial court's admonishment.

¶ 40    Furthermore, in considering defendant's motion to withdraw his guilty plea, the reviewing

court focuses on whether the guilty plea was knowingly and voluntarily made.         Delvillar, 235

Ill. 2d at 520.   In light of the thorough discussions that took place at the Rule 402 conference

prior to the trial court accepting defendant's guilty plea, the record shows that defendant made

his plea knowingly and voluntarily. The court admonished defendant on the nature of the

charges against him, the applicable sentences, defendant's right to plead not guilty, and in

pleading guilty his waiver of the right to a jury trial and to confront any witnesses against him.

The trial court also asked defendant whether he was pleading guilty "of [his] own free will" and

defendant answered, "Yes, sir."     His defense counsel testified that defendant understood the

proceeding and signed the form.     When informed about the agreement to enter a plea of guilty

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to one count of first degree murder and sentence of 50 years' imprisonment, with all other counts

dismissed, defendant responded, "let's roll with it." We find that defendant's guilty plea was

made knowingly and voluntarily.

¶ 41      Defendant's final contention is that he is entitled to a new sentencing hearing because the

trial court sentenced him without a written presentencing report or a finding as to his criminal

history as required by section 5-3-1 of the Unified Code of Corrections (730 ILCS 5/5-3-1 (West

2010)).     We note that both parties agreed to waive the pre-sentence report.        More importantly,

defendant acknowledges in his brief that his plea was a negotiated plea and the record reflects

that the plea was negotiated. Our supreme court has held that if a defendant wants to challenge

his sentence following entry of a negotiated guilty plea, "he must move to withdraw the guilty

plea and vacate the judgment so that, in the event the motion is granted, the parties are returned

to the status quo." Evans, 174 Ill. 2d at 332.      Defendant cannot seek a new sentencing hearing

while a negotiated plea remains in place.         Id. at 327 (pursuant to principles of contract, a

defendant's unilateral effort to reduce his sentence while holding the State to its part of the

bargain "cannot be condoned").       Since we have affirmed the trial court's denial of defendant's

motion to withdraw his guilty plea, and the negotiated plea agreement remains in effect,

defendant has no basis on which to challenge his sentence.

¶ 42                                        CONCLUSION

¶ 43      For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 44      Affirmed.




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