People v. Reed

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Date: 2019.06.13

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People v. Reed, 2019 IL App (4th) 170090

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption DEMARIO D. REED, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-17-0090

Filed March 27, 2019

Modified upon

denial of rehearing May 8, 2019

Decision Under Appeal from the Circuit Court of Macon County, No. 14-CF-1205; the

Review Hon. Jeffrey S. Geisler, Judge, presiding.

Judgment Affirmed.

Counsel on James E. Chadd, Patricia Mysza, and Alexander G. Muntges, of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J.

Robinson, and Linda Susan McClain, of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE CAVANAGH delivered the judgment of the court, with

opinion.

Justices DeArmond and Turner concurred in the judgment and

opinion.

OPINION

¶1 After an evidentiary hearing, the Macon County circuit court denied postconviction relief

to defendant, Demario D. Reed, who is serving a prison sentence of 15 years for armed

violence (720 ILCS 5/33A-2(a), 33A-3(a) (West 2014)). He appeals, arguing that newly

discovered evidence he presented to the court in the postconviction hearing proved, clearly and

convincingly, that he actually was innocent of armed violence despite his earlier negotiated

guilty plea to that offense.

¶2 Because the validity of defendant’s guilty plea is undisputed on appeal, we hold, de novo,

that he remains bound by his guilty plea and that his claim of actual innocence cannot be

entertained. See People v. Pendleton, 223 Ill. 2d 458, 473 (2006); People v. Cannon, 46 Ill. 2d

319, 321 (1970). Therefore, we deny defendant’s petition for rehearing, and we affirm the

judgment.

¶3 I. BACKGROUND

¶4 In count I of the information, the State alleged that on September 23, 2014, defendant

committed armed violence in that, while armed with a shotgun, he knowingly possessed

cocaine (an amount less than 15 grams).

¶5 In April 2015, defendant appeared with appointed defense counsel, who announced:

“MR. WHEELER: Judge, the defendant is going to offer to enter a plea of guilty to

Count I of [Macon County case No. 14-CF-]120[5], be sentenced to the Illinois

Department of Corrections for a period of 15 years. *** The remaining charges [(in

Macon County case Nos. 14-CF-903 and 14-CF-1206)] will be dismissed.

THE COURT: [Defendant], you heard what your attorney said. Is that your

understanding of the plea agreement?

THE DEFENDANT: Yes.”

¶6 The circuit court then recited count I to defendant and told him the minimum and

maximum punishments for the offense it alleged, armed violence. The court further

admonished him:

“THE COURT: If you plead guilty, you would be giving up your right to a trial of

any kind by a judge or a jury. You would be giving up the right to confront and

cross-examine witnesses who would testify against you in court during your trial. By

pleading guilty, you would be giving up the privilege against self-incrimination and the

presumption of innocence. You would be giving up the right to subpoena witnesses to

come into court to testify for you and to present any defenses you might have to this

charge, and by pleading guilty, you would be giving up the right to require the [S]tate

to prove you committed this offense beyond a reasonable doubt. Do you understand the

rights you are giving up by pleading guilty?

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THE DEFENDANT: Yes.

THE COURT: Do you have any questions about your rights this morning?

THE DEFENDANT: No.

THE COURT: Are you telling me you wish to give up your rights and plead guilty?

THE DEFENDANT: Yes.” (Emphases added.)

Then, at the court’s request, defendant signed a jury waiver.

¶7 Next, the circuit court requested a factual basis. The prosecutor responded:

“MS. DOMASH: The [S]tate would present the testimony of Officer Daniels of the

Decatur Police Department. Officer Daniels would testify that he observed this

defendant on September 23rd of 2014 on a porch in Decatur, Illinois. He observed the

defendant flee upon sight of him. The defendant was running oddly. When he entered

the house, he located a shotgun and cocaine. The defendant was located in a bedroom,

and the shotgun had the defendant’s DNA [(deoxyribonucleic acid)] on it.”

