People v. Adams , 2023 IL App (4th) 220104-U ( 2023 )

2023 IL App (4th) 220104-UNOTICE FILED
This Order was filed under June 14, 2023
Supreme Court Rule 23 and is NO. 4-22-0104
Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
DONDRE M. ADAMS, ) No. 20CF401
Defendant-Appellant. )
) Honorable
) J. Casey Costigan,
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court.
Justices Steigmann and Doherty concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding (1) the record did not rebut postplea
counsel’s certification all necessary amendments were made to the motion to
withdraw defendant’s guilty plea and (2) the trial court did not err in denying
defendant’s motion to withdraw his guilty plea.
¶2 On October 14, 2021, pursuant to a fully negotiated plea, defendant, Dondre M.
Adams, was convicted of violating the Sex Offender Registration Act (SORA) (730 ILCS
150/3(d) (West 2020)) and sentenced to time served of 86 days in the county jail and 30 months’
probation. That same day, defendant filed a pro se motion to withdraw his guilty plea. On
November 15, 2021, defendant, through counsel, filed a motion to withdraw his guilty plea, and
counsel submitted a certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. July
1, 2017). Following a hearing, the trial court denied defendant’s motion. Defendant appeals,
arguing (1) the record rebuts postplea counsel’s certification all necessary amendments were
made to the motion to withdraw the guilty plea and (2) the court’s decision was an abuse of
discretion. We affirm.
¶3 I. BACKGROUND
¶4 In May 2020, the State charged defendant with one count of violating SORA (id.)
and two counts of resisting a peace officer (720 ILCS 5/31-1(a) (West 2020)). Regarding the
violation of SORA, the State alleged, on or about May 13, 2020, through May 16, 2020,
defendant, a sex offender required to register under SORA, failed to report his address in person
to the Bloomington Police Department within three days of having established the residence.
¶5 Defendant was remanded to the custody of the McLean County Sheriff’s
Department on a $10,000 bond. Defendant filed a motion to reduce bond, which the trial court
granted, reducing his bond to a $10,000 personal recognizance bond. Defendant was released
from custody of the McLean County jail on June 29, 2020, after having been incarcerated for 43
actual days.
¶6 On October 14, 2021, defendant pleaded guilty. Pursuant to the plea agreement, in
exchange for pleading guilty to violating SORA (1) defendant was to receive credit for 86 days
(day-for-day credit equaling 43 actual days); (2) the two resisting a peace officer counts were
dismissed, along with two other felony cases; and (3) defendant was (a) placed on 30 months’
probation, (b) sentenced to fines and assessments as indicated in the financial sentencing order,
and (c) prohibited from consuming, using, or possessing alcohol or cannabis. When asked if the
plea agreement as recited by the trial court was accurate, defendant answered in the affirmative.
¶7 The trial court then admonished defendant on the effect his guilty plea could have
on (1) his citizenship status, (2) the possibility of enhanced penalties with regard to future
criminal convictions, and (3) his ability to obtain (a) public services, (b) employment, and (3) a
-2-
firearm. , Defendant answered affirmatively to each admonishment. Defendant also affirmed he
understood he could plead not guilty and require the State to prove his guilt beyond a reasonable
doubt. Defendant affirmed he understood he was waiving (1) his right to trial (including his right
to a jury trial), (2) his right to testify, and (3) his right to call witnesses on his behalf. When the
court asked defendant whether his plea was voluntary, defendant answered it was.
¶8 The State provided the trial court with a factual basis for the guilty plea, which the
court accepted. Defendant did not object to the factual basis. The court then reviewed
defendant’s appeal rights. Defendant indicated some frustration with the registration
requirements imposed upon him. The court explained the importance of planning and using a
calendar before proceedings adjourned.
¶9 Later the same day, defendant filed a pro se motion “To Withdraw Plea,” stating:
“The evidence do not fit charges circumstances beyond my control the Bloomington Police
Department is closed on weekend and holidays so I can not go in and register as a sex offender.”
