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People v. Shanks

Illinois Appellate Court, Fourth District
Nov 2, 2022
2022 Ill. App. 4th 210656 (Ill. App. Ct. 2022)

Opinion

4-21-0656 4-21-0657 4-21-0658

11-02-2022

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY D. SHANKS, Defendant-Appellant.


This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Pike County Nos. 16CF87 16CM185 19CF23 Honorable Frank McCartney, Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court. Justices DeArmond and Cavanagh concurred in the judgment.

ORDER

DOHERTY JUSTICE

¶ 1 Held: (1) Defendant forfeited his challenge to the sufficiency of the factual basis to revoke his probation and (2) the trial court did not err in sentencing defendant.

¶ 2 Defendant Timothy D. Shanks was serving a sentence of probation stemming from several negotiated guilty pleas. The State filed a petition to revoke defendant's probation in the various cases. Following a hearing, the trial court revoked defendant's probation and sentenced him to six years' imprisonment. In this consolidated appeal, defendant argues the trial court abused its discretion in finding a sufficient factual basis to revoke his probation and in imposing his sentence. For the reasons that follow, we affirm.

¶ 3 I. BACKGROUND

¶ 4 In June 2016, the State charged defendant with driving while his license was revoked (625 ILCS 5/6-303(c), (d) (West 2016)) in Pike County case No. 16-CF-87. In October 2016, the State charged defendant with domestic battery (720 ILCS 5/12-3.2(a) (2) (West 2016)) in Pike County case No. 16-CM-185. Pursuant to a negotiated guilty plea, the trial court sentenced defendant to 30- and 24-months' probation, respectively, with the terms to run concurrently.

¶ 5 In May 2017, the State filed a petition to revoke probation in both matters. The State alleged defendant violated his probation by committing the offense of unlawful possession of a controlled substance when he brought a prescription pill into the Pike County jail without a corresponding prescription. Defendant entered into a negotiated arrangement with the State, and the trial court once again sentenced defendant to probation terms of 30 and 24 months, with the terms to run concurrently.

¶ 6 In February 2019, the State filed yet another petition to revoke probation in both cases. The State alleged that defendant failed a urinalysis screening by testing positive for methamphetamine and amphetamine. The State also alleged that defendant committed the offenses of possession of less than five grams of methamphetamine (720 ILCS 646/60(b) (1) (West 2018)) and possession of drug paraphernalia (720 ILCS 600/3.5 (West 2018)) in Pike County case No. 19-CF-23. Defendant admitted to violating his probation and entered into a negotiated guilty plea. Pursuant to that agreement, the trial court sentenced defendant to 30 months' probation for driving while his license was revoked and possession of less than five grams of methamphetamine, and 24 months' probation for domestic battery to be served concurrently. The State nol-prossed the drug paraphernalia charge.

¶ 7 In December 2020, the State moved to revoke defendant's probation in the aforementioned cases. The State alleged in a verified petition that defendant violated his probation in that he (1) tested positive for marijuana in December 2019, May 2020, and November 2020; (2) tested positive for alcohol in December 2019; (3) failed to report to his probation officer as directed in April 2020 and August 2020; and (4) missed numerous requested drug screenings. A revocation hearing ensued.

¶ 8 At the revocation hearing, the trial court reviewed the nature of the violations with defendant and informed him of the potential penalties he faced. After completing the admonishments required by Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003), the following exchange occurred.

"THE COURT: And at this point, there is no plea agreement, is that correct?
[DEFENDANT]: Yes, your Honor.
THE COURT: All right. So as to the allegations in the Petition to Revoke, do you admit or deny that you violated your probation?
[DEFENDANT]: I admit.
THE COURT: Factual basis?
MS. CARNES [(ASSISTANT STATE'S ATTORNEY)]: Judge we would just call the probation officer to testify as to the allegations in the verified petition.
* * *
THE COURT: Ms. Morris, do you believe [the State] could put on that evidence to sustain their burden?
MS. MORRIS [(DEFENSE COUNSEL)]: Yes."

