People v. Cunningham

No. 4-94-0978

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
TRACY LEE CUNNINGHAM, ) No. 94CF202
Defendant-Appellant. )
) Honorable
) Jerry L. Patton,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

In March 1994, defendant Tracy Lee Cunningham was
charged with the offense of unlawful possession of controlled
substance with a prior unlawful possession of controlled sub-
stance with intent to deliver conviction, in violation of section
402(c) of the Illinois Controlled Substances Act (720 ILCS
570/402(c) (West 1992)). Following the denial of his motion to
suppress, defendant entered a negotiated plea. Under the terms
of the plea, defendant was sentenced to 2« years in the Depart-
ment of Corrections, to run consecutive to a prior sentence.
Defendant filed a timely motion to withdraw his plea of guilty,
alleging that the court had erroneously denied his motion to
suppress and that defendant wished to appeal that denial.
At the hearing on defendant's motion to withdraw the guilty
plea, the court asked defendant's attorney if he had any argu-
ments or comments. Counsel responded: "Judge, we don't wish to offer any comments
or argument. The basic purpose of this is,
and I told [the assistant State's Attorney]
this before the plea, Your Honor, is strictly
to test the question of the suppression of
evidence; whether it was properly suppressed
or not, Your Honor, and that is basically
the reason for the appeal."
The assistant State's Attorney argued that the motion should be
denied, noting that he understood "it's being done for the
purpose of preserving the issue on appeal[,] the Motion to Sup-
press."
A defendant who wishes to appeal the denial of a motion
to suppress makes a mistake in pleading guilty. A voluntary
guilty plea waives all nonjurisdictional errors or defects. A
stipulated bench trial, on the other hand, "allows the parties to
proceed with the benefit and convenience of a guilty plea proce-
dure, but avoids the waiver rule." People v. Scott, 277 Ill.
App. 3d 579, 582, 660 N.E.2d 555, 558 (1996). The federal rules
provide for a conditional guilty plea (see Fed. R. Crim. P.
11(a)(2)), and in some jurisdictions a defendant may enter a
guilty plea but expressly reserve the right to appeal a specified
pretrial ruling. W. LaFave and J. Israel, Criminal Procedure
21.6(b), at 952 (2d ed. 1992). Allowing a defendant to simply
reserve the right to appeal while pleading guilty is something
like allowing him to have his cake and eat it too. Defendant
gets the benefit of a negotiated plea, but the case is not over.
In Illinois, the only way to preserve an issue on appeal without
going through a trial is a stipulated bench trial. The court is
not bound by an agreement between the prosecution and defense if
there is a stipulated bench trial. 134 Ill. 2d R. 402(d)(3);
compare People v. Sutton, 229 Ill. App. 3d 960, 964-65, 594 N.E.2d 752, 754-55 (1992) (State agreed to recommend 40 years'
imprisonment in exchange for a stipulated bench trial).
This court has held that a defendant may waive his
right to appeal as a part of a plea negotiation, although he may
still be able to challenge the guilty plea by a motion to with-
draw it. People v. Fearing, 110 Ill. App. 3d 643, 644-45, 442 N.E.2d 939, 940 (1982). The question may be asked why it is
desirable for a defendant to waive his right to appeal, subject
to his right to file a motion to withdraw plea, when a guilty
plea waives all errors or defects anyway. The answer is that the
defendant in Fearing did not plead guilty, in a technical sense,
to the charges which he attempted to appeal: he pleaded guilty
to a charge in a companion case after he had been convicted of
two offenses in the first case, the agreed sentences on the three
offenses were specified, and five remaining charges were dis-
missed. As the Fearing court stated, by insulating the convic-
tions from review, the agreement operated much like a guilty plea
to those charges and was in fact part of one. It would be redun-
dant for a defendant to waive his right to appeal charges to
which he has pleaded guilty. See People v. Houle, 257 Ill. App.
3d 721, 629 N.E.2d 837 (1994); People v. Nichols, 143 Ill. App.
