People v. Hardey

Full title: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD HARDEY…

Court: APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Date published: Mar 12, 2014

2014 Ill. App. 4th 120892 (Ill. App. Ct. 2014)

Opinion

NO. 4-12-0892 NO. 4-12-0893 NO. 4-12-0894 NO. 4-12-0895

03-12-2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD HARDEY II, Defendant-Appellant.

STEIGMANN

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from

Circuit Court of

Livingston County

Nos. 12CF11

12CF12

12CF40

12CF41

Honorable

Jennifer H. Bauknecht,

Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Justices Turner and Harris concurred in the judgment.

ORDER

¶ 1 Held: The trial court did not abuse its discretion when it denied the defendant's motion to withdraw his guilty plea. The defendant's multiple convictions in case Nos. 12-CF-12 and 12-CF-40 violated the one-act, one-crime rule. ¶ 2 In June 2012, defendant, Donald Hardey II, pleaded guilty to (1) one count of unlawful possession of contraband in a penal institution (720 ILCS 5/31A-1.1(b) (West 2010)) in case No. 12-CF-11, (2) five counts of unlawful possession of contraband in a penal institution (720 ILCS 5/31A-1.1(b) (West 2010)) in case No. 12-CF-12, (3) two counts of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(b) (West 2010)) in case No. 12-CF-40, and (4) one count of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(b) (West 2010)) in case No. 12-CF-41. The trial court sentenced defendant to six years in prison on each count, with the sentence in each case to run consecutively, for a total of 24 years in prison. In July 2012, defendant filed a motion to withdraw his guilty plea, which the court denied. ¶ 3 Defendant argues that (1) the trial court erred by denying his motion to withdraw his guilty plea and (2) his multiple convictions in case Nos. 12-CF-12 and 12-CF-40 violated the one-act, one-crime rule. In case Nos. 12-CF-11 and 12-CF-41, we affirm. In case Nos. 12-CF-12 and 12-CF-40, we affirm as modified.

¶ 4 I. BACKGROUND

¶ 5 A. The Plea and Sentencing Hearings

¶ 6 In January 2012, the State charged defendant in case No. 12-CF-11 with unlawful possession of contraband in a penal institution for conduct occurring on July 2, 2011. That same month, the State charged defendant in case No. 12-CF-12 with five counts of unlawful possession of contraband in a penal institution. The information for counts I, II, III, and IV alleged that on November 17, 2010, defendant "knowingly possessed a piece of plastic sharpened to a point with a cloth handle." The indictment for count V alleged that on November 17, 2010, defendant "knowingly possessed a piece of plastic sharpened to a point (no cloth handle)." ¶ 7 In February 2012, the State charged defendant in case No. 12-CF-40 with two counts of unlawful possession of a weapon by a felon, alleging in both counts that on September 11, 2011, defendant "knowingly possessed in his cell a dagger-like weapon." The State charged defendant in case No. 12-CF-41 with unlawful possession of a weapon by a felon for conduct occurring on October 6, 2011. ¶ 8 In June 2012, the trial court held a plea hearing. The following occurred:

"THE COURT: [The court] had copies of those informations placed in front of you. *** So how did you want to proceed today?
THE DEFENDANT: Guilty.
THE COURT: Wait. Hold on, sir. [(Defense counsel)]?
[DEFENSE COUNSEL]: Yes, Your Honor. In conference with [defendant] and also with the State, I discussed a plea agreement with [defendant]; and the State modified it somewhat; and he's indicated he would *** plead guilty to the cases with the proposal to the court which would be six years on each case for a total of 24 years which of course would be good time eligible.

* * *
THE COURT: *** So that's your understanding, [defendant], that you'll plead guilty to each of these four cases today, receive a sentence of six years on each case? It's only a two year [mandatory supervised release (MSR)]—sorry—on a Class 1. So it would be a two year MSR but six years consecutive on each case, and again that's consecutive to the sentences you are already serving.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: So [No.] 12-CF-11 alleges that on July 2nd, 2011, you committed the offense of unlawful possession of contraband in a penal institution. That's a Class 1 felony.
Are you prepared to plead guilty to that charge today?
THE DEFENDANT: Yeah.
THE COURT: And then [No.] 12-CF-12 alleges again five counts of unlawful possession of contraband in a penal institution. Those offenses are alleged to have occurred on November 17th of 2010, and those are also Class 1 felony charges.
And you are prepared to plead guilty to those charges today?
THE DEFENDANT: Yeah.
THE COURT: Now the new cases, [Nos.] 12-CF-40 and 41, [No.] 12-CF-40 alleges that on September 11th of 2011 you committed the offense of unlawful possession of a weapon by a felon in custody. Again those are Class 1 felony charges, and that's two counts.
You are prepared to plead guilty to those charges today?
THE DEFENDANT: Yes.
THE COURT: All right. And then [No.] 12-CF-41, again unlawful possession of weapons by a felon in custody and that's
alleged to have occurred on October 6th of 2011; and that's a Class 1 [offense].
Are those the charges you are prepared to plead guilty to?
THE DEFENDANT: Yeah.
THE COURT: [Admonishing defendant.] Any questions about those rights that you are giving up?
THE DEFENDANT: No.

