People v. O'Dell , 2023 IL App (5th) 190489-U ( 2023 )

2023 IL App (5th) 190489-UNOTICE NOTICE
Decision filed 02/23/23. The
This order was filed under
text of this decision may be NO. 5-19-0489 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 16-CF-1172
)
HARRY S. O’DELL, ) Honorable
) Neil T. Schroeder,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court.
Presiding Justice Boie and Justice Welch concurred in the judgment.
ORDER
¶1 Held: Where the circuit court properly admonished defendant of his rights under Illinois
Supreme Court Rule 401 (eff. July 1, 1984), postplea counsel complied with Illinois
Supreme Court Rule 604(d) (eff. July 1, 2017), and the circuit court did not abuse
its discretion in denying defendant’s motion to vacate his guilty plea, defendant’s
appointed counsel is granted leave to withdraw, and the judgment of the circuit
court is affirmed.
¶2 On November 21, 2018, defendant Harry S. O’Dell pled guilty to aggravated domestic
battery (720 ILCS 5/12-3.3(a) (West 2016)) in exchange for a sentence of six years’ imprisonment.
¶3 Defendant appealed and the circuit court of Madison County appointed the Office of the
State Appellate Defender (OSAD) to represent him. OSAD has concluded that this appeal lacks
arguable merit and has filed a motion for leave to withdraw as appellate counsel. See Anders v.
California, 386 U.S. 738 (1967). OSAD provided defendant with a copy of its Anders motion and
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supporting memorandum. This court gave defendant an opportunity to file a response to OSAD’s
motion explaining why his appeal has merit. Defendant filed a response. Having thoroughly
reviewed the record on appeal, OSAD’s Anders motion and memorandum, and defendant’s
response, we agree this appeal presents no issues of arguable merit. We therefore grant OSAD
leave to withdraw as counsel and affirm the judgment of the circuit court.
¶4 BACKGROUND
¶5 The State charged defendant by information in the instant case with one count of
aggravated domestic battery. He was also charged by indictment in case No. 17-CF-1885 with
several offenses he was alleged to have committed while released on bond in the instant case.
¶6 In December 2017 defendant filed a pro se motion to dismiss his private counsel. The court
granted the motion and appointed the public defender’s office. On April 26, 2018, defendant filed
a motion to represent himself pro se.
¶7 At a hearing on May 16, 2018, the court admonished defendant that he had the right to hire
an attorney, to be appointed the public defender’s office if he was indigent, or to represent himself.
He indicated he understood. He stated he was 39 years old, had an associate’s degree, and read,
wrote, and understood English. He was not under the influence of drugs or alcohol or suffering
from any disability preventing him from understanding the proceedings. He had received a copy
of the charge against him and understood the allegations.
¶8 Defendant understood he had been charged with a Class 2 felony punishable by three to
seven years’ imprisonment. However, the court admonished that, based on his criminal history,
the court believed his offense was nonprobational and he was eligible for an extended term of 7 to
14 years’ imprisonment. Further, the State alleged the instant offense was defendant’s third Class
2 felony, mandating Class X sentencing with a range of 6 to 30 years’ imprisonment. Defendant
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indicated he understood. The court further explained to defendant that any sentence imposed in
case No. 17-CF-1885 would be served consecutively to any sentence in the instant case as he was
alleged to have committed the 2017 offenses while on bond in the instant case.
¶9 The court explained the disadvantages of proceeding pro se, such as the requirement to
adhere to technical rules and advocate opposite an experienced state’s attorney. The court found
that defendant freely, knowingly, and intelligently waived his right to counsel. The court noted
defendant had “the requisite mental capacity” and behaved appropriately.
¶ 10 On July 23, 2018, defendant requested the court appoint standby counsel. The court denied
his request. On July 27, 2018, he requested the court reappoint counsel, and the court appointed
the public defender’s office.
¶ 11 On September 27, 2018, the court held a conference pursuant to Illinois Supreme Court
Rule 402(d) (eff. July 1, 2012). The parties did not reach a resolution. The court repeated that
aggravated domestic battery was a Class 2 felony punishable by 3 to 7 years’ imprisonment but
defendant might be eligible for an extended sentence of 7 to 14 years’ imprisonment. The court
further informed defendant the State filed a motion seeking Class X sentencing based on
defendant’s background and, if the State proved he had been convicted of two prior Class 2
felonies, he faced a mandatory sentencing range of 6 to 30 years’ imprisonment on the instant
offense with 4 years’ mandatory supervised release (MSR). Defendant stated he understood.
