                                     2014 IL App (1st) 131117

                                                                               FIFTH DIVISION
                                                                Opinion filed December 29, 2014
                                               Modified upon denial of rehearing January 30, 2015

No. 1-13-1117

THE PEOPLE OF THE STATE OF ILLINOIS,                  )               Appeal from the
                                                      )               Circuit Court of
       Plaintiff-Appellee,                            )               Cook County.
                                                      )
v.                                                    )               Nos. 12 CR 19528 (02)
                                                      )
RASHIEM HOLLOWAY,                                     )               Honorable
                                                      )               Michael Brown,
       Defendant-Appellant.                           )               Judge Presiding.

       JUSTICE McBRIDE delivered the judgment of the court, with opinion.
       Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.

                                             OPINION

¶1     Defendant Rashiem Holloway pled guilty to one count of unlawful use of a weapon by a

felon (UUWF) and received a sentence of seven years in the Illinois Department of Corrections.

Defendant filed a motion to withdraw his guilty plea, but the trial court denied his motion.

¶2     Defendant appeals, arguing that: (1) his UUWF conviction should be reversed because

the alleged predicate offense, aggravated unlawful use of a weapon, was found to be

unconstitutional and void ab initio by the Illinois Supreme Court in People v. Aguilar, 2013 IL

112116; (2) defendant was never fully informed of the terms of his negotiated plea agreement in

open court in violation of Supreme Court Rule 402(b) (Ill. S. Ct. R. 402(b) (eff. July 1, 2012));

(3) trial counsel's failure to amend the motion to withdraw the guilty plea when the report of

proceedings showed a clear Rule 402(b) violation constituted noncompliance with Supreme

Court Rule 604(d) (Ill. S. Ct. R. 604(d) (eff. Jan. 1, 2013)); and (4) defendant's fines and fees

should be reduced to reflect credit for the days he spent in presentence custody.
No. 1-13-1117


¶3     In October 2012, defendant was charged by indictment with one count of unlawful use of

a weapon by a felon (720 ILCS 5/24-1.1 (West 2010)) and three counts of aggravated unlawful

use of a weapon (720 ILCS 5/24-1.6 (West 2010)).

¶4     On December 11, 2012, both defendant and his codefendant, Epigmenio Garcia, appeared

before the trial court for a status hearing. At that time, defense counsel requested a conference

pursuant to Supreme Court Rule 402 (Ill. S. Ct. R. 402 (eff. July 1, 2012)). The trial judge

explained to defendant that a Rule 402 conference was between the attorneys and the judge, and

the judge would "learn things that I wouldn't know unless there was a trial." The judge further

explained that after the conference, an offer in exchange for a guilty plea will be made to

defendant and he could accept or reject the offer.

¶5     The judge then asked if defendant wished to have a conference. Defendant responded

that he wanted "to ask for a continuance." The judge stated that he could not hear defendant and

asked defendant if he did not want a conference. Defendant then answered, "Yeah, I will take

the conference." The case was then passed for the Rule 402 conference.

¶6     When the case was recalled, defense counsel stated:

                "I explained to [defendant] the offer from the 402 conference,

                which is on Count 1 of the charges before the Court. I believe at

                this time [defendant] wishes to change his plea from not guilty to

                guilty and accept the Court's offer of Cook County boot camp.

                       There's a necessary condition that [defendant] swear under

                oath to the facts given to him–read to him by the State's Attorney

                and he may also have to answer some questions as well."




                                                 2
No. 1-13-1117


¶7     Defendant then indicated that he understood and wished to plead guilty. The State then

nol-prossed the remaining charges. The trial court advised defendant that he had a right to

continue to plead not guilty and he was pleading guilty to a Class 2 felony, which was punishable

by up to 7 years in prison, which under certain circumstances, could be extended to 14 years, a

fine up to $25,000, and a 2-year period of mandatory supervised release (MSR). The trial court

admonished defendant that by pleading guilty he was giving up his rights to a bench trial or a

jury trial, to confront witnesses against him or call his own witnesses, and present his own

defense, and the right to a presentence investigation report. After these admonitions, the trial

court asked defendant if he still wished to plead guilty, and defendant responded that he did.

Defendant also signed waivers for a jury trial and for a presentence investigation. The trial court

also asked defendant if anyone threatened him or promised him anything in exchange for a plea

of guilty; defendant answered no.

