People v. Monroe , 2022 IL App (5th) 180344-U ( 2022 )

2022 IL App (5th) 180344-UNOTICE
NOTICE
Decision filed 01/27/22. The
This order was filed under
text of this decision may be NO. 5-18-0344
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Peti ion for not precedent except in the
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, ) Randolph County.
)
v. ) No. 17-CF-35
)
LAVONN U. MONROE, ) Honorable
) Richard A. Brown,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court.
Justices Barberis and Wharton concurred in the judgment.
ORDER
¶1 Held: Where the State proved by a preponderance of the evidence that the defendant had
violated a condition of his probation, where the circuit court did not abuse its
discretion in imposing a sentence of imprisonment for two years, and where the
circuit court adequately inquired into the defendant’s postsentencing pro se
complaints about his attorney’s representation, and any argument to the contrary
would lack merit, this court must grant appointed appellate counsel’s motion to
withdraw and must affirm the judgment of conviction.
¶2 The defendant, Lavonn U. Monroe, pleaded guilty to felony domestic battery and was
sentenced to probation for one year. He was found to have violated a condition of his probation
and was sentenced to imprisonment for two years. He now appeals from the judgment of
conviction. The defendant’s court-appointed attorney on appeal, the Office of the State Appellate
Defender (OSAD), has concluded that this appeal lacks merit, and on that basis OSAD has filed
with this court a motion to withdraw as counsel, along with a brief in support thereof. See Anders
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v. California, 386 U.S. 738 (1967). OSAD provided the defendant with a copy of its Anders
motion and brief. This court provided him with ample opportunity to file a pro se brief,
memorandum, or other document explaining why OSAD should not be allowed to withdraw or
why this appeal has substantial merit, but the defendant has not taken advantage of that
opportunity. This court has examined OSAD’s Anders motion and brief, as well as the entire
record on appeal. For the reasons that follow, this court has concluded that the instant appeal does
indeed lack merit. Accordingly, this court must grant OSAD’s Anders motion to withdraw as
counsel and must affirm the judgment of conviction.
¶3 BACKGROUND
¶4 In February 2017, the defendant was charged with domestic battery. 720 ILCS 5/12-
3.2(a)(1) (West 2016). Christina Burlison was the complainant. The offense was a Class 4 felony
due to the defendant’s having one prior domestic-battery conviction. 720 ILCS 5/12-3.2(b) (West
2016). (Apparently, Burlison was not the complainant in that prior domestic-battery case.)
¶5 On April 7, 2017, the state’s attorney, the defendant, and defense counsel appeared before
the circuit court. The state’s attorney and defense counsel informed the court that the defendant
would plead guilty and would be released that same day on the condition that he have no contact
with the complainant; there was no agreement as to sentencing. The defendant agreed with those
terms and indicated that he wanted to plead guilty. The court thoroughly admonished the defendant
as to the nature of the charge, the possible penalties, his right to plead guilty or not guilty, his right
to a trial, whether by a judge or by a jury, his rights at trial, the State’s burden of proof at a trial,
and that a plea of guilty would waive each of his rights, including the right to a trial, and the
defendant indicated his understanding of all that. The defendant pleaded guilty to domestic
battery. The court asked the defendant whether anyone had threatened, intimidated, or forced him
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to plead guilty, or whether anyone had promised him anything that had not been shared with the
court in order to persuade him to plead guilty, and the defendant answered in the negative. The
court found the defendant’s plea knowing and voluntary. (The record on appeal also includes a
written plea of guilty signed by the defendant.) The State provided a factual basis for the plea,
stating that the evidence would show that on February 27, 2017, in Sparta, Randolph County,
Illinois, the defendant caused bodily harm to Christina Burlison, a household member, by striking
her over the head with a metal chair, and he previously had been convicted of domestic battery on
September 8, 1998, in Randolph County case No. 98-CM-422. Neither defense counsel nor the
defendant had any objection to the State’s factual basis. The court found a factual basis for the
guilty plea. A presentence investigation report (PSI) was ordered.
¶6 As the guilty-plea hearing neared its end, the following exchange occurred: “THE COURT:
Now, listen, Lavonn―DEFENDANT MONROE: Yes. THE COURT:―I don’t know how to get
through to you to stay away from that woman. DEFENDANT MONROE: Yeah, yeah, yeah.”
The judge asked, and the parties discussed, plans for removing Burlison’s clothes and other
property from the defendant’s house.
¶7 The PSI, prepared by the probation department, included the defendant’s criminal history.
