FILED NO. 4-17-0399 August 2, 2019 Carla Bender 4th 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. ) Champaign County CHALEAH BURGE, ) No. 16CM1074 Defendant-Appellant. ) ) Honorable ) John R. Kennedy, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court, with opinion. Presiding Justice Holder White concurred in the judgment and opinion. Justice Harris specially concurred, with opinion.

OPINION ¶1 In March 2017, defendant, Chaleah Burge, pleaded guilty to one count of theft,

and the trial court sentenced her to conditional discharge. Later that month, defendant filed a

motion to withdraw her guilty plea and to vacate the judgment, which the court denied.

¶2 On appeal, defendant argues the trial court erred in denying her motion to

withdraw her guilty plea. We affirm.

¶3 I. BACKGROUND

¶4 In November 2016, the State charged defendant by information with one count of

theft, a Class A misdemeanor (720 ILCS 5/16-1(a)(1)(A), (b)(1) (West 2016)), alleging she

knowingly exerted unauthorized control over property of Jane Bond, namely United States

currency having a value not in excess of $500, intending to permanently deprive her of the use or

benefit of the property. ¶5 On March 20, 2017, defendant entered a fully negotiated guilty plea to the

charged offense. Prior to accepting her guilty plea, the trial court admonished defendant pursuant

to Illinois Supreme Court Rule 402(a) (eff. July 1, 2012). According to the State’s factual basis,

Bond had undergone knee replacement and was receiving home care from defendant, who

worked for Help At Home. On or about September 1, 2016, Bond and defendant ran errands, and

Bond cashed a $280 check. While Bond went into a store, she left her purse in the vehicle with

defendant. After running more errands, Bond discovered the money was missing.

¶6 The trial court accepted defendant’s guilty plea. Thereafter, the court sentenced

her to 12 months’ conditional discharge, imposed various fines and fees, and ordered her to

complete an online shoplifting education class.

¶7 Ten days after pleading guilty, defendant filed a motion to withdraw her guilty

plea and to vacate the judgment, claiming it was not voluntarily entered. Defendant asserted she

was afraid of losing her job if she continued missing work for court proceedings and felt

pressured to plead guilty to resolve the case and maintain her employment. She claimed she was

unaware she would lose her job if she pleaded guilty. Further, she stated the trial court did not

inform her of the collateral consequences of a theft conviction on her ability to obtain and retain

employment as required by section 113-4 of the Code of Criminal Procedure of 1963 (Code)

(725 ILCS 5/113-4 (West 2016)), which was in effect when she pleaded guilty. As a result of her

guilty plea, defendant lost her employment.

¶8 In May 2017, the trial court conducted a hearing on defendant’s motion.

Defendant testified she was 23 years old. She is licensed as a certified nursing assistant and had

been employed at Aging In Place on the day she pleaded guilty. On March 28, 2017, defendant

was informed by her employer that the State had notified it of her theft conviction. Defendant

-2- was fired because of her conviction and had been unable to find additional employment in home

health care. She testified she did not realize she would lose her job by pleading guilty and would

not have done so had she known.

¶9 In its ruling, the trial judge stated he considered section 113-4 of the Code, Illinois

Supreme Court Rule 402 (eff. July 1, 2012), and various cases. The judge stated, in part, as

follows:

“I think that the statute that the defendant cites is directory. There

are no direct, immediate and automatic consequences under the

court’s control that deal with employment. What Rule 402 is about

is advising the defendant of those constitutional rights that she has

that are involved with the criminal process and that she is made

aware of and then is advised giving up through the entry of a plea

of guilty. It’s clear that this is done in a voluntary fashion by—

according to the record, that this is done in a voluntary fashion by

[defendant]. She was advised, as she was supposed to be, by

Supreme Court Rule 402 of the nature of the charge, the range of

penalties and those essential constitutional rights that are in Rule

402. That is the right to require the presumption of innocence, the

right to require proof beyond a reasonable doubt, the right to

confront and cross[-]examine witnesses, the right to proceed to

trial, trial by jury or trial by judge, the right to present witnesses

and evidence on your behalf, [and] the right to testify or choose not

to testify. Those are the fundamental constitutional rights that are

-3- at issue when someone enters a plea of guilty and those

[defendant] was advised of. That’s what’s consistent with Rule

402. So, in addition to the statute being one that’s directory, the

consequences that I believe on the facts [defendant] did suffer are

collateral. ***

The supreme court has decided what’s—what a person has

to be advised of when they enter a plea of guilty. That is not what’s

in the, the statute. And I, I think it’s correct that the legislature

cannot add to what’s constitutionally required by the supreme

court rule.