¶ 10 On November 15, 2021, counsel for defendant filed a motion to withdraw the
guilty plea, alleging defendant “had taken medication the day of the plea that interfered with his
ability to fully understand the nature and consequences of his plea agreement.” The State filed a
response arguing the record clearly reflected his plea was knowing and voluntary.
¶ 11 On February 7, 2022, counsel for defendant filed a certificate of compliance
pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). The same day, defendant
pro se filed an “Emergency” motion to withdraw his guilty plea, which stated: “On the above
date and time Oct 18, 2022 I take a plea bout at the time and currently I am on 4 different pain
pills and medical marijuana I did not know what was going on at the time do [sic] to I am still
recovering from neck surgery.”
-3-
¶ 12 During the February 8, 2022, hearing on defendant’s motion to withdraw,
defendant’s counsel requested defendant’s pro se February 7, 2022, motion to withdraw his plea
be joined to counsel’s formal motion to withdraw as an “affidavit.” The trial court indicated
defendant’s motion was “in the file,” and it had read it and took judicial notice of it. Counsel
argued because “things were happening quickly for [defendant],” coupled with his being under
the influence of medical cannabis and prescription medication, defendant “didn’t fully
understand the implication of the plea” agreement. The State argued it was defendant’s burden to
show “substantial objective proof” regarding any error in his plea and, by statute, “prescription
drugs” do not afford defendant a presumption he was “unfit to enter into a plea agreement.” The
State also noted defendant “voiced some hesitation” when agreeing to the plea and argued the
court “took extra time to explain things to” defendant to ensure he was “fully aware” of the
actions he was taking. The court then asked defendant if he had any additional statement to
make. Defendant indicated he did not.
¶ 13 In denying defendant’s motion to withdraw, the trial court stated it had reviewed
defendant’s motion, the Rule 604(d) certificate, the State’s response to defendant’s motion, and
the transcript of the guilty plea proceedings. The court explained, in conducting such hearings, it
evaluates whether the defendants before the court are aware of what is happening and
participating voluntarily. The court then addressed its observations of defendant at the time his
plea was entered. The court noted defendant had questions, which it addressed. The court also
addressed the potential impairment of defendant by stating, “there may have been a situation
where you were taking some medicine, whether it be marijuana, whether it be other substances,
medicine” and found it was “not a basis to go ahead and say that somebody doesn’t understand.”
The court concluded defendant knowingly and voluntarily pleaded guilty.
-4-
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 On appeal, defendant argues (1) the record rebuts postplea counsel’s certification
all necessary amendments were made to the motion to withdraw the guilty plea and (2) the trial
court’s decision to deny defendant’s motion to withdraw his guilty plea was an abuse of
discretion.
¶ 17 A. Compliance With Rule 604(d)
¶ 18 First, defendant argues the record rebuts postplea counsel’s certification all
necessary amendments were made to the motion to withdraw the guilty plea. Specifically,
defendant contends his counsel never specified what medications defendant had taken and failed
to explain how those medications affected defendant’s judgment on the date of the guilty plea.
¶ 19 Rule 604(d) requires counsel representing a defendant on a motion to withdraw a
guilty plea to certify the following:
“[T]he attorney has consulted with the defendant either by phone, mail, electronic
means or in person to ascertain defendant’s contentions of error in the sentence
and the entry of the plea of guilty, has examined the trial court file and both the
report of proceedings of the guilty plea and the report of proceedings in the
sentencing hearing, and has made any amendments to the motion necessary for
adequate presentation of any defects in those proceedings.” Ill. S. Ct. R. 604(d)
(eff. July 1, 2017).
“[C]ounsel must strictly comply with ‘each of the provisions of Rule 604(d) ***.’ ” People v.
Gorss, 2022 IL 126464, ¶ 19, 194 N.E.3d 490 (quoting People v. Janes, 158 Ill. 2d 27, 33, 630
N.E.2d 790, 792 (1994)). This court generally considers the certificate itself to evaluate
-5-
compliance with Rule 604(d); however, the certificate may be refuted by the record. People v.
