People v. Bragg

2023 IL App (5th) 220403-U
NOTICE
NOTICE
Decision filed 04/17/23. The
This order was filed under
text of this decision may be NO. 5-22-0403
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the

Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) De Witt County.
)
v. ) No. 22-CF-13
)
BRENDAN C. BRAGG, ) Honorable
) Karle E. Koritz,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court.
Justices Welch and Moore concurred in the judgment.

ORDER

¶1 Held: Where the defendant, pursuant to a fully negotiated agreement with the State,
pleaded guilty knowingly and voluntarily, and the circuit court did not abuse its
discretion when it denied his motion to withdraw guilty plea, appointed appellate
counsel is granted leave to withdraw, and the judgment of conviction is affirmed.

¶2 The defendant, Brendan C. Bragg, pleaded guilty to one count of (misdemeanor) domestic

battery and was sentenced to probation for a period of six months, pursuant to a fully negotiated

plea agreement with the State. Subsequently, he filed a motion to withdraw his guilty plea, which

the circuit court denied. Now, he appeals from the judgment of conviction. His appointed attorney

on appeal, the Office of the State Appellate Defender (OSAD), has concluded that this appeal lacks

arguable merit. On that basis, OSAD has filed with this court a motion to withdraw as counsel

and a brief in support of that motion. See Anders v. California, 386 U.S. 738 (1967). This court

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granted the defendant an opportunity to file a written response to OSAD’s motion, or to file a brief,

memorandum, etc., explaining why this appeal has merit, but he has not taken advantage of that

opportunity. Having examined OSAD’s Anders motion and brief, along with the entire record on

appeal, this court agrees with OSAD that this appeal lacks merit. Accordingly, OSAD is granted

leave to withdraw as counsel on appeal, and the judgment of conviction, entered by the circuit

court of De Witt County, is affirmed.

¶3 BACKGROUND

¶4 In March 2022, the State filed an information charging the defendant with two counts of

(misdemeanor) domestic battery (counts I and II) and one count of aggravated domestic battery

(count III). In each count, M.B. was the complainant. The circuit court appointed counsel for the

defendant.

¶5 Plea of Guilty

¶6 Later that month—and, specifically, on March 22, 2022—the defendant, defense counsel,

and a prosecutor appeared before the circuit court. The defendant indicated to the court that he

had reached an agreement with the State. The prosecutor then informed the court of the parties’

agreement, which was that the defendant would plead guilty to domestic battery, a Class A

misdemeanor, as charged in count II of the information; he would be sentenced to probation for a

period of six months, with conditions that included staying away from the complainant, paying

various fines and fees, and serving 14 days in jail, with credit for 14 days previously served; and

the other two counts would be dismissed. The defendant confirmed that he had agreed to those

terms.

¶7 Then, the court admonished the defendant that he had a right to plead not guilty and to

demand a trial; that at a trial, the State would have the burden of proving him guilty beyond a

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reasonable doubt; that he would have the right to confront and cross-examine the witnesses against

him; that he would have the right to present evidence and to call witnesses on his own behalf; and

that by pleading guilty, he would be waiving those rights and “a trial of any kind.” The defendant

indicated his understanding of all those admonishments. The court further admonished the

defendant that he would be pleading guilty to “domestic battery, bodily harm, as alleged in Count

II.” The court stated that “that’s a Class A Misdemeanor” punishable by up to 364 days in jail, a

fine up to $2500, or 24 months of probation or conditional discharge. The defendant indicated that

he understood the sentencing range.

¶8 The defendant also indicated that no one had forced or threatened him to plead guilty, and

that no one had promised him anything, apart from the plea agreement’s terms, to persuade him to

plead guilty. “I feel like after all these days that I’ve spent in jail and after everything with this, I

just want to do what I have to do,” the defendant said. “I just want to just do what I gotta do and

just keep it moving and just, and just have peace.”

