In re E. V.

FIRST DIVISION
August 24, 1998

No. 1-98-0764



In re E.V., a Minor (E.V., Respondent-
Appellant, v. The People of the State of
Illinois, Petitioner-Appellee).


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)Appeal from the
Circuit Court of
Cook County

Honorable
Gerald T. Winiecki,
Judge Presiding.

JUSTICE GALLAGHER delivered the opinion of the court:

On August 26, 1997, respondent entered an admission to a
delinquency petition for unlawful use of a weapon under the
instant case, as well as unlawful possession of a firearm under
another case. The trial court accepted respondent's admissions,
found him delinquent, released him on home confinement to the
custody of his grandmother and scheduled sentencing for October
7, 1997. On September 3, 1997, eight days after entering an
admission to unlawful use of a weapon, respondent was arrested
and charged with the August 9, 1997, murder of Joseph Shadden.
The weapon for which respondent had been arrested in the
unlawful use of a weapon case was a .25-caliber semi-automatic
handgun. The gun that was used to kill Shadden was also a .25
caliber. A report from the Illinois State Police Crime
Laboratory dated September 2, 1997, indicated that the weapon
respondent possessed was the same weapon used to kill Shadden.
After receiving this report, and upon further investigation,
police arrested respondent for the murder of Shadden.
Subsequently, respondent sought to withdraw his plea of
guilty in the unlawful use of a weapon case, contending that the
admission was unknowing and involuntary based upon the State's
failure to disclose evidence that would have shown that, at the
time he pled guilty, he was a suspect in the Shadden murder. His
requests were denied and he now appeals.
On August 12, 1997, respondent was arrested for the unlawful
use of a weapon. He was placed in custody by Officer Rochowicz.
Later that day, Officer Rochowicz contacted Detective Murray, who
was one of several detectives investigating the Shadden murder,
and informed him that he had arrested respondent for unlawful use
of a weapon. He further informed him that the weapon which was
retrieved from respondent was a .25-caliber Beretta semi-
automatic which had been inventoried under No. 1857818. On the
same day, detectives assigned to the Shadden murder investigation
sent a memorandum to the state police forensic science command
requesting that, as part of the Shadden murder investigation, a
firearms comparison be made between the handgun recovered from
respondent, a bullet recovered from Shadden's body, and six .25-
caliber cartridge cases recovered at the scene of the shooting of
Shadden. Additionally, the detectives investigating the Shadden
murder wrote a general office memorandum to "all watches" in
reference to the Shadden murder informing them of the request for
the firearms comparison. Detective Murray, another of the
detectives investigating the Shadden murder, testified that the
police considered respondent a suspect in the Shadden murder on
August 12, 1997. Respondent's admission of guilt on the unlawful
use of a weapon was entered on August 26, 1997. At that time,
respondent was considered a suspect in the Shadden murder, but
the firearms comparison had not yet been reported. Seven days
later, on September 2, 1997, the state police forensic science
division supplied the results of the firearms comparison test,
which showed that the gun retrieved from respondent was the same
as that used in the Shadden murder, to the Chicago police.
Respondent was arrested for the murder on September 3, 1997.
On October 7, 1997, the disposition on the unlawful use of a
weapon case was continued. On January 22, 1998, new counsel for
respondent filed a motion to withdraw the plea of guilty. That
motion was denied on January 27, 1998. On February 27, 1998,
final disposition was entered on the unlawful use of a weapon
case and respondent was placed on 18 months of probation, with a
60 day stay of mittimus. On March 4, 1998, counsel for
respondent filed a second motion to withdraw the plea of guilty
and to vacate judgment, which was denied. A timely notice of
appeal was subsequently filed.
Respondent requests on appeal that this court either allow
him to withdraw his admission or vacate the adjudication of
wardship. "[A]s a matter of public policy, Illinois courts are
under a duty to carefully guard the rights of a minor and take
note of legitimate and substantial errors in proceedings
involving minors." In re D.L.B., 140 Ill. App. 3d 52, 55, 488 N.E.2d 313, 315 (1986). Our standard of review of an order
denying withdrawal of a guilty plea is an abuse of discretion
standard. See, e.g., People v. Gibson, 11 Ill. App. 3d 875, 880,
297 N.E.2d 31, 35 (1973). This court outlined the well-
established general principles governing the withdrawal of guilty
pleas in People v. Kokoraleis, 193 Ill. App. 3d 684, 549 N.E.2d 1354 (1990). The court stated:
"It is axiomatic that a defendant has no absolute right
to withdraw a guilty plea. [Citation.] The decision
whether to allow a defendant to withdraw a guilty plea
is within the sound discretion of the trial court;
generally, such a motion is allowed if it appears that
the plea resulted from a misapprehension of law or fact
or as a result of a misrepresentation by counsel, the
State's Attorney, or someone else in authority.
[Citation.] Misapprehension of fact or law goes to the
question of whether the plea was voluntarily and
intelligently made. [Citation.] A motion to withdraw a
guilty plea may also be allowed where the defendant has
a defense worthy of consideration, or where there is
doubt of the guilt of the accused, and justice would be
better served by submitting the cause to a trial.
[Citation.] The defendant bears the burden of
demonstrating sufficient grounds to allow withdrawal of
the plea. [Citation.] Unless the circumstances of the
defendant's plea fall into one of these categories, a
trial court's denial of a motion to withdraw a guilty
plea ordinarily will not be disturbed. [Citation.]"
Kokoraleis, 193 Ill. App. 3d at 691-92, 549 N.E.2d at
1360.