¶8     The parties stipulated that a sufficient factual basis existed for the plea of guilty based on

the information the trial court received in the Rule 402 conference. The State then called

defendant to testify. The State asked defendant if at approximately 1 p.m. on September 24,

2012, he was riding in a vehicle as part of a funeral procession, defendant responded in the

affirmative and stated that he was sitting in the front passenger seat. He stated that the person

driving was his "friend's uncle–cousin, something like that." Defendant was asked if the driver

gave him a gun, and defendant responded, "He didn't pass me a gun. I had the gun in my own

possession and I told him to drive, told him to drive off when the officer had tried to pull us

over." The prosecutor asked three more times if the driver gave defendant the gun, and

defendant repeatedly denied that he was given the gun. Immediately thereafter, the court found

defendant understood the nature of the charges against him, the possible penalties, and that he



                                                 3
No. 1-13-1117


knowingly and voluntarily waived those rights. The trial court found there was a sufficient basis

for defendant's guilty plea. The court then said there will be a finding of guilty and entered

judgment on the finding of guilty.

¶9     The court then asked the State's position on sentencing. The State answered that it did

not feel that defendant testified truthfully as part of the plea agreement. The State requested "a

sentence not offered by the Court and not Cook County boot camp, but a sentence to the Illinois

Department of Corrections." Defense counsel responded that during the Rule 402 conference,

the State indicated that defendant had made a statement after his arrest indicating that his

codefendant Garcia had thrown the gun in his lap and defendant took the gun and ran. Defense

counsel maintained that defendant substantially complied with the requirement to swear to the

facts because he admitted he was in the car with Garcia and that defendant had possession of a

weapon.

¶ 10   The trial court then stated:

                       "The Court's offer to [defendant] was that if he testified

                consistent with the information here provided to the Court at the

                402 conference, the offer would be Cook County boot camp. If

                [defendant] chooses not to testify consistent with the information

                given to the Court at the 402 conference, the Court's offer would

                be seven years in the Illinois Department of Corrections.

                       I find based on what I have heard right now that

                [defendant] did not testify consistent with the information brought

                out at the 402 conference because [defendant] did not testify that

                Mr. Garcia handed him the gun. And as I indicated to you,



                                                 4
No. 1-13-1117


                [defense counsel,] Mr. Holloway had the option and apparently he

                [chose] the option not to testify according to the proffer given to

                the Court at the 402 conference."

¶ 11   The court then asked defendant if he had anything he wished to say before being

sentenced. Defendant said, "No. I had the gun. I had the gun. He never knew about the

weapon." Defendant also denied telling the police officers that Garcia passed him the weapon.

The trial court then sentenced defendant to a term of 7 years in the Illinois Department of

Corrections, fines and fees totaling $450, and 78 days' credit for time served.

¶ 12   On December 17, 2012, defense counsel filed a motion to withdraw defendant's guilty

plea. At the February 13, 2013 hearing, defense counsel told the trial court that defendant called

and left him a voicemail the day after the guilty plea hearing, stating that defendant wanted to go

back to court and swear to the facts as alleged by the State. Defense counsel further stated that

defendant "was under some duress from the co-defendant" at the time and he felt he was being

threatened and could not agree with what the State was asking. However, defense counsel had

not filed his Supreme Court Rule 604(d) (Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013)) certificate yet

because he had not had the opportunity to talk with defendant prior to the hearing. The case was

then continued to a later date.

¶ 13   On March 15, 2013, defense counsel filed his Rule 604(d) certificate and an affidavit

from defendant. In his affidavit, defendant stated that on December 11, 2012, prior to his

hearing, he was placed near Garcia when they were brought to court from jail. When Garcia

came closer to defendant, he said "with aggression to the defendant, 'Don't cop out.' " Defendant

said that he "felt threatened with harm by Garcia's remark," and that was why he wanted a

continuance rather than a Rule 402 conference. Defense counsel detailed defendant's assertions



                                                    5
No. 1-13-1117


to the trial court and requested the opportunity for defendant to "swear to the facts as the State

would allege" in exchange for a new sentence to Cook County boot camp. The State responded

that defendant had "buyer's remorse" and that there was no basis to withdraw defendant's plea

after defendant testified under oath that he had the gun the whole time. Defendant apologized

for "making a mockery" of the trial court and stated that he did not cooperate in answering the

State's questions because he felt threatened.