¶9 A factual basis for the plea was presented by the prosecutor. The prosecutor stated that

M.B. would testify that she and the defendant had had a “dating relationship,” but they had ended

this relationship and were “still cohabiting” on March 9, 2022, when they had a “verbal altercation”

that led to the defendant’s “pushing [M.B.] into a wall, causing her to strike her nose which caused

her nose to bleed.” The prosecutor also stated that the State would call “responding officers” who

would testify that they observed M.B.’s face to be bloodied, and they saw blood on the wall.

Defense counsel agreed that the State could produce witnesses who would testify substantially as

indicated. The prosecutor recited the defendant’s criminal history, which consisted, in its entirety,

of a 2012 conviction in New York State for misdemeanor assault.

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¶ 10 The court entered judgment on the defendant’s plea of guilty to count II and dismissed the

two other counts. In accordance with the parties’ agreement, the court imposed a sentence of

probation for a period of six months, with various agreed conditions. Finally, the court admonished

the defendant as to his appeal rights, including the need for a written motion to withdraw guilty

plea, to be filed within 30 days, and the defendant indicated his understanding.

¶ 11 Motion to Withdraw Guilty Plea

¶ 12 On April 5, 2022, the defendant filed a short, handwritten, pro se motion to withdraw guilty

plea. In it, he claimed merely that “new evidence has surfaced at the time when none was available

to me.” No specifics were provided. Apparently, the defendant was not dissatisfied with his plea

attorney, for he stated that he wanted him “to aid in the new evidence to be looked at and used at

trial.”

¶ 13 The circuit court appointed plea counsel as the defendant’s postplea attorney.

¶ 14 On May 27, 2022, counsel filed, on behalf of the defendant, a motion to withdraw guilty

plea. (It was not styled an “amended” motion to withdraw guilty plea.) In that motion, the

defendant claimed that he had pleaded guilty “because he wanted to be released from the county

jail and not because he was actually guilty of the offense of domestic battery.” The motion also

alleged that the defendant maintained his innocence in this case, and that this actual-innocence

claim “provided doubt” about his guilt. At the same time, plea counsel filed a certificate of

compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).

¶ 15 On June 27, 2022, the circuit court held a hearing on the motion to withdraw guilty plea.

The defendant, defense counsel, and a prosecutor were present. No one testified. The court

accepted defense counsel’s proffer that the defendant has maintained his innocence and that he

accepted the plea offer solely because he wanted to get out of jail. The court also found that the

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record showed that the defendant was in custody in the jail at the time of his guilty plea. Defense

counsel argued briefly in favor of the motion to withdraw guilty plea, saying, inter alia, that “[the

defendant’s] position is there is doubt as to his guilt and it would better serve the ends of justice

by submitting the case to trial.” The prosecutor argued that the parties had “a meeting of the

minds,” and that the defendant “did get the benefit of the bargain.”

¶ 16 The court found that “there is no question as to the voluntary nature of the plea” and “no

misapprehension of law or facts alleged.” “Public policy favors finality in the absence of some

minimal showing of injustice, and here there is not any of that, so the court denies the motion to

withdraw guilty plea.”

¶ 17 The defendant filed a notice of appeal. The circuit court appointed OSAD to represent the

defendant on appeal.

¶ 18 ANALYSIS

¶ 19 This appeal is from a judgment of conviction that was entered after the defendant, pursuant

to a fully negotiated agreement with the State, pleaded guilty to (misdemeanor) domestic battery

and was sentenced to probation for six months. As previously mentioned, his appointed attorney

on appeal, OSAD, has filed an Anders motion to withdraw as counsel, along with a supporting

brief, and the defendant has not filed a response. OSAD has presented two potential issues in its

brief, to wit: (1) whether the defendant’s guilty plea was invalid where the circuit court, prior to

accepting the plea, failed to specifically ask the defendant whether he understood the nature of the

charge, as required by Illinois Supreme Court Rule 402 (eff. July 1, 2012); and (2) whether the

circuit court abused its discretion when it denied the defendant’s motion to withdraw guilty plea,

where he maintained his innocence and claimed that his decision to plead guilty was not based on

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guilt but rather a desire to be released from custody. This court agrees with OSAD that the two

potential issues have no merit.

