2023 IL App (5th) 230307-U
NOTICE
NOTICE
Decision filed 12/26/23. The
This order was filed under
text of this decision may be NO. 5-23-0307
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, ) Jefferson County.
)
v. ) No. 22-CF-64
)
LAVELL ELION, ) Honorable
) Jerry E. Crisel,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Presiding Justice Vaughan and Justice Moore concurred in the judgment.
ORDER
¶1 Held: Defendant cannot challenge the underlying guilty plea following a revocation of
probation. Moreover, the court did not err in revoking probation, as the State
presented evidence that defendant violated a criminal statute, and the sentence was
not an abuse of discretion in light of defendant’s history of violent offenses. As
any argument to the contrary would lack merit, we grant defendant’s appointed
counsel on appeal leave to withdraw and affirm the circuit court’s judgment.
¶2 Defendant, Lavell Elion, appeals the circuit court’s orders revoking his probation and
sentencing him to 10 years’ imprisonment. His appointed counsel, the Office of the State
Appellate Defender (OSAD), has concluded that there is no reasonably meritorious argument that
the court erred in either respect. Accordingly, it has moved to withdraw as counsel on appeal and
filed a memorandum explaining why it believes there are no nonfrivolous issues. OSAD has
notified defendant of its motion, and this court has provided him an opportunity to respond, which
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he has done. However, after considering the record on appeal, OSAD’s motion and memorandum,
and defendant’s response, we agree that this appeal presents no arguably meritorious issues. Thus,
we grant OSAD leave to withdraw and affirm the circuit court’s orders.
¶3 BACKGROUND
¶4 Defendant was charged with two counts of domestic violence alleging that he struck Terrie
Dix in the face. Defendant pleaded guilty to count I, alleging aggravated domestic battery. In
exchange for the plea, the State agreed to recommend a sentence of 30 months’ probation and to
dismiss count II.
¶5 Pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012), the circuit court
admonished defendant that by pleading guilty he would give up the rights to be proven guilty
beyond a reasonable doubt, to a jury or bench trial, to confront the State’s witnesses, to present
evidence of his own, to remain silent, and to a speedy trial. He assured the court that he understood
this. He confirmed that he had had sufficient time to consult with his attorney and was satisfied
with his representation. He understood the collateral consequences of pleading guilty.
¶6 Defendant also acknowledged that he understood the charges and possible penalties,
confirmed his agreement with the State, and confirmed that he was not threatened or promised
anything beyond the stated terms of the agreement to induce the plea.
¶7 As a factual basis, the prosecutor represented that Dix would testify that defendant struck
her in the face during an argument. The court found an adequate factual basis, found that the plea
was voluntary, and imposed the agreed-upon sentence. The probation order included standard
conditions that prohibited defendant from using alcohol or illegal drugs and from committing
additional crimes.
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¶8 On September 1, 2022, the State petitioned to revoke defendant’s probation, alleging that
he consumed alcohol or illegal drugs and committed domestic battery. On October 31, 2022, the
State filed an amended petition to revoke, alleging that he committed domestic battery and resisting
a peace officer.
¶9 At a hearing the next day, the prosecutor stated that the State had filed an amended petition
of which defendant needed to be advised. The record shows that defendant was so advised
although the court’s specific words were not transcribed.
¶ 10 At a November 10, 2022, hearing on the petition, Dix testified that she and defendant were
at his grandmother’s house on August 31, 2022. She and defendant were having sex in the tent in
the backyard where they stayed, but Dix stopped because she was feeling ill. Defendant became
angry and started yelling. He left the tent and came back with lighter fluid, acting as if he would
pour it on Dix’s belongings. She heard people in the alley and tried to walk toward them.
However, defendant pulled her back into the tent and slapped her with his open, left hand.
¶ 11 Officers Joshua Clarke and Kevin Jackson testified that, when they arrived at the scene,
Dix had redness below her left eye. After speaking with defendant, they concluded that they had
probable cause to arrest him. Accordingly, they demanded that he put his hands behind his back.
Instead, he “locked them facing forward” according to Clarke and “tensed his arms up” according
to Jackson. Each officer took one arm and forced defendant’s hands behind his back to cuff him.
