People v. Thompson

NO. 4-06-0900 Filed 7/31/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
LeROY D. THOMPSON, ) No. 05CF444
Defendant-Appellant. )
) Honorable
) Michael D. Clary,
) Judge Presiding.
_________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In July 2005, the State charged defendant, LeRoy D.

Thompson, with four counts of burglary (720 ILCS 5/19-1(a) (West

2004)) and three counts of criminal damage to property (720 ILCS

5/21-1(1)(a) (West 2004)). In June 2006, pursuant to a plea

agreement, defendant pleaded guilty to the four burglary charges

in exchange for a sentence cap of seven years' imprisonment and

dismissal of the other three charges. In August 2006, the court

sentenced defendant to four concurrent six-year prison terms and

ordered him to pay restitution to Moon Glo, Rosie's Tavern, Quick

Lube, My Brother's Liquors, and Burger King. Defendant filed a

motion to vacate the restitution order and reconsider his sen-

tence, contending he was not involved in the Quick Lube and

Burger King burglaries. After a September 2006 hearing, the

court vacated the restitution to Quick Lube and Burger King and

affirmed the sentencing order in all other respects.
 Defendant appeals, asserting (1) he was denied effec-

tive assistance of counsel at his sentencing hearing because his

counsel did not set forth a known mitigating factor and (2) the

restitution order should be vacated in its entirety because the

trial court failed to admonish him about it as required by

Supreme Court Rule 402(a)(2) (177 Ill. 2d R. 402(a)(2)). We

affirm.

I. BACKGROUND

According to the State's factual basis, defendant had

confessed to police officers that, on July 20, 2005, he and

Robert Quick had been smoking dope most of the day. While

driving around, Quick indicated he knew how to get some money and

all defendant would have to do was drive a car. Thus, on the

remainder of that day and into the next, defendant drove Quick to

Rosie's Tavern, Moon Glo, Country Cookin', and My Brother's

Liquors. At each place, defendant would drop Quick off, drive

away, return 10 to 15 minutes later, and pick up Quick.

Phil Adams, the owner of Moon Glo, noted someone had

entered his business on July 21, 2005, and damaged two poker

machines. On July 21, 2005, Delores Wimsett, an employee of

Country Cookin', discovered someone had forced the front door

open the prior evening, causing damage to the building and taking

some quantity of cash from a poker machine. Mary Cottle of

Rosie's Tavern observed the main door to her business was kicked

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open and damaged and the video poker machines inside also re-

ceived damage. On July 21, 2005, David Winchester, the owner of

My Brother's Liquors, found damage to his business from the

forced entry and damage to his poker machines.

On July 22, 2005, the State charged defendant and Quick

with one count of burglary for each of the four businesses and

one count of criminal damage to property for each of the busi-

nesses except My Brother's Liquors. The State also charged Quick

with other crimes relating to different businesses. In June

2006, defendant and the State entered into a plea agreement,

under which defendant would plead guilty to the four burglary

counts with a sentence cap of seven years' imprisonment and the

State would seek the dismissal of the other three charges. At

the plea hearing, the trial court advised defendant that each

count of burglary was punishable by (1) 3 to 7 years' imprison-

ment, which could be 7 to 14 years if aggravating factors were

present; (2) 2 years' mandatory supervised release (MSR); (3) up

to 4 years' probation; and (4) up to a $25,000 fine. After

admonishments and hearing the State's factual basis, the court

accepted the plea agreement.

On July 27, 2006, defendant's presentence report was

filed. The presentence report indicated defendant had a three-

year-old son, for whom he gave the child's mother $50 to $100 per

week in support that was not court ordered. Defendant also sent

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the trial court two letters, which the court noted it did not

consider as a matter of personal policy. In the letters, defen-

dant noted his son's mother was in college, unemployed, and thus

in need of financial support for the child. Defendant also noted

he had provided for his son financially in the past and wanted to

continue to do so in the future. At an August 2006 sentencing

hearing, defendant testified on his own behalf about his (1)

desire to undergo long-term residential drug treatment and (2)

work as a tattoo artist. Defendant also acknowledged he did not

have a very good history of showing up in court. After hearing

the parties' arguments, the trial court sentenced defendant to

four concurrent terms of six years' imprisonment and ordered him

to pay the following restitution in five years: $350 to Moon

Glo, $514 to Rosie's Tavern, $234.79 to Quick Lube, $657.90 to My

Brothers Liquors, and $7,196.83 to Burger King. The court

ordered the restitution to be joint and several with codefendant

Quick, who, according to the presentence report, was ordered to

pay the same amounts of restitution.

