⁴ District Appellate IN THE APPELLATE COURT Court, IL OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Woodford County ROBERT A. PAGE, ) No. 19CF127 Defendant-Appellant. ) ) Honorable ) Michael L. Stroh, ) Judge Presiding. JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Turner and Cavanagh concurred in the judgment and opinion. OPINION ¶1 Defendant, Robert A. Page, entered an open plea of guilty to aggravated driving under the influence (DUI) of alcohol (625 ILCS 5/11-501(a) (West 2018)). The offense was a Class 1 felony because defendant had three prior convictions for DUI and one for aggravated DUI. 625 ILCS 5/11-501(d)(2)(D) (West 2018). The court sentenced defendant to 10 years in prison. Defendant appeals orders denying his motions to withdraw his plea and to reconsider the sentence. We affirm. ¶2 I. BACKGROUND ¶3 Defendant was convicted of DUI in 1985, 1988, and 2005. In 2016, he was charged with aggravated DUI in Woodford County case number 16-CF-42. Apparently unaware of one of defendant’s convictions, the prosecution pursued case number 16-CF-42 as if it were defendant’s third DUI offense rather than his fourth. Defendant pleaded guilty to aggravated DUI in case number 16-CF-42. In November 2016, defendant was sentenced to four years’ probation and 60 days in jail. That sentence would not have been authorized had defendant been charged with having three prior DUI convictions. See 625 ILCS 5/11-501(d)(2)(C) (West 2016) (a fourth violation of the DUI statute is a nonprobationable Class 2 felony). ¶4 On August 5, 2019, while defendant was on probation, he was stopped by a state trooper who suspected defendant was under the influence of alcohol. The next day, the State charged defendant by information with aggravated DUI in case number 19-CF-127. The State did not know about defendant’s 1985 DUI conviction. Thus, the State charged this new offense as if it were defendant’s fourth DUI prosecution rather than his fifth. This made the offense charged in count I of the information a nonprobationable Class 2 felony rather than a Class 1 felony. Count I of the information specifically stated that this was a nonprobationable Class 2 felony. The State also charged defendant with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2018)) for possessing “psilocybin mushrooms.” ¶5 On August 6, 2019, defendant appeared in court for arraignment and to set bond in case number 19-CF-127. The pretrial bond report did not list defendant’s 1985 DUI conviction. In court, the prosecutor and defense counsel both asserted that defendant had three prior DUI convictions. The court admonished defendant that the Class 2 aggravated DUI charge in count I was a nonprobationable offense. ¶6 Defendant posted bond. On September 3, 2019, he failed to appear for his preliminary hearing. The court issued a warrant for defendant’s arrest. On September 5, 2019, a grand jury returned an indictment in case number 19-CF-127 that was similar to the previously filed information. The indictment alleged that count I was a Class 2 felony, but it did not specify - 10 - of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. In that respect, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. ¶ 29 As we will explain, defendant’s contention that the court violated his double jeopardy rights and abused its discretion by vacating the plea lacks merit. Thus, defendant cannot show prejudice, and his ineffective-assistance claim fails. See People v. Gaines, 2020 IL 125165, ¶ 59 (“[D]efendant cannot demonstrate prejudice because there is no reasonable probability that an objection would have resulted in the trial court permitting defendant to persist in his plea in light of defendant’s repudiation of the factual basis.”). ¶ 30 Both the United States and Illinois Constitutions prohibit double jeopardy. U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10. These principles are also codified in Illinois’s Criminal Code of 2012. See 720 ILCS 5/3-4 (West 2020). “The prohibition against double jeopardy is designed to prevent the State from engaging in more than one attempt to convict an individual, thereby subjecting him to embarrassment, expense, continuing anxiety and insecurity, and increasing the possibility that he may be found guilty even if innocent.” People v. Cabrera, 402 Ill. App. 3d 440, 446 (2010). Prohibiting double jeopardy protects defendants from “ ‘(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.’ ” (Internal quotation marks omitted.) Cabrera, 402 Ill. App. 3d at 447 (quoting People v. Henry, 204 Ill. 2d 267, 283 (2003)). - 11 - ¶ 31 The first question in a double jeopardy analysis is whether jeopardy attached. Gaines, 2020 IL 125165, ¶ 25. Here, the parties agree jeopardy attached on March 10, 2020, when the trial court unconditionally accepted defendant’s open guilty plea to count I of the indictment. See Gaines, 2020 IL 125165, ¶ 34 (“[T]his court holds that jeopardy attaches when the trial court unconditionally accepts defendant’s plea.”). ¶ 32 The next question is “whether jeopardy terminated improperly.” Gaines, 2020 IL 125165, ¶ 39. “ ‘In the parlance of double jeopardy case law, jeopardy “continues” if *** the jeopardy that attached in the first trial remains open so that defendant can be reprosecuted for the same crime without violating the bar against double jeopardy.’ ” Gaines, 2020 IL 125165, ¶ 39 (quoting People v. Daniels, 187 Ill. 2d 301, 310-11 (1999)). “Conversely, ‘[j]eopardy “terminates” if the trial concludes under conditions in which defendant could not be retried without violating the double jeopardy rule ***.’ ” Gaines, 2020 IL 125165, ¶ 39 (quoting Daniels, 187 Ill. 2d at 311). ¶ 33 Here, the trial court sua sponte vacated defendant’s open guilty plea to count I of the indictment. More than 70 years ago, our supreme court held as follows: “[A] court may set aside or withdraw a plea of guilty, on its own motion and without the consent of a defendant, in cases where the evidence shows that the defendant is insane, or under some similar disability, or where the court has good reason to doubt the truth of the plea, or where it is affirmatively shown that the plea of guilty was induced by some promise on the part of the State’s Attorney or others in authority, or where it is obvious that a defendant has been misinformed as to his rights.” (Emphasis added.) People v. Hancasky, 410 Ill. 148, 154-55 (1951). - 12 - If a trial court properly exercises its discretion by sua sponte vacating a guilty plea, then jeopardy does not terminate improperly and there is no double jeopardy violation. See Gaines, 2020 IL 125165, ¶ 55 (“Because the trial court did not abuse its discretion in vacating defendant’s guilty plea sua sponte, defendant’s bench trial did not offend the bar against double jeopardy.”). “ ‘An abuse of discretion will be found only where the court’s ruling is arbitrary, fanciful, unreasonable, or no reasonable person would take the view adopted by the trial court.’ ” Gaines, 2020 IL 125165, ¶ 45 (quoting People v. Delvillar, 235 Ill. 2d 507, 519 (2009)). ¶ 34 We hold that the trial court did not abuse its discretion by vacating defendant’s guilty plea to count I of the indictment. Before the court accepted that plea, the court incorrectly told defendant he could receive probation. At the next court date, when the matter was set for sentencing, it seems defendant may have been confused as to whether he was eligible for probation. As the State argues, upon reviewing the transcript of the plea hearing, it was obvious defendant had been “misinformed as to his rights.” Hancasky, 410 Ill. at 155. Thus, the trial court was authorized to vacate the plea sua sponte. We determine the trial court acted within its discretion. By vacating the plea, the court likely believed it was both protecting defendant’s rights and preempting any question down the road as to whether defendant knowingly and voluntarily pleaded guilty. We emphasize that when the court vacated defendant’s plea, the court received no objection from the defense. Nor had the State yet indicated its intent to enhance defendant’s aggravated DUI charge. ¶ 35 In arguing that there was a double jeopardy violation and an abuse of discretion, defendant notes he was properly informed at his arraignment/bond hearing in August 2019 that count I was a nonprobationable offense. Thus, defendant asserts he was “actually aware that the minimum term did not include probation and was not otherwise prejudiced by the judge’s - 13 - incorrect admonishment” at the plea hearing in March 2020. Defendant labels it a “minor” flaw that the court incorrectly told him at the plea hearing that he was eligible for probation. Defendant also maintains that, had he explicitly requested the court to vacate the guilty plea, the court would have been under no obligation to do so. ¶ 36 Defendant’s arguments are unconvincing. As the State correctly points out, “[t]he question was not whether vacating the plea was required, but whether the court had discretion to vacate the plea sua sponte.” Moreover, the record gives us no confidence that defendant was aware of the sentencing