                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. McKinney, 2012 IL App (1st) 103364




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



District & No.              First District, Third Division
                            Docket No. 1-10-3364


Filed                       August 8, 2012


Held                        Where defendant pled guilty to burglary based on erroneous advice that
(Note: This syllabus        he was ineligible for participation in a veterans court program because he
constitutes no part of      was not eligible for probation, he was entitled to withdraw his plea and
the opinion of the court    pursue his request for admission to the program.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, No. 09-CR-9820; the
Review                      Hon. Arthur F. Hill, Jr., Judge, presiding.



Judgment                    Reversed and remanded.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Kieran M. Wiberg, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Carol
                           L. Gaines, and Jessica R. Ball, Assistant State’s Attorneys, of counsel),
                           for the People.


Panel                      JUSTICE MURPHY delivered the judgment of the court, with opinion.
                           Presiding Justice Steele and Justice Neville concurred in the judgment
                           and opinion.



                                              OPINION

¶1          Defendant Rodney McKinney entered a plea of guilty to the offense of burglary and was
        sentenced to eight years’ imprisonment. On appeal, defendant contends that the trial court
        erred when it denied his motion to withdraw his guilty plea; he was denied his right to
        counsel where the court allowed him to dismiss his counsel and represent himself at the
        hearing on his motion to withdraw his guilty plea without first properly admonishing him
        pursuant to Illinois Supreme Court Rule 401 (eff. July 1, 1984); his mandatory supervised
        release term must be reduced to two years; he was improperly assessed a DNA analysis fee;
        and the Children’s Advocacy Center fine assessed against him should be offset by his
        presentence custody credit. For the reasons that follow, we reverse and remand.

¶2                                         BACKGROUND
¶3          Defendant was charged with burglary for allegedly entering a building located at 1438
        West 103rd Street in Chicago with the intent to commit a theft therein on May 14, 2009.
        Prior to trial, defense counsel requested, and the trial court conducted, a plea agreement
        conference under Illinois Supreme Court Rule 402 (eff. July 1, 1997) during which the State
        asserted that if it proceeded to trial, the evidence would show that defendant broke the
        window of a convenience store at 1438 West 103rd Street, entered the building, and stole the
        cash register located therein. Following the Rule 402 conference, the trial court informed
        defendant that it would sentence him to eight years’ imprisonment as a Class X offender if
        he pleaded guilty to burglary, and defendant withdrew his previously entered plea of not
        guilty and entered a plea of guilty in exchange for the court’s offer of an eight-year sentence.
        The court accepted defendant’s guilty plea, found him guilty of burglary, and sentenced him
        to eight years’ imprisonment. Defendant also requested drug treatment as part of his
        sentence, and the trial court granted that request and recommended treatment.
¶4          Defendant subsequently filed a pro se motion to withdraw his guilty plea in which he
        asserted that defense counsel misadvised him that he was not eligible to participate in a

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     veterans court program. At the hearing on that motion, defense counsel informed the court
     that defendant had decided to proceed pro se. The court asked defendant, “You understand
     all of the things that an attorney could do for you and assist you in the whole process;
     right[?]” and defendant responded “yes, sir, I do.” The court then asked, “But you have
     decided on your own, knowing all of that, that you want to proceed pro se[?]” and defendant
     responded “[y]es, sir.” Defendant told the court that he had mentioned veterans court to
     defense counsel before entering his guilty plea, that counsel had told him she believed the
     program was only for drug cases, and that he now believed that he was eligible for the
     program. The court responded that it believed the program was only available in cases where
     probation was a possibility and that defendant was not eligible for the program because he
     was not eligible for probation where he was being sentenced as a Class X offender due to his
     prior convictions. The court then denied defendant’s motion, finding that his guilty plea was
     made knowingly and intelligently.