¶8 After the prosecutor provided that factual basis, defendant confirmed to the circuit court

that no one had forced him, in any way, to plead guilty and that the plea agreement was the

only promise ever made to him in return for his proposed guilty plea. He also denied having

any questions about his “rights, the possible sentences, or anything else.” The court then asked

defendant a final time:

“THE COURT: Are you telling me you wish to continue to plead guilty this

morning?

THE DEFENDANT: Yes.”

¶9 Finding a factual basis for the guilty plea to count I and further finding the guilty plea to be

knowing and voluntary, the circuit court accepted the guilty plea and sentenced defendant to

imprisonment for the agreed-upon term of 15 years. (The parties also had agreed to proceed

immediately to sentencing, to waive a presentence investigation report, and to have the pretrial

bond report stand as a prior history of criminality.)

¶ 10 In January 2016, with the circuit court’s permission (see 725 ILCS 5/122-1(f) (West

2016)), defendant filed a successive postconviction petition, in which he claimed to be

innocent of count I, armed violence, the offense to which he had entered the negotiated guilty

plea. He submitted, as proof of his innocence, an affidavit by his codefendant, Davie Callaway.

In the affidavit, which was dated October 15, 2015, Callaway averred that he alone was the one

who had possessed the cocaine referenced in count I and that defendant had been unaware of

the presence of the cocaine.

¶ 11 The State moved to dismiss the postconviction petition. One of the reasons the State gave

for its motion was waiver. The State argued that by knowingly and voluntarily pleading guilty

to armed violence, defendant had waived all nonjurisdictional errors, including errors of a

constitutional nature.

¶ 12 The circuit court denied the State’s motion for dismissal, and the petition advanced to the

third stage of the postconviction proceeding, in which the parties adduced evidence for the

court to weigh as the trier of fact. See People v. Harris, 2013 IL App (1st) 111351, ¶¶ 46-47

(describing the three stages of a postconviction proceeding).

¶ 13 On January 20, 2017, after hearing the evidence, including Callaway’s testimony, the

circuit court denied defendant’s successive petition for postconviction relief. Although the

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court held that Callaway’s affidavit and testimony “qualified as new evidence based on his

unavailability at trial in view of his Fifth Amendment Right against self-incrimination” (see

U.S. Const., amend. V; People v. Edwards, 2012 IL 111711, ¶ 38), the court simply did not

believe Callaway. The court wrote in its judgment:

“The court *** does not find that testimony of Mr. Callaway to be credible as Mr.

Callaway did not come forward with this information until after he pled and he and the

petitioner were in prison together. As such, the court does not find the petitioner has

established a colorable claim of actual innocence.”

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant does not challenge the validity of his negotiated guilty plea to armed

violence; he does not claim that his guilty plea was uninformed or involuntary. Rather, he

claims that his guilty plea was false. He claims he really was innocent of armed violence when

he solemnly declared to the circuit court that he was guilty of that offense. He cites People v.

Shaw, 2018 IL App (1st) 152994, ¶ 41, in which the First District held that “a freestanding

actual innocence claim may be brought [in a postconviction proceeding] after a guilty plea, and

that a defendant need not challenge the knowing and voluntary nature of his or her plea to bring

such a claim.” On March 19, 2019, however, after defendant filed his brief, the First District

withdrew its opinion in Shaw, as defendant informs us in his petition for rehearing. A

withdrawn opinion lacks precedential value. People v. Jordan, 103 Ill. 2d 192, 205 (1984).