3d 673, 493 N.E.2d 677 (1986).
Stipulated bench trials can be tricky. If a defendant
stipulates not just to the sufficiency or existence of the
evidence, but to the sufficiency of the evidence to convict, then
the stipulation is tantamount to a guilty plea, Supreme Court
Rule 402(a) (134 Ill. 2d R. 402(a)) admonishments are required,
and apparently there may be no consideration of the reserved
issue on appeal. People v. Horton, 143 Ill. 2d 11, 22, 570 N.E.2d 320, 325 (1991). Even where the proper language is used,
and the issue is reserved, a stipulated bench trial may be very
much like a guilty plea. The trial court is not bound by any
negotiated sentence (134 Ill. 2d R. 402(d)(3)), but defendant may
give up his privilege against self-incrimination, his right to
trial by jury, and his right to confront his accusers. Many
trial courts, out of a sense of caution, choose to give Rule
402(a) admonishments to defendants who are participants in a
stipulated bench trial. The fact that those admonishments are
given does not transform the stipulated bench trial into a guilty
plea. People v. Manuel, 242 Ill. App. 3d 20, 24, 609 N.E.2d 995,
997 (1993).
It could be argued that Supreme Court Rule 604(d) (145
Ill. 2d R. 604(d)) allows a suppression ruling to be appealed,
after the denial of a motion to withdraw the plea of guilty and
vacate the judgment. Rule 604(d) provides that "[u]pon appeal
any issue not raised by the defendant in the motion to reconsider
the sentence or withdraw the plea of guilty and vacate the
judgment shall be deemed waived." 145 Ill. 2d R. 604(d). Rule
604(d), however, does not contemplate the appeal of issues
unrelated to the judgment and sentence. Whether a motion to
suppress was denied has nothing to do with whether the judgment
and sentence are proper; the judgment and sentence depend on the
guilty plea, not upon any evidence. McMann v. Richardson, 397 U.S. 759, 773, 25 L. Ed. 2d 763, 775, 90 S. Ct. 1441, 1450 (1970)
("[t]he defendant who pleads guilty is in a different posture").
It is true that misrepresentations by counsel, or a
defendant's misapprehension of the facts or of the law, can be
grounds for the withdrawal of a guilty plea. However, whether to
permit a guilty plea to be withdrawn is within the sound discre-
tion of the court. People v. Pugh, 157 Ill. 2d 1, 13, 623 N.E.2d 255, 261 (1993). Whether vacation of the plea is required
depends on whether real justice has been denied or whether
defendant has been prejudiced. People v. Davis, 145 Ill. 2d 240,
251, 582 N.E.2d 714, 719 (1991). Compare Davis, 145 Ill. 2d at
244, 582 N.E.2d at 716, quoting People v. Morreale, 412 Ill. 528,
531-32, 107 N.E.2d 721, 723 (1952) ("'or where the ends of
justice will be better served'"), with People v. Hillenbrand, 121 Ill. 2d 537, 545, 521 N.E.2d 900, 903 (1988) ("and the ends of
justice would be better served"). A defendant may enter a guilty
plea because of some erroneous advice by counsel, but that fact
alone does not destroy the voluntary nature of the plea; it must
be shown that defendant was denied the effective assistance of
counsel under the Strickland test. Pugh, 157 Ill. 2d at 14, 623 N.E.2d at 261, citing Strickland v. Washington, 466 U.S. 668,
687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). This
is because a defendant may choose to enter into a negotiated plea
of guilty even if he has a meritorious motion to suppress. A
defendant should not be allowed to withdraw his plea when the
real basis for his withdrawal is that he is dissatisfied with the
length of his sentence. People v. Fern, 240 Ill. App. 3d 1031,
1042, 607 N.E.2d 951, 961 (1993).
