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                              Appellate Court                            Date: 2018.06.14
                                                                         11:05:43 -05'00'




                  People v. Johnson, 2018 IL App (3d) 150679



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           BLAIR A. JOHNSON, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-15-0679



Filed             February 27, 2018



Decision Under    Appeal from the Circuit Court of Peoria County, No. 13-CF-1075; the
Review            Hon. Kevin W. Lyons, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Peter A. Carusona, and Mark D. Fisher, of State
Appeal            Appellate Defender’s Office, of Ottawa, for appellant.

                  Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, Lawrence
                  M. Bauer, and Thomas D. Arado, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE O’BRIEN delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Carter and Justice Holdridge concurred in the
                  judgment and opinion.
                                             OPINION

¶1       Defendant, Blair A. Johnson, appeals the trial court’s denial of his motion to withdraw
     his guilty plea following his conviction for home invasion. Specifically, defendant argues
     that his plea was not knowing, voluntary, and intelligent because plea counsel allegedly
     failed to advise him that agreeing to a sentencing cap would bar him from appealing his
     sentence. We affirm.

¶2                                             FACTS
¶3       Defendant was charged with home invasion (720 ILCS 5/19-6(a)(3) (West 2012)) in that
     he knowingly entered the residence of Ronald and Mari Halliday with reason to know that
     one or more persons were present while armed with a handgun and threatened the imminent
     use of force upon Ronald. Defendant was also charged with two counts of armed robbery (id.
     § 18-2(a)(2)) (one for each victim), two counts of aggravated unlawful restraint (id.
     § 10-3.1(a)) (one for each victim), and residential burglary (id. § 19-3(a)).
¶4       Defendant pled guilty to home invasion in exchange for the State’s agreement to a
     sentencing cap of 40 years’ imprisonment and the dismissal of the remaining charges. The
     court stated: “And People are agreeing to a cap of 40. It would normally be 45, is that
     correct?” The prosecutor replied: “That is correct.” The court admonished defendant
     regarding his rights.
¶5       The court asked defendant if he was satisfied with his attorney’s representation.
     Defendant replied, “Not really, but I’ll have to deal with it.” The court asked defendant what
     he meant, and defendant said, “I just don’t feel like I was represented right.” The court took a
     20-minute break for defendant to discuss the matter with his attorney. After the recess, plea
     counsel stated that defendant did not want him to withdraw. Defendant said that was correct.
     Plea counsel said that defendant was not upset with his representation. Rather, defendant was
     upset with the State’s plea offer and believed plea counsel should have negotiated him a
     better deal. Plea counsel explained that the State had only offered the 40-year sentencing cap
     and would not budge. The court asked defendant again if he was satisfied with his attorney’s
     representation, and defendant said yes. Defendant stated he wished to proceed with the
     partially negotiated plea.
¶6       The court read the home invasion charge from the indictment and asked defendant if he
     understood the charge he was pleading guilty to. Defendant said yes. The following exchange
     occurred:
                 “THE COURT: Now, this is a special Class X felony in that it is a class—we call
             Class X plus 15. That means the minimum mandatory prison sentence is 21 years.
             And normally a Class X plus 15 would be 21 to 45 but because of your partially
             negotiated plea agreement calls for a cap of 40 years in the Department of
             Corrections, your sentence will be an exact term between 21 and 40 years, and when
             you are released it will be followed immediately by mandatory supervised release of
             three years. Do you understand that, sir?
                 DEFENDANT: Yes.”
     The court continued admonishing defendant as to the trial rights he was relinquishing by
     pleading guilty.