¶ 12 On October 2, 2018, defendant filed another motion to proceed pro se. On October 11,
2018, the court noted it previously administered the necessary admonishments and, on the last
court date, reiterated the possible penalties. Defendant confirmed he was not under the influence
of drugs or alcohol, had thought about the decision, and wanted to represent himself. The court
granted the request.
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¶ 13 On November 21, 2018, defendant requested in court to speak with the State.1 The court
noted that the parties spoke for approximately 45 minutes to an hour. The State announced
defendant agreed to plead guilty in exchange for a sentence of six years’ imprisonment. The State
noted it would not charge him with any offenses involving his communications with witnesses or
the victim up to that date. Defendant also agreed to plead guilty to aggravated battery in case No.
17-CF-1885 in exchange for a sentence of six years’ imprisonment and the dismissal of other
charges.
¶ 14 Defendant confirmed that he understood the agreement to mean, in the instant case, he
would serve six years’ imprisonment and four years’ MSR. He indicated he was 40 years old,
attended college, and read, wrote, and spoke English. He was not under the influence of drugs or
alcohol and did not have a disability preventing him from understanding the proceedings. The
court explained the nature of the charge and he confirmed he understood and pled guilty.
¶ 15 The court explained to defendant the nature of the aggravated battery charge in case No.
17-CF-1885, and defendant confirmed he understood. However, he interrupted to discuss with the
State whether he could plead guilty to a different charge in the case. The State declined, and he
pled guilty to aggravated battery.
¶ 16 Defendant confirmed he understood he was presumed innocent until the State proved his
guilt beyond reasonable doubt and he was not required to prove anything. He understood he had
the right to private or appointed counsel, to plead not guilty, to a jury or bench trial, to confront
and cross-examine the State’s witnesses, to call his own witnesses, and to testify. He understood
he waived those rights by pleading guilty. The court stated that aggravated domestic battery was a
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The transcript indicates the hearing occurred on November 20, 2018. However, at the hearing on
defendant’s motion to withdraw the plea, the State noted this hearing actually occurred on November 21,
2018. The electronic docket included in the record on appeal reflects defendant pled guilty on November
21, 2018, and the court’s order reflecting the same is dated November 21, 2018.
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Class 2 felony with a range of 3 to 7 years’ imprisonment and he was eligible for an extended term
from 7 to 14 years’ imprisonment due to his criminal history.
¶ 17 As a factual basis, the State provided its evidence would show that, in May 2016, defendant
punched a woman in the face, resulting in several fractures. They were in a dating relationship and
had a child in common. The court found the factual basis sufficient.
¶ 18 Defendant denied he was forced or threatened into pleading guilty or promised anything
outside the negotiations. He was pleading freely and voluntarily. The court found defendant
understood the charge, his rights, and possible penalties, and was freely, knowingly, and
voluntarily waiving his rights and pleading guilty. The court accepted his plea and sentenced him
to six years’ imprisonment in the instant case and a consecutive term of six years’ imprisonment
for case No. 17-CF-1885. The court explained that if defendant wished to appeal, he had to file a
motion to withdraw his plea within 30 days, and any claim of error absent from the motion would
be waived on appeal.
¶ 19 On December 20, 2018, defendant filed a pro se motion to withdraw his guilty plea and
vacate his sentence. He alleged his plea resulted from a “foggy mental state” induced by
medication and the State coerced the plea through retaliation, force, the pressure of a maximum
sentence, and visits from his children. He further alleged he was innocent and panicked as trial
approached, having spent 18 months in jail. He also filed a motion to reduce his sentence, again
alleging he was on medication and panicked as trial approached, believed he would be sentenced
to six years’ total imprisonment rather than six years on each case, and the State retaliated against
him for proceeding pro se. He requested counsel be appointed.
¶ 20 The court appointed counsel, and counsel filed an amended motion to withdraw the plea
and vacate judgment. Counsel argued defendant’s plea was involuntary due to duress and coercion
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and entered “under the influence of mind-altering medication.” Defendant’s attorneys filed
certificates pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), asserting that they
consulted with him to ascertain his contentions of error, examined the filed record and report of
proceedings, including of the guilty plea hearing, and amended his motion as necessary to
adequately present his claims.
¶ 21 The court held a hearing on November 18, 2019. Defendant testified he had been anxious
as his trial approached. The morning of his plea hearing, he had snorted what he had been told was
Seroquel but learned when he returned to jail was “meth laced with LSD.” He had gotten the drug
from a “trustee,” who swept the floors, picked up trash, and moved items from prisoner to prisoner.