He stopped multiple times while walking to the police car and refused to swing his legs into the
car, requiring the officers to move them.
¶ 12 The court found that the State proved both offenses by a preponderance of the evidence.
At sentencing, the parties agreed that defendant was eligible for an extended-term sentence of up
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to 14 years’ imprisonment. The court admonished him that he would have to serve 85% of any
prison sentence.
¶ 13 In aggravation, the State asked that the court take judicial notice of the offenses the court
found proved at the revocation hearing. In mitigation, Paige Fleeman, a licensed professional
counselor, testified that she met with defendant twice, but he continually rescheduled appointments
due to paranoia. Reports from Vandalia Correctional Center showed defendant suffered from
major anxiety, major depression, and post-traumatic stress disorder from prior physical and sexual
abuse. He was on medication for these disorders.
¶ 14 Fleeman also met with defendant in October 2022, after he was returned to custody. He
had been placed in the suicide watch room at the jail. He appeared to be off his medication, was
paranoid, and had issues with self-harm. She met with defendant several times, noting that he
appeared calm after resuming his medication.
¶ 15 Letters from defendant’s younger sister, Jerrica Barnett, and his mother, LaTonya Elion,
described defendant’s mental health and drug-related issues. Barrett praised him as a parent to his
young son and opined that he had rehabilitative potential.
¶ 16 The presentence investigation report showed that defendant had prior felony convictions
for criminal trespass to an occupied residence, arson, aggravated domestic battery, and criminal
damage to property, as well as a misdemeanor domestic battery. He had been sentenced to
probation for three of those convictions, but each time his probation was revoked.
¶ 17 The court, noting defendant’s often violent criminal history, including the offenses that
were the basis of the revocation, and prior unsuccessful attempts at probation, sentenced him to 10
years’ imprisonment. The court found that defendant would be unlikely to comply with probation
given his history of having probation revoked.
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¶ 18 Defense counsel filed a motion to reconsider the sentence. Defendant filed a pro se motion
to reconsider the sentence. The court denied the former and struck the latter as defendant was
represented by counsel at the time. Defendant timely appealed.
¶ 19 ANALYSIS
¶ 20 As noted, OSAD concludes that no reasonably meritorious argument exists that the circuit
court erred in revoking defendant’s probation or sentencing him. We agree.
¶ 21 Preliminarily, OSAD notes that it can make no good-faith argument regarding the
underlying probation proceedings because we would lack jurisdiction to consider it. “When no
direct appeal is taken from an order of probation and the time for appeal has expired, a reviewing
court is precluded from reviewing the propriety of that order in an appeal from a subsequent
revocation of that probation, unless the underlying judgment of conviction is void.” (Internal
quotation marks omitted.) People v. Gregory, 379 Ill. App. 3d 414, 418 (2008). A judgment is
void only where it was entered by a court that lacked personal or subject-matter jurisdiction, or
where it was based on a statute that is facially unconstitutional and void ab initio. People v. Price,
2016 IL 118613, ¶ 31.
¶ 22 Neither circumstance is present here. The court plainly had subject-matter jurisdiction.
See People v. Castleberry, 2015 IL 116916, ¶ 15 (Illinois Constitution gives circuit courts
jurisdiction of “all justiciable matters”). Moreover, by pleading to the indictment defendant
submitted to the court’s jurisdiction. See People v. Woodall, 333 Ill. App. 3d 1146, 1156 (2002)
(defendant “confers personal jurisdiction upon the trial court when he appears and joins the issues
with a plea”). We are aware of no case holding the aggravated domestic battery statute void ab
initio.
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¶ 23 Moreover, defendant never moved to withdraw the plea, which is a prerequisite to
challenging the plea proceedings on appeal. See Ill. S. Ct. R. 604(d) (eff. July 1, 2017); see also
People v Robinson, 2021 IL App (4th) 200515, ¶ 11 (“A defendant’s failure to comply with the
rule does not deprive us of jurisdiction, but it does preclude us from considering the appeal on the
merits, requiring dismissal instead. [People v.] Flowers, 208 Ill. 2d [291, 301 (2003)].”). Thus,
even if we had jurisdiction, we could not consider the merits of any contentions related to the
underlying guilty plea.
