                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Saleh, 2013 IL App (1st) 121195




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



District & No.             First District, Third Division
                           Docket No. 1-12-1195


Filed                      August 14, 2013


Held                       Where defendant pled guilty to driving under the influence of alcohol in
(Note: This syllabus       exchange for one year’s supervision, but he later stipulated to the
constitutes no part of     revocation of supervision because of his violations of the terms of
the opinion of the court   supervision and he was sentenced to 364 days in the county jail, the trial
but has been prepared      court’s judgment was vacated and the cause was remanded, since the trial
by the Reporter of         court failed to substantially comply with Supreme Court Rule 402A,
Decisions for the          which requires the trial court to admonish defendant about his rights,
convenience of the         including the rights he is giving up, and to determine whether a factual
reader.)
                           basis exists for his stipulation, and on remand, the trial court was directed
                           to allow defendant to withdraw his stipulation and to consider
                           defendant’s possible challenge to the validity of his conviction.


Decision Under             Appeal from the Circuit Court of Cook County, No. XX-XXXXXXX; the
Review                     Hon. Larry G. Axelrood, Judge, presiding.



Judgment                   Vacated and remanded with directions.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Philip Payne, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                           Brian K. Hodes, Assistant State’s Attorneys, of counsel), for the People.


Panel                      JUSTICE HYMAN delivered the judgment of the court with opinion.
                           Presiding Justice Neville and Justice Pierce concurred in the judgment
                           and opinion.



                                              OPINION

¶1          Due process insists that before accepting a guilty plea, the trial court give each
        admonition codified at Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003). This applies
        in proceedings to revoke probation, conditional discharge, or supervision when the defendant
        admits or stipulates to the violation which forms the basis for revocation. It is necessary to
        validate that the defendant understands the admission or stipulation, the rights being waived,
        and the potential consequences of his or her actions. While substantial, not literal,
        compliance with Rule 402 suffices, the record must affirmatively establish that the defendant
        understood each one of the required admonitions.
¶2          Defendant Mahmoud Saleh pled guilty to misdemeanor driving under the influence of
        alcohol (DUI) in exchange for an agreed term of one year’s supervision. After the State
        petitioned to revoke his supervision due to a number of violations, Saleh stipulated to the
        revocation and received a sentence of 364 days in the Cook County department of
        corrections. On appeal, Saleh contends that the trial court accepted his stipulation to revoke
        the supervision without giving any Rule 402A admonitions and therefore asks that the order
        revoking his supervision be vacated and the case remanded for further proceedings. We
        agree.

¶3                                             Background
¶4          On April 24, 2009, in exchange to his plea of guilty to misdemeanor DUI, Saleh received
        an agreed-on term of one year’s supervision along with fines and fees. About six months
        later, the State filed a petition to revoke Saleh’s supervision, alleging he violated several of
        the conditions set out in the supervision order. On January 25, 2010, the State filed a
        supplemental petition alleging that Saleh sent a threatening letter to an employee with the
        social service department.
¶5          At the hearing on January 25, 2010, the trial court ordered a behavioral clinical
        examination (BCX) and set bond. At the State’s request, bond was fixed at $400,000 due to


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     the threatening letter as well as unrelated federal charges for wire fraud that Saleh faced. He
     was taken into Cook County custody, and the case was continued. Subsequently, Saleh was
     placed in federal custody. On May 19, 2010, Saleh’s attorney tendered the results of a
     federally administered psychological evaluation in lieu of the BCX, which could not be
     administered while under federal authority. The evaluation found Saleh legally competent
     and capable of assisting in his defense.
¶6       On January 10, 2011, Saleh appeared in the trial court on the State’s petitions to revoke
     supervision. After an off-record conference, the following exchange occurred:
             “THE COURT: All right. Sir, you are here. There are two separate violations; is that
         correct?
             [ASSISTANT STATE’S ATTORNEY]: Yes, your honor.
             THE COURT: Yes. Have you had the opportunity to discuss these matters with your
         attorney?
             THE DEFENDANT: I’m sorry.
             THE COURT: Have you had a chance to discuss with your attorney the conditions,
         the reasons for the violation of supervision?
             THE DEFENDANT: Yes.
             THE COURT: The allegations, you understand them?
             THE DEFENDANT: Yes, sir. Yes, your honor.
             THE COURT: Do you wish to admit to the violation?
             THE DEFENDANT: Yes.
             [DEFENSE COUNSEL]: No.
             THE COURT: Strike that. I apologize. There is a stipulation; is that correct?
             [DEFENSE COUNSEL]: There is a stipulation, Judge, that if the State would
         proceed to hearing, they would present certain evidence including technical violations
         alleged in the first violation and the existence of a letter which was what I just handed
         you in this matter, Judge.
             THE COURT: I will accept that stipulation. Are you ready for sentencing?
             [DEFENSE COUNSEL]: We are, Judge. Thank you.
             THE COURT: Anything in aggravation?
             [ASSISTANT STATE’S ATTORNEY]: Judge, we rest on the agreement discussed
         in the conference.
             THE COURT: Mitigation?
             [DEFENSE COUNSEL]: Judge, the only thing I would add is at the time the
         correspondence was written my client was on certain medications prescribed in the
         federal case which have been shown to likely cause the types of feelings and visions that
         he described in that letter.
             THE COURT: Thank you.
             [DEFENSE COUNSEL]: And he’s been subsequently found to be off that medication