¶ 9 At sentencing, the court noted that it had overseen matters involving defendant for approximately 19 years and cited defendant's extensive criminal history. The court then provided defendant with two sentencing options.

"I'm going to give you a choice and you're not going to like either choice but you're going to get to decide and I'll give you time. We have got some other cases.
So you're going to get a four-year sentence with probation to follow or you're going to get a six-year sentence with no probation. You guys get to pick. I would like to see you do probation. ***
So what I'm saying today, Ms. Morris, it's a four-year sentence, with probation to follow, on the meth case, concurrent jail of 364 on the [domestic battery] case. If he does not want to mess with probation, and I understand it, then it will be a six-year sentence on the two felonies, concurrent, county jail 364, concurrent. I hope he picks the prison plus probation but you're rolling the dice. You're looking at a two to ten year sentence if you mess up your probation. And basically what I'm saying is you do another year in prison because it's an additional two years, day for day, then, you know, you'll be done and we won't be bothering you anymore unless you get in trouble.
So, Ms. Morris, if you want to talk to him, you can."

¶ 10 The court passed the matter while defense counsel met with defendant. The parties reconvened, and defense counsel advised the court that defendant wished to serve the six year prison term to avoid probation. A presentence investigation report (PSI) was prepared, and the trial court sentenced defendant to two six year prison sentences for driving while license revoked and possession of methamphetamine, respectively. Defendant was also sentenced to 364 days in jail for domestic battery. All sentences were to be served concurrently.

¶ 11 Defendant filed a motion to reconsider, arguing the sentence was excessive but failed to argue any of the issues raised on appeal. The trial court denied the motion.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 Defendant argues that the trial court failed to comply with Illinois Supreme Court Rule 402A(c) (eff. Nov. 1, 2003) by revoking his probation without determining whether a factual basis existed for his admission, and the court abused its discretion in letting him choose his own sentence. The State contends that a factual basis was provided, that there is sufficient evidentiary support in the record to find that defendant violated his probation, and that the court properly exercised its authority in sentencing defendant.

¶ 15 Defendant acknowledges he failed to object at trial and include the errors raised on appeal in a posttrial motion. See People v. Sebby, 2017 IL 119445, 48 (noting that to preserve an error for review, a defendant must object at trial and raise the error in a posttrial motion). Thus, we proceed to review the unpreserved claims under the plain error doctrine. The plain error rule allows reviewing courts to consider unpreserved claims of error where:

"(1) when 'a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error,' or (2) when 'a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.'" Id. ¶ 48 (quoting People v. Piatkowski, 225 Ill.2d 551, 565 (2007), quoting People v. Herron, 215 Ill.2d 167, 186-87 (2005)).

The threshold inquiry under either prong of the plain-error analysis is to determine whether an error occurred at all. People v. Birge, 2021 IL 125644, 24.

¶ 16 A. Compliance with Rule 402A(c)

¶ 17 Defendant claims he was deprived due process when the State provided an insufficient factual basis at the hearing to revoke his probation, his counsel acquiesced to the sufficiency of that basis, and the court found a sufficient factual basis supporting defendant's admission he violated probation.

¶ 18 Illinois Supreme Court Rule 402A(c) (eff. Nov. 1, 2003) provides" [t]he court shall not revoke probation *** on an admission or stipulation without first determining that there is a factual basis for the defendant's admission or stipulation." In People v. Bassette, 391 Ill.App.3d 453, 456 (2009), this court explained that the law governing whether an appropriate factual basis exists relating to guilty pleas under Illinois Supreme Court Rule 402(c) (eff. July 1, 2012) applies to a factual basis under Rule 402A(c) for an admission or stipulation in proceedings to revoke probation.