Curtis, 2021 IL App (4th) 190658, ¶ 37, 186 N.E.3d 467. We review de novo whether counsel
strictly complied with the provisions of Rule 604(d). Gorss, 2022 IL 126464, ¶ 10.
¶ 20 Rule 604(d) requires, when a motion to withdraw guilty plea “is based on facts
that do not appear of record[,] it shall be supported by affidavit.” Ill. S. Ct. R. 604(d) (eff. July 1,
2017). Here, the record’s only relevant reference to defendant’s use of medication is the trial
court’s discussion of defendant’s medical cannabis usage during the plea proceedings. Given
there is no reference by the court to any other potential medication use by defendant, and
defendant’s pro se February 7, 2022, filing mentions the combination of medical cannabis and
other analgesics, the affidavit in compliance with Rule 604(d) is appropriate. Thus, we address
whether defendant’s pro se filing on February 7, 2022, sufficiently complied with Rule 604(d) to
qualify as an affidavit. Affidavits amount to “ ‘ “a substitute for testimony taken in open
court.” ’ ” Unifund CCR Partners v. Shah, 407 Ill. App. 3d 737, 745, 946 N.E.2d 885, 893
(2011) (quoting Robidoux v. Oliphant, 201 Ill. 2d 324, 338, 775 N.E.2d 987, 995 (2002), quoting
Fooden v. Board of Governors of State Colleges & Universities of Illinois, 48 Ill. 2d 580, 587,
272 N.E.2d 497, 500 (1971)). An affidavit “must be sworn to, and statements in a writing not
sworn to before an authorized person cannot be considered affidavits.” Roth v. Illinois Farmers
Insurance Co., 202 Ill. 2d 490, 494, 782 N.E.2d 212, 214 (2002). Defendant’s affidavit comes
from the standardized statewide approved forms published on the Illinois Supreme Court
website. The second page of defendant’s filing contains defendant’s certification averring what
he wrote is “true and correct.” Section 1-109 of the Code of Civil Procedure permits affidavits to
be verified by certification (735 ILCS 5/1-109 (West 2020)). Thus, defendant’s filing sufficiently
qualifies as an affidavit for Rule 604(d) purposes.
-6-
¶ 21 In support of his contention postplea counsel was required to detail with
specificity what medications he had taken and how they impaired him in the motion to withdraw
the guilty plea, defendant cites People v. Bridges, 2017 IL App (2d) 150718, 87 N.E.3d 441.
Bridges does not, however, support defendant’s contention. There, the appellate court accepted
the defendant’s argument counsel’s failure to attach an affidavit supporting the factual
allegations in the motion to withdraw the guilty plea which were not of record or to present any
evidence in support of the defendant’s motion demonstrated a lack of compliance with Rule
604(d). Id. ¶ 9. Unlike Bridges, defendant here is not complaining any factual allegations related
to his use of medication should have been supported by affidavit where no such affidavit exists;
rather, defendant is arguing the medication defendant had taken and how it affected him—as
mentioned in defendant’s affidavit—should have been developed by postplea counsel in more
detail.
¶ 22 In the motion to withdraw his plea, postplea counsel alleged defendant, “had
taken medication the day of the plea that interfered with his ability to fully understand the nature
and consequences of his plea agreement.” Then, during the hearing on the motion to withdraw,
postplea counsel sought to admit defendant’s February 7, 2022, pro se motion as a supporting
affidavit. Postplea counsel did not call defendant to testify but did provide defendant’s affidavit
as evidence in support of defendant’s contention he was impaired by medications on the date of
his plea. The trial court specifically asked defendant if he had anything additional to offer
beyond what was already said by his counsel or presented in any court filings. Defendant did not
offer any additional information to the court. The court, after hearing arguments and reviewing
the record, recalled defendant’s demeanor during the plea proceedings before denying
-7-
defendant’s motion. This is a critical distinction from Bridges, where the trial court had relied
solely on “its own recollection of defendant’s demeanor during the plea proceedings.” Id.¶ 23 Defendant next cites the dissenting opinion in United States v. Howard, 381 F.3d
873, 883-86 (9th Cir. 2004) (Kleinfeld, J., dissenting), in support of his position counsel was
ineffective. In Howard, the defendant was taking a prescribed narcotic painkiller due to a leg
injury for which he had undergone surgical procedures. Id. at 876. Just prior to commencing a
jury trial, the defendant pleaded guilty, and the trial court specifically addressed whether the
defendant was under the influence of any narcotic. Id. The defendant said he was under the
influence of a narcotic painkiller. Id. The defendant’s guilty plea was accepted. Id. On appeal,
the issue was whether the defendant’s counsel was ineffective for permitting the defendant to
plead guilty while under the influence of a narcotic painkiller. Id. at 877.