In 2008, the defendant was sentenced to the Illinois Department of Corrections for 10 years, after
having been found guilty of unlawful delivery of cannabis, in Randolph County case No. 07-CF-
28. In 2002, the defendant was sentenced to the Illinois Department of Corrections for five years,
after having been found guilty of unlawful delivery of controlled substance, in Perry County case
No. 01-CF-224. In 1998, the defendant was sentenced to 21 days in the county jail, after pleading
guilty to two counts of domestic battery and one count of contributing to the delinquency of a
minor, in Randolph County case No. 98-CM-422. Also in 1998, the defendant was sentenced to
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21 days in the county jail, after pleading guilty to criminal trespass to land, in Randolph County
case No. 98-CM-535. In 1995, the defendant was sentenced to probation for 24 months, after
having been found guilty of unlawful possession with intent to deliver a lookalike substance, in
Champaign County case No. 95-CF-810. In 1994, the defendant was sentenced to the Illinois
Department of Corrections for two years, after pleading guilty to theft over $300, in Randolph
County case No. 94-CF-121. The defendant’s criminal history also included various misdemeanor
convictions and ordinance violations for which fines were imposed.
¶8 On May 25, 2017, the sentencing hearing was held. Neither party presented witnesses.
The State recommended three years of imprisonment, while the defense recommended probation
with domestic-abuse counseling and anger management. The judge sentenced him to probation
for a period of 1 year, with 60 days in the county jail and “[n]o contact” with the complainant,
whom he mistakenly called Melissa Burlison, not Christina Burlison. The defendant was
thoroughly admonished as to his appeal rights, and he indicated his understanding.
¶9 On May 26, 2017, the court entered a written order of probation, for a period of one year.
The written order stated, inter alia, that the defendant was not to violate any statute of any
jurisdiction. “Special conditions” of probation included serving 60 days in the county jail and “no
contact in any manner with Christina A. Burlison.”
¶ 10 On October 18, 2017, the State filed a petition to revoke probation. It alleged that the
defendant (1) committed domestic battery by striking Christina Burlison on the face and neck, and
(2) “made contact with Christina Burlison.”
¶ 11 On October 25, 2017, the defendant made his first appearance on the petition to revoke.
The prosecutor was present. The court appointed the defendant’s plea-and-sentencing counsel to
represent him in the revocation proceedings. With counsel not present, and against the advice of
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the court, the defendant spoke of matters relating to the petition to revoke, stating that his phone
would show that Burlison, ever since she obtained an order of protection against him, had been
steadily phoning and texting him, “and I haven’t answered none of it.” The court replied that
although the prosecutor might be “interested in hearing it,” such information was irrelevant to the
purpose of the hearing.
¶ 12 In late November 2017, the court appointed a new attorney to represent the defendant in
revocation proceedings. (Apparently, the former attorney had health problems.) This new attorney
continued to represent the defendant for the remainder of the proceedings in the circuit court.
¶ 13 On December 11, 2017, the circuit court held a hearing on the petition to revoke the
defendant’s probation. The State announced that it would proceed on the petition’s second
allegation, and it called a single witness—Andrew Dahlem, a Sparta police officer. Dahlem
testified that on September 25, 2017, he was called to a residence on West Main Street in Sparta.
Dahlem thought it was the home of Dwayne Dodson. In the back yard of the residence, Dahlem
saw the defendant and Christina Burlison. The defense also called one witness, the defendant.
The defendant testified that he and Burlison were “not together” at Dodson’s house. Upon the
arrival of Dahlem, the defendant was “sitting in a chair” and Burlison was “off somewhere talking
to somebody.” The defendant did not have a conversation with Burlison—indeed, he “never said
not [sic] one word to her”—at the Dodson residence that day. On cross-examination by the State,
the defendant testified that Burlison phoned him, and he spoke with her, “maybe once or twice”
that day. The court found that the defendant had violated the probation condition that he have no
contact with Burlison. A PSI was ordered.
¶ 14 On January 11, 2018, the court held a sentencing hearing. Only one witness was called to
testify—Christina Burlison, for the State. Burlison, age 47, testified that she and the defendant
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dated, on and off, for three years. The two of them were dating on September 25, 2017, when
Burlison went to the defendant’s house in Sparta. They spent time “hanging out” and “drinking a
little bit.” Burlison left the defendant’s house in order to help a friend, but she returned later.
According to Burlison, when she and the defendant were again inside his house, the defendant
“grabbed” her by the back of her shirt collar and “drug [sic] me to the floor and then drug me into
the living room.” Burlison identified photographs that showed bruising on both cheeks, bruising
on her right arm, and marks on her neck, all injuries from September 25, 2017. Burlison recalled
the defendant’s hitting her with a chair in February 2017. After that incident, she and the defendant
reconciled, but “things just started to escalate and get worse,” with “more hitting and bruising and
choking and all kinds of stuff.”