¶ 24 OSAD further concludes that defendant lacks reasonable grounds to challenge the circuit
court’s decision revoking his probation. The State must prove a probation violation by a
preponderance of the evidence. 730 ILCS 5/5-6-4(c) (West 2020). The circuit court is responsible
for weighing the credibility of witnesses and evaluating the testimony when the evidence is
conflicting. People v. Crowell, 53 Ill. 2d 447, 451-52 (1973). We will not disturb a circuit court’s
ruling on a petition to revoke probation unless it is against the manifest weight of the evidence.
People v. Love, 404 Ill. App. 3d 784, 787 (2010).
¶ 25 Here, defendant’s probation prohibited him from violating any criminal statute. The
petition to revoke alleged that he committed domestic battery and resisting a peace officer. At a
hearing, Dix testified that defendant struck her during an argument. Officers Clarke and Jackson
testified that defendant ignored their commands to place his hands behind his back while being
arrested. While Dix was impeached somewhat on cross-examination, the evidence was more than
sufficient for the court to find by a preponderance of the evidence that defendant violated two
criminal statutes.
¶ 26 Finally, OSAD contends that there is no reasonably meritorious argument that the court
erred in sentencing defendant. When a court revokes a defendant’s probation, it may impose any
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sentence that would have been appropriate for the original offense. People v. Battershell, 210 Ill.
App. 3d 883, 885 (1991). The sentence should be based on the conduct constituting the original
offense, not the conduct underlying the probation revocation. People v. Hess, 241 Ill. App. 3d
276, 284 (1993). Nevertheless, the court may consider the defendant’s conduct while on probation
in assessing his rehabilitative potential. People v. Rathbone, 345 Ill. App. 3d 305, 312 (2003).
¶ 27 A trial court has broad discretion when imposing a sentence, which will not be reversed
absent an abuse of that discretion. People v. Patterson, 217 Ill. 2d 407, 448 (2005). Where a
sentence falls within the prescribed statutory range, we will not find an abuse of discretion unless
the sentence greatly varies from the purpose and spirit of the law or is manifestly disproportionate
to the offense. People v. Means, 2017 IL App (1st) 142613, ¶ 14 (citing People v. Alexander, 239
Ill. 2d 205, 212 (2010)).
¶ 28 Here, defendant pleaded guilty to one count of aggravated domestic battery. He was
eligible for an extended term based on a prior Class 2 felony conviction and was thus subject to a
prison sentence of between 3 and 14 years. 720 ILCS 5/12-3.3(a)(1) (West 2020); 730 ILCS 5/5-
5-3.2, 5-8-2 (West 2020).
¶ 29 The court noted defendant’s history of convictions often involving violence and found a
need to deter others from committing similar offenses. The court further found that he was unlikely
to comply with probation given the several occasions on which his probation was revoked,
including in this case. The court also found no evidence of a medical condition that would be
endangered by imprisonment. The court agreed that defendant’s relationship with his young son
was a mitigating factor, citing Barnett’s letter. In light of defendant’s criminal history and lack of
success on probation, the court’s 10-year sentence, which was slightly above the midpoint of the
3- to 14-year range, was not an abuse of discretion.
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¶ 30 Defendant’s response is sometimes confusing but appears to raise three principal
contentions. First, he takes issue with counsel’s assertion that a judgment is void only where the
court lacked jurisdiction or where it was based on a facially unconstitutional statute. Defendant
contends that the United States Supreme Court recognizes a third class of void judgment: one
based on a violation of due process. He cites United Student Aid Funds, Inc. v. Espinosa, 559 U.S.
260 (2010), which construed the Federal Rules of Civil Procedure in the context of a bankruptcy
proceeding and did not involve a guilty plea in a criminal case. Moreover, defendant omits a key
limitation to the rule he cites. The court noted that under Fed. R. Civ. P. 60(b)(4), a judgment is
void based on a violation of due process only where the violation “deprives a party of notice or the
opportunity to be heard.” Id. at 271.
