People v. Saleh

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Saleh, 2013 IL App (1st) 121195

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MAHMOUD SALEH, Defendant-Appellant.

District & No. First District, Third Division
Docket No. 1-12-1195

Filed August 14, 2013

Held Where defendant pled guilty to driving under the influence of alcohol in
(Note: This syllabus exchange for one year’s supervision, but he later stipulated to the
constitutes no part of revocation of supervision because of his violations of the terms of
the opinion of the court supervision and he was sentenced to 364 days in the county jail, the trial
but has been prepared court’s judgment was vacated and the cause was remanded, since the trial
by the Reporter of court failed to substantially comply with Supreme Court Rule 402A,
Decisions for the which requires the trial court to admonish defendant about his rights,
convenience of the including the rights he is giving up, and to determine whether a factual
reader.)
basis exists for his stipulation, and on remand, the trial court was directed
to allow defendant to withdraw his stipulation and to consider
defendant’s possible challenge to the validity of his conviction.

Decision Under Appeal from the Circuit Court of Cook County, No. XX-XXXXXXX; the
Review Hon. Larry G. Axelrood, Judge, presiding.

Judgment Vacated and remanded with directions.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Philip Payne, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Brian K. Hodes, Assistant State’s Attorneys, of counsel), for the People.

Panel JUSTICE HYMAN delivered the judgment of the court with opinion.
Presiding Justice Neville and Justice Pierce concurred in the judgment
and opinion.

OPINION

¶1 Due process insists that before accepting a guilty plea, the trial court give each
admonition codified at Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003). This applies
in proceedings to revoke probation, conditional discharge, or supervision when the defendant
admits or stipulates to the violation which forms the basis for revocation. It is necessary to
validate that the defendant understands the admission or stipulation, the rights being waived,
and the potential consequences of his or her actions. While substantial, not literal,
compliance with Rule 402 suffices, the record must affirmatively establish that the defendant
understood each one of the required admonitions.
¶2 Defendant Mahmoud Saleh pled guilty to misdemeanor driving under the influence of
alcohol (DUI) in exchange for an agreed term of one year’s supervision. After the State
petitioned to revoke his supervision due to a number of violations, Saleh stipulated to the
revocation and received a sentence of 364 days in the Cook County department of
corrections. On appeal, Saleh contends that the trial court accepted his stipulation to revoke
the supervision without giving any Rule 402A admonitions and therefore asks that the order
revoking his supervision be vacated and the case remanded for further proceedings. We
agree.

¶3 Background
¶4 On April 24, 2009, in exchange to his plea of guilty to misdemeanor DUI, Saleh received
an agreed-on term of one year’s supervision along with fines and fees. About six months
later, the State filed a petition to revoke Saleh’s supervision, alleging he violated several of
the conditions set out in the supervision order. On January 25, 2010, the State filed a
supplemental petition alleging that Saleh sent a threatening letter to an employee with the
social service department.
¶5 At the hearing on January 25, 2010, the trial court ordered a behavioral clinical
examination (BCX) and set bond. At the State’s request, bond was fixed at $400,000 due to

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 the threatening letter as well as unrelated federal charges for wire fraud that Saleh faced. He
was taken into Cook County custody, and the case was continued. Subsequently, Saleh was
placed in federal custody. On May 19, 2010, Saleh’s attorney tendered the results of a
federally administered psychological evaluation in lieu of the BCX, which could not be
administered while under federal authority. The evaluation found Saleh legally competent
and capable of assisting in his defense.
¶6 On January 10, 2011, Saleh appeared in the trial court on the State’s petitions to revoke
supervision. After an off-record conference, the following exchange occurred:
“THE COURT: All right. Sir, you are here. There are two separate violations; is that
correct?
[ASSISTANT STATE’S ATTORNEY]: Yes, your honor.
THE COURT: Yes. Have you had the opportunity to discuss these matters with your
attorney?
THE DEFENDANT: I’m sorry.
THE COURT: Have you had a chance to discuss with your attorney the conditions,
the reasons for the violation of supervision?
THE DEFENDANT: Yes.
THE COURT: The allegations, you understand them?
THE DEFENDANT: Yes, sir. Yes, your honor.
THE COURT: Do you wish to admit to the violation?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: No.
THE COURT: Strike that. I apologize. There is a stipulation; is that correct?
[DEFENSE COUNSEL]: There is a stipulation, Judge, that if the State would
proceed to hearing, they would present certain evidence including technical violations
alleged in the first violation and the existence of a letter which was what I just handed
you in this matter, Judge.
THE COURT: I will accept that stipulation. Are you ready for sentencing?
[DEFENSE COUNSEL]: We are, Judge. Thank you.
THE COURT: Anything in aggravation?
[ASSISTANT STATE’S ATTORNEY]: Judge, we rest on the agreement discussed
in the conference.
THE COURT: Mitigation?
[DEFENSE COUNSEL]: Judge, the only thing I would add is at the time the
correspondence was written my client was on certain medications prescribed in the
federal case which have been shown to likely cause the types of feelings and visions that
he described in that letter.
THE COURT: Thank you.
[DEFENSE COUNSEL]: And he’s been subsequently found to be off that medication