¶ 14   The trial court denied the defendant's motion to withdraw his guilty plea.

                       "I find that the affidavit lays out chronologically the events

                as they occurred. That Mr. Garcia was only present in court with

                [defendant] initially before there was a 402 conference. The

                statement–and apparently the statement was made outside of the

                presence of the Court, don't cop out, on the face of it appears to

                [be] advice not to plead guilty because cop out means plead guilty,

                I guess in the parlance.

                       There hadn't been a 402 conference. There hadn't been the

                options put to [defendant] at the time Mr. Garcia said that. Mr.

                Garcia and [defendant], for that matter, did not know the results of

                the 402 conference. I did accept [defendant's] guilty plea. I found

                it was free and voluntary and I think that finding still holds. You

                had an opportunity to make your choice and you made a choice.

                       Now the reasons why you made the choice is the reasons

                [sic] why you made the choice; but based on what you said here, I

                don't believe that changes the free and voluntary nature of the



                                                  6
No. 1-13-1117


                  choice you made. As a result, the motion to withdraw the guilty

                  plea is denied."

¶ 15    This appeal followed.

¶ 16    Since we find it dispositive of this appeal, we first consider whether the trial court erred

by not stating the terms of the plea agreement on the record in open court. Defendant argues that

the terms of the negotiated plea agreement were never stated in open court and no evidence

exists on the record that defendant was fully informed of all the requirements of his plea

agreement. Defendant asks this court to reverse the denial of his motion to withdraw his guilty

plea and remand for further proceedings. The State responds that defendant has forfeited this

issue by not raising it in his motion to withdraw his guilty plea, but in the alternative, any error

was harmless.

¶ 17    Defendant admits that he failed to raise this issue in his motion in the trial court, but asks

this court to review the issue under the plain error doctrine.

¶ 18    "Generally, under Illinois Supreme Court Rule 604(d), any issue not raised by the

defendant in his motion to withdraw the plea of guilty shall be deemed waived upon appeal."

People v. Davis, 145 Ill. 2d 240, 250 (1991). "However, if a lower court fails to give the

defendant the admonishments required by Rule 402 it is possible that this action can amount to

plain error, an exception to the waiver rule, as outlined under Illinois Supreme Court Rule 615

[citation]. Id.

¶ 19    Supreme Court Rule 615(a) states that "[a]ny error, defect, irregularity, or variance which

does not affect substantial rights shall be disregarded. Plain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the trial

court." Ill. S. Ct. R. 615(a). The plain error rule "allows a reviewing court to consider



                                                  7
No. 1-13-1117


unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is

so serious that it affected the fairness of the defendant's trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill. 2d

551, 565 (2007) (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)). However, the plain

error rule "is not 'a general saving clause preserving for review all errors affecting substantial

rights whether or not they have been brought to the attention of the trial court.' " Herron, 215 Ill.

2d at 177 (quoting People v. Precup, 73 Ill. 2d 7, 16 (1978)). Rather, the supreme court has held

that the plain error rule is a narrow and limited exception to the general rules of forfeiture.

Herron, 215 Ill. 2d at 177. "The first step of plain-error review is to determine whether any error

occurred." People v. Lewis, 234 Ill. 2d 32, 43 (2009).

¶ 20   Further, the supreme court has held that the application of the forfeiture rule is "less rigid

where the basis for the objection is the trial judge's conduct." People v. Kliner, 185 Ill. 2d 81,

161 (1998); see also People v. Sprinkle, 27 Ill. 2d 398, 401 (1963) ("a less rigid application of

the rule requiring timely and proper objection and preservation of rulings thereon should prevail

where the basis for the objection is the conduct of the trial judge than is otherwise required").

¶ 21   Supreme Court Rule 402(b) provides:

                "The court shall not accept a plea of guilty without first

                determining that the plea is voluntary. If the tendered plea is the

                result of a plea agreement, the agreement shall be stated in open

                court. The court, by questioning the defendant personally in open

                court, shall confirm the terms of the plea agreement, or that there is



                                                   8
No. 1-13-1117


                 no agreement, and shall determine whether any force or threats or

                 any promises, apart from a plea agreement, were used to obtain the

                 plea." Ill. S. Ct. R. 402(b) (eff. July 1, 2012).