¶5                                          ANALYSIS
¶6       Defendant contends that the trial court erred by denying his motion to withdraw his guilty
     plea where he entered his plea while under the mistaken belief that he was not eligible for
     veterans court. The decision to deny a motion to withdraw a guilty plea rests in the sound
     discretion of the trial court and is reviewed for an abuse of that discretion. People v. Baez,
     241 Ill. 2d 44, 109-10 (2011). A defendant does not have an automatic right to withdraw a
     guilty plea and must show a manifest injustice under the facts involved to obtain leave to
     withdraw his plea. People v. Jamison, 197 Ill. 2d 135, 163 (2001). This court will only
     disturb a trial court’s denial of a motion to withdraw a guilty plea where the plea was entered
     through a misapprehension of fact or law or where there is doubt as to the accused’s guilt and
     justice would be better served by conducting a trial. People v. Delvillar, 235 Ill. 2d 507, 521
     (2009).
¶7       Defendant asserts that his guilty plea was entered under a misapprehension of law where
     he mistakenly believed that he was not eligible for veterans court because defense counsel
     misadvised him that the program was only available in drug offense cases and the trial court
     told him it was only available in cases where probation was a possibility. The State responds
     that although the availability of veterans court is not limited to drug offenses, defendant was
     not acting under a misapprehension of law when he agreed to plead guilty because he was
     ineligible for veterans court where he was not eligible for supervision, conditional discharge,
     or probation. The record shows that although defendant pleaded guilty to burglary, a Class
     2 felony (720 ILCS 5/19-1(b) (West 2008)), he was sentenced as a Class X offender due to
     his prior convictions (730 ILCS 5/5-5-3(c)(8) (West 2008)), and therefore was not eligible
     for probation (730 ILCS 5/5-5-3(c)(2)(C) (West 2008)). Thus, to resolve the issue of whether
     defendant entered his guilty plea under a misapprehension of law, we must determine
     whether he was ineligible for veterans court because he could not have been sentenced to
     probation.
¶8       Defendant maintains that the plain language of the Veterans and Servicemembers Court
     Treatment Act (Veterans Court Act) (730 ILCS 167/1 et seq. (West 2010)) does not include


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       a requirement that a defendant be eligible for probation to be eligible for veterans court, and
       the State disagrees. The Veterans Court Act became effective on June 14, 2010, and this
       court has not discovered any cases interpreting the eligibility requirements of the statute. A
       court’s primary objective when construing the meaning of a statute is to ascertain and give
       effect to the intent of the legislature, and the most reliable indicator of that intent is the
       language of the statute itself. People v. Williams, 239 Ill. 2d 503, 506 (2011).
¶9          The Veterans Court Act provides for the establishment of a veterans court and
       corresponding programs whereby a defendant who is a veteran can complete an agreed-upon
       program, which may include substance abuse, mental health, or other treatment, in exchange
       for the dismissal of the charges against him, the termination of his sentence, or his discharge
       from further proceedings. 730 ILCS 167/15, 25, 35 (West 2010). A defendant may only be
       admitted into a veterans court program upon the agreement of the prosecutor and the
       defendant and with the approval of the veterans court. 730 ILCS 167/20(a) (West 2010). A
       defendant shall be excluded from a veterans court program if he: (1) is charged with a crime
       of violence; (2) does not demonstrate a willingness to participate in the program; (3) has
       committed a crime of violence in the past 10 years, excluding incarceration time; or (4) has
       previously completed or been discharged from such a program. 730 ILCS 167/20(b) (West
       2010). Thus, under the plain language of the Veterans Court Act, a defendant is not required
       to be eligible for probation to be eligible for veterans court where no such requirement exists
       and defendants who are not eligible for probation are not among the four groups of
       defendants who shall be excluded from such a program.
¶ 10        The State asserts, however, that it is abundantly clear from the legislative history of the
       Veterans Court Act that the legislature intended to limit eligibility for veterans court to those
       defendants who are eligible for supervision, conditional discharge, or probation. Defendant
       first maintains that we need not consider the legislative history of the Veterans Court Act
       because the statute is clear and unambiguous, and he also maintains that the legislative
       history does not indicate that the legislature intended to limit eligibility for veterans court to
       those defendants who are eligible for probation.
¶ 11        Where statutory language is ambiguous, a court may consider other extrinsic aids such
       as the statute’s legislative history to resolve the ambiguity. People v. Collins, 214 Ill. 2d 206,
       214 (2005). In this case, the State cites to comments by Senator Pamela Althoff and
       Representative Michael Tryon, who sponsored the bill that became the Veterans Court Act,
       in support of its assertion that the legislature intended to limit eligibility to veterans court to
       those defendants who are eligible for probation. Senator Althoff stated that the legislation
       was intended “to create specialized veteran and servicemember courts or programs with the
       necessary flexibility to meet the specialized problems faced by veterans and servicemember
       defendants” and that “[t]he offenses are limited to probationary offenses.” 96th Ill. Gen.
       Assem., Senate Proceedings, Apr. 27, 2010, at 131 (statements of Senator Althoff).
       Representative Tryon stated that the Veterans Court Act “will allow for the adjudication of
       misdemeanor crimes” and was designed to capture benefits unique to veterans that were not
       available in the previously established drug and mental health courts. 96th Gen. Assem.,
       House Proceedings, Mar. 26, 2010, at 189-92 (statements of Representative Tryon).
¶ 12        Initially, the Veterans Court Act’s plain language regarding a defendant’s eligibility for

