People v. Whittiemore , 2023 IL App (5th) 220496-U ( 2023 )

2023 IL App (5th) 220496-UNOTICE
NOTICE
Decision filed 08/14/23. The
This order was filed under
text of this decision may be NO. 5-22-0496
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition 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, ) Jefferson County.
)
v. ) No. 21-CF-28
)
JENNIFER M. WHITTIEMORE, ) Honorable
) Jerry E. Crisel,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court.
Justices Barberis and Vaughan concurred in the judgment.
ORDER
¶1 Held: The circuit court properly denied defendant’s motion to reconsider the sentence
where she had six prior felony convictions and four times her probation had been
terminated unsuccessfully. Further, no procedural error occurred where the circuit
court and defense counsel complied with applicable supreme court rules. As any
argument to the contrary would lack merit, we grant defendant’s appointed counsel
on appeal leave to withdraw and affirm the circuit court’s judgment.
¶2 Defendant, Jennifer M. Whittiemore, appeals the circuit court’s order denying her motion
to reconsider sentence. Her appointed appellate counsel, the Office of the State Appellate
Defender (OSAD), has concluded that there is no reasonably meritorious argument that the circuit
court erred in doing so. Accordingly, it has filed a motion to withdraw as counsel along with a
supporting memorandum. See Anders v. California, 386 U.S. 738 (1967). OSAD has notified
defendant of its motion. This court has provided her with an opportunity to respond and she has
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filed a response. However, after considering the record on appeal, OSAD’s memorandum and
supporting brief, and defendant’s response, we agree that this appeal presents no reasonably
meritorious issues. Thus, we grant OSAD leave to withdraw and affirm the circuit court’s
judgment.
¶3 BACKGROUND
¶4 Defendant was charged with aggravated battery. The indictment alleged that defendant
was eligible for an extended-term sentence as a result of a previous Class 2 felony conviction (for
which she was then on probation). On December 21, 2021, defendant agreed to plead guilty to
aggravated battery and to admit to the allegations of a petition to revoke probation filed in the
earlier case. By agreement, the probation would be terminated unsuccessfully but no additional
penalties would be imposed. The State agreed to dismiss two additional cases plus some traffic
charges. The prosecutor noted that defendant was eligible for an extended-term sentence of 2 to
10 years’ imprisonment, to be served at 50%, but was eligible for probation.
¶5 The factual basis showed that defendant argued with Mark Nichols about the keys to a car.
Nichols was trying to get the keys from her because she was not supposed to drive. Instead,
defendant got in the car and drove over Nichols. He suffered severe leg injuries and spent several
weeks in the hospital.
¶6 The court admonished defendant about the rights she would be surrendering by pleading
guilty, including the presumption of innocence, the right to a jury or bench trial, counsel at trial,
to confront witnesses, to adduce evidence in her defense, and to testify if she so desired. The court
provided the same admonitions regarding the petition to revoke probation. It also told her about
the offense and the possible sentences. The court found the plea voluntary and accepted it.
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¶7 At sentencing, the court took judicial notice of orders of protection against defendant.
Nichols testified about his injuries but also stated that he did not fear defendant, who is the mother
of his three children, and had forgiven her. The State, noting that defendant had a lengthy criminal
record, requested the maximum 10-year sentence. Defense counsel argued that the circumstances
leading to the offense were unlikely to recur and sought probation.
¶8 The presentence investigation report showed that defendant had prior felony convictions
of predatory criminal sexual assault, obstruction of justice, failure to register as a sex offender, and
failure to report an accident involving personal injuries, as well as numerous misdemeanor and
traffic offenses. Four prior sentences of probation had been terminated unsuccessfully.
¶9 Noting that defendant had a “terrible criminal history” and that she had “never been
successful on probation,” the court sentenced her to nine years’ imprisonment. The court observed
that it did not impose the maximum sentence only because the victim had forgiven her and because
it did not want to disrupt her children’s lives more than necessary. The court informed defendant
that, to pursue an appeal, she would have to move, within 30 days, to withdraw the plea or
reconsider the sentence.
¶ 10 Defendant filed a motion to reconsider the sentence and defense counsel filed a certificate
pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). The court denied the motion
and defendant timely appealed.