The drug took effect quickly, but “really hit” him when he arrived at the courthouse. It caused
extreme paranoia and anxiety, made him feel like he was “drowning,” “outside of [himself]
watching [himself],” and that everyone, including the judge, was working against him.
¶ 22 Defendant understood the beginning of the plea hearing but had a panic attack and did not
remember much afterwards, including denying he was under the influence of drugs. At one point,
defendant testified, the judge stated it was “like watching a car crash,” and he began hallucinating
about crashes, exacerbating his post-traumatic stress disorder from military service. He had felt
coerced and threatened by the State and was unable to speak with his family or see his children
before entering the plea. He had gone “through the motions” when the court asked if he felt
threatened or coerced.
¶ 23 On cross-examination, defendant testified he did not remember the name of the trustee who
gave him the drug. He had been admonished about the possible penalties he faced prior to the date
of the plea hearing. He denied recalling that the State offered him a 12-year sentence, although he
admitted the court may have admonished him that he was required to serve the sentences on his
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two cases consecutively for a minimum of 12 years. He did not realize he had been sentenced to
12 years’ imprisonment until he returned to jail and the drug effects subsided. However, he may
have told his family in a recorded phone call from jail that he was demanding trial to “bluff” the
State and “play chicken” with their 12-year offer. He did not recall interrupting the proceedings to
ask the State to reconsider the negotiations.
¶ 24 The defense called Flaze Peoples, who testified he had been in jail with defendant, and they
spoke every day. On the day of the plea hearing, defendant was “not in his right mind,”
“belligerent,” and crying. Peoples observed him snort a white powder before going to court. When
he returned from court, he had his head down, cried, and seemed not to care about life anymore.
¶ 25 The defense also called Diontae Vaughn, who testified he was in jail with defendant and
saw him snort a white, “icy” powder the morning of the plea hearing. When defendant returned to
jail, defendant was more aggressive than usual and tried to fight people.
¶ 26 The court denied defendant’s motion. The court noted it had interacted with defendant
extensively while he represented himself and he behaved on the date of the plea hearing the same
as he had at other proceedings. He did not appear to be under the influence of drugs. The court
further noted that the allegations presented at the hearing, that he was paranoid and anxious from
meth, differed from the allegation in his pro se motion to withdraw the plea that he had a “foggy
mental state” induced by medication. The court did not believe his or the other witnesses’
testimony and found his plea knowing, voluntary, and intelligent.
¶ 27 ANALYSIS
¶ 28 OSAD has identified three issues defendant could potentially raise on appeal but concludes
none of them have any arguable merit. We agree.
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¶ 29 The first potential issue is whether the court properly admonished defendant of his rights
pursuant to Illinois Supreme Court Rule 401 (eff. July 1, 1984) before allowing him to represent
himself. The sixth amendment and the Illinois Constitution guarantee the right of self-
representation. Faretta v. California, 422 U.S. 806, 821 (1975); People v. Leeper, 317 Ill. App. 3d
475, 480 (2000). A defendant may waive his right to counsel so long as the waiver is made
voluntarily and intelligently. People v. Dixon, 366 Ill. App. 3d 848, 852 (2006).
¶ 30 Rule 401 provides that a court shall not permit waiver of the right to counsel without
determining that the defendant understands (1) the nature of the charge against him; (2) the
minimum and maximum possible sentences, including penalties the defendant may face due to
prior convictions and consecutive sentences; and (3) he has the right to counsel or, if indigent,
appointed counsel. Ill. S. Ct. R. 401(a) (eff. July 1, 1984). The circuit court must substantially
comply with the rule. People v. Wright, 2017 IL 119561, ¶ 41. While we review whether a
defendant knowingly and voluntarily waived counsel for an abuse of discretion, whether the court
substantially complied with Rule 401 is a question of law we review de novo. People v. Pike, 2016
IL App (1st) 122626, ¶ 114.
¶ 31 First, by pleading guilty, defendant waived any claim of error regarding his waiver of
counsel. “It is well established that a voluntary guilty plea waives all nonjurisdictional errors or
irregularities, including constitutional ones.” People v. Townsell, 209 Ill. 2d 543, 545 (2004).
¶ 32 Regardless, any such claim would lack merit. On May 16, 2018, the court considered
defendant’s first motion to proceed pro se. He denied being under the influence of drugs or alcohol.