¶ 24 In this case, defendant notes the dissenting opinion’s discussion of the effect pain
medication can have on an individual’s judgment and argues its relevancy to his case. We
disagree. Justice Kleinfeld’s reasoning in Howard about how narcotic medications can impair an
individual’s judgment is not at issue. For example, Justice Kleinfeld states narcotic medications
can “sometimes dull the wits.” Id. at 884. This is an uncontroversial assessment of narcotic
medications generally. Justice Kleinfeld continues, “[t]hey can also sharpen them, if the pain is
so excruciating that the narcotics enable the mind to focus on something other than the pain.” Id.This is also a general assessment of narcotic medications. However, the issue here is not whether
such medication can impair an individual’s judgment. Instead, the issue is whether medications
impaired defendant during the plea hearing. For the reasons discussed, the record on appeal does
not demonstrate defendant was impaired or otherwise failed to understand the nature and
consequences of his plea agreement at the time he entered it.
-8-
¶ 25 Defendant also cites United States v. Damon, 191 F.3d 561, 565 (4th Cir. 1999),
for the proposition the trial court should ascertain the effect a medication may have on a
defendant’s ability to enter into a plea agreement where the court knows the defendant is
medicated. However, defendant cites no binding precedent to support such a requirement. See
People v. Kidd, 129 Ill. 2d 432, 457, 544 N.E.2d 704, 715 (1989) (holding federal cases are not
binding authority in our state courts). Accordingly, defendant has failed to demonstrate the trial
court was required to specifically inquire of defendant whether he was impaired by cannabis or
medication at the time his plea was taken.
¶ 26 Defendant also makes an underdeveloped ineffective assistance of counsel
argument related to his contention postplea counsel did not specifically detail in the motion to
withdraw what medications defendant had taken and how they impaired him. To warrant a
withdrawal of a guilty plea on this basis, a defendant “must show (1) deficient performance (i.e.,
counsel’s representation fell below an objective standard of reasonableness) and (2) prejudice
(i.e., but for counsel’s unprofessional errors, the result of the proceeding would have been
different).” People v. Glover, 2017 IL App (4th) 160586, ¶ 39, 85 N.E.3d 815; Strickland v.
Washington, 466, U.S. 668, 687-88, 694 (1984). “Failure to satisfy either prong negates a claim
of ineffective assistance of counsel.” People v. Hibbler, 2019 IL App (4th) 160897, ¶ 88, 129
N.E.3d 755. Where there is no prejudice, the court does not need to decide whether counsel’s
performance was deficient. People v. Evans, 186 Ill. 2d 83, 94, 708 N.E.2d 1158, 1164 (1999).
“In order to satisfy the ‘prejudice’ requirement in a plea proceeding, the defendant must show
that there is a reasonable probability that, but for counsel’s errors, the defendant would not have
pleaded guilty and would have insisted on going to trial.” People v. Pugh, 157 Ill. 2d 1, 15, 623
N.E.2d 255, 261 (1993). “Although we recognize that there may be circumstances where a
-9-
defendant could prove that the deficient performance affected the outcome of the plea process in
other ways, as with all applications of the second prong of the Strickland test, the question
whether a given defendant has made the requisite prejudice showing will turn on the facts of a
particular case.” People v. Hughes, 2012 IL 112817, ¶ 65, 983 N.E.2d 439 (citing Strickland, 466
U.S. at 695-96).