* * *
THE COURT: [Admonishing defendant.] Any questions about the range of penalties you are facing?
THE DEFENDANT: No.
THE COURT: Are you a United States citizen?
THE DEFENDANT: Yeah.
THE COURT: Has anyone forced you to plead guilty to the charge today?
THE DEFENDANT: No.
THE COURT: Other than this plea agreement, has anyone promised you anything if you plead guilty?
THE DEFENDANT: No.
THE COURT: Have you had a full opportunity to discuss this decision with Mr. Morgan?
THE DEFENDANT: Yes.
THE COURT: Knowing the charge you are pleading, the charges you are pleading guilty to, the rights that you are waiving and the penalties that you are facing, do you still wish to go forward and plead guilty? Do you still want to plead guilty knowing the charges you're pleading guilty to?
THE DEFENDANT: Oh. Yeah."

The State presented the following factual bases. In No. 12-CF-11, on July 2, 2011, defendant possessed "a piece of plastic sharpened to a point" while he was confined at the Pontiac Correctional Center (Pontiac). In No. 12-CF-12, on November 17, 2010, defendant possessed "a piece of plastic sharpened to a point with a cloth handle" while he was confined at Pontiac. In No. 12-CF-40, on September 11, 2011, defendant possessed "a dagger-like weapon" in his cell at Pontiac. In No. 12-CF-41, on October 6, 2011, defendant possessed "a dagger-like weapon" while confined at Pontiac. ¶ 9 After the plea hearing, the trial court sentenced defendant as follows: In No. 12-CF-11 to six years in prison. In No. 12-CF-12 to six years in prison on each count, with all counts to run concurrently. In No. 12-CF-40 to six years in prison on each count, with all counts to run concurrently. In No. 12-CF-41 to six years in prison on both counts, with the sentences on each count to run concurrently. The sentences in each case were ordered to run consecutively to one another and consecutive to the sentences in Livingston County case Nos. 11-CF-203 and 11-CF-31 and Lee County case No. 09-CF-164.

¶ 10 B. Motion To Withdraw Hearing

¶ 11 In July 2012, defendant filed a motion to withdraw his guilty plea, asserting that he was unable to "properly comprehend his rights and the waiver of his rights" and "that he did not exercise reasoned and knowing judgment." ¶ 12 At a September 2012 hearing on defendant's motion, defendant testified as follows:

"Q. On the date that this was entered on June 13th, you believe that you didn't understand what was happening?
A. Yes
Q. You do take psychotropic medication. Is that correct?
A. Yes.
Q. What medication were you on on that day?
A. Thorazine, Remeron and Depakote.
Q. And that's prescribed through the Department of Corrections and the mental health unit there?
A. Yes.
Q. What is it about that medication that made it difficult for you to understand what you were saying or what the Court was saying to you?
A. It was hard to understand what you guys were saying to me.
Q. The medication was interfering with that in some fashion?
A. Yeah.
Q. Can you elaborate on how it does that?
A. It makes me sleepy and not thinking right.
Q. Okay. And since then, have you still remained on that medication?
A. Yes."

On cross-examination defendant testified as follows:

"Q. You said that your medicine makes you sleepy?
A. Yes.
Q. It's because you were sleepy you would like a new trial?
A. No. It's just I can't think right when I'm taking my meds.
Q. Are you still taking those medications?
A. Yeah.
Q. So are you thinking right now?
A. No. Not really.
Q. You wrote a letter. Correct?
A. Yeah. I was going to, in that what I wrote I wanted, when I came to court the first time, I wanted to get a psych evaluation; but I forgot what I was thinking when I came.
Q. So you just forgot something?
A. (Nods head).