So really the, the question then becomes, because I think

the statute cannot be imposed on the court, it is directory rather

than mandatory and it does deal with collateral consequences. To

say they’re collateral doesn’t mean they’re not important because

these things are important. Housing, employment, the ability to

have an occupational license or a firearm, driver’s license are

important. They’re not trivial. These are important things. That’s—

I think that’s why the statute addresses it. But they are collateral.”

While Rule 402 is designed to inform defendants of the constitutional issues involved in pleading

guilty, the judge believed adding other issues “runs the risk of essentially watering down the

explanation of rights that someone receives because what they’re supposed to be advised of [are]

those constitutional rights that a criminal defendant has at the time of entry of the plea. And

that’s what was done.”

-4- ¶ 10 The trial judge also considered whether a manifest injustice occurred in

defendant’s plea of guilty, i.e., whether there was a misapprehension of facts or law or where

there was doubt as to defendant’s guilt and whether justice would be better served through a trial.

The judge found nothing to indicate defendant misapprehended the facts or the law of the case or

that there was any doubt as to her guilt. As a result of his findings, the judge denied defendant’s

motion. This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 Defendant argues the trial court erred in denying her motion to withdraw her

guilty plea because the court’s failure to admonish her as required by section 113-4 of the Code

violated a mandatory statutory provision or, alternatively, because accepting the plea after the

inadequate admonishments resulted in a manifest injustice. We disagree.

¶ 13 A. Section 113-4(c) of the Code

¶ 14 Initially, we question whether section 113-4(c) of the Code even applies in this

case. In effect at the time of defendant’s guilty plea in this case, section 113-4 of the Code (725

ILCS 5/113-4 (West 2016)) provided, in part, as follows:

“(a) When called upon to plead at arraignment, the

defendant shall be furnished with a copy of the charge and shall

plead guilty, guilty but mentally ill, or not guilty.

(b) If the defendant stands mute a plea of not guilty shall be

entered for him and the trial shall proceed on such plea.

(c) If the defendant pleads guilty such plea shall not be

accepted until the court shall have fully explained to the defendant

the following:

-5- (1) the maximum and minimum penalty

provided by law for the offense which may be

imposed by the court;

(2) as a consequence of a conviction or a

plea of guilty, the sentence for any future conviction

may be increased or there may be a higher

possibility of the imposition of consecutive

sentences;

(3) as a consequence of a conviction or a

plea of guilty, there may be registration

requirements that restrict where the defendant may

work, live, or be present; and

(4) as a consequence of a conviction or a

plea of guilty, there may be an impact upon the

defendant’s ability to, among others:

(A) retain or obtain housing

in the public or private market;

(B) retain or obtain

employment; and

(C) retain or obtain a firearm,

an occupational license, or a driver’s

license.

-6- After such explanation if the defendant understandingly persists in

his plea it shall be accepted by the court and recorded.”

Here, when accepting her guilty plea, the trial court did not advise defendant of the possible

consequences pleading guilty might have on her ability to retain or obtain employment.

¶ 15 In People v. Phillips,

,

(2011), during

a discussion of the in absentia warnings required under subsection (e), our supreme court noted

how “[s]ection 4 of article 113 of the Code governs when a defendant is called upon to plead at

arraignment.” In that case, the court had to construe section 113-4(e) of the Code (725 ILCS

5/113-4(e) (West 2000)), which pertained to admonishments in regard to a possible trial

in absentia, and found it “applies only to a defendant when he appears in open court and pleads

not guilty at the time of his arraignment, or is present in court at any later date after his

arraignment.” Phillips,

.