The circumstances of respondent's plea in the instant case do not
fall into any of these categories.
Respondent contends, however, that his plea resulted from a
misapprehension of fact which rendered his plea unknowing and
involuntary because the State did not provide him with the
memoranda that would have alerted him to the fact that he was a
possible suspect in the separate investigation of the Shadden
murder. In denying respondent's motion to withdraw his guilty
plea or vacate judgment, the trial court opined that the State
"cannot be charged with being aware of every case the police are
pursuing." While we agree with that general comment, we disagree
that it compelled the denial of respondent's motion in this case.
Here, the State failed to turn over documents that related to the
specific handgun at issue. The State also failed to disclose
that its witness, Officer Rochowicz, had personally alerted the
homicide division of respondent's arrest in order that the
detectives could determine whether the handgun recovered from
respondent matched that used in the Shadden murder.
As our supreme court has noted:
"Rule 412 is silent as to those persons whose
possession and control of material and information must
be imputed to the State. [Citation.] Illinois courts
have held that the officers and personnel of the
Chicago Police Department Crime Laboratory are
investigative personnel within the meaning of Rule
412(f). [Citation.] The State's failure to disclose to
the defense [pertinent materials] cannot be excused by
the argument that the assistant State's Attorneys were
unaware of the [material's] existence, since both they
and the police are required to cooperate and ensure
that all relevant information will be provided and that
discovery will be accomplished." People v. Thompkins,
121 Ill. 2d 401, 425-26, 521 N.E.2d 38, 48 (1988).