¶ 20 In regard to OSAD’s first potential issue—whether the plea was invalid due to the court’s

failure to specifically ask the defendant whether he understood the charge’s nature—this is a

question that involves Illinois Supreme Court Rule 402(a) (eff. July 1, 2012) and whether the court

substantially complied with that rule. The question of whether the court substantially complied

with Rule 402 is a legal question that this court reviews de novo. People v. Hall, 198 Ill. 2d 173,

177 (2001).

¶ 21 A plea of guilty cannot be constitutionally valid unless the record affirmatively shows that

it was intelligently and voluntarily made. Boykin v. Alabama, 395 U.S. 238, 242 (1969). This rule

stems from the fact that a plea of guilty represents a waiver of constitutional rights, including the

right to a trial by jury and the right to confront one’s accusers. Id. at 243. In order to ensure

compliance with the requirements of Boykin, our supreme court adopted Rule 402. People v. Wills,

61 Ill. 2d 105, 111 (1975). Under Rule 402(a), a court cannot accept a guilty plea “without first,

by addressing the defendant personally in open court,” informing him of, and determining that he

understands, (1) the nature of the charge against him; (2) the minimum and maximum sentence he

faces, including the penalty he faces due to prior convictions or consecutive sentences; (3) that the

defendant has a right to persist in his plea of not guilty or to plead guilty; and (4) that if he pleads

guilty, there will not be a trial of any kind, so that by pleading guilty he waives the right to a jury

trial and the right to be confronted with the witnesses against him. Ill. S. Ct. R. 402(a) (eff. July

1, 2012). Rule 402, and thus due process, is satisfied if the circuit court substantially complies

with the rule. People v. Fuller, 205 Ill. 2d 308, 323 (2002).

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¶ 22 This court has provided, supra, a thorough summary of the defendant’s guilty-plea hearing.

As that summary makes clear, the court did not accept the defendant’s guilty plea without first

admonishing, and determining that the defendant understood, each of the items mentioned in Rule

402(a)—except for the first item, namely, the nature of the charge. The court did admonish the

defendant about the charge, saying that pursuant to the parties’ agreement, he would be pleading

guilty to “domestic battery, bodily harm, as alleged in Count II.” However, despite this

admonishment, the court did not specifically ask the defendant whether he understood the charge.

¶ 23 Nevertheless, this omission does not require reversal of the court’s order denying the

defendant’s motion to withdraw guilty plea. In order for this issue to be raised on appeal, the

defendant needed to raise it in his motion to withdraw plea. In other words: “Upon appeal any

issue not raised by the defendant in the motion to *** withdraw the plea of guilty and vacate the

judgment shall be deemed waived.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017). This issue was not

raised in the defendant’s pro se motion to withdraw guilty plea or in the amended motion filed by

counsel on behalf of the defendant. This issue was not suggested at any time during the

proceedings below; it was not suggested at the guilty-plea hearing or at the hearing on the motion

to withdraw plea. Therefore, this issue is “deemed waived,” i.e., forfeited.

¶ 24 Forfeiture aside, reversal of the court’s order denying the motion to withdraw guilty plea

would be inappropriate because the court substantially complied with Rule 402. As OSAD writes

in its Anders brief:

“Although the court did not specifically inquire if [the defendant] understood the nature of

the charges against him, *** there can be no claim of error where the court, as well as the

prosecutor, informed [the defendant] that he was charged with misdemeanor domestic

battery of the type that requires a finding of bodily harm. Substantial compliance with

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 Rule 402 can be found even when the State, rather than the court, recites the nature of the

charges. See People v. Pritchett, 23 Ill. App. 3d 1084, 1086 (2nd Dist. 1974).”