consequences when he pleaded guilty to count I. Defendant received proper admonishments at the arraignment/bond hearing on August 6, 2019. However, defendant then left the jurisdiction, and he did not return to court in Illinois until January 2020. By that time, defendant exhibited symptoms of temporary psychosis, apparently induced by substance abuse. On March 10, 2020, before the court accepted defendant’s guilty plea, the court misadvised defendant about the plea’s sentencing consequences. Considering that defendant experienced psychosis in the interim and then was affirmatively misled as to the sentencing consequences, there is little reason to place stock in the correct admonishments defendant received months earlier. ¶ 37 Defendant proposes that, instead of vacating the guilty plea, the trial court should have readmonished him and then asked him whether he wished to persist with his plea. Although the court could have taken that approach, defendant cites no case requiring the court to do so. As explained above, the court was vested with discretion to vacate the plea when it became obvious defendant was misinformed as to his rights. ¶ 38 As we determine that the trial court acted within its discretion by vacating the guilty plea to count I, jeopardy did not terminate improperly. Thus, defendant was not subjected - 14 - to double jeopardy when the State filed a new count III or when defendant pleaded guilty to that count. Having failed to demonstrate either a double jeopardy violation or an abuse of discretion, defendant has not shown prejudice from his trial counsel’s failure to preserve these issues for review. Accordingly, we hold that defendant did not receive ineffective assistance of counsel in the manner defendant claims. ¶ 39 We emphasize that our analysis is limited to whether there was a double jeopardy violation and whether the trial court abused its discretion under the circumstances presented. As a means of presenting these issues, defendant contends that defense counsel was ineffective for failing to recognize the double jeopardy issue and for failing to object to the trial court’s allegedly “arbitrary procedures.” On the authority of Hancasky, we reject those specific arguments. During oral argument in this matter, this court questioned the attorneys as to whether defendant’s trial counsel also was ineffective for (1) bringing the issue of faulty admonishments to the trial court’s attention on June 2, 2020, and then (2) failing to ask the court to proceed with defendant’s original guilty plea. In response to those questions, defendant’s appellate counsel argued that there was “not enough in the record to know why [defendant’s trial counsel] did what he did.” We agree, as the record is silent as to what conversations defendant had with his counsel. See People v. Veach, 2017 IL 120649, ¶ 46 (issues are better suited to collateral proceedings when the record on direct appeal is “incomplete or inadequate for resolving the claim”). ¶ 40 B. Vindictive Prosecution ¶ 41 Defendant next argues the prosecutor was vindictive for charging him with Class 1 aggravated DUI after the court allowed him to withdraw his guilty plea to the Class 2 version - 15 - of the offense. Defendant recognizes he did not raise this issue below. Defendant asks us to review the issue for second-prong plain error and for ineffective assistance of counsel. ¶ 42 “Under plain-error review, we will reverse a forfeited error if the error was clear and obvious and either (1) the evidence was so closely balanced the error alone threatened to tip the scales of justice against defendant or (2) the error was so serious it affected the fairness of defendant’s trial and challenged the integrity of the judicial process. People v. Jophlin, 2018 IL App (4th) 150802, ¶ 59. Our first step is to determine whether any error occurred. Jophlin, 2018 IL App (4th) 150802, ¶ 59. If the prosecutor was not vindictive, a defendant cannot obtain relief for vindictiveness pursuant to either the plain-error doctrine or a claim of ineffective assistance. See Jophlin, 2018 IL App (4th) 150802, ¶¶ 65, 68. ¶ 43 “The filing of criminal charges is a discretionary matter resting within the exclusive jurisdiction of the prosecution.” People v. Flanagan, 201 Ill. App. 3d 1071, 1076 (1990). “One purpose of instituting criminal proceedings against an individual is to punish; therefore, the presence of a punitive motivation behind prosecutorial action does not render such action constitutionally violative.” People v. Hall, 311 Ill. App. 3d 905, 911 (2000). Nevertheless, “[a]s a general matter, a prosecution is vindictive and violates due process if it is undertaken to punish a defendant because he has done ‘what the law plainly allows him to do.’ ” People v. Rendak, 2011 IL App (1st) 082093, ¶ 15 (quoting United States v. Goodwin, 457 U.S. 368, 372 (1982)). In other words, “vindictiveness principles are triggered when a prosecutor without notice increases the possible sanction severity for no valid reason after the defendant has exercised a procedural right.” People v. Walker, 84 Ill. 2d 512, 523-24 (1981) (plurality opinion). ¶ 44 In some cases, the facts give rise to a presumption of vindictiveness. “Ordinarily, a presumption of prosecutorial vindictiveness exists where a prosecutor brings additional charges - 16 - and more serious charges against a defendant after the defendant has successfully overturned a conviction, effectively subjecting the defendant to greater sanctions for pursuing a statutory or constitutional right.” Rendak, 2011 IL App (1st) 082093, ¶ 16. “No such presumption, however, automatically exists in the pretrial setting where a prosecutor has broad discretion in charging a defendant.” Rendak, 2011 IL App (1st) 082093, ¶ 16. ¶ 45 Here, the parties submit competing views about whether the presumption of vindictiveness applies. Defendant argues the presumption applies, though he candidly acknowledges the facts do “not squarely fit within the framework of prosecutorial vindictiveness case law.” Defendant relies on cases where the State filed new or enhanced charges after the defendant successfully challenged his initial conviction—through an appeal or a motion to withdraw a plea, for example. Here, by contrast, the trial court sua sponte vacated defendant’s guilty plea upon discovering that the court had admonished defendant incorrectly. ¶ 46 Courts have held the presumption of vindictiveness does not arise when the prosecution modifies charges after a trial court sua sponte declares a mistrial. See United States v. Whaley, 830 F.2d 1469, 1479 (7th Cir. 1987), abrogated in part on other grounds by, United States v. Durrive, 902 F.2d 1221 (7th Cir. 1990); Sisson v. State, 985 N.E.2d 1, 11-12 (Ind. Ct. App. 2012). The reason is that, if the defendant “exercised no statutory or constitutional right,” he cannot claim he was penalized for or discouraged from exercising such right. Whaley, 830 F.2d at 1479. ¶ 47 This reasoning applies here. The premise of the prohibition against vindictive prosecutions is that it is improper “[t]o punish a person because he has done what the law plainly allows him to do.” Goodwin, 457 U.S. at 372. Where a trial court sua sponte vacates an open guilty plea before sentencing to correct its own error, the defendant has exercised no right for - 17 - which he could be punished vindictively. Moreover, courts recognize a presumption of vindictiveness only in situations where there is a “realistic likelihood” of vindictiveness, as opposed to “a mere opportunity for vindictiveness.” (Internal quotation marks omitted.) Goodwin, 457 U.S. at 384. We see no realistic likelihood a prosecutor would punish a defendant for a trial court correcting its own mistake in giving faulty admonishments. ¶ 48 Even if the presumption of vindictiveness applied here, we believe the State rebutted it. The prosecutor had a valid reason to enhance the classification of defendant’s aggravated DUI charge, as the PSI revealed defendant had four prior DUI convictions, not three. Although defendant insists the State “had all the information available to it to charge the Class 1 offense when it initially brought charges,” the pretrial bond report did not list defendant’s 1985 DUI conviction. Defendant insists “it was the State’s responsibility to exercise its due diligence to be aware of the number of [his] prior convictions.” But even if the State could have or should have discovered the 1985 conviction sooner, inadvertence or negligence is not vindictiveness. This is not a case like People v. Brexton, 405 Ill. App. 3d 989, 995 (2010), for example, where the State knew all relevant facts before the defendant entered his guilty plea. There is also no support for defendant’s assertion that the prosecutor’s “explanation was disingenuous” as to the reason for enhancing the charge. Nor can defendant claim surprise, as he presumably knew his own criminal record. ¶ 49 The State thus acted appropriately when it filed a new charge upon receiving new information. Accordingly, we reject defendant’s claims of plain error and ineffective assistance of counsel. ¶ 50 C. Excessive Sentence ¶ 51 Finally, defendant argues his 10-year sentence is excessive. - 18 - ¶ 52 The Illinois Constitution specifies that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. 