In People v. Spurlock, 19 Ill. App. 3d 474, 475, 311 N.E.2d 739, 740 (1974), defense counsel advised the court the
plea agreement included the following: "'the State would also
agree to permit the reservation for purposes of appeal, as to
each defendant, [of] all of the three motions to dismiss filed
May 30, 1972, by the defense.'" The appellate court held that
the rulings on the motions could not be considered, that a plea
of guilty waived all errors which are not jurisdictional in
nature. Spurlock, 19 Ill. App. 3d at 475, 311 N.E.2d at 740.
The court, however, vacated the judgments and remanded with
directions to allow each defendant to withdraw his plea of guilty
and to plead anew, based on the rule that a plea of guilty
induced by unfulfilled promises loses its voluntary nature and is
considered void. Spurlock, 19 Ill. App. 3d at 475, 311 N.E.2d at
740; see also People v. Sims, 133 Ill. App. 2d 878, 272 N.E.2d 433 (1971) (conviction affirmed where defense counsel indicated
rulings could be appealed despite guilty plea, but trial court
advised defendant that was wrong, and defendant entered guilty
plea anyway).
In People v. Green, 21 Ill. App. 3d 1072, 316 N.E.2d 530 (1974), the defendant entered a negotiated plea, but defense
counsel stated his intent that the plea not constitute any waiver
of defendant's right to appeal the court's earlier denial of a
motion to suppress confession. The appellate court held that
"[t]he advice of counsel to plead guilty was competent." Green,
21 Ill. App. 3d at 1076, 316 N.E.2d at 534. The court distin-
guished Sims and Spurlock as "within the line of cases holding
that where a defendant has been misled by the court or the
prosecutor, not defense counsel, as to a matter of fact or law,
his guilty plea cannot stand." (Emphasis in original.) Green,
21 Ill. App. 3d at 1075, 316 N.E.2d at 533. We question the dis-
tinction. Defense counsel's announced understanding of the plea
agreement at the time the plea was accepted was that there could
be an appeal, and neither the trial court nor the prosecutor
suggested that understanding was mistaken.
In any event, the present case is more similar to
Spurlock than it is to Green. Although there was no discussion
here of waiver of the right to appeal at the time the plea was
accepted and sentence was imposed, at the hearing on the motion
to withdraw the guilty plea defense counsel stated his under-
standing and that he had told the assistant State's Attorney of
that understanding during plea negotiations. The assistant
State's Attorney did not deny that understanding was a part of
the plea negotiations, and in fact stated that the purpose of the
motion to withdraw guilty plea was "for the purpose of preserving
the issue on appeal [of] the Motion to Suppress." The only issue
raised in the motion to vacate plea was that the motion to
suppress was erroneously denied and that defendant wished to
appeal that denial. As in Spurlock, we are presented here with a
plea of guilty induced by unfulfilled promises. The judgment
must be vacated and the cause remanded with directions to allow
defendant to withdraw his plea of guilty and to plead anew. Cf.
Davis, 145 Ill. 2d at 246, 582 N.E.2d at 717 (agreement was that
defendant would be referred to Treatment Alternatives to Street
Crimes (TASC), not that defendant qualified for TASC).
In some cases, a misunderstanding over the terms of a
plea agreement may be resolved by the court's admonitions (134
Ill. 2d R. 402(a)), in particular the court's question to defen-
dant whether any promises were made to him, apart from those set
out in the plea agreement (134 Ill. 2d R. 402(b)). That is not
true in the present case. A defendant can be expected to know,
for example, whether he has been promised a sentence of five
years or a sentence of three years. A defendant cannot be
expected to know that the appeal of a court's ruling on a motion
to suppress, after the entry of a guilty plea, is something out
of the ordinary or is a promise which should be disclosed to the
trial court.
We would also find ineffective assistance of counsel in
the entry of the guilty plea sufficient to vacate the guilty plea
in this case. Claims of ineffective assistance of counsel are
examined under the two-prong test established in Strickland.