We think that the same principle holds true in the instant case,
where both Officer Rochowicz and all who received the "all
watches" memorandum from the detectives investigating the Shadden
murder were aware of the firearms comparison being performed by
the state police forensic science command. Nevertheless,
applying the guidelines outlined above, the trial court did not
abuse its discretion in denying respondent's motion to withdraw
his guilty plea, for reasons explained further in this opinion.
Respondent contends that the State's failure to disclose the
materials in issue constituted a violation of both federal and
state discovery rules. Specifically, respondent contends that
the State violated the mandates of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 215, 83 S. Ct. 1194 (1963), as well as Illinois
Supreme Court Rule 412 (134 Ill. 2d R. 412).
In Brady, the United States Supreme Court held that the
prosecution's nondisclosure of evidence favorable to an accused
upon request violates due process where the evidence is material
to the guilt or innocence of a defendant. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 215, 83 S. Ct. 1194 (1963). The Brady
decision involved a request of a "specific" nature, similar to
that in the present case. Contrary to the State's assertions,
respondent did not make a "general request for exculpatory
evidence" but, rather, specifically requested copies of "all
memoranda, notes, reports, street files, progress reports,
running files and felony worksheets (including notes on the back
sides of any sheets or folders)." This distinction is not
critical, however, because even in the case of such a specific
request for information, in order for the defendant to show a
Brady violation on the part of the prosecution, a defendant is
required to show favorableness and materiality of the undisclosed
material. See, e.g., People v. Velez, 123 Ill. App. 3d 210, 217,
462 N.E.2d 746, 751 (1984). Thus, since the materials at issue
here, namely, the internal police memoranda, were not
exculpatory, the State's failure to disclose them does not
constitute a Brady violation. In view of this, it is irrelevant
whether the memoranda in issue pertained to the instant case, as
respondent contends, or pertained solely to the Shadden murder
case, as the State contends.
The same principle applies to the requirements of Supreme
Court Rule 412(c), which provides in pertinent part that "the
State shall disclose to defense counsel any material or
information within its possession or control which tends to
negate the guilt of the accused as to the offense charged."
(Emphasis added.) 134 Ill. R. 412(c). The memoranda here did not
tend to negate the guilt of the respondent as to the charged
offense of unlawful use of a weapon. At the time respondent pled
guilty in the instant case, the fact that the police also
suspected him of the murder had no bearing upon his guilt or
innocence of the unlawful use of a weapon charge. Respondent has
not cited, and our independent research has not revealed, any
case where it has been held that the State has a duty to disclose
potentially "inculpatory" evidence of a separate uncharged
offense.
Respondent makes the additional claim that he received
ineffective assistance of counsel and lists a number of alleged
failures on the part of his trial counsel which relate to further
investigation of the handgun at issue. We have reviewed
respondent's contentions and have determined that, while his
trial counsel might have learned that respondent was a suspect in
the Shadden murder, had she executed these tasks, she would not
have learned anything relevant, let alone exculpatory, to the
charge of unlawful use of a weapon. Respondent nonetheless
argues that because he was not reasonably informed of the
consequences of accepting or rejecting the State's plea offer, he
was denied effective assistance of counsel, rendering his plea
involuntary and unknowing. Respondent cites People v. Correa,
108 Ill. 2d 541, 485 N.E.2d 307 (1985), in support of his
argument that he had a constitutional right to be reasonably
informed of the consequences of accepting or rejecting the
State's plea offer.
Courts are under no duty to admonish a defendant as to any
collateral consequences of a guilty plea. See, e.g., People v.
Murphy, 207 Ill. App. 3d 539, 540-41, 565 N.E.2d 1359, 1360
(1991) (certification as an habitual child sex offender is a
collateral consequence of a defendant's guilty plea to aggravated
sexual assault and courts are under no duty, before accepting a
guilty plea, to admonish a defendant that he becomes eligible for
such certification as result of the plea) Although the Correa
court noted that "[i]t is counsel's responsibility *** to advise
an accused of a collateral consequence of a plea of guilty"
(emphasis added) (People v. Correa, 108 Ill. 2d at 550, 485
N.E.2d at 310), we find that case distinguishable from the facts
with which we are presented.
In Correa, counsel actively misrepresented the effect of the
defendant's guilty plea on his immigration status and likelihood
of deportation in response to defendant's specific request for
advice on the issue. In finding that there was ineffective
assistance of counsel, the court distinguished the situation
there from the instance where counsel simply fails to advise the
defendant of the collateral consequences of a guilty plea.
Correa, 108 Ill. 2d at 550, 485 N.E.2d at 311. As the Correa
court noted:
"We need not here consider the passive conduct of
counsel in failing to discuss with a defendant the
collateral consequences of a guilty plea, because in
our case we have unequivocal, erroneous, misleading
representations that were made to defendant in response
to his specific inquiry, the accuracy of which counsel
could have ascertained before the pleas were entered."
Correa, 108 Ill. 2d at 551-52, 485 N.E.2d at 311.

