Opinion
5-19-0052
02-01-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYSON YOUNT, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of St. Clair County. No. 11-CF-170 Honorable Robert B. Haida, Judge, presiding.
JUSTICE VAUGHAN delivered the judgment of the court. Justices Welch and Barberis concurred in the judgment.
ORDER
VAUGHAN JUSTICE
¶ 1 Held: The circuit court did not err in granting the State's motion to dismiss defendant's amended postconviction petition, and because any argument to the contrary would be meritless, defendant's appointed counsel on appeal is granted leave to withdraw.
¶ 2 Defendant, Tyson Yount, pled guilty to three counts of criminal sexual assault and was sentenced to imprisonment for eight years on each count, with the sentences to run consecutively. On direct appeal, this court affirmed. People v. Yount, 2015 IL App (5th) 130450-U, ¶ 20. Defendant filed a pro se petition for postconviction relief and, through counsel, an amended postconviction petition. The State moved to dismiss the amended petition, and the circuit court granted the motion. Defendant now appeals from the dismissal of his amended postconviction petition. Defendant's court-appointed attorney on appeal, the Office of the State Appellate 1 Defender (OSAD), has concluded that this appeal lacks merit and, on that basis, filed with this court a motion to withdraw as counsel (see Pennsylvania v. Finley, 481 U.S. 551 (1987)), along with a memorandum of law in support thereof. OSAD provided the defendant with a copy of its Finley motion and memorandum. After ample opportunity to file a reply, defendant has not taken advantage of the opportunity to explain why OSAD should not be allowed to withdraw as counsel or why this appeal has merit.
¶ 3 For the reasons that follow, this court has concluded that the instant appeal does indeed lack merit. Accordingly, this court grants OSAD's Finley motion to withdraw as counsel and affirms the order of the circuit court.
¶ 4 BACKGROUND
¶ 5 In 2011, defendant was charged by indictment with three counts of criminal sexual assault. See 720 ILCS 5/12-13(a)(3) (West 2010). The complainant was the defendant's daughter. Each count was a Class 1 felony (id. § 12-13(b)(1)) punishable by 4 to 15 years of imprisonment (730 ILCS 5/5-4.5-30(a) (West 2010)), and consecutive sentencing was mandatory (id. § 5-8-4(d)(2)).
¶ 6 In January 2013, defendant pled guilty to each of the three counts, in exchange for the State to agree that defendant's aggregate sentence would be capped at 32 years. The court admonished defendant, determined that his plea was voluntary, and determined that there was a factual basis for the plea, all in accordance with Illinois Supreme Court Rule 402(a)-(c) (eff. July 1, 2012), and then accepted defendant's guilty plea. In March 2013, the court held a hearing in aggravation and mitigation, and sentenced defendant to imprisonment for 8 years on each count, with the sentences to run consecutively, for an aggregate sentence of 24 years, to be followed by mandatory supervised release for a term of 3 years to natural life. 2
¶ 7 In July 2013, defendant filed a motion to withdraw his guilty plea. Defendant alleged that he did not knowingly, intelligently, or voluntarily waive his right to a trial, he did not fully understand the court's admonishments at the time of his plea, he did not fully understand the consequences of pleading guilty to a felony, and he would have proceeded differently if he had understood the consequences. The motion lacked any specifics as to why the trial waiver was unknowing, or which admonishment(s) or consequence(s) were not fully understood.
¶ 8 At a hearing on the motion, no evidence was presented, but the circuit court heard the parties' arguments. The court denied the motion to withdraw guilty plea. A direct appeal followed.
¶ 9 In this court, defendant's appointed attorney in the direct appeal, OS AD, filed a motion for leave to withdraw as counsel on the basis that the appeal lacked merit. See Anders v. California, 386 U.S. 738 (1967). This court gave defendant an opportunity to respond to OSAD's Anders motion, but he did not do so. In the brief filed in support of its Anders motion, OSAD raised four potential issues for review, including whether the circuit court erred in denying the motion to withdraw guilty plea. This court agreed with OSAD that all four of the potential issues lacked merit, granted the Anders motion, and affirmed the judgment. Yount, 2015 IL App (5th) 130450-U.
¶ 10 On October 26, 2015, defendant filed a pro se petition for postconviction relief. On February 10, 2016, the court entered an order to docket the petition for further proceedings and appointed postconviction counsel for defendant.
¶ 11 On October 18, 2018, defendant filed, through appointed postconviction counsel, an amended petition for postconviction relief. In his amended petition, he claimed that (1) he had been deprived of "the benefit of his bargain under the guidelines of Whitfield," because the term "mandatory supervised release" had never been "defined or explained to him," and (2) plea counsel 3 provided ineffective assistance by not (i) informing defendant of how his case was being prepared and (ii) considering lesser-included offenses such as aggravated criminal sexual abuse.
¶ 12 On October 22, 2018, postconviction counsel filed a certificate of compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). The certificate stated, inter alia, that counsel had (1) "personally met" with defendant on "at least three (3) occasions" and had "significant correspondence" with him, in order to ascertain his contentions of deprivation of constitutional rights; (2) examined "the entire court record, including the transcripts"; and (3) amended the pro se petition as necessary for an adequate presentation of defendant's contentions.