¶ 22      A trial court's decision on a defendant's motion to withdraw his guilty plea is a matter

within its discretion and will not be disturbed on appeal absent an abuse of that discretion.

People v. Manning, 227 Ill. 2d 403, 412 (2008). "A defendant does not have an absolute right to

withdraw his guilty plea, but he should be allowed to withdraw his plea if doing so would correct

a manifest injustice under the facts involved." People v. Sharifpour, 402 Ill. App. 3d 100, 111

(2010); see also Davis, 145 Ill. 2d at 250 (“Whether reversal is required depends on whether real

justice has been denied or whether defendant has been prejudiced by the inadequate

admonishment.”). "Substantial, not literal, compliance with Rule 402 is all that is required." Id.

at 114.

¶ 23      After reading the entire record, we have gleaned that the terms of the plea agreement

pursuant to the Rule 402 conference were that if defendant swore to facts alleged by the State

consistent with his postarrest comments, then he would receive Cook County boot camp. If

defendant did not respond under oath consistent with his prior statements, then he would receive

a sentence of seven years in prison. However, it is significant to note that these terms were never

explained to defendant by the trial judge before the court accepted defendant's guilty plea.

¶ 24      Further, it is clear that contrary to the specific requirements of Supreme Court Rule 402,

all of the terms of the plea agreement were not stated in open court, nor did the trial court

confirm terms of plea agreement by questioning defendant. Instead, defense counsel indicated

that he informed defendant of the terms of the plea agreement and defendant accepted the trial

court's offer of boot camp with a condition that defendant swear under oath to facts given to him



                                                    9
No. 1-13-1117


by the State. The record also shows that defendant was never advised by the court that he would

be subject to a seven-year prison term if he did not swear to the facts alleged by the State. The

record also fails to show that prior to entering the plea, defendant was aware of the facts to which

he was required to swear. Only after the trial court accepted the plea and entered a finding of

guilty were the full terms explained to defendant by the trial judge and that his failure to comply

would result in the imposition of a more severe sentence. Even defense counsel's description of

the agreement does not comport with the terms disclosed after the plea. Despite defense

counsel's argument that defendant substantially complied with the terms of the plea agreement,

the trial court found that defendant did not comply and imposed a seven-year sentence.

Therefore, we conclude that prior to accepting the plea of guilty and finding of guilty, it became

incumbent upon the trial judge to explain to defendant that his testimony was contrary to what

was described in the Rule 402 conference. And that as a result, if defendant persisted in his plea

of guilty, then he would be subject to 7 years in the Illinois Department of Corrections instead of

the promised Cook County boot camp program.

¶ 25   The committee comments to Rule 402 explain the reasoning behind the requirement to

explain the terms of a plea agreement in open court.

                "[T]he Supreme Court of the United States has *** held that it is a

                violation of due process to accept a guilty plea in State criminal

                proceedings without an affirmative showing, placed on the record,

                that the defendant voluntarily and understandingly entered his plea

                of guilty. (Boykin v. Alabama, 395 U.S. 238 [(1969)].) ***

                [I]ncreased attention has *** been given to the long-standing

                practice of pleading guilty as a consequence of a prior agreement



                                                 10
No. 1-13-1117


                between the prosecution and defense concerning the disposition of

                the case; it is generally conceded that 'plea discussions' and 'plea

                agreements' are often appropriate, but that such procedures should

                not be concealed behind an in-court ceremony at which the

                defendant sometimes seems to think that he is expected to state

                falsely that no promises were made to him. (See American Bar

                Association Project on Minimum Standards for Criminal Justice,

                Standards Relating to Pleas of Guilty (Approved Draft 1968);

                Enker, Perspectives on Plea Bargaining, in The President's

                Commission on Law Enforcement and Administration of Justice,

                Task Force Report (1967): The Courts.) Two major objectives of

                *** Rule 402 are: (1) to insure compliance with the Boykin

                requirements; and (2) to give visibility to the plea-agreement

                process and thus provide the reviewing court with a record

                containing an accurate and complete account of all relevant

                circumstances surrounding the guilty plea." Ill. S. Ct. R. 402,

                Committee Comments (adopted May 20, 1997).

¶ 26   In regard to subparagraph (b), the committee comments specifically addressed the

requirement to state the plea agreement in open court because "[i]t is important to give visibility

to the plea-agreement process in this way, as otherwise the defendant may feel required to state

falsely that no promises were made and the plea may later be subject to collateral attack." Ill. S.