Here respondent did not receive erroneous advice in response
to a specific question. In her affidavit, defense counsel stated
that she "discussed with [respondent] the benefits and possible
detriments of making an admission to *** the charge of Unlawful
Use of a Weapon." Counsel's affidavit did not state and
respondent has not alleged that counsel gave him erroneous advice
in response to a specific question concerning the use of his
guilty plea in future trials for other offenses. Thus, Correa is
inapplicable.
Subsequent to the Correa case, our supreme court addressed
the situation where, similar to here, an attorney was not asked
for advice by the client, but nevertheless failed to volunteer
advice concerning the deportation consequences of a criminal
conviction. People v. Huante, 143 Ill. 2d 61, 571 N.E.2d 736
(1991). Applying the test pronounced in Strickland v.
Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), to the facts of that case, the court concluded
that the conduct of the defendant's trial counsel did not fall
below an objective standard of reasonableness. People v. Huante,
143 Ill. 2d at 71-72, 571 N.E.2d at 741. The same holds true
here. Respondent has not cited any authority which requires an
attorney to advise an accused client of the collateral
consequence of a guilty plea being used in future trials
regarding any other possible criminal acts committed by the
client. We conclude that counsel's performance here was not
incompetent.
Respondent further contends that the court's denial of his
motion to withdraw his guilty plea did not comport with the ends
of justice. In support of this contention, he cites People v.
Morreale, 412 Ill. 528, 107 N.E.2d 721 (1952). In Morreale, the
prosecution requested of the court that the case be passed rather
than continued, actively sought out and represented to defense
counsel that the State would not oppose probation, and also
stated that defendant "couldn't get hurt." Morreale, 412 Ill. at
530, 107 N.E.2d at 723. As a result of these representations
during the hurried consultations, defendant pled guilty.
Nevertheless, the court sentenced defendant to a term in the
penitentiary.
The Morreale court noted that, in spite of the proper
admonitions provided by the court, defendant misapprehended the
consequences of his guilty plea based upon the plea bargaining
procedures followed by the State. We find Morreale
distinguishable for a number of reasons, but most importantly
because the consequence of the guilty plea in that case was a
direct consequence, as opposed to a collateral consequence with
which we are concerned here.
It appears that this is a case of first impression in
Illinois. Our independent research has disclosed cases from
other jurisdictions, which have dealt with similar, although not
identical, situations to that in the instant case. We find the
reasoning of these persuasive.
In State v. Samuels, 253 N.J. Super. 335, 601 A.2d 784
(1991), defendant pled guilty to possession of a handgun found in
his car during an arrest for a shooting incident. Shortly after
he entered his plea, but before sentencing, additional charges
were filed against him related to the shooting. Defendant moved
to withdraw his guilty plea claiming that he would not have pled
guilty had he known of the pending charges. The court noted that
a defendant need only be informed of the penal consequences, not
the collateral consequences, of his plea and also stated that
"[t]he fact that a plea of guilty may hinder a defendant's
ability to testify at a subsequent trial is a collateral
consequence of the plea that does not justify a plea withdrawal."
Samuels, 253 N.J. Super. at 344, 601 A.2d at 788. The court
denied defendant's motion to withdraw his plea of guilty as he
fully understood the nature and consequences of his guilty plea
to possessing a handgun.
In United States v. Jordan, 870 F.2d 1310 (7th. Cir. 1989),
cert. denied, 493 U.S. 831, 107 L. Ed. 2d 65, 110 S. Ct. 101
(1989), defendant pleaded guilty in state court to attempted