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 by an evaluation and not a risk.
THE COURT: Sir, is there anything you wish to say before I impose sentence?
THE DEFENDANT: No.
THE COURT: All right. The sentence will be 364 days Cook County Department of
Corrections. Credit for 364 days time considered served. Supervision is termed [sic]
unsatisfactory today. Your commitment to this court has ended. Thank you.”
¶7 Eight days after the hearing, Saleh appealed pro se. The trial court granted his motions
to proceed in forma pauperis and appoint appellate counsel, but denied a motion to stay the
order of January 10, 2011. The trial court did not address Saleh’s motion to withdraw the
guilty plea.

¶8 Analysis
¶9 Saleh seeks to vacate the order revoking supervision and remand because his due process
rights were violated when he stipulated to the revocation of supervision without benefit of
the trial court reviewing with him the admonishments contained in Supreme Court Rule
402A. Saleh argues that without the admonitions nothing in the record indicates he
understood the specific allegations in the revocation petition, the procedural rights he
relinquished, or the voluntariness of his entering into the stipulation, including any reliance
on a promise or other form of coercion.
¶ 10 The State raises only one issue: Saleh’s appeal is moot because, having completed his
sentence, no effective relief can be granted. Although it is true that a challenge to the validity
of an imposed sentence becomes moot once the entire sentence has been served (People v.
Lieberman, 332 Ill. App. 3d 193, 195 (2002)), the nullification of a conviction is another
matter entirely. For a defendant, a conviction may trigger potentially severe legal, social,
employment, and financial repercussions. See In re Christopher K., 217 Ill. 2d 348, 359
(2005) (“Nullification of a conviction may hold important consequences for a defendant.”).
Thus, the validity of the conviction is not rendered moot by the defendant having served his
or her sentence. People v. Campbell, 224 Ill. 2d 80, 84 (2006) (rejecting State’s argument on
mootness where “defendant’s claim clearly calls into question the validity of his
conviction”).
¶ 11 Mootness being inapplicable, Saleh has the right to have a hearing on his challenge to the
correctness of the conviction. See Campbell, 224 Ill. 2d at 84. But, before we do, we wish
to address an argument of the State’s which is incorrect as a matter of law. The State asserts
that defendant “cannot *** challenge his underlying DUI conviction,” entered on April 24,
2009. This ignores that supervision does not “constitute a disposition following a judgment
of conviction.” People v. Larimer, 409 Ill. App. 3d 827, 829 (2011). When a court places a
defendant on supervision, it leaves open whether the defendant will ever be sentenced at all.
People v. Rozborski, 323 Ill. App. 3d 215, 220 (2001); People v. Bushnell, 101 Ill. 2d 261,
265-66 (1984) (recognizing order of supervision is not final judgment). If the defendant
successfully completes supervision, the charges are dismissed and the result resembles an
acquittal; if supervision is not completed successfully, the defendant may be found guilty and
sentenced. Rozborski, 323 Ill. App. 3d at 220. Until sentencing takes place, there is no final

