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No. 3--01--0148

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

The defendant, Timothy Church, was charged by informationwith three counts of reckless homicide stemming from a fataltruck/automobile accident. Defendant entered into a negotiated"Alford" plea to Count II (class 2 felony) with a sentencing capof 12 years. The other two counts were dismissed. Following asentencing hearing, defendant was sentenced to 10 years inprison. Defendant subsequently filed a motion to extend the 30-day period in which to file his post-plea motion under SupremeCourt Rule 604(d). That motion was granted by the trial court. The defendant then filed a motion to withdraw his "guilty plea"and vacate the sentence. Later, an amended motion to withdrawhis "guilty plea" was filed. Following an evidentiary hearing onthe motion, the motion was denied and the defendant filed thisappeal.

On appeal, the defendant raises three issues: (1) his"Alford plea" is void and must be vacated where such a plea isnot recognized in the Illinois Code of Criminal Procedure forcauses other than those involving a violation of the IllinoisIncome Tax Act; (2) the trial court abused its discretion indenying his motion to withdraw his plea where trial counsel wasineffective and the "Alford plea" was the result of incompetentadvice by trial counsel; and (3) the trial court abused itsdiscretion in denying his motion to withdraw his plea as defensecounsel labored under a conflict of interest while representingthe defendant where the victim of the alleged offense had been anemployee of defense counsel's law firm. In addition, the Stateraises a question of the appellate court's jurisdiction. For thefollowing reasons, we find that an "Alford plea," as that term isunderstood in federal practice, is not available to an Illinoiscriminal defendant; however, the plea was properly accepted as aguilty plea. We also find no abuse of discretion in the trialcourt's rulings, and thus we affirm.

On March 14, 2000, the defendant was charged by informationwith three counts of reckless homicide. Each count involved thesame alleged victim, Ellen Dunham. Count I (class 3 felony)charged that the defendant, acting in a reckless manner,performed acts likely to cause death or great bodily harm in thathe drove his Dodge Ram pickup truck at a high rate of speed andstruck a Toyota Camry, thereby causing the death of a passengerin the Camry, Ellen Dunham. Count II (class 2 felony) chargedthat the defendant committed the act while his blood alcoholcontent was greater than .08. Count III (Class 2 felony) chargedthat the defendant was acting in a reckless manner and was underthe influence of alcohol to a degree that rendered him incapableof safely driving when he committed the act.

On June 1, 2000, the defendant, with his attorney, DavidCunningham, entered into a negotiated plea of guilty to count IIof the information in exchange for a sentencing cap of 12 yearsimprisonment and the State's dismissal of the remaining twocounts. The court advised the defendant of the nature of thecharge, the minimum and maximum terms of imprisonment, and therights waived by pleading guilty. The record indicates that theparties and the trial court agreed in the characterization of theplea as an "Alford plea."

The following factual basis for the plea was then presentedto the trial court: On the evening of March 13, 2000, thedefendant drove his Dodge Ram pickup into the rear of a ToyotaCamry being driven by Robert Dunham and in which Ellen Dunham wasa passenger. Accident reconstruction evidence revealed that thedefendant was traveling approximately 83 miles per hour at thetime of impact. At the time of impact, the Camry was at a stopin a left turn lane waiting for an arrow. The defendant wasstraddling the turn lane and the through lane at the point ofimpact. The responding officer would testify that he noticed thestrong smell of alcohol emanating from the defendant's truck. Evidence would also be presented that a blood test at thehospital revealed the defendant had a .29 blood alcohol content. Finally, evidence would also be presented that Ellen Dunham was apassenger in the Camry and suffered fatal injuries as a result ofthe collision.

Following the recitation of the basis for the plea, thedefendant acknowledged that the recited evidence would bepresented to the court at trial. A further discussion ensuedover the characterization of the plea as an "Alford plea" asfollows:

"[The Court]: Mr. Cunningham, do you agree thestatement of facts I've heard are substantiallycorrect, what the State would present?

[Defense counsel]: Yes, Your honor, I believethat is what the State would present to the Court.

[The Court]: And I take it you're entering thisplea with your client under the Alford plea to limithis criminal liability although you're not limiting itvery much here. Two years is what your talking about.

[Defense counsel]: Yes, Judge, that's true.

[The Court]: Is that correct, Mr. - -

[The Defendant]: Yes, sir.

[The Court]: Church? Okay. Mr. Church, knowingthe nature of the charge against you, the possiblepenalties, and knowing your rights under the law, doyou still wish to plead guilty to the Count 2, recklesshomicide, a Class 2 felony?

[The Defendant]: Yes.

The court then found that the defendant's guilty plea wasknowingly and voluntarily entered, and entered judgment on theguilty plea.