murder. Six months prior to the entry of the plea agreement, and
without notifying the defendant, the State's Attorney notified
the Bureau of Alcohol, Tobacco, and Firearms (ATF) of defendant's
arrest and record and informed them that, because defendant had
been previously convicted of robbery three times, the ATF should
consider prosecuting defendant for possession of a firearm by a
career criminal. Consequently, a federal grand jury indicted him
for that offense. Defendant moved to suppress evidence of his
state guilty plea, contending it was unknowing and involuntary.
The court did not and he was convicted.
In his appeal, defendant offered three arguments as to why
the trial judge erred in not suppressing his state guilty plea
including prosecutorial misconduct, that his plea was unknowing
and involuntary due to his lack of knowledge about possible
federal prosecution, and ineffective assistance of counsel for
his counsel's failure to inform him of the possibility of federal
prosecution. All three arguments were rejected by the court.
With respect to the claim of prosecutorial misconduct, the
court stated that the State made no misrepresentation as to the
possibility of federal prosecution because it made no
representation at all. Furthermore, the State was under no
affirmative duty to inform the defendant of all the possible
ramifications of his plea.
Regarding his argument that his plea was unknowing and
involuntary, the court noted that a defendant is entitled to know
the direct, not collateral consequences, of his plea. Because
the federal prosecution was only a possibility, it was not a
direct consequence, which the court defined as an immediate and
automatic consequence, but rather was a collateral consequence,
which the court defined as that which has no effect upon the
length or nature of the sentence. Jordan, 870 F.2d at 1318.
Finally, the court rejected defendant's ineffective
assistance of counsel claims where, unlike in the instant case,
the record contained no evidence that his counsel failed to
advise him. Nevertheless, the court noted that even if that
could be shown, it was not clear that counsel's performance was
incompetent since it was not a case where counsel actively
misrepresented the collateral consequence of a plea. Jordan, 870 F.2d at 1319.
In King v. Dutton, 17 F.3d 151 (6th Cir. 1994), the court
noted that:
"A conviction's possible enhancing effect on
subsequent sentences has been held to be merely a
collateral consequence of a guilty plea, about which a
defendant need not be advised, even when there was a
pending investigation into the charge upon which the
subsequent sentence was based. United States v.
Brownlie, 915 F.2d 527, 528 (9th Cir. 1990); United
States v. Edwards, 911 F.2d 1031, 1035 (5th Cir. 1990)
[And more relevant to the instant case,] [c]ourts also
have held that a defendant need not be advised that a
conviction based on a guilty plea can be used in a
subsequent prosecution resulting from a pending
investigation. See United States v. Campusano, 947 F.2d 1, 5 (1st Cir. 1991); United States v. Jordan, 870 F.2d 1310, 1317-18 (7th Cir.), cert. denied, 493 U.S. 831, 110 S. Ct. 101, 107 L. Ed. 2d 65 (1989)." King v.
Dutton, 17 F.3d at 153-54 (1994).

See also Adkins v. State, 911 S.W.2d 334, 350 (Tenn.
1994)(failure of counsel to warn client of such collateral
consequences, absent actively providing misadvice, does not fall
below the range of competence demanded of attorneys in criminal
cases); see also People v. Moore, 841 P.2d 320 (Colo.
1992)(failure of trial court to warn a defendant of a guilty
plea's possible effect on future criminal liability does not
render the plea invalid).
Based upon the foregoing, we hold that the trial court did
not abuse its discretion in denying respondent's motion to
withdraw his plea of guilty to unlawful use of a weapon. We
affirm the trial court's decision not to vacate its judgment and
its finding of delinquency, adjudication of wardship and
probation.
Affirmed.
BUCKLEY, P.J., and O MARA FROSSARD, J., concur.