After sentencing, defendant filed a motion to vacate

the restitution order related to Quick Lube and Burger King and

reconsider his sentence because he was not involved in the crimes

that occurred at those businesses. After a September 2006

hearing, the court vacated the restitution order as to Quick Lube

and Burger King and affirmed the sentencing order in all other

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respects. This appeal followed.

II. ANALYSIS

A. Ineffective Assistance of Counsel

Defendant first argues his sentencing counsel was

ineffective for failing to point out a statutory mitigating

factor that should have been known to counsel.

This court reviews ineffective-assistance-of-counsel

claims under the standard set forth in Strickland v. Washington,

466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People

v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). To

obtain reversal under Strickland, a defendant must prove (1) his

counsel's performance failed to meet an objective standard of

competence and (2) counsel's deficient performance resulted in

prejudice to the defendant. Evans, 186 Ill. 2d at 93, 708 N.E.2d

at 1163.

To satisfy the deficiency prong of Strickland, the

defendant must demonstrate counsel made errors so serious and

counsel's performance was so deficient that counsel was not

functioning as "counsel" guaranteed by the sixth amendment (U.S.

Const., amend. VI). Further, the defendant must overcome the

strong presumption the challenged action or inaction could have

been the product of sound trial strategy. Evans, 186 Ill. 2d at

93, 708 N.E.2d at 1163. To satisfy the prejudice prong, the

defendant must prove a reasonable probability exists that, but

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for counsel's unprofessional errors, the proceedings' result

would have been different. Evans, 186 Ill. 2d at 93, 708 N.E.2d

at 1163-64. The Strickland Court noted that, when a case is more

easily decided on the ground of lack of sufficient prejudice

rather than that counsel's representation was constitutionally

deficient, the court should do so. Strickland, 466 U.S. at 697,

80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

Here, defendant asserts his counsel failed to point out

the excessive hardship a term of imprisonment would be on his son

and son's mother, a statutory mitigating factor (730 ILCS

5/5-5-3.1(a)(11) (West 2004)). However, defendant has failed to

establish the prejudice prong of the Strickland test. First, the

presentence report, which the trial court had received, indicated

defendant had a three-year-old son and he paid his son's mother

$50 to $100 a week in support. Thus, the court was aware impris-

onment would be a hardship on defendant's son and son's mother as

defendant had provided financial support to them.

Second, it is unlikely this mitigating factor would

have held any weight in sentencing defendant. Defendant, who was

28 years old, had a criminal history of three retail-theft

convictions, two theft convictions, and a criminal-sexual-abuse

conviction. Defendant had also been in prison before as he

received a 2-year prison term for one of the theft convictions

and an 18-month prison term for one of the retail-theft convic-

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tions. Further, defendant was being sentenced for his role in a

string of four burglaries that the court noted were not the

result of a "spur-of-the-moment, rash decision influenced perhaps

by drugs or alcohol."

Accordingly, we find defendant was not denied effective

assistance of counsel by his sentencing counsel's failure to

point out the excessive hardship imprisonment would have on

defendant's son and his son's mother.

B. Restitution

Defendant also contends the restitution order should be

vacated in its entirety because the trial court did not admonish

him about the possibility of paying restitution as required by

Rule 402(a)(2) (177 Ill. 2d R. 402(a)(2)). The State contends

defendant has forfeited this issue under Supreme Court Rule

604(d) (210 Ill. 2d R. 604(d)) by failing to raise this issue in

a postplea motion.

Under Rule 604(d), any issue not raised in a motion to

withdraw a guilty plea or to reconsider a sentence after a guilty

plea is forfeited. However, in People v. Fuller, 205 Ill. 2d

308, 322-23, 793 N.E.2d 526, 537 (2002), our supreme court stated

that, if a trial court fails to give a defendant admonishments in

compliance with Rule 402 (177 Ill. 2d R. 402), that failure may

amount to plain error, an exception to the forfeiture rule set

forth in Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)).