He confirmed that he had received a copy of the charge and understood the allegations against
him. The court explained the charge was a Class 2 felony with a range of 3 to 7 years’
imprisonment, but because of his criminal history he may be eligible for an extended term of 7 to
8
14 years’ imprisonment or face mandatory Class X sentencing with a range of 6 to 30 years’
imprisonment. He indicated that he understood. Moreover, because the offense in case No. 17-CF-
1885 occurred while he was released on bond in the instant case, the court stated any sentence in
that case would be served consecutively to a sentence in the instant case. The court admonished
him that he had the right to hire an attorney, to be appointed counsel if indigent, or to represent
himself. The court then granted defendant’s request to proceed pro se, finding his waiver of
counsel knowing, intelligent, and free. Thus, the court gave the necessary admonishments on May
16, 2018. See Ill. S. Ct. R. 401(a) (eff. July 1, 1984).
¶ 33 On July 27, 2018, defendant was reappointed the public defender’s office. In September
2018, the court held a Rule 402 hearing and repeated the possible penalties he faced. In October
2018, defendant again moved to represent himself. On October 11, 2018, the court granted his
motion, stating it had previously administered the necessary admonishments and, on the previous
date, reiterated the possible penalties.
¶ 34 In light of this record, the court substantially complied with Rule 401. A court substantially
complies with Rule 401 where the failure to provide the admonishments does not prejudice the
defendant because he ”was already aware” of the necessary information. People v. Gilkey, 263 Ill.
App. 3d 706, 711 (1994). As defendant here received the necessary admonishments and indicated
he understood them the first time he moved to proceed pro se, he was not prejudiced by the court’s
decision not to readminister the admonishments on his second request as he was already aware of
the information. Thus, there is no issue of arguable merit on appeal that the court failed to
substantially comply with Rule 401.
¶ 35 The second potential issue counsel considered raising is whether defendant’s postplea
counsel complied with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). That rule provides
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that, where an indigent defendant moves to withdraw his plea and vacate judgment, appointed
counsel must file a certificate stating they consulted with the defendant, examined the court file
and report of proceedings, including the entry of the guilty plea, and amended the defendant’s
pro se motion as necessary to adequately present any defects in the proceedings. Id. Here,
defendant’s two postplea attorneys filed certificates stating that they consulted with defendant to
ascertain his contentions, examined the trial court file and report of proceedings, including his
guilty plea, and amended his motion as necessary. Thus, they complied with the rule and this issue
presents no arguable merit on appeal.
¶ 36 The third potential issue is whether the circuit court abused its discretion in denying
defendant’s motion to withdraw his plea. A defendant has no absolute right to withdraw his plea
and bears the burden of demonstrating it is necessary. People v. Artale, 244 Ill. App. 3d 469, 475
(1993). He may withdraw the plea where (1) it was entered on a misapprehension of facts or law;
(2) it was entered in consequence of misrepresentations by counsel, the State, or someone else in
authority; (3) there is doubt of his guilt; (4) he has a defense worthy of consideration by a jury; or
(5) a trial would better serve the ends of justice. People v. Mercado, 356 Ill. App. 3d 487, 494
(2005). In other words, he must demonstrate manifest injustice. People v. Hughes, 2012 IL 112817,
¶ 32. Absent an abuse of discretion, we will not disturb a court’s decision regarding whether a
defendant may withdraw his guilty plea. Id.¶ 37 Before the court accepted defendant’s guilty plea, the court admonished him as to the
nature of the charge, his right to plead not guilty, his right to a trial, his attendant rights at trial,
and that pleading guilty would waive those rights. See Ill. S. Ct. R. 402(a)(1), (3), (4) (eff. July 1,
2012) (before accepting guilty plea court must confirm defendant understands nature of charge,
right to plead not guilty, and guilty plea waives right to trial). The court reiterated that aggravated
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domestic battery was a Class 2 felony punishable by 3 to 7 years’ imprisonment but he might have
been eligible for an extended term of 7 to 14 years’ imprisonment and the sentence in case No. 17-
CF-1885 would run consecutively to the instant case. The court did not repeat the State’s
contention that he was eligible for Class X sentencing at 6 to 30 years’ imprisonment.
Nevertheless, the rule requires only substantial compliance and the court in prior proceedings
confirmed defendant understood the possible penalties. The court also confirmed that defendant
understood the plea agreement called for a six-year sentence. See Ill. S. Ct. R. 402(a)(2), (b) (eff.
July 1, 2012) (substantial compliance required; court must determine defendant understands
minimum and maximum possible penalty, and if plea is result of agreement, court must confirm
terms of agreement).