Under Strickland, a defendant must show (1) his attorney's
performance fell below an objective standard of reasonableness,
as measured by reference to prevailing professional norms, and
(2) the substandard representation so prejudiced defendant that
there is a reasonable probability that, absent the errors, the
outcome would have been different. People v. Gosier, 165 Ill. 2d 16, 21, 649 N.E.2d 364, 367 (1995). The Strickland test is
applicable to challenges to guilty pleas alleging the ineffective
assistance of counsel. People v. Palmer, 162 Ill. 2d 465, 476,
643 N.E.2d 797, 802 (1994). In Palmer, defendant, charged with
murder, entered an "'open plea'" of guilty, but was sentenced to
death. Palmer, 162 Ill. 2d at 478-79, 643 N.E.2d at 803. The
supreme court concluded that counsel's strategy not to pursue
plea negotiations and to have defendant throw himself on the
mercy of the court did not deny defendant effective assistance of
counsel.
This is not a case where defendant tested the waters
with his guilty plea, is disappointed with his sentence, and is
looking for an excuse to set aside his plea. It appears from
trial counsel's comments at the hearing on the motion to withdraw
the guilty plea that defendant had the overriding determination
to appeal the trial court's denial of defendant's motion to sup-
press. Of course, the result achieved was exactly opposite to
the result sought. While there are instances in which the
decision to forgo a stipulated bench trial and, instead, to enter
a guilty plea can be seen as strategic, such is not the case
here. Davis, 145 Ill. 2d at 250, 582 N.E.2d at 719 (rejecting
State's argument that defendant sought to withdraw plea simply
because he received a sentence different from what he hoped for).
The prejudice prong of the Strickland test requires the
defendant to show that "there is a reasonable probability that,
but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 88 L. Ed. 2d 203, 210, 106 S. Ct. 366, 370 (1985).
The parties set forth differing measures of "prejudice." The
State argues that defendant has not shown that he was prejudiced,
because an appeal of the denial of the motion to suppress would
have been futile. See Green, 21 Ill. App. 3d at 1074-75, 316 N.E.2d at 533 (advice not beyond range of competence where
negotiation resulted in a favorable sentence, defendant had
confessed, and although the ruling on the motion to suppress "is
not before us," there is no indication of "gross obvious error").
Thus, the State addresses the merits of the denial of the motion
to suppress, the very issue that is not appealable due to the
fact that defendant entered a guilty plea. Defendant, on the
other hand, argues he was prejudiced because, "but for" counsel's
erroneous advice, he would have opted for a stipulated bench
trial and then appealed the denial of his motion to suppress.
In People v. Moore, 133 Ill. 2d 331, 549 N.E.2d 1257
(1990), the defendant was denied a direct appeal due to his
counsel's failure to perfect an appeal. The supreme court, in
interpreting decisions of the United States Supreme Court, noted
that it appears as though "a criminal defendant must at some
point be afforded the equivalent of direct review and an appel-
late advocate; a court cannot deny a defendant an attorney-
assisted appeal by examining the record and determining that
defendant would not have succeeded on appeal in any event."
Moore, 133 Ill. 2d at 339, 549 N.E.2d at 1261, citing Penson v.
Ohio, 488 U.S. 75, 86, 102 L. Ed. 2d 300, 312-14, 109 S. Ct 346,
352-54 (1988). The court also noted that Strickland "cannot be
applied where a defendant is effectively denied appellate coun-
sel; in such an instance prejudice is presumed to have resulted."
Moore, 133 Ill. 2d at 339, 549 N.E.2d at 1261, citing Penson, 488 U.S. at 88, 102 L. Ed. 2d at 313-14, 109 S. Ct at 353-54.
We find the reasoning in Moore applicable to the case
at bar. Through no fault of his own, but on the erroneous advice
of trial counsel, defendant has been, in essence, denied the
direct review of the denial of his motion to suppress. Trial
counsel's mistake is akin to failing to perfect an appeal.
Following the example of Moore, we will presume prejudice.
For the foregoing reasons, the judgment is vacated and
the cause remanded with directions to allow defendant to withdraw
his plea of guilty and plead anew. Defendant must choose between
having a negotiated plea and being able to appeal the denial of
his motion to suppress.
Vacated and remanded.
GARMAN and GREEN, JJ., concur.