¶ 25 In regard to OSAD’s second potential issue—whether the circuit court abused its discretion

when it denied the defendant’s motion to withdraw guilty plea—this is an issue that is reviewed

for an abuse of discretion. People v. Davis, 145 Ill. 2d 240, 244 (1991). A ruling represents an

abuse of discretion if it is arbitrary, fanciful, or unreasonable, or if no reasonable person would

take the view of the circuit court. People v. Hall, 195 Ill. 2d 1, 20 (2000). As reasons for finding

an abuse of discretion, OSAD notes that the defendant maintained his innocence and claimed that

his decision to plead guilty was not based on guilt but rather a desire to be released from custody.

This potential issue is no stronger than the first one.

¶ 26 Leave to withdraw a guilty plea is not granted as a matter of right; it is granted only if

required to correct a manifest injustice under the facts involved. People v. Hillenbrand, 121 Ill.

2d 537, 545 (1988). The defendant bears the burden of demonstrating the necessity of withdrawing

his plea. People v. Ferral-Mujica, 2017 IL App (2d) 160240, ¶ 22. Leave should be granted if it

appears that (1) the plea was entered based upon a misapprehension of the law or the facts, (2) there

is doubt as to the defendant’s guilt, (3) the defendant has a meritorious defense, or (4) the ends of

justice will be better served by subjecting the case to trial. Davis, 145 Ill. 2d at 244.

¶ 27 In the motion filed by counsel on behalf of the defendant, the defendant claimed that he

was actually innocent of the crime, and that this claim “provided doubt” as to his guilt. The

defendant also claimed that he had pleaded guilty “because he wanted to be released from the

county jail and not because he was actually guilty of the offense of domestic battery.”

¶ 28 As to the first of these claims, the defendant did not present any evidence in support of

actual innocence. He offered only a conclusory statement that he maintains his innocence.

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Without some supporting evidence, the defendant cannot possibly carry the burden of

demonstrating doubt as to his guilt or the availability of a meritorious defense.

¶ 29 As for the claim that he pleaded guilty solely to get out of jail, it is important to remember

that a guilty plea is not invalidated merely because it was motivated by the defendant’s desire to

get out of jail and to be put on probation. A defendant must demonstrate “a necessary nexus

between the alleged coercive conditions at the jail and his guilty plea.” People v. St. Pierre, 146

Ill. 2d 494, 508 (1992). That is, he must show a “specific instance of abuse, either physical or

mental, or coercion which would have caused him to plead guilty.” Id. (the defendant, who was

held at the Cook County jail before he pleaded guilty, failed to show a nexus between the alleged

jail conditions—noise, overcrowding, drug infestation, and domination by gangs—and his guilty

pleas). “Here,” as OSAD acknowledges in its Anders brief in this appeal, “not only did [the

defendant] fail to allege any specific instance of abuse or threats that would cause him to plead

guilty, he said nothing about jail conditions whatsoever.” Furthermore, the defendant’s guilty plea

was otherwise voluntary, for the circuit court substantially complied with Rule 402(b). Ill. S. Ct.

R. 402(b) (eff. July 1, 2012) (the court cannot accept a guilty plea without first determining that it

is voluntary, and it shall determine, by questioning the defendant personally, “whether any force

or threats or any promises, apart from a plea agreement, were used to obtain the plea”).

¶ 30 CONCLUSION

¶ 31 A complete and thorough examination of the record on appeal shows that the defendant’s

guilty plea was knowing and voluntary, and therefore constitutionally valid, and that the circuit

court’s denial of the motion to withdraw guilty plea did not represent an abuse of discretion. There

is no issue of arguable merit in this appeal. Accordingly, OSAD’s motion for leave to withdraw

as counsel is granted, and the judgment of conviction is affirmed.

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¶ 32 Motion granted; judgment affirmed.

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