¶ 19 Generally, the factual basis for a guilty plea consists of an express admission by the defendant that they committed the acts alleged in the indictment or a recital to the court of the evidence supporting the allegations in the indictment. People v. White, 2011 IL 109616, ¶ 17. A factual basis will also be established when there is a basis anywhere in the record prior to the final judgment from which the court can conclude that the defendant committed the acts with the intent, if any, required to constitute the offense to which the individual is pleading guilty. See People v. Gaines, 2020 IL 125165, ¶ 52 (citing People v. Barker, 83 Ill.2d 319, 333 (1980)); People v. Brazee, 316 Ill.App.3d 1230, 1236 (2000). Information from a PSI, as well as the sentencing hearing, may serve to provide a factual basis for the plea. People v. Porter, 61 Ill.App.3d 941, 944-45 (1978), invalidated on other grounds by People v. Wilk, 124 Ill.2d 23 (1988); People v. Bleitner, 199 Ill.App.3d 146, 150 (1990).

¶ 20 Initially, we must note that the State argues that we should decline to review defendant's claim of error under the plain error rule due to his procedural forfeiture. This argument finds support in People v. Allen, 323 Ill.App.3d 312 (2001) and in People v. Williams, 299 Ill.App.3d 791 (1998).

¶ 21 In Williams, this court stated that a factual basis for a guilty plea based on a stipulation between attorneys is erroneous. Williams, 299 Ill.App.3d at 794. Despite the attorneys stipulating to the factual basis in that case, the defendant failed to raise the issue in the trial court resulting in forfeiture. Id. at 795. The Williams court rejected the defendant's claim that the error could be reviewed under the plain error rule stating," [T] he plain error rule is not a general savings clause for any alleged error, but instead is designed to address serious injustices." (Emphasis omitted.) Id. at 796. The court found that the error in permitting a stipulation to serve as the factual basis for the defendant's guilty plea fell short of constituting plain error and the court honored the defendant's procedural forfeiture. Id.

22 In Allen, 323 Ill.App.3d at 316-17, this court once again recognized that accepting a stipulation between the attorneys as a sufficient factual basis for a guilty plea was error and that the failure to preserve this error in the trial court resulted in forfeiture. Citing to Williams, the appellate court rejected the defendant's claim the unpreserved error could be reviewed under the plain error rule. Id. at 317.

¶ 23 Defendant contends that challenges to the sufficiency of a factual basis under Rule 402A(c) are not subject to forfeiture citing to In re Westley A.F., Jr., 399 Ill.App.3d 791, 795 (2010). In that case, the court found the minor's arguments regarding the sufficiency of his admonishments were not subject to forfeiture as it would be improper to place the onus on the minor to ensure his admonishments complied with due process. Id. at 795 (quoting People v. Whitfield, 217 Ill.2d 177, 188 (2005)). Westley A.F. is both factually and legally inapplicable here. Westley A.F. establishes that it is improper to expect a defendant to assess the sufficiency of the court's admonishments and whether they complied with due process. Here, the issue is whether it is reasonable to expect a defendant to know whether there is a factual basis for his plea to the petition to revoke probation; this is a matter particularly within a defendant's knowledge. If defendant felt that a factual basis for his plea was lacking, the trial court was the place to raise that contention.

¶ 24 The trial court in this case thoroughly reviewed the allegations in the State's verified petition to revoke probation with defendant during the revocation hearing. After properly admonishing defendant and receiving defendant's admission to the allegations in the verified petition, the court then requested a factual basis. The State referred to its verified petition stating it would call defendant's probation officer to testify to the allegations contained therein. Defense counsel stated that she believed the State could put on sufficient evidence to carry its burden, essentially stipulating to the factual basis. In accordance with our prior rulings, we find that the trial court's error in permitting a stipulation to serve as a factual basis for defendant's revocation of probation falls short of constituting plain error. Williams, 299 Ill.App.3d at 796; Allen, 323 Ill.App.3d at 317.