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 Defendant notes this court rejected the State's forfei-

ture argument in People v. Jenkins, 141 Ill. App. 3d 602, 608-09,

490 N.E.2d 953, 957-58 (1986), a direct-appeal case, and vacated

the restitution order. However, in rejecting the forfeiture

argument, the Jenkins decision relied upon this court's earlier

decision in People v. Culp, 127 Ill. App. 3d 916, 919-21, 468

N.E.2d 1328, 1330-31 (1984), which had declined to apply Rule

604's forfeiture provision because the restitution issue was

raised in a postconviction petition. Jenkins, 141 Ill. App. 3d

at 608-09, 490 N.E.2d at 957. In light of our supreme court's

more recent decision in Fuller, 205 Ill. 2d at 322-23, 793 N.E.2d

at 537, and Jenkins's questionable reliance on Culp, we conclude

defendant has forfeited his restitution argument unless the

plain-error exception applies.

Before this court can invoke the plain-error exception,

we must determine whether any reversible error occurred. A trial

court's failure to properly admonish a defendant itself does not

automatically establish grounds for reversing the judgment or

vacating the plea. Substantial compliance with Rule 402 suffices

to establish due process. Moreover, whether an imperfect admon-

ishment requires reversal depends on whether real justice has

been denied or whether the inadequate admonishment prejudiced the

defendant. Fuller, 205 Ill. 2d at 323, 793 N.E.2d at 537.

In Culp, 127 Ill. App. 3d at 925, 468 N.E.2d at 1334,

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this court held that, under Rule 402(a)(2) (87 Ill. 2d R.

402(a)(2)), a trial court must admonish a defendant about the

possibility of restitution. Thus, the trial court in this case

did err by failing to admonish defendant about a potential

restitution order. However, we must determine whether that error

constitutes reversible error.

While our supreme court has not addressed whether the

failure to admonish a defendant under Rule 402(a)(2) about

restitution constitutes reversible error, it has addressed

whether the failure to admonish a defendant about a MSR term

under the rule constitutes reversible error. See People v.

Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005). In Whitfield,

217 Ill. 2d at 193, 840 N.E.2d at 668, our supreme court recog-

nized the appellate court's distinction "between 'open' guilty

pleas and negotiated pleas for a specific sentence." In the

former situation, the failure to admonish a defendant concerning

a MSR term is not a constitutional violation, as long as the

sentence plus the term of MSR is less than the maximum sentence

that the defendant was told he could receive. Whitfield, 217

Ill. 2d at 193, 840 N.E.2d at 668. With the latter, the court's

failure to advise the defendant about the MSR term has been held

to be reversible error and a violation of due process.

Whitfield, 217 Ill. 2d at 194, 840 N.E.2d at 669.

The Whitfield facts fell into the latter category, and

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our supreme court found no substantial compliance with Rule 402

and a due-process violation. Whitfield, 217 Ill. 2d at 195, 840

N.E.2d at 669. The court noted the defendant was prejudiced by

the omitted admonition because he received a more onerous sen-

tence than the one he was told he would receive. Whitfield, 217

Ill. 2d at 201, 840 N.E.2d at 673. The addition of the MSR term

constituted an unfair breach of the plea agreement. Whitfield,

217 Ill. 2d at 195, 840 N.E.2d at 669.

Unlike Whitfield, this case does not involve an agree-

ment for a specific sentence. As to potential sentences, the

trial court advised defendant each count was punishable (1) by 3

to 7 years' imprisonment, which could be 7 to 14 years if aggra-

vating factors were present; (2) 2 years of MSR; (3) up to 4

years' probation; and (4) up to a $25,000 fine. The court later

sentenced defendant to four concurrent terms of six years'

imprisonment and the following restitution: $350 to Moon Glo,

$514 to Rosie's Tavern, $234.79 to Quick Lube, $657.90 to My

Brothers Liquors, and $7,196.83 to Burger King. The court later

vacated the restitution to Burger King and Quick Lube because

defendant did not plead guilty to the crimes at those locations.

Thus, defendant was actually ordered to pay a total of $1,242.69

in restitution. In this case, defendant's sentence is clearly

lower than the agreed maximum prison term of seven years and the

admonished maximum fine of $25,000.

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 Accordingly, we conclude defendant was not prejudiced

by the incomplete admonishment as he did not receive a more

onerous sentence than the one he was told he would receive.

Since defendant did not receive a more onerous sentence, his plea

agreement was not breached and the imperfect admonishment did not

deny him real justice. Thus, the court's failure to admonish

defendant about the possibility of a restitution order did not

constitute plain error.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we grant the State's request

that defendant be assessed $50 as costs for this appeal.

Affirmed.

McCULLOUGH and COOK, JJ., concur.

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