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 judgment. Rozborski, 323 Ill. App. 3d at 220.
¶ 12 Here, on April 24, 2009, Saleh entered a guilty plea and received a one-year term of
supervision. Saleh did not stand convicted at that time. On January 10, 2011, defendant
stipulated to a violation of the April 24, 2009, supervision order. The court then entered a
judgment of conviction on the underlying DUI offense and imposed a sentence of 364 day’s
imprisonment considered served on that conviction. Therefore, Saleh’s challenge to the order
of January 10, 2011, is a challenge to his conviction based on a violation of the provisions
of Rule 402A.
¶ 13 Turning to Saleh’s arguments, Illinois Supreme Court Rule 402A (eff. Nov. 1, 2003)
provides that in proceedings to revoke supervision, the trial court must admonish the
defendant and determine that the defendant understands: (i) the specific allegations in the
petition to revoke supervision; (ii) his or her right to a hearing with defense counsel present,
including appointed counsel if the defendant is indigent and the underlying offense is
punishable by imprisonment; (iii) the right to confront and cross-examine adverse witnesses
and present witnesses and evidence on his or her behalf at the hearing; (iv) the State must
prove the alleged violation by a preponderance of the evidence at the hearing; (v) on
admitting a violation or stipulating that the evidence is sufficient to revoke, there will not be
a hearing on the petition to revoke and, therefore, the defendant waives the right to a hearing,
the right to confront and cross-examine adverse witnesses, and the right to present witnesses
and evidence on his or her behalf; and (vi) the sentencing range for the underlying offense.
Additionally, under Rule 402A(b), before a court may accept an admission to a violation or
a stipulation sufficient to revoke, the judge must determine that the defendant’s admission
is voluntary and not made on the basis of any coercion or promise. Finally, under Rule
402A(c), the trial court must determine if there is a factual basis for the admission or
stipulation.
¶ 14 A standard of substantial compliance applies to Rule 402A. People v. Ellis, 375 Ill. App.
3d 1041, 1046-47 (2007). Substantial compliance involves an “affirmative showing in the
record that the defendant understood each of the required admonitions.” Ellis, 375 Ill. App.
3d at 1046. To claim that the admonishments were in substantial compliance necessitates a
reading of the entire record, including what transpired at earlier proceedings. People v.
Dennis, 354 Ill. App. 3d 491, 496 (2004). Every case is to be considered on its own facts,
with the primary focus on the length of time between the admonishments and the admission
of the violation. Dennis, 354 Ill. App. 3d at 496. A trial court’s compliance with Rule 402A
is reviewed de novo. People v. Hall, 198 Ill. 2d 173, 177 (2001); Ellis, 375 Ill. App. 3d at
1046.
¶ 15 When accepting defendant’s stipulation to the violation of supervision, the trial court did
not determine that Saleh understood the specific allegations in the petition to revoke
supervision. Instead, the court asked Saleh whether he had discussed with his attorney the
reasons for the violation and followed up with a general question, “The allegations, you
understand them?” The trial court did not admonish Saleh regarding his right to a hearing at
which he could confront adverse witnesses and present his own evidence and at which the
State has the burden. Nor was he told of the significance of waiving these rights by
stipulating to the violation. The trial court did not confirm whether Saleh’s stipulation was

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 voluntary or determine whether a factual basis supported the stipulation. We acknowledge
that at the time Saleh pleaded guilty to DUI, the trial court did inform him of the sentencing
range for that offense. But, the plea was made on April 24, 2009, almost two years before
Saleh stipulated to the violation of supervision on January 10, 2011.
¶ 16 The purpose of providing Rule 402A admonishments is to ascertain that a defendant
understands the stipulation, the rights being waived, and the potential consequences of the
stipulation. See Dennis, 354 Ill. App. 3d at 496. A thorough review of the record reveals
nothing in the colloquy between the trial court and defendant that satisfies substantial
compliance with any of the requirement of Rule 402A.
¶ 17 We realize that the demands on judges handling crowded criminal dockets are such that,
at times, they may forget or fudge something as fundamental as the admonitions. When this
happens, at least two attorneys standing before the bench can see to it that the accused’s due
process rights are not impaired and that the record reflects substantial compliance with Rule
402A. The entire appeal before us could have easily been avoided had one of those attorneys
brought the matter of the admonishments to the attention of the busy trial judge. Due process
is every person’s right, which means that is every lawyer’s duty as an officer of the court to
speak up in situations like this one where the admonishments are so well established as not
to even be a matter of debate.

¶ 18 Conclusion
¶ 19 We vacate the judgment of the circuit court and remand with directions to allow Saleh
to withdraw his stipulation to the violation of supervision and for further proceedings
consistent with this disposition, as necessary. See Ellis, 375 Ill. App. 3d at 1049 (vacating
and remanding due to lack of substantial compliance with Rule 402A).

¶ 20 Vacated and remanded with directions.

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