¶ 38 Further, defendant denied he had been forced, threatened, or promised anything outside the
plea agreement. The court therefore concluded the plea was voluntary. See Ill. S. Ct. R. 402(b)
(eff. July 1, 2012) (court must determine plea is voluntary). The State set out the factual basis, that
its evidence would show defendant punched the victim in the face, causing several fractures, and
they were dating and had a child in common. The court determined the factual basis was sufficient.
See Ill. S. Ct. R. 402(c) (eff. July 1, 2012) (court must determine there is factual basis for plea);
720 ILCS 5/12-3.3(a) (West 2016) (a person commits aggravated domestic battery when, in
committing domestic battery, he knowingly causes great bodily harm, permanent disability, or
disfigurement); see also 720 ILCS 5/12-3.2(a)(1) (West 2016) (a person commits domestic battery
if he knowingly, without legal justification, harms a family or household member). The court
therefore substantially complied with Rule 402.
¶ 39 Moreover, to show he entered his plea unknowingly or involuntarily due to his mental state
at the time of the plea, a defendant must prove facts raising “a real, substantial and legitimate doubt
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as to his mental capacity.” (Internal quotation marks omitted.) People v. Bryant, 2016 IL App (5th)
140334, ¶¶ 31-32 (defendant arguing medication impaired ability to properly enter plea was
required to show he was unfit because of doubt he was mentally capable of participating in defense
and cooperating with counsel). The trial court’s credibility determinations regarding a defendant’s
allegation that he did not understand the plea proceedings are entitled to great deference as the trial
court can observe the witnesses’ conduct and demeanor. People v. Glover, 2017 IL App (4th)
160586, ¶ 28. Here, the court found defendant, Peoples, and Vaughn’s testimony incredible that
defendant was under the influence of drugs at the plea hearing. As the court observed, it had
interacted with him extensively throughout the case, and his behavior on the date of the plea
hearing was consistent with his demeanor during other proceedings.
¶ 40 Nor did defendant present evidence the State coerced or pressured him into entering the
plea. He alleged in his pro se motion and testimony that he was coerced into pleading guilty as he
was unable to talk to his family about the offered sentence or see his children. However, he
admitted that, during recorded jail conversations, he may have told his family he was playing
“chicken” with the State regarding their 12-year offer and “bluff[ing]” the State by demanding
trial. Further, he did not present evidence that his stress rendered the entry of his plea unknowing
or involuntary. See Bryant, 2016 IL App (5th) 140334, ¶ 34 (emotional stress does not render plea
unknowing or involuntary without “credible evidence that the defendant’s alleged emotional state
impacted his ability to make a knowing and voluntary guilty plea”). Again, the court noted that
defendant’s conduct at the plea hearing comported with his conduct throughout the case, and
defendant denied at the plea hearing that he was coerced, pressured, or threatened into pleading
guilty.
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¶ 41 Accordingly, there is no meritorious argument that the court abused its discretion in
denying defendant’s motion to withdraw his plea.
¶ 42 In response to OSAD’s Anders motion, defendant has filed a “Petition for Post-Conviction
Relief.” In that document, he disagrees with OSAD that there are no meritorious issues in his
appeal. He argues that the State lied about the victim’s injuries and to the grand jury—although in
the instant case he was charged by information, not indictment—threatened witnesses, and
withheld critical information in discovery. He alleges he received ineffective assistance of counsel,
and the court violated due process by barring certain, unspecified evidence, not providing him an
investigator or subpoenas for his witnesses, and not holding a sentencing hearing. He reiterates
that he was intoxicated when he entered his guilty plea.
¶ 43 Besides his allegation that his plea was improperly entered, the issues defendant raises are
waived by virtue of his guilty plea. Townsell, 209 Ill. 2d at 545 (voluntary guilty plea waives all
nonjurisdictional errors including constitutional ones). Moreover, he was admonished that all
issues not included in his motion to withdraw his plea would be waived on appeal, and none of the
issues in his response, save his allegation regarding the entry of his plea, were included in his
pro se motion to withdraw his plea or counsel’s amended motion. Ill. S. Ct. R. 604(d) (eff. July 1,
2017) (“Upon appeal any issue not raised by the defendant in the motion to *** withdraw the plea
of guilty and vacate the judgment shall be deemed waived.”). Lastly, as discussed above, there is
no issue of arguable merit that the court abused its discretion in denying his motion to withdraw
his plea.
¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, we grant OSAD’s Anders motion for leave to withdraw as
appellate counsel and affirm the judgment of the circuit court of Madison County.
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¶ 46 Motion granted; judgment affirmed.
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