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       veterans court is clear and unambiguous and constitutes the best evidence of legislative
       intent, and we will not depart from its plain language by reading exceptions, limitations, or
       conditions into the statute that conflict with that legislative intent. People v. McClure, 218
       Ill. 2d 375, 381-82 (2006). In addition, Senator Althoff’s comment that the Veterans Court
       Act only applies to probationary offenses does not show that the legislature intended to limit
       eligibility to veterans court to defendants who are eligible for probation where a difference
       exists between committing a probationary offense and being eligible for probation. For
       example, here defendant entered a guilty plea to burglary, a Class 2 felony and probationary
       offense (720 ILCS 5/19-1(b) (West 2008)), but was ineligible for probation because he was
       sentenced as a Class X offender due to his prior convictions (730 ILCS 5/5-5-3(c)(8) (West
       2008)). Even though defendant was sentenced as a Class X offender, the crime of which he
       was convicted remains a Class 2 felony (People v. Olivo, 183 Ill. 2d 339, 340-41 (1998)), and
       he is therefore not eligible for probation despite having committed a probationary offense.
       Further, Representative Tryon’s comment that the Veterans Court Act only applies to
       misdemeanor offenses is directly contradicted by the statute’s provision that it applies to
       veterans and servicemembers charged with a misdemeanor or felony (730 ILCS 167/5 (West
       2010)) and is inconsistent with its disqualification of only those defendants charged with a
       crime of violence (730 ILCS 167/5 (West 2010)). Thus, we determine that the statute’s
       legislative history does not make it clear that the legislature intended to limit eligibility for
       veterans court to those defendants eligible for probation and therefore decline to read such
       a condition into the statute where it conflicts with the legislative intent evident from its plain
       language.
¶ 13        Having determined that the Veterans Court Act does not condition defendant’s eligibility
       for veterans court on his eligibility for probation, we now consider whether he is precluded
       from participating in such a program by the Unified Code of Corrections (Code) (730 ILCS
       5/1-1-1 et seq. (West 2008)). Because defendant was sentenced as a Class X offender, he
       could not have been sentenced to probation, periodic imprisonment, or conditional discharge
       under the Code (730 ILCS 5/5-5-3(c)(2)(C) (West 2008)), and he therefore could not have
       been admitted to veterans court if doing so would have constituted the imposition of a
       sentence of probation. The State asserts that, when considered as a whole, the statute makes
       clear that veterans court was intended to operate as a supervision or probation-based
       program. Defendant maintains that the Code is separate from the Veterans Court Act and
       does not control his eligibility for veterans court, citing People v. Teschner, 81 Ill. 2d 187
       (1980), and People v. Young, 334 Ill. App. 3d 785 (2002), in support.
¶ 14        In Teschner, 81 Ill. 2d at 190-93, our supreme court held that the defendant’s sentence
       of 36 months’ probation conditioned on his successful completion of a drug-rehabilitation
       program under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 91½, ¶ 120.1 et seq.)
       was proper even though he was not eligible for probation under the Code due to his prior
       convictions. The court determined that the Code did not control whether a defendant could
       receive probation under the Dangerous Drug Abuse Act because treatment under that statute
       was an alternative to the regular sentencing alternatives set forth in the Code. Id. at 191-93.
       The court also noted that the language of the Dangerous Drug Abuse Act indicated “a strong
       legislative policy favoring the prevention of drug abuse and encouragement for the treatment