* * *
Q. At your last hearing, you were represented by counsel. Correct?
A. Yes.
Q. And you said you didn't understand things that were going on?
A. Yes.
Q. Did you think to tell somebody that?
A. No. I wasn't even thinking.
Q. And at your court hearing when all this happened, you were read all of your rights. Correct?
A. Yes.
Q. And did you indicate to the Court that you understood everything?
A. Yes.
Q. Why did you do that if you did not understand?
A. I wasn't even thinking.
Q. Are you thinking right now?
A. A little bit.
Q. But you are still on the same medications?
A. Yeah."

¶ 13 In announcing its decision, the trial court stated it had reviewed the plea-hearing transcript, which showed defendant "was given more than one opportunity to ask questions." The court found that defendant's testimony did not support his contention that there was a misapprehension of the plea-hearing proceedings. The court noted the following:

"People are on various medications. Those medications, at least the ones that the defendant testified to, the court is somewhat familiar with; and based upon the defendant's demeanor in court today as well as on June 13th and actually there was a prior court date, at least one, of April 25th. *** [The court does] suspect that the State is correct that this is more of a situation of buyer's remorse when you talk about 24 years than a situation where the defendant was confused or didn't understand. He certainly did understand what was going on that day."

The court denied defendant's motion to withdraw his guilty plea. ¶ 14 These appeals followed. On defendant's motion, we consolidated these appeals.

¶ 15 II. ANALYSIS

¶ 16 Defendant argues that (1) the trial court erred by denying his motion to withdraw his guilty plea and (2) his multiple convictions in case Nos. 12-CF-12 and 12-CF-40 violated the one-act, one-crime rule. We address defendant's contentions in turn.