¶ 11 ANALYSIS
¶ 12 OSAD concludes that there is no reasonably meritorious contention of reversible error in
the denial of defendant’s motion to reconsider the sentence. OSAD suggests four possible issues
but concludes that none have merit.
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¶ 13 In three related issues, OSAD concludes that no procedural error occurred in the
proceedings below: both the circuit court and defense counsel complied with the applicable
supreme court rules. We agree.
¶ 14 Per Illinois Supreme Court Rule 402, the circuit court admonished defendant about the
offense and the possible penalties. Ill. S. Ct. R. 402(a)(1), (2) (eff. July 1, 2012). It told her about
the presumption of innocence and about her rights to a jury or bench trial, to have counsel at such
a trial, to confront the State’s witnesses, to present evidence in her defense, and to testify herself
if she so desired. Ill. S. Ct. R. 402(a)(4) (eff. July 1, 2012). Thus, the court substantially complied
with the rule. See People v. Burt, 168 Ill. 2d 49, 64 (1995) (Rule 402 requires substantial, not
literal, compliance); People v. Dougherty, 394 Ill. App. 3d 134, 138 (2009) (courts have found
substantial compliance with Rule 402 where plea was knowing and voluntary, even if the trial
court failed to admonish defendant of a specific provision).
¶ 15 The court also complied with Illinois Supreme Court Rule 605(b). After the sentencing
hearing, the court informed defendant of her appeal rights, reciting the rule nearly verbatim in the
process. See Ill. S. Ct. R. 605(b) (eff. Oct. 1, 2001).
¶ 16 Moreover, defense counsel complied with Illinois Supreme Court Rule 604(d). In relevant
part, the rule provides that:
“The defendant’s attorney shall file with the trial court a certificate stating that the 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 plea of guilty and
the report of proceedings in the sentencing hearing, and has made any amendments to the
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motion necessary for adequate presentation of any defects in those proceedings.” Ill. S. Ct.
R. 604(d) (eff. July 1, 2017).
Here, defense counsel filed a certificate tracking the rule’s language.
¶ 17 OSAD further concludes that the court did not err substantively by denying defendant’s
motion to reconsider her sentence. The circuit court has considerable discretion in sentencing, and
we will disturb a sentence within the statutory range only where the court abused that discretion.
People v. O’Neal, 125 Ill. 2d 291, 297-98 (1988). Here, defendant pleaded guilty to aggravated
battery causing great bodily harm, a Class 3 felony. Normally, this would be subject to a maximum
sentence of 5 years (730 ILCS 5/5-4.5-40(a) (West 2020)) but, given her record, she was eligible
for an extended-term sentence of up to 10 years (730 ILCS 5/5-5-3.2(a)(12) (West 2020)). Thus,
the nine-year sentence is within the statutory range. Moreover, given defendant’s extensive record
of convictions, which included six prior felonies and numerous misdemeanor and traffic offenses,
and that four prior probation sentences ended unsatisfactorily, the court did not abuse its discretion
in rejecting her request for probation and imposing a sentence near the high end of the range.
¶ 18 In her response, defendant argues that she was not aware that her extended-term eligibility
was based on the conviction for which her probation was simultaneously revoked, that she
successfully completed that probation, and that she did not actually run over Nichols. She argues
that she believed her attorney was attempting to get probation for her but implicitly acknowledges
that it was never guaranteed: “ ‘Let’s see if we can convince the judge to grant you probation.’ ”
She contends that she attempted to withdraw her plea but that her request was either denied or
ignored. She further contends, without elaboration, that the court’s admonishments were
insufficient, that defense counsel’s Rule 604(d) certificate was insufficient, and that counsel was
generally ineffective.
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¶ 19 The record does not show that defendant ever attempted to withdraw her plea or the
stipulation to the petition to revoke probation. As noted, the circuit court properly admonished
her, and defense counsel filed a certificate that complied with the applicable rules. The terms of
the plea agreement were explained, and defendant stated that she understood. She stipulated to
the factual basis and to the allegations of the petition to revoke probation. She cannot now undo
all of that, without factual support or reasoned argument, simply because she is dissatisfied with
the sentence she received.
¶ 20 CONCLUSION
¶ 21 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and
affirm the circuit court’s judgment.
¶ 22 Motion granted; judgment affirmed.
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