A sentencing hearing was held on July 27, 2000. Both theState and the defendant presented evidence, and the defendantmade a statement in allocution. Following arguments of theparties, the court imposed a sentence of 10 years imprisonment.

On August 2, 2000, the trial judge called the parties backto court and made a statement on the record regarding the actualtime the defendant would serve in prison. Specifically, thecourt noted that truth-in-sentencing provisions applied anddefendant would therefore be required to serve 85% of hissentence, equal to 8 years and 6 months of imprisonment.

On August 23, 2000, defense counsel filed a motion to extendthe time for filing a post-plea motion as the necessarytranscripts had not been prepared. The trial court granted themotion and issued an order extending the time for filing a post-plea motion.

On September 26, 2000, the defendant's motion to withdrawplea and vacate sentence, along with a motion to reconsidersentence, were filed. In addition, counsel filed a Rule 604(d)certificate.

On October 5, 2000, David Cunningham filed a motion towithdraw as defense counsel. That motion was allowed, andattorney Kathleen Bailey entered her appearance for the defendanton November 1, 2000.

The defendant's new counsel filed amended motions onNovember 22, 2000, alleging that Cunningham had a conflict ofinterest in that the victim (Ellen Dunham) had been an employeeof Cunningham's law firm.

Additionally, the amended motion contained allegations thatthe defendant's plea was not voluntary because Cunningham hadmisinformed the defendant as to the application of the 85% truth-in-sentencing statute. In support of this allegation, thedefendant submitted an affidavit in which he stated that at thetime of the entry of his plea, he believed he was eligible forday-for-day credit on the sentence. Attached to the affidavitwas a letter from Cunningham to the defendant dated July 28,2000, the day after the sentence was issued. The letter appearsto indicate Cunningham's opinion that the defendant would serve85% after day-for-day credit. Also attached was a second letterto the defendant from Cunningham dated August 3, 2000. In thisletter, Cunningham indicated that "there was a change in thestatutes of the Illinois law and you are not entitled to thatgood time credit."

An evidentiary hearing was held on defendant's motions. Cunningham testified that he had some discussion with thedefendant regarding truth-in-sentencing prior to the entry of theguilty plea; however, he had no recollection of the specifics ofthe discussion. Cunningham noted his letter of July 28^th wouldlikely indicate the defendant understood that he would actuallyserve less than half the 10-year sentence.

The trial court denied the defendant's motion to withdrawthe guilty plea. The court noted that in order to succeed on themotion, the defendant had to show that, but for the counsel's misrepresentation, defendant would not have pled guilty. Additionally, the trial court found that despite the defendant'sclaim that he would not have pled guilty had he known of the 85%requirement, the plea was nonetheless knowing and voluntary. The trial court denied the defendant's motion to withdraw hisguilty plea, and this appeal ensued.

Analysis

Before addressing the defendant's issues on appeal, we mustaddress the State's argument that the appellate court is withoutjurisdiction to hear this matter. Specifically, the State notesthat Supreme Court Rule 604(d) provides that no appeal from ajudgment entered on a guilty plea shall be taken unless thedefendant files within 30 days of the date upon which sentencewas imposed either a motion to reconsider or a motion to withdrawthe plea. The State points out that sentence was imposed on July27, 2000, and thus, defendant's motion to withdraw his guiltyplea should have been filed before August 27, 2000. However,defendant's motion to withdraw plea and vacate sentence, alongwith a motion to reconsider sentence, was not filed untilSeptember 26, 2000. The State recognizes that the trial courtentered an order extending the time for filing the motions;however, it maintains that such order was a nullity in that thetrial court lacked the authority to extend the deadline imposedby Supreme Court Rule 604(d)

In support of this argument, the State cites People v.Blanchette, 182 Ill. App. 3d 396 (1989), and People v. Scruggs,161 Ill. App. 3d 468 (1987). However, neither case involved aguilty plea or the application of Supreme Court Rule 604(d). InBlanchette, judgment was entered on March 30, 1988, and thedefendant's notice of appeal was filed on May 2, 1988. TheBlanchette court noted that the trial court has no authority toextend the time for filing of a notice of appeal. In Scruggs,the defendant was convicted on December 13, 1985. On January 9,1986, defendant's post-trial motion was denied and sentence wasimposed. On February 7, 1986, the trial court stayed a portionof the sentencing order and directed that the defendant's oralmotion to reconsider the denial of the post-trial motion be filedby February 26, 1986. The appellate court held that theextension was improper, finding that the trial court had noauthority to extend the 30-day deadline for filing a notice ofappeal in order to allow the defendant to file a motion toreconsider the denial of a post-trial motion. Scruggs, 161 Ill.App. 3d at 471.