¶ 17 That leaves only one Illinois case, People v. Barnslater, 373 Ill. App. 3d 512 (2007), that

(albeit in dicta) has addressed the question of whether, in a postconviction proceeding, a

defendant may raise a claim of actual innocence after being convicted on a valid, i.e., knowing

and voluntary, guilty plea. (Although it is true that in People v. Knight, 405 Ill. App. 3d 461,

471-72 (2010), the Third District allowed the defendant to raise a postconviction claim of

actual innocence after pleading guilty, the defendant in that case additionally attacked the

validity of his guilty plea, claiming his guilty plea had been coerced.) In Barnslater, the First

District remarked: “If a defendant claims that his guilty plea was coerced, then that coercion

provides the necessary constitutional deprivation for which postconviction relief would be

appropriate, but not where he claims actual innocence in the face of a prior, constitutionally

valid confession of guilt.” Barnslater, 373 Ill. App. 3d at 527. In support of the proposition that

a valid guilty plea foreclosed a postconviction claim of actual innocence, Barnslater quoted

from Cannon, a decision by the supreme court: “ ‘Before his plea of guilty was accepted, the

defendant, represented by appointed counsel, was fully and carefully admonished by the trial

judge, and in the light of that admonition, the defendant’s present [postconviction] claim [of

actual innocence] cannot be entertained.’ ” (Emphasis omitted.) Id. at 528 (quoting Cannon, 46

Ill. 2d at 321).

¶ 18 The quoted sentence is, in Cannon, an obiter dictum, an inessential remark on a point not

argued by counsel. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 236 (2010). In his

appeal to the supreme court, the only argument the defendant in Cannon made against the

denial of his postconviction petition was that the board of supervisors of De Witt County had

been elected illegally, in violation of the one-man, one-vote principle, and that, consequently,

“all of the proceedings in connection with the defendant’s prosecution, including the selection

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of grand jurors, were illegal and in violation of his rights under the constitution of the United

States and of this State.” Cannon, 46 Ill. 2d at 320.

¶ 19 After rejecting that sole argument by the defendant, the supreme court in Cannon added:

“We have examined the claims advanced by the defendant in his post-conviction

petition which were not argued in this court. They amount basically to an unsupported

assertion that the accusation against him was false and that his daughter and two of his

sons were coerced by threats from their mother, the defendant’s wife, to refrain from

asserting the defendant’s innocence [to the charge of indecent liberties with a child].

Before his plea of guilty was accepted, the defendant, represented by appointed

counsel, was fully and carefully admonished by the trial judge, and in the light of that

admonition, the defendant’s present claim cannot be entertained.” (Emphasis added.)

Id. at 321.

Although the quoted paragraph from Cannon describes the defendant’s claim of actual

innocence as being “unsupported,” the paragraph is not, in the end, an evaluation of that claim

on its evidentiary merits. Rather, the paragraph concludes that because the defendant was

(1) represented by counsel in the guilty-plea hearing and (2) fully and carefully admonished by

the trial judge, his postconviction claim of actual innocence “cannot be entertained.” Id. “[I]n

the light of that admonition, the defendant’s present claim [of actual innocence] cannot be

entertained,” as the supreme court put it. (Emphasis added.) Id. To “entertain” a claim means to

“give attention or consideration to” the claim. The New Oxford American Dictionary 567

(2001). Thus, in the final sentence of the paragraph quoted above, the supreme court declines

to give attention or consideration to the defendant’s claim of actual innocence, not because the

claim is unsupported (as the supreme court remarks earlier in the quoted paragraph) but, rather,

because—while being represented by counsel and after being fully admonished—the

defendant pleaded guilty to the charge of which he now, in the postconviction proceeding,

claims to be actually innocent. That is what the supreme court says in Cannon, and when the

supreme court speaks, we must obey.

¶ 20 There is, however, a slight complication. Because the quoted paragraph of Cannon could

be “sloughed off without damaging the analytical structure of the opinion” and because it is an

aside on a point not argued by counsel, it is, as we said, an obiter dictum. (Internal quotation

marks omitted.) Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 277-78 (2009).