¶ 17 A. Defendant's Motion To Withdraw

¶ 18 Defendant argues that the trial court abused its discretion when it denied his motion to withdraw his guilty plea. Specifically, defendant claims that he was in a "chemically-induced mental stupor" that made him unable to follow or fully understand the plea-hearing proceedings in "real time" and that this "surely must qualify" as a misapprehension of the facts or the law. He further asserts that the court erred by considering its personal knowledge of psychotropic medications. ¶ 19 "Generally, 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." People v. Hughes, 2012 IL 112817, ¶ 32, 983 N.E.2d 439. A defendant does not have an absolute right to withdraw his plea and "he 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. ¶ 20 Despite defendant's claim of a "chemically-induced mental stupor," he does not articulate any particular statement, action, or other aspect of the plea hearing that he misunderstood. The supreme court has explained that the mere ingestion of psychotropic medication does not raise a bona fide doubt of a criminal defendant's fitness. People v. Mitchell, 189 Ill. 2d 312, 330, 727 N.E.2d 254, 266 (2000). Further, "the mere existence of a mental disturbance or an instance of psychiatric treatment is not sufficient to create a bona fide doubt of a defendant's fitness." People v. Itani, 383 Ill. App. 3d 954, 970, 890 N.E.2d 1154, 1168 (2008). The record shows that defendant eagerly announced he sought to plead guilty and informed the trial court he had consulted with defense counsel about his decision to plead guilty. No evidence exists to indicate that defendant was confused, inattentive, unable to follow, or in a "stupor." Defendant merely testified that he was not "thinking." See generally People v. Canterbury, 313 Ill. App. 3d 914, 918, 730 N.E.2d 1198, 1201 (2000) ("Subjective impressions alone are not sufficient grounds to vacate a guilty plea absent some objective proof that the subjective impressions were justified."). Further, although defendant was on the same medications at the motion hearing that he was on at his guilty-plea hearing, he promptly responded to questions posed by defense counsel and the State and was able to recall events from the guilty-plea hearing. ¶ 21 Defendant also argues that the trial court improperly relied on its "personal knowledge" of his medications when it denied the motion to withdraw his plea. He relies on People v. Dameron, 196 Ill. 2d 156, 751 N.E.2d 1111 (2001), to contend that the court's use of outside evidence constitutes a violation of due process. Defendant's reliance on Dameron is not persuasive. In Dameron, the trial judge, in deciding to impose the death penalty, considered two outside sources: a social science book and a transcript of comments made by the judge's father at an earlier murder trial. Id. at 171, 751 N.E.2d at 1120. The supreme court reiterated that " '[a] determination made by the trial judge based upon a private investigation by the court or based upon private knowledge of the court, untested by cross-examination, or any of the rules of evidence constitutes a denial of due process of law.' " Id. at 171-72, 751 N.E.2d at 1120. The supreme court considered its previous decisions in People v. Griffith, 158 Ill. 2d 476, 634 N.E.2d 1069 (1994), and People v. Rivers, 410 Ill. 410, 102 N.E.2d 303 (1951). ¶ 22 In Griffith, the trial judge alluded to his knowledge of the Illinois prison system in determining whether the death penalty was appropriate. Griffith, 158 Ill. 2d at 497, 634 N.E.2d at 1079. The supreme court concluded that the defendant had not overcome the presumption the trial judge relied upon competent and reliable evidence in rendering sentence because the defendant had "offered no evidence *** that the trial judge's rhetorical comments served as an improper basis for the death sentence." Id. In Rivers, the record showed the trial judge expressed dissatisfaction with the State's evidence against the defendants and then continued the case for two months. Rivers, 410 Ill. at 417-18, 102 N.E.2d at 307. After the defendants were convicted of murder, defense counsel requested a new trial and the judge said, " 'I don't think you can add to what has been said to me over these weeks [of recess].' " Id. at 418, 102 N.E.2d at 307. The supreme court concluded the record showed that the trial judge conducted "some private investigation" during the two-month recess and reversed the defendants' convictions. Id. In Dameron, the supreme court concluded the trial judge's comments resembled those of the judge in Rivers because the judge "spoke at length about social science statistics and vague generalizations about crime he uncovered through his own investigation," and some of the social science evidence conflicted with the evidence presented in the case. Dameron, 196 Ill. 2d at 176, 751 N.E.2d at 1123. ¶ 23 In requesting to withdraw his plea, it is defendant's burden to show a "manifest injustice." See Hughes, 2012 IL 112817, ¶ 32, 983 N.E.2d 439. Defendant testified that he was on three different medications on the date of the plea hearing, the medications made him "sleepy," unable to think "right," and that he forgot something. He did not present any evidence about the medications such as what conditions they treat, what dosage he is prescribed or administered, how long he had used the medications, or the medications' side effects. The record provides no insight into what the trial court meant by its statement that it was "somewhat familiar" with defendant's medications. We agree that it is improper for the court to conduct a private investigation. However, defendant overlooks that his failure to provide the trial court with any evidence about his medications invited the court's comment. He has not overcome the presumption that the court relied on competent and reliable evidence in denying the motion. Further, the trial judge also relied on defendant's demeanor and appearance in determining whether he was able to understand the plea hearing. Based on the record before us, we do not agree that the trial court abused its discretion.

¶ 24 B. Defendant's Sentencing Claim

¶ 25 Defendant argues his sentences in case Nos. 12-CF-12 and 12-CF-40 violate the one-act, one-crime rule. The one-act, one-crime rule prohibits multiple convictions when the convictions are based on precisely the same physical act. People v. Miller, 238 Ill. 2d 161, 165, 938 N.E.2d 498, 501 (2010). ¶ 26 In case No. 12-CF-12, defendant was charged with four counts of unlawful possession of contraband in a penal institution in that he "knowingly possessed a piece of plastic sharpened to a point with a cloth handle" (counts I, II, III, and IV) and "knowingly possessed a piece of plastic sharpened to a point (no cloth handle)" (count V) on November 17, 2010. The State concedes counts II, III, and IV should be vacated. We accept the State's concession and modify case No. 12-CF-12 as follows: the convictions for counts II, III, and IV are vacated. ¶ 27 In case No. 12-CF-40, defendant was charged with two counts of unlawful possession of a weapon by a felon in the Department's custody in that he "knowingly possessed in his cell a dagger-like weapon" on September 11, 2011 (counts I and II). The State concedes the conviction in count II should be vacated. We accept the State's concession and modify case No. 12-CF-40 as follows: the conviction for count II is vacated.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm, as modified, the trial court's judgment. In case No. 12-CF-12, we vacate the convictions for counts II, III, and IV. In case No. 12-CF-40, we vacate the conviction for count II. As part of our judgment, we award the State its $50 statutory assessment as costs of this appeal. ¶ 30 No. 4-12-0892, Affirmed. ¶ 31 No. 4-12-0893, Affirmed as modified. ¶ 32 No. 4-12-0894, Affirmed as modified. ¶ 33 No. 4-12-0895, Affirmed.