The State infers from its reading of Rule 604(d) and itsinterpretation of Blanchette and Scruggs that there are nocircumstances under which the trial court could extend the 30days between the imposition of sentence and the filing of amotion to reconsider sentence or a motion to withdraw guiltyplea. While there appears to be no case law directly on point,the defendant points to some cases which implicitly stand for theproposition that the trial court may grant a motion to extend thetime for filing a motion to extend the time for filing a motionto reconsider sentence or a motion to withdraw guilty plea. InPeople v. Frye, 67 Ill. 2d 77, 79 (1977) our supreme courtobserved that "[o]ccasions might arise where a defendant might beentitled, on proper application and showing of good cause, toobtain an extension of time beyond the 30-day time limitprescribed by Rule 604(b)." See also, People v. Wilk, 124 Ill.2d93, 99 (1988)("[I]n the Wilk case it cannot be ascertained fromthe record whether the motion to withdraw the guilty plea or therequest for extension of time to withdraw the plea were timelyfiled. Whether these documents were timely filed has a directbearing on the nature of the representation counsel gave to thedefendant. (Emphasis added.)); People v. Nicewanner, 93 Ill. App.3d 1, 3 (3^rd Dist. 1981)(implicitly recognizing the right toobtain an extension of time for filing a post-plea motion -- "no604(d) motion was filed within 30 days, nor was any motion toextend the time for filing the motion presented within the 30days.")

We find that this court has jurisdiction over this matter. Nothing in Rule 604(d) states that the trial court does not haveauthority to extend the time for filing a motion to reconsidersentence or a motion to withdraw guilty plea. A trial court hasthe inherent authority, upon proper application and showing ofgood cause, to grant an extension of time for filing a motion toreconsider sentence or a motion to withdraw guilty plea.

Moving to the substantive issues, the defendant firstcontends that his "Alford plea" is void and must be vacated wheresuch a plea is not recognized in the Illinois Code of CriminalProcedure for causes other than those involving a violation ofthe Illinois Income Tax Act. Specifically, the defendantmaintains that the Illinois Criminal Code provides that adefendant may enter a plea of guilty, not guilty, or guilty butmentally ill. 725 ILCS 5/113-4(a)(West 2000). Defendant likensan "Alford plea" to a plea of nolo contendere and notes that theplea of nolo contendere is only permitted under the IllinoisIncome Tax Act (725 ILCS 5/113-4.1 (West 2000)("A defendant whois charged with a violation of the Illinois Income Tax Act mayplead not guilty, guilty or, with the consent of the court, nolocontendere."))

The defendant surmises from the listing of nolo contendereas a plea only for violations of the Income Tax Act, that thelegislature forbids the entry of a plea of nolo contendere in allother cases. In support of his argument, the defendant thennotes that the terms "Alford plea" and nolo contendere plea areoften used interchangeably. See, People v. Holliday, 313 Ill.App. 3d 1046 (5^th Dist. 2000). Thus, the defendant reasons,"Alford pleas" must be void in all but tax cases, and since theplea is void, the judgment on the plea must be void.

The problem with the defendant's reasoning is that an"Alford plea", despite some courts referring to it as a nolocontendere plea, is, in fact, a GUILTY plea and is recognized assuch by our supreme court in People v. Barker, 83 Ill. 2d 319,332 (1980). See also, Alford v. North Carolina, 400 U.S. 25(1970). In an "Alford plea" a defendant pleads guilty yetcontinues to proclaim his innocence. On the other hand, a pleaof nolo contendere is more in the nature of a demurrer, in thatthe defendant admits only the alleged facts, making it more akinto a stipulated bench trial than an actual guilty plea. In anyevent, the case law clearly supports the proposition that Alfordpleas are permissible in Illinois courts.

Barker speaks directly to the instant matter. In Barker,our supreme court held that a judge may accept an "Alford plea"as a plea of guilty and enter a judgment of conviction on theplea, provided the record reflects a factual basis from which atrier of fact could find the defendant guilty. Barker, 83 Ill.2d 332. Following Barker, we find in the instant matter that the"Alford plea" was nothing more than a plea of guilty and therecord reflected a factual basis from which a trier of fact couldfind the defendant guilty. While it would be more efficient weretrial courts to point out to a defendant and his or her counselthat an "Alford plea" is, in fact, a plea of guilty, so long asthe record reflects a factual basis for a plea of guilty, theconviction upon which the plea is based will be affirmed.

The defendant next maintains that the trial court abused itsdiscretion in denying his motion to withdraw his guilty pleabased upon an allegation that trial counsel was ineffective andthe "Alford plea" was the result of incompetent advise by trialcounsel. Specifically, the defendant maintains that hisattorney did not advise him that if he pled guilty he would haveto serve 85% of his sentence. Had he known that fact, defendantasserts he would not have pled guilty. Following an evidentiaryhearing, the trial court found that effective assistance had beenrendered and dismissed the motion to withdraw the guilty plea. We agree.