Ct. R. 402, Committee Comments (adopted May 20, 1997).




                                                  11
No. 1-13-1117


¶ 27   The supreme court in People v. Dudley, 58 Ill. 2d 57, 60 (1974), discussed the Rule

402(b) requirement to state the plea agreement in open court.

                "The requirement prevents misunderstandings as to the terms of an

                agreement. It is an efficient means of reducing what is typically an

                oral understanding to a matter of record. It also insures that the

                agreement will be visible for examination. This tends to insure

                that such plea agreements as may be entered into will be equitable

                and fair, considering both the interest of the defendant and the

                public interest in effective law enforcement. Announcing the

                agreement in open court will deter or at least expose any

                prosecutive timidity, overreaching or other impropriety, as well as

                deter future unfounded claims by a defendant that an agreement

                entered into was not honored." Id.

¶ 28   Further, as the supreme court in Davis observed:

                “ ‘Where it appears that the plea of guilty was entered on a

                misapprehension of the facts or of the law, or in consequence of

                misrepresentations by counsel or the State's Attorney or someone

                else in authority, or the case is one where there is doubt of the guilt

                of the accused, or where the accused has a defense worthy of

                consideration by a jury, or where the ends of justice will be better

                served by submitting the case to a jury, the court should permit the

                withdrawal of the plea of guilty and allow the accused to plead not




                                                  12
No. 1-13-1117


                guilty.’ ” Davis, 145 Ill. 2d at 244 (quoting People v. Morreale,

                412 Ill. 528, 531-32 (1952)).

¶ 29   In this case, the record lacks a complete description of the terms of the plea agreement

before defendant entered a guilty plea and the trial court entered a finding of guilty. The trial

court's failure to comply with Rule 402(b) demonstrates a clear misapprehension of the facts and

the terms of the plea agreement. From this record it is impossible to discern whether defendant

fully understood the consequences of his guilty plea, which is of particular concern given the

disparity in the sentence contingent on defendant’s testimony. As already pointed out above, the

trial court should have set forth the details in open court to ensure that defendant knew he would

be subject to a seven-year term in prison if he did not swear to specific facts alleged by the State.

We also point out that after the guilty plea was accepted, the prosecutor requested "a sentence

not offered by the Court and not Cook County boot camp, but a sentence to the Illinois

Department of Corrections," which suggests that the seven-year sentence was not part of the plea

agreement. We conclude defendant has been prejudiced as a result of the trial court's failure to

comply with the rule. Thus, in this case, the failure to comply with Rule 402(b) amounts to plain

error because the record does not establish that defendant entered his guilty plea with a complete

understanding and knowledge of the ramifications of his guilty plea and the sentence to be

imposed. We find that the proper recourse in the interest of justice is to grant defendant’s motion

and allow him to withdraw his guilty plea. Accordingly, we reverse the trial court’s denial of the

motion to withdraw the guilty plea, vacate defendant’s conviction and sentence, and remand to

the trial court. The parties can proceed anew in the trial court.

¶ 30   Since we have vacated defendant’s guilty plea and remanded for further proceedings, we

need not reach the remaining issues raised on appeal. We point out that the record on appeal



                                                 13
No. 1-13-1117


regarding defendant’s challenge to his prior conviction under People v. Aguilar, 2013 IL 112116,

only sets forth the indictment and the mittimus. No other information about this prior case is

provided. We also note that the indictment includes at least one charge that remains viable after

Aguilar, possession of a firearm without a valid firearm owner's identification card.

¶ 31    In a petition for rehearing, defendant asks that we take judicial notice of the fact that he

was only convicted of a charge under section 24-1.6(a)(1)/(3)(A) (720 ILCS 5/24-

1.6(a)(1)/(3)(A) (West 2010)), the subsection at issue in Aguilar, and that the remaining counts

were nol-prossed. Taking judicial notice of those facts, we find that the question of whether any

of the nol-prossed counts can support the underlying conviction in this case is a question to be

resolved in the trial court.

¶ 32    Based on the foregoing reasons, we reverse the decision of the circuit court of Cook

County, vacate defendant’s conviction and sentence, and remand for further proceedings

consistent with this decision.

¶ 33    Reversed and remanded.




                                                  14