¶ 27 In this case, defendant has not articulated any prejudice beyond stating that
postplea counsel’s failure to specify what medications defendant consumed and how they
impaired him would have “arguably resulted in [defendant’s] waiver on this appeal of the issue
that his plea was involuntary.” However, the prejudice prong for an ineffective assistance claim
for a withdrawal of a guilty plea requires a defendant to show a reasonable probability, but for
his postplea counsel’s error, he would not have pleaded guilty and would have insisted on going
to trial.
¶ 28 Here, postplea counsel’s motion to withdraw defendant’s guilty plea alleged the
medications defendant consumed interfered with his ability to understand the nature and
consequences of his plea agreement. The record does not indicate defendant was impaired or
failed to understand the nature and consequences of his plea agreement. The affidavit attached to
postplea counsel’s motion alleged defendant did not know what was happening during the plea
proceedings. However, the colloquy between defendant and the trial court refutes this contention.
In fact, the court indicated if defendant was not voluntarily pleading guilty, it would not accept
the plea and would set the case for trial. Defendant insisted on pleading guilty and twice affirmed
to the court he was doing so voluntarily. Defendant engaged with all of the court’s
admonishments, and the court did not identify any behavior or demeanor exhibited by defendant
indicative of impairment. Defendant voiced his frustration with the registration requirements
- 10 -
imposed upon him and engaged the court with questions. Defendant espoused reasons to negate
his accountability for failing to register. He reiterated those reasons later the same day in his
initial pro se motion to withdraw his guilty plea. The record does not show defendant was
unaware of what was transpiring during the plea proceedings. As such, defendant has not met his
burden to establish the necessary showing under Strickland he was prejudiced by postplea
counsel.
¶ 29 B. Denial of the Motion to Withdraw the Guilty Plea
¶ 30 Defendant argues the trial court abused its discretion in denying his motion to
withdraw his guilty plea. Specifically, defendant contends nothing in the record contradicts or
rebuts his claim prescription medications impaired his ability to knowingly enter into a plea of
guilty.
¶ 31 There is no absolute right to withdraw a guilty plea. Hughes, 2012 IL 112817,
¶ 32. “Rather, [defendant] must show a manifest injustice under the facts involved.” Id.“Withdrawal is appropriate where the plea was entered through a misapprehension of the facts or
of the law or where there is doubt as to the guilt of the accused and justice would be better served
through a trial.” Id. The “decision to grant or deny a motion to withdraw a guilty plea rests in the
sound discretion of the circuit court and, as such, is reviewed for abuse of discretion.” Id. “An
abuse of discretion will be found only where the court’s ruling is arbitrary, fanciful,
unreasonable, or no reasonable person would take the view adopted by the trial court.” People v.
Delvillar, 235 Ill. 2d 507, 519, 922 N.E.2d 330, 338 (2009). A “reviewing court focuses on
whether the guilty plea was affirmatively shown to have been made voluntarily and
intelligently.” Id. at 520.
- 11 -
¶ 32 In this case, defendant argues his impairment claim is unrebutted in the record.
Defendant maintains the trial court did not inquire whether defendant was under the influence
such that his ability to understand the nature and consequences of his plea was impaired. We
disagree.
¶ 33 The trial court opened its inquiry during the hearing on defendant’s guilty plea,
stating:
“[Defendant], I’m going to go over a
number of things here with you today to make sure that we all agree as to what’s
going to happen in these cases. I also want to make sure that you understand your
rights before you plead guilty to anything. If I say something today that you do
not understand or that you do not agree with, I want you to stop me and let me
know so I can go over it in more detail with you; all right?”
The court then went through various admonishments, following which defendant affirmatively
stated on the record he understood or agreed to. Regarding defendant’s known use of cannabis,
the court—following a recitation of the negotiated plea agreement—stated:
“I heard you mention you have a [medical
cannabis] card. If you have a card, I’m not going to second-guess your doctors.