¶ 31 The Illinois Supreme Court, interpreting the State constitution, has consistently held that a
judgment is void only when it was entered by a court without jurisdiction or based on a facially
unconstitutional statute. Price, 2016 IL 118613, ¶ 31. Given that that court’s rules require a circuit
court to address a defendant “personally in open court” before accepting a guilty plea (Ill. S. Ct.
R. 402 (eff. July 1, 2012)), it is inconceivable that a judgment could be entered on a guilty plea
without notice to the defendant.
¶ 32 In any event, defendant does not identify such a due-process violation here and the record
does not suggest one. Defendant was present in court and represented by counsel. The court
thoroughly admonished him pursuant to Rule 402, which satisfies due process. People v. Dennis,
354 Ill. App. 3d 491, 495 (2004). Defendant assured the court that he understood the
admonishments and that his decision to plead was voluntary. He never moved to vacate the plea
alleging a due-process violation or any other reason. Thus, defendant’s argument, even if it were
correct, would be unavailing.
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¶ 33 Defendant’s second principal contention, that he did not receive notice of the charge of
resisting a peace officer or an opportunity to respond to it, is refuted by the record. The State filed
on October 31, 2022, an amended petition to revoke probation alleging that defendant committed
domestic violence and resisting a peace officer. At a hearing the following day, the prosecutor
informed the court of the amended petition and noted that defendant would have to be advised of
it. The record reflects that defendant was so advised. At no time did defendant inform the circuit
court that he was confused about the petition’s allegations or was unable to effectively prepare a
defense. See People v. Carey, 2018 IL 121371, ¶ 22 (in criminal prosecution, where defendant
challenges indictment for first time on appeal, court should consider only whether the alleged
defect in the indictment prejudiced the defendant in preparing his defense). Defendant cannot
plausibly make such a claim here.
¶ 34 Defendant’s third argument is extremely confusing. He claims “coercion by prosecution
and my trial counsel” to induce his guilty plea. He also claims that the prosecution breached an
agreement regarding his sentence. The “unwritten agreement,” which was “cosigned by [defense]
counsel,” was for “years less” than he ultimately received. After discussing the alleged agreement,
he again alleges that he was “coerced through intimidation, lies, stress, and even threats.”
¶ 35 As explained above, a defendant appealing from a probation revocation may not challenge
the underlying guilty plea unless the judgment was void (Gregory, 379 Ill. App. 3d at 418), and
defendant has not alleged any legitimate basis for finding the judgment void. Thus, we disregard
any allegations related to the guilty-plea proceedings.
¶ 36 Defendant’s allegations about an unfulfilled sentencing agreement, coming amid
allegations concerning the guilty plea, would appear to relate to that proceeding as well. But the
record contains no evidence of an unenforced agreement in connection with the guilty plea.
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Rather, to induce defendant’s guilty plea, the State agreed to recommend probation, which he
received. He knew, or should have known, that as a condition of probation he was prohibited from
committing new offenses. Once the court revoked his probation after finding that he did commit
new offenses, the original sentencing agreement was obviously revoked as well. After that, the
court could sentence him to any sentence appropriate for the original offense. Battershell, 210 Ill.
App. 3d at 885.
¶ 37 The record contains no evidence of a new sentencing agreement in connection with the
probation revocation. Prior to the sentencing hearing, the parties agreed that defendant was eligible
for a sentence between 3 and 14 years. Defendant thereafter participated in the hearing. Later,
both defense counsel and defendant pro se filed motions to reconsider the sentence. At no time
did defendant assert that the State had breached an agreement regarding the sentence to be imposed
following revocation. “In the absence of substantial objective proof showing that a defendant’s
mistaken impressions were reasonably justified, subjective impressions alone” are insufficient.
People v. Artale, 244 Ill. App. 3d 469, 475 (1993) (citing People v. Davis, 145 Ill. 2d 240, 244
(1991)). There is simply no objective basis for defendant’s assumption that he had a sentencing
agreement with the State.
¶ 38 CONCLUSION
¶ 39 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and
affirm the circuit court’s judgment.
¶ 40 Motion granted; judgment affirmed.
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