¶ 15 On cross-examination by defense counsel, Burlison admitted that she had contacted the
defendant multiple times on September 25, 2017, asking to visit him, and had found a ride to his
house, all while knowing that she was not supposed to be near the defendant. When the defendant
grabbed her, the time was approximately 4:30 to 5 p.m., and “[i]t went on through the evening.”
Burlison attempted to leave, but the defendant would not allow her to leave. Finally, they both left
the defendant’s house and walked a couple of blocks to the home of the defendant’s friend,
Dwayne Dodson. Two of Burlison’s daughters happened to be there. When they learned that the
defendant had been hitting their mother, they phoned the police. The police showed up at the
Dodson residence and spoke with Burlison and the defendant.
¶ 16 The State argued for imprisonment for the maximum extended term of six years, while
defense counsel argued for probation or, at most, one year in prison. The court sentenced the
defendant to imprisonment for two years, plus mandatory supervised release for four years.
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¶ 17 The defendant filed, through counsel, a timely motion to vacate the sentencing order and
to reconsider the sentence. On April 23, 2018, the court held a hearing on the defendant’s motion.
As defense counsel reviewed the procedural history of the case, the defendant interrupted her.
“She’s not saying what I asked her to say,” the defendant told the court. “I do not want her talking
for me. She is not saying what I asked her to say.” Defense counsel continued, and after she had
finished, the court asked the defendant whether he had anything to say. The defendant noted that
Burlison had testified at his most recent sentencing hearing (on January 11, 2018) but not at his
probation-revocation hearing (on December 11, 2017), and therefore the content of her testimony
played no role in his probation’s revocation. “[S]o I don’t see how that is being used as anything
to do with my probation,” the defendant said. Indeed, Burlison should not have been allowed to
testify at the sentencing hearing, the defendant argued, “for the simple fact that what she testified
to actually didn’t amount to anything as far as I’m concerned because I was never charged. I was
never arrested. I was never even questioned and had to do with [sic] anything that she testified
to.” Next, the defendant complained that he was unaware that he could call witnesses to testify at
the sentencing hearing. Defense counsel never advised him of that opportunity, he said, and this
was a source of dissatisfaction with counsel. When Burlison arrived to testify, he felt “ambushed”
because “I didn’t have a chance to have any of my people here to testify on my behalf.”
¶ 18 At that point, the prosecutor said that the defendant’s second complaint warranted a
Krankel inquiry, an inquiry that the circuit court then performed. During that Krankel inquiry, the
defendant reminded the judge, and the judge acknowledged that he remembered, the time when
the defendant said he wanted to have his phone in the courtroom so that he could show the judge
that Burlison had been phoning and texting him. According to the defendant, the judge said that
he could not have the phone for that purpose. “Somehow,” the defendant continued, the prosecutor
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“knew about that because *** he asked me about that on the stand,” and “there was no way” that
the prosecutor would have known about that unless defense counsel had told him. “[H]e asked me
about those specific calls on the stand when I was on the stand [sic] on December the 11th,” the
defendant clarified. “There is no way he would have known that.” Defense counsel replied that
she had been trying to convince the defendant that Burlison’s contacting him was irrelevant, and
that “the crux of this whole case is just no contact.” The defendant did not have to phone her or
invite her to his residence, for the only thing that mattered was contact, defense counsel clarified.
The defendant saw the situation very differently, counsel concluded, and that had been the point
of contention between the defendant and counsel from the beginning. The court announced its
finding that the defendant’s complaints against his attorney “are insufficient to rise to the level of
claiming ineffective assistance of counsel.” The court also found that the sentence was not
improper, and denied the motion to reconsider.
¶ 19 On June 28, 2018, the clerk of the circuit court, at the request of the defendant, filed on his
behalf a notice of appeal, thus perfecting the instant appeal. The court appointed OSAD to
represent the defendant.
¶ 20 ANALYSIS
¶ 21 This appeal is from the revocation of the defendant’s probation and the defendant’s
subsequent sentencing to imprisonment. As previously mentioned, the defendant’s appointed
attorney on appeal, OSAD, has filed an Anders motion to withdraw as counsel and a supporting
brief. In its Anders brief, OSAD discusses three potential issues on appeal, viz.: (1) whether the
State proved a probation violation by a preponderance of the evidence; (2) whether the circuit
court, after finding that the defendant violated his probation, abused its discretion in sentencing
the defendant to imprisonment for two years; and (3) whether the circuit court erred in denying the
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defendant’s motion to reconsider sentence after the defendant expressed dissatisfaction with
counsel. These three issues will be considered sequentially.
¶ 22 A violation of a condition of probation must be proved by the State by a preponderance of
the evidence. 730 ILCS 5/5-6-4 (West 2016). When the evidence is conflicting, the circuit court
is responsible for weighing the credibility of witnesses and evaluating the testimony. People v.