¶ 13 The State filed a motion to dismiss the amended postconviction petition. On January 3, 2019, the court held a hearing on the State's motion, at which the court heard the parties' arguments. In regard to defendant's postconviction claim that the term of "mandatory supervised release" had never been explained to him, defendant's postconviction counsel again relied on People v. Whitfield, 217 Ill.2d 177 (2005), wherein our supreme court held that due process is violated where a term of mandatory supervised release (MSR) is added to a negotiated prison sentence when the circuit court failed to admonish defendant, prior to accepting his guilty plea, that the MSR term will be added to the negotiated prison sentence by operation of law. Postconviction counsel argued that "mandatory supervised release needs to be defined so that in order for them to make a knowing plea, you have to-you say, it's possible that you might be in prison for the rest of your life, regardless of what you do." In regard to defendant's postconviction claim that plea counsel did not consider lesser-included offenses, postconviction counsel seemed to argue that plea counsel, during plea negotiations with the State, should have suggested pleas to lesser-included offenses as a way of lowering the maximum time behind bars that defendant would face. The court took the matter under advisement. 4
¶ 14 On January 18, 2019, the court entered a written order granting the State's motion to dismiss defendant's amended postconviction petition. Defendant filed a timely notice of appeal, thus perfecting the instant appeal.
¶ 15 ANALYSIS
¶ 16 This appeal is from an order granting the State's motion to dismiss defendant's amended petition for postconviction relief at the second stage of postconviction proceedings. As such, appellate review is de novo. People v. Johnson, 206 Ill.2d 348, 357 (2002).
¶ 17 As previously noted, OS AD has concluded that this appeal lacks arguable merit and, on that basis, has filed with this court a Finley motion to withdraw as counsel. Defendant has not filed a response to the Finley motion, despite being given the opportunity. In its memorandum, OSAD addresses two potential issues on appeal: (1) whether any of the claims in the amended petition made a substantial showing of a constitutional violation and (2) whether appointed postconviction counsel complied with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). Neither of these potential issues has any merit.
¶ 18 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides that a criminal defendant may challenge his conviction or sentence for substantial violations of federal or state constitutional rights. Id. § 122-1(a)(1); People v. Edwards, 2012 IL 111711, ¶ 21. The Act provides for three stages of review. People v. Domagala, 2013 IL 113688, ¶ 32. At the first stage, the circuit court may summarily dismiss the petition only if it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2016); Domagala, 2013 IL 113688, ¶ 32. At the second stage, the court must determine "whether the petition and any accompanying documentation make a substantial showing of a constitutional violation." People v. Edwards, 197 Ill.2d 239, 246 (2001). All well-pleaded facts, except for those positively rebutted by the trial 5 record, are to be taken as true. People v. Childress, 191 Ill.2d 168, 174 (2000). If a substantial showing is not made, the petition is dismissed. Edwards, 197 Ill.2d at 246. If a substantial showing is made, the petition advances to the third stage, where an evidentiary hearing is held. Domagala, 2013 IL 113688, ¶ 34.
¶ 19 The first of OSAD's potential issues-whether any of the defendant's postconviction claims made a substantial showing of a constitutional violation-requires discussion of those claims. Defendant first claimed that his guilty plea was unknowing because the court had not explained the term "mandatory supervised release" to him. The transcript of the plea hearing, however, shows that the circuit court specifically admonished the defendant about MSR for an indeterminate term of three years to natural life and defendant understood the requirement of MSR. The transcript also shows that the defendant indicated that his lawyer had explained the plea agreement and that he had no questions about it. Accordingly, this postconviction claim is positively rebutted by the record.
¶ 20 As for the postconviction claims that plea counsel provided ineffective assistance by not informing defendant of how his case was being prepared and by not considering lesser-included offenses, defendant's voluntary plea broke the chain of events which preceded it in the criminal process (Tollett v. Henderson, 411 U.S. 258, 267 (1973)) and served to waive all nonjurisdictional errors or irregularities, including constitutional defects (People v. Townsell, 209 Ill.2d 543, 545 (2004)). Because defendant's claims of ineffective assistance regard actions or omissions that occurred prior to defendant's voluntary guilty plea, they are waived.
¶ 21 The second potential issue raised by OS AD is whether appointed postconviction counsel complied with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). Petitioners are entitled to only reasonable assistance under the Act. People v. Profit, 2012 IL App (1st) 101307, ¶ 18. The 6 filing of a proper Rule 651(c) certificate raises a presumption that postconviction counsel provided reasonable assistance required by the Act. Id. ¶ 19. Under that rule, the record filed in this court "shall contain a showing," which may be made by the certificate of postconviction counsel, that counsel has consulted with his client, the defendant, "by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." Ill. S.Ct. R. 651(c) (eff July 1, 2017).
¶ 22 Here, the defendant's postconviction counsel filed a certificate that specifically mentioned each of the items appearing in Rule 651(c) and indicated his compliance with it. We therefore presume postconviction counsel complied with Rule 651(c) and provided defendant with reasonable assistance. Defendant has not alleged anything that rebuts that presumption.
¶ 23 CONCLUSION
¶ 24 For the reasons stated above, the circuit court did not err in dismissing defendant's amended postconviction petition, and postconviction counsel fulfilled his duties under Rule 651(c). Any argument to the contrary would have no merit. Accordingly, we grant OSAD leave to withdraw as counsel and affirm the judgment of the circuit court.
¶ 25 Motion granted; judgment affirmed. 7