¶ 25 Even if we were to consider defendant's claim, a review of the PSI provides an adequate factual basis to revoke defendant's probation. The PSI shows defendant admitted that he initially ceased consuming marijuana while on probation only to resume daily consumption in an attempt to stop using alcohol. He felt marijuana was a better choice between the two, given the effects. Defendant obtained a medical marijuana card in February 2021. The report also reveals that defendant admitted to drinking alcohol three days a week as well as on the weekends, up until he last consumed alcohol in October 2020. Regarding methamphetamine use, defendant stated he used the controlled substance once or twice a month, with the last occurrence in February 2019. The State's petition to revoke probation alleges violations of probation in the form of both the consumption of alcohol and marijuana during the time frames admitted to by defendant in the PSI.

¶ 26 B. Sentencing

¶ 27 Defendant also argues that the lower court abused its discretion and abdicated its judicial function in providing sentencing options, essentially allowing defendant to "sentence himself."

¶ 28 The Illinois Constitution provides that "[a] ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11. A court must equally weigh a defendant's history, character, rehabilitative potential, the need to protect society, the seriousness of the offense, and the need for deterrence and punishment in crafting an appropriate sentence. People v. Lawson, 2018 IL App (4th) 170105, ¶ 33. "A reviewing court gives substantial deference to the trial court's sentencing decision because the trial judge, having observed the defendant and the proceedings, is in a much better position to consider factors such as the defendant's credibility, demeanor, moral character, mentality, environment, habits, and age." People v. Snyder, 2011 IL 111382, ¶ 36. Broad discretionary powers are afforded to the trial court in imposing a sentence, and we will not substitute our own judgment for that of the trial court merely because our opinion differs as to the weight that should be given to various sentencing factors. People v. Alexander, 239 Ill.2d 205, 212-13 (2010).

¶ 29 We find no plain error in the trial court's imposition of defendant's sentence. The trial court in this instance had almost two decades of experience with defendant. To that end, the court crafted two sentencing options according to the seriousness of the offenses with the objective of restoring defendant to useful citizenship. The record before us demonstrates at least one thing if nothing else; defendant had immense difficulty complying with the conditions of probation. Recognizing this difficulty, the court gave defendant the option to serve another year in prison in lieu of probation to restore him to useful citizenship. This is made clear by the court's admonishment that if defendant were to violate his probation again a lengthy jail sentence could ensue and that by serving an additional year in prison "you'll be done and we won't be bothering you anymore." We believe it is reasonable to construe the trial court's decision to offer the option between the two differing sentences as offering probation only to those committed to successfully completing it.

¶ 30 Defendant relies on People v. Montana, 380 Ill. 596 (1942), in arguing the trial court erred by providing the sentencing options. Reliance on Montana in this instance is misguided. In that case, an amended statute directed the sentencing judge to make a recommendation for the minimum and maximum terms of imprisonment. Id. at 601-05. An administrative agency was then authorized to alter that recommendation. Id. This state's high court found the statute unconstitutional for running afoul of the separation of powers clause, rejecting the legislative encroachment on judicial authority. Id. at 608-09.

¶ 31 Here, the trial court did not turn to an administrative agency for input on defendant's sentence, but to defendant himself. The court crafted and imposed a sentence on defendant in accordance with the seriousness of the offenses and with the objective of restoring defendant to useful citizenship. Indeed, defendant seems ill-situated to complain of any error in the choice aspect of the sentence, when it is he himself who made the choice. Accordingly, we find that the trial court fulfilled its judicial function and properly exercised its discretion. As no error occurred, we must honor defendant's forfeiture of this issue.

¶ 32 III. CONCLUSION

¶ 33 For the reasons stated, we affirm the judgment of the circuit court of Pike County.

¶ 34 Affirmed.


Summaries of

People v. Shanks

Illinois Appellate Court, Fourth District
Nov 2, 2022
2022 Ill. App. 4th 210656 (Ill. App. Ct. 2022)
Case details for

People v. Shanks

Case Details

Full title:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY D…

Court:Illinois Appellate Court, Fourth District

Date published: Nov 2, 2022

Citations

2022 Ill. App. 4th 210656 (Ill. App. Ct. 2022)