You have to use whatever medication in accordance with the prescription that the
doctor wrote. Assuming you’re doing that, then there’s not going to be any
problem.”
Directly following the court’s statement, defendant agreed the court recited the agreement
accurately. The court then went through the various other required admonishments, including his
waiver of his right to trial, to which defendant acknowledged he understood and agreed. Further,
- 12 -
defendant affirmatively answered he was pleading guilty voluntarily. The court specifically
found defendant’s behavior and responses during the plea proceedings indicated he understood
and was not impaired by any substance. The record belies defendant’s contention his claim of
impairment is unrebutted by the record.
¶ 34 Defendant argues his attempt to assert his fifth amendment right against
self-incrimination (U.S. Const., amend. V) when the trial court asked him if he was forced to
plead guilty shows the involuntary nature of his plea. Defendant also argues his pro se motion to
withdraw his guilty plea contesting the facts of the case further indicates he failed to understand
the consequences of his plea.
¶ 35 However, defendant’s contention he did not willingly enter his plea is directly
rebutted by his interactions with the trial court. When the court inquired into the voluntariness of
defendant’s plea, the following colloquy took place:
“THE COURT: Has anybody forced you to do this today?
THE DEFENDANT: I’m pleading the fifth right now. It’s like, you know,
damned if I do, damned if I don’t.
THE COURT: Okay. Let me go over a couple of things here with you.
The Fifth Amendment wouldn’t have applicability as to whether someone
has forced you to do something here today. That is a right against self
incrimination. So that’s not an issue here.
One of the things that I need to make sure of here before I accept your plea
that I have before me is that you’re doing so in a knowing and voluntary manner.
That you’re pleading guilty in a knowing and voluntary manner, that you
understand everything here. So that’s one of the things that I need to make sure of
- 13 -
as part of my job is that nobody is being forced to do something here today,
they’re doing something voluntarily. Whether they agree with it or disagree with
it, they’re doing something voluntarily; okay?
So that’s the purpose of my question here. If you’re saying, no, someone is
forcing me to do something, I’m not going to accept the plea. I will set your case
for trial and we’ll go to trial.
THE DEFENDANT: Let’s just get it over with today, get it out of the
way.
THE COURT: But you are doing so voluntarily?
THE DEFENDANT: Yes.
THE COURT: And nobody is forcing you to do anything here today; am I
correct on that?
THE DEFENDANT: Correct.
THE COURT: Okay. Has anybody made any promises any different than
what I’ve gone over with you here today? Has anybody promised you anything
different than what I’ve just gone over with you here today?
THE DEFENDANT: No.”
Thus, defendant’s initial hesitation and misapplication of the fifth amendment does not show
unwillingness. The court explained the purpose of its question and reiterated defendant’s right to
a trial. Defendant then insisted on proceeding with the plea proceedings. The court explicitly
followed up with defendant regarding whether he was doing so voluntarily with two additional
questions, to which defendant answered in the affirmative.
¶ 36 After concluding the plea was knowingly and voluntarily made, the trial court
- 14 -
accepted the factual basis. When asked about questions regarding his appeal rights, defendant
and the court again interacted as follows:
“THE DEFENDANT: No. I do have a—I have—
THE COURT: Take a deep breath and slow it down here.
THE DEFENDANT: I do have a question.
THE COURT: All right. I want to answer your question. Go ahead.
THE DEFENDANT: I know in the first plea that I pleaded to in ’94 I
think it was, it says I have to register 10 years, 10 years only. Here it’s 30 years
later and I’m still registering as a sex offender.
THE COURT: I don’t know the answer to that question because I don’t
have your other files here. If you were on probation and your probation was
extended, or something of that nature, or if there was a re-sentence on that case,
that may extend things here.
MR. BUSSAN [(DEFENSE COUNSEL)]: I would advise the Court that
in [defendant’s] presence I called the Illinois State Police and [defendant] is a
lifetime registrant. So that’s where we’re at.