A defendant has no absolute right to withdraw a guilty pleaand bears the burden of establishing the need to withdraw hisplea. People v. Hirsch, 312 Ill. App. 3d 174 (2000). Whether topermit a guilty plea to be withdrawn is within the sounddiscretion of the trial court (People v. Pugh, 157 Ill. 2d 1(1993)), whose decision will not be disturbed on appeal absent anabuse of discretion. Hirsch, 312 Ill. App. 3d at 314.

The standard to be applied for determining whether adefendant was denied effective assistance of counsel in enteringa guilty plea is the two-part test articulated in Strickland v.Washington, 446 U.S. 668 (1998). See, People v. Jones, 144 Ill.2d 242 (1991). To demonstrate that the defendant was deprived ofeffective assistance of counsel, he must establish both that hisattorney's performance was deficient and that he sufferedprejudice as a result of that deficient performance. Stickland,446 U.S. at 677. The performance prong is the standard inquiryinto the attorney competence, while the prejudice prong focuseson whether counsel's inadequate performance affected the outcomeof the plea-bargaining process. In other words, to proveprejudice, the defendant must show that but for his attorney'sincompetence, he would have rejected the plea arrangement andwould have proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 59(1985). Further, the question of whether the error prejudicedthe defendant depends largely upon predicting whether thedefendant would have likely succeeded at trial. People v. Pugh,157 Ill. 2d at 10.

Reviewing the record, it simply cannot be said that thetrial court abused its discretion in finding that the defendanthad failed to establish ineffective assistance under theStrickland test. The record is inconclusive as to whetherdefense counsel properly advised the defendant as to the impactof the truth-in-sentencing provision upon the length of timedefendant would actually serve. The record does establish,however, that there was some discussion of defendant beingrequired to serve 85% of his sentence. This evidence includesthe two letters sent to the defendant by his attorney,Cunningham, as well as defendant's wife, Kathy Church's testimonythat Cunningham discussed the 85% figure with her. However, asthe defendant points out, it appears that Cunningham may haveadvised the defendant that he would only have to serve 85% of hissentence after day-for-day good time credit.

However, even if the defendant could establish thatCunningham gave him incorrect advice regarding the impact oftruth-in-sentencing upon his total prison time, it is clear thatthe defendant utterly failed to establish that he was prejudicedby this erroneous advice. To establish that the error incounsel's performance prejudiced the defendant in causing him toplead guilty rather than go to trial, defendant must demonstratethat it was likely he would have succeeded had he gone to trial. People v. Huante, 143 Ill. 2d 61 (1991).

Here, the record fails to support the defendant'scontention. The facts that would have come out at trialoverwhelmingly established defendant's guilt of recklesshomicide, a class 2 felony. Had defendant rejected the pleaagreement and gone to trial, it is sheer fantasy for thedefendant to maintain that he would have succeeded.

Defendant asserts that he can prove prejudice by speculatingthat had he known of the 85% rule, he might have attempted tonegotiate a better deal for himself. Defendant offers noauthority for the proposition that he may show prejudice bysimply speculating that he might have held out for a better deal. Instead, the defendant cites People v. Brown, 309 Ill. App. 3d599 (1999), for the proposition that he can show prejudice byasserting that he could have made a better deal. However, Brownis clearly distinguishable. In Brown, the defendant rejected aplea offer and proceeded to trial after which he was convicted ofaggravated battery with a firearm. At sentencing, the defendantlearned for the first time that he would be sentenced to lifeimprisonment as a habitual offender. On appeal, the defendantalleged he was prejudiced by counsel's failure to inform him ofhis exposure to a life sentence if he rejected the plea offer andwent to trial. In other words, had defendant known that he faceda life sentence if he went to trial, he would have accepted theplea. The facts in Brown are clearly distinguishable from theinstant matter. Clearly, the trial court did not abuse itsdiscretion in finding that the defendant was not prejudiced byhis defense counsel's performance during the negotiation of hisplea.

Likewise, the trial court did not abuse its discretion indenying the defendant's motion to withdraw his guilty plea basedupon the allegation that his counsel had a conflict of interest. We find no evidence in the record from which the trial courtcould have found a conflict of interest. Only two facts can begleaned from the instant record: that the victim was a formeremployee of counsel's law firm and defendant was advised of theformer relationship of the victim and counsel's firm. There isno evidence as to when the victim was employed by the law firm,whether it was at the time of her death or many years prior, oreven if the victim worked at the firm at the same timedefendant's counsel did. Based upon the scant record, there isnothing upon which to find that the trial court abused itsdiscretion in denying the defendant's motion.

For the foregoing reasons, the judgment of conviction of thecircuit court of Rock Island County be affirmed.

Affirmed.

SLATER and MCDADE, JJ., concur.