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¶7         The State read the factual basis for the plea. The State stated that Ronald and Mari
       Halliday told a police officer that they were sleeping in their home on the night of the
       incident. After 2 a.m., the Hallidays were awoken by two unknown black males wearing ski
       masks. Both men were armed with handguns and held flashlights. The two men told the
       Hallidays to roll over or they would be killed. The men tied up Ronald’s hands and feet.
       Approximately one hour later, the men tied up Mari. Ronald and Mari could hear other
       people downstairs. The incident lasted over two hours. At least one of the men stayed inside
       the bedroom with the Hallidays the entire time. The men laughed about the Hallidays living
       in a gated community. They held the barrels of their handguns to the Hallidays’ heads. The
       men told the Hallidays that if they reported the incident to the police, they would come back
       and kill them. The Hallidays heard at least four other individuals in their home throughout
       the incident. After the men left, the Hallidays fled to a neighbor’s house and called the
       police. The Hallidays determined that the men had taken several items of property from their
       residence, including jewelry and televisions.
¶8         The State said that Perry Rosetto told the police that he and several other individuals,
       including defendant, were involved in the Halliday home invasion. Rosetto reported that he
       and defendant were involved in tying up the Hallidays. The State said that it would call
       Ahmed Malik as a witness. Malik had purchased items from defendant and Rosetto that the
       Hallidays later identified as property stolen from their home.
¶9         The court found the factual basis sufficient and accepted defendant’s guilty plea.
¶ 10       Defendant hired new counsel to represent him during sentencing.
¶ 11       A presentence investigation report (PSI) was prepared. The PSI showed that defendant
       was 21 years old. Defendant had a prior misdemeanor conviction for theft of motor fuel and
       two ordinance convictions for fireworks and disorderly conduct. Defendant was previously
       employed at a bowling alley for approximately four years. After that, he worked as “a
       maintenance/van driver” at a hotel for approximately one year. Defendant reported abusing
       marijuana and prescription drugs. Defendant began consuming alcohol when he was 16 years
       old. The PSI included a victim impact statement from Mari requesting that the court give
       defendant the maximum sentence. A supplemental PSI contained letters from defendant’s
       friends and family.
¶ 12       A sentencing hearing was held. As evidence in aggravation, the State offered a certified
       copy of the testimony of Mari and Ronald. The court noted that it had presided over the trial
       of defendant’s codefendant and heard the Hallidays’ testimony. The transcript was entered
       into evidence. The State argued that defendant should be sentenced to the “higher end of 40
       years” based on the terror he inflicted on the Hallidays. Defense counsel argued that
       defendant should receive a minimum sentence in light of his employment history, his lack of
       a criminal record, his family’s support, and his cooperation with law enforcement. Defendant
       gave a statement in allocution in which he apologized to the Hallidays for the emotional
       stress he caused them. Defendant said he was grateful that no one was physically hurt during
       the incident.
¶ 13       The court sentenced defendant to 40 years’ imprisonment. The court stated that it had
       considered the PSI, the arguments of the parties, defendant’s statement in allocution, the
       statutory factors in aggravation and mitigation, and defendant’s history and character. The
       court discussed defendant’s employment history. The court stated: “The crime [defendant]
       committed is not the worst crime in the world, but it’s close.” The court reasoned:

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                “[H]ere are the things I find particularly aggravating: You just couldn’t stop. At least
                you stole and ransacked their home and took six televisions, yanked them right off the
                wall, two laptops, handbags, all handbags, jewelry, watches, rings, heirlooms, two
                cars, an SUV and a BMW; and apparently these were so upscale and apart from you
                and your cohorts, that you had to come back in and ask them how to start the car.”
       The court stated: “The Hallidays were terrorized and you, sir, were the terrorist. They were
       terrorized with guns to their heads and made them feel as though you would decide if they
       would live or die.”
¶ 14       Defendant filed a motion to reconsider his sentence, arguing that the 40-year sentence
       was excessive in light of various mitigating factors and the fact that defendant’s codefendant
       received a sentence of only 12 years’ imprisonment for “essentially committing the exact
       same crime.”
¶ 15       Five days later, defendant filed a motion to withdraw his guilty plea arguing that plea
       counsel failed to advise him as to the effect of the sentencing cap on defendant’s ability to
       appeal his sentence. The motion argued:
                “That the plea itself had a cap of only five (5) years under the maximum 45 year
                sentence given the Defendant’s circumstances it is almost per se ineffective assistance
                of counsel in the sense that it was a marginal benefit gained for a significant waiver of
                his ability to appeal the length of his sentence from the sentencing hearing.”
¶ 16       A hearing was held on defendant’s motion. The State argued that defendant could not
       challenge his sentence with a motion to reconsider because defendant’s 40-year sentence was
       within the agreed-upon sentencing cap. The court denied defendant’s motion to reconsider
       his sentence.
¶ 17       The hearing proceeded to defendant’s motion to withdraw his guilty plea. Defendant
       testified on his own behalf. Defendant said that plea counsel never advised him that agreeing
       to a sentencing cap would affect his ability to appeal his sentence. Defense counsel asked
       defendant if his plea counsel had discussed his options of pleading guilty or going to trial
       prior to defendant’s guilty plea. Defendant replied: “No. He just said that if I didn’t take [the
       plea] today that we had to go to trial, and that I would receive 90 years or something.” On
       cross-examination, the following exchange occurred between defendant and the prosecutor:
                    “Q. Okay. So when the Court asked you [at the plea hearing], ‘Have [you]
                discussed this partial plea agreement fully with your attorney ***,’ you answered,
                ‘Yes’ so that answer was yes?
                    A. Yeah, just to [plea counsel] telling me that it was the 21 to 40.
                    Q. Okay. So did you have some misunderstanding of discussing the agreement
                fully?
                    A. I didn’t know that if I was to go to trial that the most I could receive was 45.
                    Q. Okay. Now you indicated—well, how do you know that’s necessarily true?
                You were potentially subject to a consecutive sentence on these charges.
                    A. Because they said that considering I’m only charged with one incident, that it
                would only be the one incident I could get charged with at the most was 45.”
¶ 18       The court denied defendant’s motion to withdraw his guilty plea. The court noted that it
       had read the transcript of defendant’s plea proceedings, which had been held in front of
       another judge. The court remarked that the plea “was as by the book as it could be.” The

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       court reasoned: “And although there may be regrets, I don’t see that there’s anything that
       would support the motion for withdrawing the plea.”

¶ 19                                            ANALYSIS
¶ 20        Defendant argues that the trial court erred in denying his motion to withdraw his guilty
       plea because his plea was not knowing, intelligent, or voluntary. Specifically, defendant
       contends:
                     “Where defendant gave uncontradicted testimony at the hearing on his motion to
                withdraw his guilty plea that he was never told his agreement to a sentencing cap
                barred him from subsequently challenging his sentence on appeal, his plea was not
                entered knowingly, intelligently or voluntarily, and this Court should therefore
                reverse the order denying his motion to withdraw guilty plea.”
¶ 21        Initially, we reject defendant’s contention that his argument on appeal was not a claim of
       ineffective assistance of counsel such that he was required to establish the factors set forth in
       Strickland v. Washington, 466 U.S. 668 (1984). Defendant argues:
                “The instant defendant does not make a Strickland claim on appeal. Rather, he argues
                his guilty plea should be withdrawn because it was entered based on a
                misapprehension of the law, specifically, that he did not understand his agreement to
                a sentencing cap precluded him from challenging his sentence as excessive on
                appeal.”
       However, the only evidence defendant presented in support of his claim was his own
       testimony that his plea counsel failed to explain the significance of the sentencing cap as it
       related to his ability to appeal his sentence. Defendant also relies heavily on the holding in
       People v. Edmonson, 408 Ill. App. 3d 880 (2011), a case involving a claim of ineffective
       assistance of counsel, in support of his argument.
¶ 22        Defendant does not argue that the court had a duty to advise him as to the effect of the
       sentencing cap on his ability to appeal his sentence. In fact, defendant acknowledges that
       Illinois Supreme Court Rule 402(a) (eff. July 1, 2012) does not require courts to admonish a
       defendant pleading guilty as to the ramifications of a sentencing cap. Defendant contrasts
       Rule 402(a) with Federal Rule of Criminal Procedure 11(b)(1)(N), which requires federal
       courts to admonish defendants pleading guilty about “the terms of any plea-agreement
       provision waiving the right to appeal or to collaterally attack the sentence.” Fed. R. Crim. P.
       11(b)(1)(N). Defendant then argues:
                “Presumably, the presumption in Illinois is that trial counsel will advise his client
                about the impact of an agreement to a sentencing cap. Counsel’s failure to provide his
                client with such information, then, is just as bad as counsel’s mis-advising his client
                that he can challenge his sentence regardless of the sentencing cap.”
¶ 23        Thus, defendant essentially argues that his plea counsel should have advised him as to the
       consequences of his sentencing cap on his appeal rights but failed to do so. Under these
       circumstances, we find that defendant’s argument on appeal is a claim of ineffective
       assistance of counsel in substance if not form, and we will treat it as such.
¶ 24        “A guilty plea operates as a waiver of important rights, and is valid only if done
       voluntarily, knowingly, and intelligently, ‘with sufficient awareness of the relevant
       circumstances and likely consequences.’ ” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)