THE COURT: Okay. I don’t know what you were admonished to back in
1994, or told back in 1994, *** but it sounds as if, what [defense counsel] is
saying, that there’s a lifetime registration here. That’s something you definitely
want to get cleared up here so you know when you’re supposed to register and
when you’re not. I don’t want that confusion.
- 15 -
THE DEFENDANT: Since 1994 until now, a few times I was in DOC,
I’m registering as a sex offender until then, but it’s not my fault the police
department is closed holidays and weekends. It’s not my fault.”
After the plea proceedings concluded, defendant filed a pro se motion to withdraw his guilty
plea, alleging: “The evidence do not fit charges circumstances beyond my control the
Bloomington Police Department is closed on weekend and holidays so I can not go in and
register as a sex offender.” Defendant’s initial pro se motion essentially reiterates defendant’s
final statement to the trial court at the conclusion of the plea proceedings. Defendant argues this
is further evidence he did not understand the nature and consequences of his guilty plea.
¶ 37 The record reflects defendant’s initial hesitation regarding the plea agreement
when he attempted to plead the fifth amendment. After the trial court explained how the fifth
amendment functions and indicated it would set defendant’s case for trial, defendant insisted on
pleading guilty. Thereafter, defendant reaffirmed twice his guilty plea was voluntary. After
hearing his appeal rights, defendant expressed frustration with being required to register as a sex
offender, stating he was under the impression he was only required to do so for 10 years.
However, defendant’s counsel explained to the court defendant was informed his registration
requirements would be for life. Immediately afterwards, defendant expressed frustration about
the operating hours of the Bloomington Police Department. Defendant reiterated his frustration
in his pro se motion to withdraw his guilty plea filed later the same day. However, nothing in the
record suggests defendant failed to comprehend he was pleading guilty to failing to register a
change of address as a registered sex offender. Instead, the record demonstrates defendant’s
aggravation with having to register as a sex offender and his frustration with the perceived
challenges in having to register a change of address whenever he moves.
- 16 -
¶ 38 C. Charging Instrument
¶ 39 While defendant does not challenge the adequacy of the charging instrument, our
review of the record shows the information used to charge him incorrectly cites subsection (d) of
section 3 of SORA. See Ballinger v. City of Danville, 2012 IL App (4th) 110637, ¶ 13, 966
N.E.2d 594 (stating forfeiture limits the parties and does not affect this court’s jurisdiction). The
factual allegations of the information, the trial court’s recitation of the information, and the
factual basis provided by the State which defendant agreed was substantially correct clearly
reference subsection (b) of section 3. This court has held “the mere reference in a charging
instrument to an incorrect chapter or section of a statute is regarded as a formal rather than a
substantive defect.” People v. McBrien, 144 Ill. App. 3d 489, 495, 494 N.E.2d 732, 736 (1986).
A formal defect in the charging instrument does not warrant reversal absent the defendant
demonstrating prejudice by the erroneous citation. Id. Our review of the record does not suggest
defendant was prejudiced by the erroneous subsection citation. The subsection (d) error appears
to be typographical, and the language used in the information and at the plea clearly reflect
defendant was being accused of and pleaded guilty to subsection (b) of section 3 of SORA. See
People v. Cohn, 2014 IL App (3d) 120910, ¶ 16, 20 N.E.3d 1285 (upholding the defendant’s
conviction where it was clear from the factual basis of the indictment what the defendant was
being accused of despite the wrong section number being cited). We find the erroneous
subsection citation to be a formal defect not warranting reversal.
¶ 40 In sum, the record on appeal does not show defendant was impaired or otherwise
failed to understand the consequences of his guilty plea. While defendant may have been
frustrated with his situation, there is a distinction between reluctance and incomprehension. As
the trial court noted in finding defendant was not impaired, defendant “[m]ay not have liked it,
- 17 -
but [he] understood what was going on.” The court did not err in denying defendant’s motion to
withdraw his guilty plea.
¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, we affirm the trial court’s judgment.
¶ 43 Affirmed.
- 18 -