“Obiter dictum refers to a remark or expression of opinion that a court uttered as an aside, and

is generally not binding authority or precedent within the stare decisis rule.” (Emphasis

added.) Id. at 277. The supreme court uses the qualifier “generally” because “[e]ven

obiter dict[a] of a court of last resort can be tantamount to a decision and therefore binding in

the absence of a contrary decision of that court.” (Internal quotation marks omitted.) Id. at 282;

see also People v. Williams, 204 Ill. 2d 191, 207 (2003) (“But whether we characterize that

portion of [our previous decision] as judicial or obiter dicta, it still should have guided the

appellate court in this case.”); Country Club Estates Condominium Ass’n v. Bayview Loan

Servicing LLC, 2017 IL App (1st) 162459, ¶ 20 n.2 (“[The supreme] court’s discussion of

prompt payment would likely be classified as [an] obiter dictum; nevertheless *** we are

bound by it.”).

¶ 21 The question, then, is whether there is a “contrary decision” of the supreme court—a

decision holding that a postconviction claim of actual innocence can be entertained after a

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valid guilty plea. Exelon, 234 Ill. 2d at 282. We are aware of no such decision by the supreme

court. Thus, we conclude that the obiter dictum of Cannon is still the law. See id.

¶ 22 While so concluding, we acknowledge that in People v. Washington, 171 Ill. 2d 475, 489

(1996), the supreme court stated:

“We believe that no person convicted of a crime should be deprived of life or

liberty given compelling evidence of actual innocence. *** We therefore hold as a

matter of Illinois constitutional jurisprudence that a claim of newly discovered

evidence showing a defendant to be actually innocent of the crime for which he was

convicted is cognizable as a matter of due process.”

“It is fundamental, however, that the precedential scope of a decision is limited to the facts

before the court.” People v. Palmer, 104 Ill. 2d 340, 345-46 (1984). “The words of a judicial

opinion do not have a vitality independent of the facts to which the opinion is addressed ***.”

People v. Arndt, 49 Ill. 2d 530, 533 (1971). The facts in Washington were that the defendant

was convicted of murder after a trial. Washington, 171 Ill. 2d at 476. Later, in a postconviction

petition, he raised a claim of actual innocence. Id. at 478. He supported his claim with an

affidavit by Jacqueline Martin, whose in camera testimony tended to prove that someone other

than the defendant was the murderer. Id. at 477-78. For six years, Martin had refrained from

coming forward and had hid in Mississippi out of fear of the man she now implicated. Id. at

478. The trial court granted the defendant a new trial “on the ground that Martin’s testimony

was new evidence which, if believed, would have ‘had some significant impact’ upon the

jury.” Id. The State appealed. Id. The appellate court “affirmed the grant of relief as to the

newly discovered evidence claim.” Id. at 479. The supreme court in turn affirmed the appellate

court’s judgment (id. at 490), holding, “as a matter of Illinois constitutional jurisprudence[,]

that a claim of newly discovered evidence showing a defendant to be actually innocent of the

crime for which he was convicted [was] cognizable [in a postconviction proceeding] as a

matter of due process.” Id. at 489.

¶ 23 But then, at the end of Washington, the supreme court added:

“Procedurally, such claims should be resolved as any other claim brought under the

[Post-Conviction Hearing] Act. Substantively, relief has been held to require that the

supporting evidence be new, material, noncumulative[,] and, most importantly, of such

a conclusive character as would probably change the result on retrial.” (Internal

quotation marks omitted.) Id.

¶ 24 Those final words of guidance in Washington demonstrate how closely the holding of a

case can be tethered to the facts of the case. If the facts in Washington were changed so that,

instead of a trial ending in a guilty verdict, there had been a guilty plea, it would have made no

sense to forecast the probable result of a “retrial.” Id. Without a trial in the first place, there

could have been no retrial. Nor would it have made any sense to ask whether the evidence was

“new, material, [and] noncumulative.” Id. By pleading guilty, the defendant would have

dispensed with evidence, inculpatory or exculpatory; he would have “waive[d] his rights to a

jury trial and to proof beyond a reasonable doubt.” (Emphasis in original.) Hill v. Cowan, 202

Ill. 2d 151, 154 (2002). Because a guilty plea would have “release[d] the State from proving

anything beyond a reasonable doubt” (emphasis in original) (id.), no newly discovered

evidence would have been “material” (Washington, 171 Ill. 2d at 489). Evidence, in general,

would have been immaterial and superfluous; the valid guilty plea would have made it so. In

short, here is the problem with entertaining a postconviction claim of actual innocence after a

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knowing and voluntary guilty plea: the supreme court dictates that all postconviction claims of

actual innocence, without exception, “must meet the Washington standard” (People v.