1, § 11. The purposes of sentencing include retribution, deterrence, incapacitation, and rehabilitation. People v. Wheeler, 2019 IL App (4th) 160937, ¶ 37. “Which of these purposes predominates in a given case is a matter left to the sound discretion of the trial court.” Wheeler, 2019 IL App (4th) 160937, ¶ 37. We accord great deference to the trial court’s sentencing decision because that court is “ ‘in the best position to consider the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age.’ ” People v. Klein, 2022 IL App (4th) 200599, ¶ 38 (quoting People v. Etherton, 2017 IL App (5th) 140427, ¶ 15). We presume a sentence is proper if it falls within the statutory penalty range. Klein, 2022 IL App (4th) 200599, ¶ 37. Absent explicit evidence to the contrary, we also presume the court considered all mitigating factors. People v. Harris, 2015 IL App (4th) 140696, ¶ 57. “A sentence within the statutory range will not be deemed excessive, and will not be disturbed, unless it is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense.” Harris, 2015 IL App (4th) 140696, ¶ 55. ¶ 53 Defendant maintains the trial court “did not meaningful[ly] take into account the fact that [defendant] accepted responsibility for his actions.” He also contends his history of abusing alcohol should be deemed a mitigating factor in light of his nonviolent criminal history. According to defendant, he “is in greater need of treatment than a lengthy period of incarceration.” Defendant further asserts the court did not fully consider his potential for rehabilitation. In that respect, defendant notes he has an associate degree, he previously owned a - 19 - business, he responded well to alcohol abuse treatment in the past, and he expressed a desire to abstain from alcohol. ¶ 54 Defendant was under the influence of alcohol when he drove around a roadblock meant to protect workers who were responding to an accident in a construction zone. This was defendant’s fifth DUI offense, and he also had a long history of other traffic violations. Fortunately, a police officer pulled defendant over before anybody got hurt. The trial court recognized that, although defendant did not contemplate harming anyone, the result easily could have been different. The court also considered that defendant failed to take advantage of his lenient sentence for aggravated DUI in 2016. Defendant wrote a note apologizing for his actions, vowing to abstain from alcohol and to serve his sentence with “honor, integrity and supplication.” However, defendant also left Illinois after he posted bond in this case, and he apparently returned in a substance-induced psychosis. ¶ 55 The sentencing range was 4 to 15 years in prison. 730 ILCS 5/5-4.5-30(a) (West 2018). The court also had the discretion to order defendant’s sentence to run consecutively to his sentence in case number 16-CF-42. 730 ILCS 5/5-8-4(c)(1) (West 2018). The court sentenced defendant to 10 years in prison and declined to impose consecutive sentencing. ¶ 56 We find no abuse of discretion. Clearly, defendant has an alcohol-abuse problem and would benefit from treatment. To that end, we note the trial court recommended defendant for a substance abuse program operated by the Department of Corrections. Defendant also has the potential for rehabilitation, and nothing in the trial court’s ruling suggested otherwise. On the other hand, defendant’s addiction and poor choices have manifested themselves repeatedly in actions that endanger the public, leaving the trial court with no choice but to impose a prison sentence. We determine the trial court properly accounted for and weighed all relevant factors - 20 - and circumstances. We cannot say defendant’s sentence was greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. ¶ 57 III. CONCLUSION ¶ 58 For the reasons stated, we affirm the trial court’s judgment. ¶ 59 Affirmed. - 21 - People v. Page, 2022 IL App (4th) 210374 Decision Under Review: Appeal from the Circuit Court of Woodford County, No. 19-CF- 127; the Hon. Michael L. Stroh, Judge, presiding. Attorneys James E. Chadd, Douglas R. Hoff, and Stephanie T. Puente, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant: Attorneys Gregory Minger, State’s Attorney, of Eureka (Patrick Delfino, for David J. Robinson, and Linda Susan McClain, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People. - 22 -