                                                   -5-
       (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). “A defendant does not have an
       automatic right to withdraw a plea of guilty. [Citation.] Rather, defendant must show a
       ‘manifest injustice’ under the facts involved.” People v. Baez, 241 Ill. 2d 44, 110 (2011)
       (quoting People v. Delvillar, 235 Ill. 2d 507, 520 (2009)). “Withdrawal is appropriate where
       the plea was entered through a misapprehension of the facts or of the law or where there is
       doubt as to the guilt of the accused and justice would be better served through a trial.” People
       v. Hughes, 2012 IL 112817, ¶ 32.
¶ 25        “A defendant might enter a guilty plea because of counsel’s erroneous advice or
       omissions, but this fact alone does not destroy the voluntary nature of the plea.” Edmonson,
       408 Ill. App. 3d at 884. Rather, “[w]hether the defendant’s plea was voluntary depends on
       whether the defendant had effective assistance of counsel.” Id.; see also People v. Pugh, 157
       Ill. 2d 1, 14 (1993). To establish a claim of ineffective assistance of counsel, defendant must
       show “(1) counsel’s performance was objectively unreasonable; and (2) the defendant
       suffered prejudice as a result.” Edmonson, 408 Ill. App. 3d at 884; Strickland, 466 U.S. at
       687-88.
¶ 26        “To establish prejudice in the guilty plea context, ‘the defendant must show that there is a
       reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
       would have insisted on going to trial.’ ” People v. Valdez, 2016 IL 119860, ¶ 29 (quoting Hill
       v. Lockhart, 474 U.S. 52, 59 (1985)). Where, as here, a claim of ineffective assistance of plea
       counsel involves “a claim that [the defendant] relied on his counsel’s erroneous advice about
       a consequence of his plea, the defendant ‘ “must convince the court that a decision to reject
       the plea bargain would have been rational under the circumstances.” ’ ” People v. Brown,
       2017 IL 121681, ¶ 48 (quoting Valdez, 2016 IL 119860, ¶ 29, quoting Padilla v. Kentucky,
       559 U.S. 356, 372 (2010)). A defendant may not “satisfy the requisite prejudice prong based
       solely on the bare allegation that the defendant would have rejected the plea if his guilty-plea
       counsel had provided accurate advice.” Id. ¶ 47; Lee v. United States, 582 U.S. ___, ___, 137
       S. Ct. 1958, 1967 (2017) (“Courts should not upset a plea solely because of post hoc
       assertions from a defendant about how he would have pleaded but for his attorney’s
       deficiencies. Judges should instead look to contemporaneous evidence to substantiate a
       defendant’s expressed preferences.”).
¶ 27        Here, we find that defendant has failed to establish prejudice. That is, defendant failed to
       show that rejecting the plea would have been rational under the circumstances if counsel had
       advised him that he would be unable to appeal his sentence. If defendant had gone to trial on
       all six charges and been found guilty of both home invasion and armed robbery, he would
       have received multiple convictions. The convictions would not have merged under the
       one-act, one-crime doctrine because the offenses were carved from different physical acts
       and neither offense was a lesser included offense of the other. See People v. Coats, 2018 IL
       121926, ¶ 12. Specifically, the home invasion charge was based on the act of unlawful entry
       into the Halliday residence, and the armed robbery charge was based on the act of taking
       property from the person or presence of Ronald and/or Mari. Arguably, both offenses
       contained the common act of threatening the use of force. However, “ ‘ “[a] person can be
       guilty of two offenses when a common act is part of both offenses” ’ ” (id. ¶ 15 (quoting
       People v. Rodriguez, 169 Ill. 2d 183, 188 (1996), quoting People v. Lobdell, 121 Ill. App. 3d
       248, 252 (1983))) “ ‘or part of one offense and the only act of the other offense’ ” (id. ¶ 15
       (quoting Lobdell, 121 Ill. App. 3d at 252)). Neither armed robbery nor home invasion is a