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           by an evaluation and not a risk.
               THE COURT: Sir, is there anything you wish to say before I impose sentence?
               THE DEFENDANT: No.
               THE COURT: All right. The sentence will be 364 days Cook County Department of
           Corrections. Credit for 364 days time considered served. Supervision is termed [sic]
           unsatisfactory today. Your commitment to this court has ended. Thank you.”
¶7         Eight days after the hearing, Saleh appealed pro se. The trial court granted his motions
       to proceed in forma pauperis and appoint appellate counsel, but denied a motion to stay the
       order of January 10, 2011. The trial court did not address Saleh’s motion to withdraw the
       guilty plea.

¶8                                             Analysis
¶9         Saleh seeks to vacate the order revoking supervision and remand because his due process
       rights were violated when he stipulated to the revocation of supervision without benefit of
       the trial court reviewing with him the admonishments contained in Supreme Court Rule
       402A. Saleh argues that without the admonitions nothing in the record indicates he
       understood the specific allegations in the revocation petition, the procedural rights he
       relinquished, or the voluntariness of his entering into the stipulation, including any reliance
       on a promise or other form of coercion.
¶ 10       The State raises only one issue: Saleh’s appeal is moot because, having completed his
       sentence, no effective relief can be granted. Although it is true that a challenge to the validity
       of an imposed sentence becomes moot once the entire sentence has been served (People v.
       Lieberman, 332 Ill. App. 3d 193, 195 (2002)), the nullification of a conviction is another
       matter entirely. For a defendant, a conviction may trigger potentially severe legal, social,
       employment, and financial repercussions. See In re Christopher K., 217 Ill. 2d 348, 359
       (2005) (“Nullification of a conviction may hold important consequences for a defendant.”).
       Thus, the validity of the conviction is not rendered moot by the defendant having served his
       or her sentence. People v. Campbell, 224 Ill. 2d 80, 84 (2006) (rejecting State’s argument on
       mootness where “defendant’s claim clearly calls into question the validity of his
       conviction”).
¶ 11       Mootness being inapplicable, Saleh has the right to have a hearing on his challenge to the
       correctness of the conviction. See Campbell, 224 Ill. 2d at 84. But, before we do, we wish
       to address an argument of the State’s which is incorrect as a matter of law. The State asserts
       that defendant “cannot *** challenge his underlying DUI conviction,” entered on April 24,
       2009. This ignores that supervision does not “constitute a disposition following a judgment
       of conviction.” People v. Larimer, 409 Ill. App. 3d 827, 829 (2011). When a court places a
       defendant on supervision, it leaves open whether the defendant will ever be sentenced at all.
       People v. Rozborski, 323 Ill. App. 3d 215, 220 (2001); People v. Bushnell, 101 Ill. 2d 261,
       265-66 (1984) (recognizing order of supervision is not final judgment). If the defendant
       successfully completes supervision, the charges are dismissed and the result resembles an
       acquittal; if supervision is not completed successfully, the defendant may be found guilty and
       sentenced. Rozborski, 323 Ill. App. 3d at 220. Until sentencing takes place, there is no final