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       and rehabilitation of drug addicts” and a finding that “the treatment for drug abuse requires
       more medical and social treatment than can be provided under the present criminal justice
       system.” Id. at 192.
¶ 15        In Young, 334 Ill. App. 3d at 793, this court held that the trial court did not err in using
       its discretion to sentence the defendant to three years’ probation and residential treatment
       with Treatment Alternatives for Safe Communities (TASC) under the Alcoholism and Other
       Drug Abuse and Dependency Act (Abuse and Dependency Act) (20 ILCS 301/40-5 et seq.
       (West 1994)) even though he was not eligible for probation under the Code due to his prior
       convictions. In doing so, this court noted that just as in Teschner, where the Dangerous Drug
       Abuse Act did not limit the trial court’s discretion to being consistent with the Code, the
       Abuse and Dependency Act did not limit the trial court to consistency with the Code either.
       Young, 334 Ill. App. 3d at 792-93.
¶ 16        In the Veterans Court Act, the legislature notes that some veterans and servicemembers
       may suffer the effects of post-traumatic stress disorder, traumatic brain injury, depression,
       and drug or alcohol addiction due to their service and are charged with felony or
       misdemeanor offenses as a result. 730 ILCS 167/5 (West 2010). The legislature also
       identifies “a critical need for the criminal justice system to recognize these veterans, provide
       accountability for their wrongdoing, provide for the safety of the public and provide for the
       treatment of the veterans,” and sets forth that its intent is to create specialized courts and
       programs with the flexibility to meet the specialized problems faced by those defendants. 730
       ILCS 167/5 (West 2010). Thus, similar to the statutes at issue in Teschner and Young, the
       language of the Veterans Court Act indicates a strong legislative policy favoring the
       treatment and rehabilitation of affected veterans and servicemembers. In addition, while the
       statute provides that a veterans court may impose conditions of probation and conditional
       discharge set forth in the Code (see 730 ILCS 167/25(e) (West 2010)), it does not require the
       trial court to act consistently with the Code, just like the statutes in Teschner and Young.
¶ 17        The State asserts that this case is distinguishable from Teschner and Young because the
       defendants in those cases were ineligible for probation under a different subsection of the
       Code than defendant in this case. However, that distinction is inconsequential where the
       courts’ holdings were based on the conclusion that a trial court’s discretion under the
       Dangerous Drug Abuse Act and the Abuse and Dependency Act was not limited by the Code
       as a whole. Also, while the Veterans Court Act is not identical to the Dangerous Drug Abuse
       Act or the Abuse and Dependency Act, the three statutes are similar in several important
       respects as noted above.
¶ 18        In addition, this case is distinguishable from People v. Johnson, 338 Ill. App. 3d 213, 218
       (2003), in which this court held that the defendant could not have been sentenced to five
       years’ probation and treatment in TASC under the Abuse and Dependency Act because he
       was not eligible for probation under the Code. In doing so, the court determined that the
       legislature must have intended for a trial court’s discretion under the Abuse and Dependency
       Act to be limited by the Code at the time of the defendant’s sentencing where it later
       amended the relevant subsection of the Code to provide an exception to the prohibition on
       probation for sentences imposed under the Abuse and Dependency Act. Id. The court
       reasoned that the statute must not have provided an exception to the Code prior to its