Crowell, 53 Ill. 2d 447, 451-52 (1973). At his probation-revocation hearing on December 11,
2017, the State presented a Sparta police officer who testified that on September 25, 2017, he was
called to a residence on West Main Street in Sparta, and in the back yard of that residence he
observed the defendant and Christina Burlison. The defendant testified that when the officer
arrived, he was “sitting in a chair” and Burlison was “off somewhere talking to somebody.” On
cross-examination by the State, the defendant testified that Burlison phoned him, and he spoke
with her, “maybe once or twice.” Such evidence was sufficient for the court to find that the
defendant violated the “special condition” of probation that called for “no contact in any manner
with Christina A. Burlison.” The finding certainly is not against the manifest weight of the
evidence. See Crowell, 53 Ill. 2d at 451-52.
¶ 23 Next, this court considers whether the circuit court, after finding that the defendant violated
his probation, abused its discretion in sentencing the defendant to imprisonment for two years. See
People v. Wyatt, 305 Ill. App. 3d 291, 297 (1999). The defendant pleaded guilty to domestic
battery (720 ILCS 5/12-3.2(a)(1) (West 2016)), which was a Class 4 felony due to the defendant’s
having a prior domestic-battery conviction (720 ILCS 5/12-3.2(b) (West 2016)). The instant crime
consisted of the defendant’s striking Christina Burlison over the head with a metal chair, causing
bodily harm. The sentence of imprisonment for a Class 4 felony is not less than one year and not
more than three years. 730 ILCS 5/5-4.5-45(a) (West 2016). Furthermore, the defendant, having
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been found guilty of unlawful delivery of cannabis in May 2007 and having been sentenced for
that crime to 10 years of imprisonment in August 2008, was eligible for an extended-term sentence
of not less than 3 years and not more than 6 years. 730 ILCS 5/5-5-3.2(b)(1), 5-4.5-45(a) (West
2016). Given the nature of the offense for which the defendant was sentenced, a two-year sentence
does not amount to an abuse of discretion. That is especially true in light of his extended-term
eligibility, his record of criminality as detailed supra, and his violent behavior toward Burlison
while on probation.
¶ 24 Finally, this court considers whether the circuit court erred in denying the defendant’s
motion to reconsider sentence after the defendant had expressed dissatisfaction with his attorney’s
representation. This court notes that the defendant, at his April 23, 2018, hearing on his motion to
reconsider sentence, did not actually accuse defense counsel of ineffective assistance; he expressed
disagreement or dissatisfaction with her representation of him. However, the court conducted the
type of inquiry that it should conduct when a defendant pro se accuses his attorney of
ineffectiveness. See People v. Krankel, 102 Ill. 2d 181 (1984). This court will not overturn the
circuit court’s determination that a defendant’s claims do not require the appointment of new
counsel unless that determination is manifestly erroneous. People v. Crutchfield, 2015 IL App
(5th) 120371, ¶ 20. The manner in which the inquiry was conducted is reviewed de novo. People
v. Jolly, 2014 IL 117142, ¶ 28.
¶ 25 At the hearing on the motion to reconsider sentence, the circuit court asked the defendant
for a specific example of what had displeased him about defense counsel. In response, the
defendant recounted the time when he informed the court that his phone would show that Burlison
had been telephoning and texting him. “Somehow,” the defendant said, the prosecutor “knew
about that because *** he asked me about that on the stand” at the hearing on the petition to revoke
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probation, and “there was no way” that the prosecutor would have known about those calls and
texts unless defense counsel had told him. The defendant seemed to be suggesting that his attorney
had violated the attorney-client privilege by informing the prosecutor about the phone calls and
texts from Burlison to him. However, the prosecutor’s knowledge of Burlison’s calls and texts to
the defendant was not at all shocking, for the record shows that the prosecutor was present in the
courtroom when the defendant, during his first appearance on the petition to revoke probation,
informed the court about them. The prosecutor could not have failed to know about them. In this
way, the one specific example offered by the defendant was rebutted by the record. (The defendant
did not offer any specifics about his alleged lack of awareness of his right to call witnesses at his
sentencing hearing, or what any of those witnesses may have said if called.)
¶ 26 The circuit court conducted an adequate inquiry of the defendant’s pro se claims made at
the hearing on his motion to reconsider sentence. People v. Moore, 207 Ill. 2d 68, 78 (2003). With
that inquiry out of the way, the court was free to deny the motion to reconsider.
¶ 27 CONCLUSION
¶ 28 This court has considered the potential issues raised by OSAD in its Anders brief and has
found them to be without merit. A review of the entire record on appeal has not revealed any issue
of arguable merit. Accordingly, OSAD is granted leave to withdraw as counsel, and the judgment
of conviction is affirmed.
¶ 29 Motion granted; judgment affirmed.
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