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       judgment. Rozborski, 323 Ill. App. 3d at 220.
¶ 12        Here, on April 24, 2009, Saleh entered a guilty plea and received a one-year term of
       supervision. Saleh did not stand convicted at that time. On January 10, 2011, defendant
       stipulated to a violation of the April 24, 2009, supervision order. The court then entered a
       judgment of conviction on the underlying DUI offense and imposed a sentence of 364 day’s
       imprisonment considered served on that conviction. Therefore, Saleh’s challenge to the order
       of January 10, 2011, is a challenge to his conviction based on a violation of the provisions
       of Rule 402A.
¶ 13        Turning to Saleh’s arguments, Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003)
       provides that in proceedings to revoke supervision, the trial court must admonish the
       defendant and determine that the defendant understands: (i) the specific allegations in the
       petition to revoke supervision; (ii) his or her right to a hearing with defense counsel present,
       including appointed counsel if the defendant is indigent and the underlying offense is
       punishable by imprisonment; (iii) the right to confront and cross-examine adverse witnesses
       and present witnesses and evidence on his or her behalf at the hearing; (iv) the State must
       prove the alleged violation by a preponderance of the evidence at the hearing; (v) on
       admitting a violation or stipulating that the evidence is sufficient to revoke, there will not be
       a hearing on the petition to revoke and, therefore, the defendant waives the right to a hearing,
       the right to confront and cross-examine adverse witnesses, and the right to present witnesses
       and evidence on his or her behalf; and (vi) the sentencing range for the underlying offense.
       Additionally, under Rule 402A(b), before a court may accept an admission to a violation or
       a stipulation sufficient to revoke, the judge must determine that the defendant’s admission
       is voluntary and not made on the basis of any coercion or promise. Finally, under Rule
       402A(c), the trial court must determine if there is a factual basis for the admission or
       stipulation.
¶ 14        A standard of substantial compliance applies to Rule 402A. People v. Ellis, 375 Ill. App.
       3d 1041, 1046-47 (2007). Substantial compliance involves an “affirmative showing in the
       record that the defendant understood each of the required admonitions.” Ellis, 375 Ill. App.
       3d at 1046. To claim that the admonishments were in substantial compliance necessitates a
       reading of the entire record, including what transpired at earlier proceedings. People v.
       Dennis, 354 Ill. App. 3d 491, 496 (2004). Every case is to be considered on its own facts,
       with the primary focus on the length of time between the admonishments and the admission
       of the violation. Dennis, 354 Ill. App. 3d at 496. A trial court’s compliance with Rule 402A
       is reviewed de novo. People v. Hall, 198 Ill. 2d 173, 177 (2001); Ellis, 375 Ill. App. 3d at
       1046.
¶ 15        When accepting defendant’s stipulation to the violation of supervision, the trial court did
       not determine that Saleh understood the specific allegations in the petition to revoke
       supervision. Instead, the court asked Saleh whether he had discussed with his attorney the
       reasons for the violation and followed up with a general question, “The allegations, you
       understand them?” The trial court did not admonish Saleh regarding his right to a hearing at
       which he could confront adverse witnesses and present his own evidence and at which the
       State has the burden. Nor was he told of the significance of waiving these rights by
       stipulating to the violation. The trial court did not confirm whether Saleh’s stipulation was

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       voluntary or determine whether a factual basis supported the stipulation. We acknowledge
       that at the time Saleh pleaded guilty to DUI, the trial court did inform him of the sentencing
       range for that offense. But, the plea was made on April 24, 2009, almost two years before
       Saleh stipulated to the violation of supervision on January 10, 2011.
¶ 16        The purpose of providing Rule 402A admonishments is to ascertain that a defendant
       understands the stipulation, the rights being waived, and the potential consequences of the
       stipulation. See Dennis, 354 Ill. App. 3d at 496. A thorough review of the record reveals
       nothing in the colloquy between the trial court and defendant that satisfies substantial
       compliance with any of the requirement of Rule 402A.
¶ 17        We realize that the demands on judges handling crowded criminal dockets are such that,
       at times, they may forget or fudge something as fundamental as the admonitions. When this
       happens, at least two attorneys standing before the bench can see to it that the accused’s due
       process rights are not impaired and that the record reflects substantial compliance with Rule
       402A. The entire appeal before us could have easily been avoided had one of those attorneys
       brought the matter of the admonishments to the attention of the busy trial judge. Due process
       is every person’s right, which means that is every lawyer’s duty as an officer of the court to
       speak up in situations like this one where the admonishments are so well established as not
       to even be a matter of debate.

¶ 18                                        Conclusion
¶ 19      We vacate the judgment of the circuit court and remand with directions to allow Saleh
       to withdraw his stipulation to the violation of supervision and for further proceedings
       consistent with this disposition, as necessary. See Ellis, 375 Ill. App. 3d at 1049 (vacating
       and remanding due to lack of substantial compliance with Rule 402A).

¶ 20      Vacated and remanded with directions.




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