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       amendment because it is presumed that a legislature intends to effect some change in the law
       when it amends a statute and the statute’s amendment would not have effected any change
       in the law if that exception had already existed. Id.
¶ 19        In this case, however, there is no indication that the legislature intended for the Veterans
       Court Act to be limited by the Code where the section requiring that defendant be sentenced
       as a Class X offender (730 ILCS 5/5-5-3(c)(8) (West 2008)) in this case does not reference
       the Veterans Court Act and was not amended to do so after defendant’s sentencing. Also, the
       Code provides that a defendant sentenced as a Class X offender under that section is not
       eligible for treatment under the Abuse and Dependency Act. 730 ILCS 5/5-5-3(c)(8) (West
       2008). To the extent any legislative intent can be gleaned from that language, it is that the
       legislature chose not to exclude such defendants from veterans court where it could have
       done so by inserting similar language, but did not.
¶ 20        The distinction between a veterans court program and a sentence of probation under the
       Code is further illustrated by the existence of the pre-adjudicatory program, in which a
       defendant may successfully complete a veterans court program before his conviction or the
       filing of a criminal case against him. 730 ILCS 167/10 (West 2010). Thus, unlike the Code,
       which by its own terms applies only to a defendant who has been convicted of an offense
       (730 ILCS 5/5-5-3(a) (West 2008)), the Veterans Court Act applies to defendants who have
       been charged with a felony or misdemeanor, and a defendant may enter such a program
       without having first been convicted of a crime. As such, it would be problematic to hold that
       a person’s eligibility for veterans court is controlled by the Code where the Code applies only
       to defendants who have been convicted of a crime while the Veterans Court Act applies to
       defendants who have been charged with a crime, including those who have not yet been
       prosecuted or convicted. We therefore determine that a person is not precluded from
       participating in a veterans court program by the Code based solely on the fact that he is not
       eligible for probation.
¶ 21        The State asserts that even if defendant was not ineligible for veterans court based on his
       ineligibility for probation, he was not a viable candidate for such a program and therefore is
       not entitled to withdraw his guilty plea. The State first notes that the Veterans Court Act
       provides that a defendant may only be admitted into such a program upon the agreement of
       the prosecutor and defendant and with the approval of the veterans court (730 ILCS
       167/20(a) (West 2010)) and maintains that nothing in the record indicates that the prosecutor
       or the court would have agreed to such terms. The record does show, however, that the
       appropriateness of a veterans court program for defendant was never seriously considered
       or discussed by the prosecutor or the court where defense counsel misadvised defendant that
       veterans court only applied in drug cases and the trial court mistakenly believed that
       defendant was ineligible because he was not eligible for probation. Thus, while it is entirely
       possible that defendant would not have been able to obtain the agreement of the prosecutor
       or the approval of the court to be admitted into a veterans court program, it is clear from the
       record that defendant never had the opportunity to explore such a possibility.
¶ 22        The State also notes that a defendant must demonstrate a willingness to participate in a
       treatment program to be eligible for veterans court (730 ILCS 167/20(b)(2) (West 2010)) and
       maintains that defendant did not demonstrate such a willingness where he had a history of

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       not adhering to conditions of probation. However, the record does not show that defendant
       was not willing to participate in a treatment program at the time he pleaded guilty where he
       requested and was granted drug treatment during sentencing and inquired as to his eligibility
       for veterans court in his motion to withdraw his guilty plea and the ensuing hearing.
¶ 23       The State further maintains that defendant has not demonstrated that he suffers from the
       type of substance abuse or mental health problems the Veterans Court Act is designed to
       address. However, the record indicates that defendant suffered from substance abuse
       problems where he requested and was granted drug treatment during sentencing. Moreover,
       such a determination need not be made at this point in the proceedings where the statute
       provides for an eligibility screening and mental health and drug/alcohol screening and
       assessment of a defendant. 730 ILCS 167/25(b) (West 2010).
¶ 24       We therefore determine that defendant was not ineligible for veterans court based on his
       ineligibility for probation where the Veterans Court Act does not require that a person be
       eligible for probation to be eligible for one of its programs and his participation in such a
       program is not precluded by the Code. Also, while it is possible that the prosecutor would
       not have agreed to defendant’s admission into a veterans court program or the veterans court
       may have exercised its discretion not to approve such an admission, we cannot predict what
       would have happened had defendant been allowed to explore his eligibility for such a
       program where he was prevented from doing so. As such, we conclude that the trial court
       abused its discretion when it denied defendant’s motion to withdraw his guilty plea based on
       the mistaken legal conclusion that his guilty plea was not entered under a misapprehension
       of law because veterans court was limited to those defendants who were eligible for
       probation. As a result, we need not address the additional issues raised by defendant in this
       appeal.

¶ 25                                    CONCLUSION
¶ 26       Accordingly, we reverse the trial court’s denial of defendant’s motion to withdraw his
       guilty plea and remand the matter for further proceedings.

¶ 27      Reversed and remanded.




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