                                                   -6-
       lesser-included offense of the other, as armed robbery contains an element that home
       invasion does not (namely, taking property from the person or presence of another), and
       home invasion has an element that armed robbery does not (namely, unlawful entry). 720
       ILCS 5/18-2(a)(2), 19-6(a)(3) (West 2012).
¶ 28       Because defendant would have been subject to separate convictions on home invasion
       and armed robbery, defendant would have potentially been subject to permissive consecutive
       sentencing on the two offenses if the court found that it was necessary for protection of the
       public. 730 ILCS 5/5-8-4(c)(1) (West 2012). Taking the applicable firearm enhancements
       into consideration, defendant faced maximum sentences of 45 years’ imprisonment for each
       offense. See 720 ILCS 5/18-2(a)(2), (b), 19-6(a)(3), (c) (West 2012); 730 ILCS 5/5-4.5-25
       (West 2012). Thus, defendant would have been subject to a possible maximum aggregate
       sentence of 90 years’ imprisonment on the two offenses. Although defendant had little to no
       criminal history, it is highly unlikely that he would have received a lower-range sentence
       considering the severity of the offenses. By accepting the plea agreement, defendant received
       only one conviction and a sentencing cap of 40 years’ imprisonment, as opposed to a possible
       second conviction and potential 90-year sentence. Under these circumstances, defendant has
       failed to show that rejecting the plea would have been rational under the circumstances.
¶ 29       Because defendant could have received a maximum sentence of 90 years’ imprisonment
       had he gone to trial, this case is distinguishable from the scenario posited by the Court in Lee,
       582 U.S. at ___, 137 S. Ct. at 1966-67, where “a defendant with no realistic defense to a
       charge carrying a 20-year sentence may nevertheless choose trial, if the prosecution’s plea
       offer is 18 years.”
¶ 30       We also find it significant that defendant failed to present any evidence that the ability to
       appeal his sentence played an important role in his decision to accept the plea agreement. In
       Lee, determining that the defendant had established that he was prejudiced by his plea
       counsel’s erroneous advice that he would not be deported as a result of his plea agreement,
       the Lee Court found it significant that the defendant had demonstrated through his testimony
       and the testimony of his plea counsel that deportation was the determinative issue in the
       defendant’s decision to accept the plea deal. Id. at ___, 137 S. Ct. at 1967-68. Similarly, in
       Edmonson, a case heavily relied upon by defendant, the defendant and his plea counsel
       testified that plea counsel erroneously advised defendant that he would be able to appeal a
       sentence entered under a plea agreement with a sentencing cap. Edmonson, 408 Ill. App. 3d
       at 883. In determining that the Edmonson defendant had established a claim of ineffective
       assistance of counsel, the court found it significant that “[t]estimony from [plea counsel] and
       defendant clearly showed that defendant relied on the misinformation when he entered his
       plea and that it played a key role in his decision.” Id. at 886.
¶ 31       In the instant case, on the other hand, defendant testified only that his plea counsel failed
       to advise him that agreeing to the sentencing cap would preclude him from appealing his
       sentence. Defendant presented no evidence—not even his own testimony—that a belief that
       he would be able to appeal his sentence played a key role in his decision to accept the plea
       agreement.




                                                   -7-
¶ 32                                     CONCLUSION
¶ 33   For the foregoing reasons, the judgment of the trial court is affirmed.

¶ 34   Affirmed.




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