Coleman, 2013 IL 113307, ¶ 91), and guilty-plea cases, because they dispense with evidence,

are inherently incapable of meeting the Washington standard—which would suggest that a

defendant who validly pleaded guilty cannot raise a postconviction claim of actual innocence,

as Justice Schaefer wrote in Cannon. See Cannon, 46 Ill. 2d at 321.

¶ 25 The guilty-plea waiver rule poses an equally formidable obstacle. “A guilty plea waives all

nonjurisdictional defenses or defects.” People v. Horton, 143 Ill. 2d 11, 22 (1991). That

includes nonjurisdictional defenses that are constitutional in nature. People v. Townsell, 209

Ill. 2d 543, 545 (2004). Actual innocence was a nonjurisdictional defense to the charge, and

thus, it was a defense that the guilty plea waived. See id. “[A] valid guilty plea relinquishes any

claim that would contradict the admissions necessarily made upon entry of a voluntary plea of

guilty.” (Internal quotation marks omitted.) Class v. United States, 583 U.S. ___, ___, 138 S.

Ct. 798, 805 (2018). Otherwise, Illinois Supreme Court Rule 402(a)(4) (eff. July 1, 2012)

would require the giving of an admonition that was patently untrue. In accordance with Rule

402(a)(4), the circuit court admonished defendant: “If you plead guilty, you would be giving

up your right to a trial of any kind by a judge or a jury.” If, by a postconviction claim of actual

innocence, defendant now can obtain a trial, his guilty plea would not have waived his right to

a trial and that admonition would have been false.

¶ 26 Defendants cannot knowingly and voluntarily plead guilty in the trial court and then turn

around and complain to a reviewing court that the trial court found them guilty. That would be

paradoxical if not duplicitous. Assuming, for the sake of argument, that defendant’s conviction

of armed violence is a constitutional error because he really is innocent, it is an error he himself

invited by pleading guilty to armed violence. People v. Kane, 2013 IL App (2d) 110594, ¶ 27

(“The use of invited error as a basis for postconviction relief is clearly frivolous and patently

without merit.”). After being fully admonished and while represented by counsel, defendant

affirmatively and voluntarily procured his own conviction by pleading guilty. He expressly

consented to a procedure whereby the court would convict him of armed violence without

proof. See Hill, 202 Ill. 2d at 154. “[U]nder the doctrine of invited error, an accused may not

request to proceed in one manner and then later contend on appeal that the course of action was

in error.” (Internal quotation marks omitted.) People v. Harvey, 211 Ill. 2d 368, 385 (2004).

Defendant is estopped from “us[ing] the exact ruling or action [he] procured in the trial court as

a vehicle for reversal on appeal.” Id. The case for estoppel is especially strong considering that,

as a result of defendant’s guilty plea, the State’s evidence might have grown stale.

¶ 27 In sum, until the supreme court makes an exception to the well-established doctrines of

waiver and estoppel, we must faithfully apply those doctrines. See In re Shermaine S., 2015 IL

App (1st) 142421, ¶ 32. Likewise, until the supreme court says otherwise, we must follow the

obiter dictum of Cannon. See Exelon, 234 Ill. 2d at 282.

¶ 28 III. CONCLUSION

¶ 29 For the foregoing reasons, we affirm the circuit court’s judgment, and we award the State

$50 in costs against defendant. See 55 ILCS 5/4-2002(a) (West 2016).

¶ 30 Affirmed.

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