¶ 16 While there is nothing to preclude a court from including the admonishments of

section 113-4(c) at a later time, pleas after arraignment are covered by Illinois Supreme Court

Rule 402 (eff. July 1, 2012). Prior to the enactment of Rule 402 in 1970, section 113-4 read as

follows:

“(a) When called upon to plead at arraignment the defendant shall

be furnished with a copy of the charge and shall plead guilty or not

guilty.

(b) If the defendant stands mute a plea of not guilty shall be

entered for him and the trial shall proceed on such plea.

(c) If the defendant pleads guilty such plea shall not be

accepted until the court shall have fully explained to the defendant

-7- the consequences of such plea and the maximum penalty provided

by law for the offense which may be imposed by the court. After

such explanation if the defendant understandingly persists in his

plea it shall be accepted by the court and recorded.” Ill. Rev. Stat.

1965, ch. 38, § 113-4.

¶ 17 As the supreme court noted in People v. Brouhard,

,

(1972), at the time of the defendant’s plea in that case, this section plus then-

Illinois Supreme Court Rule 26(3) (Ill. Rev. Stat. 1965, ch. 110, § 101.26(3)) contained the

admonishments previously required before a trial court could accept a guilty plea. In 1970, the

supreme court approved Rule 402 governing the acceptance of guilty pleas, which contained

everything found in then-section 113-4 and Rule 26(3) (which became Rule 401 before its final

version as Rule 402). Ill. S. Ct. R. 402 (eff. Sept. 1, 1970). From the plain language of the earlier

version of section 113-4 quoted above, it would appear to relate specifically to the time of

arraignment. The subsections outline three possibilities that might occur at arraignment—

entering a plea of guilty, entering a plea of not guilty, or standing mute and entering no plea. If a

plea of not guilty or no plea was entered, the matter was to be set for trial. If a plea of guilty was

being entered, certain admonishments were required in addition to those found in then-Rule

26(3), i.e., that the defendant understands the nature of the charge and the consequences if found

guilty.

¶ 18 The rationale for such an application can be found in cases interpreting other

subsections within section 113-4. In People v. Garner,

,

(1992), the supreme court discussed the importance of in absentia warnings during

arraignment to prevent a defendant from frustrating the trial process. “Given that the necessity of

-8- trial is determined at arraignment, we believe that the admonishment is most effective at that

time, when the defendant is also being informed of other significant protections, such as the right

to counsel and the right to a jury trial.” Garner,

. The court went on to note,

“[w]e do not read section 113-4(e) as providing the court with an option for when the admonition

should be given as much as we read it as not precluding an opportunity for a later

admonishment.” Garner,

.

¶ 19 In People v. Castro,

,

(1983), the

First District stated the admonishments under then-section 113-4(d) “should be given at the

arraignment.” The court noted however, if the admonishments were not given, they were to be

given at some later date. Castro,

.

¶ 20 Most notably, subsection (e) is the only one to include the additional reference to

“any later court date.” No such qualifying language is present in any of the other subsections.

The logic of applying subsection (c) to arraignments would appear self-evident. It is only

reasonable, in light of the now all-inclusive language of Rule 402, that defendants seeking to

plead guilty at arraignment would require admonitions beyond those otherwise required under

the rule. At arraignment, a defendant would have little, if any, access to counsel, would not have

seen the State’s discovery material, and would not have had any opportunity to test the State’s

evidence with pretrial motions. A defendant would not necessarily be aware of all the possible

ramifications to a guilty plea, which might otherwise be explained by appointed or retained

counsel if a plea was contemplated at a later stage of the proceedings.

¶ 21 In Phillips,

, the supreme court expressly found section 113-4 of

the Code pertains to pleas at arraignment—whether they be guilty or not guilty. In fact,

-9- admonishments that only contained the former language of section 113-4 would not be sufficient

to support a plea of guilty at a later stage in the proceedings.

¶ 22 In People v. Packard,

,

(1991), the

Second District found admonishments given at arraignment were not sufficient since

“admonitions given at proceedings prior to guilty plea proceedings do not amount to substantial

compliance with Rule 402.” As a result, the court remanded the defendant’s case to allow him to

withdraw his plea, where the State sought to rely on admonishments given at arraignment

regarding the possible minimum and maximum sentences, which were not otherwise covered at

the time of the plea. Packard,

.

¶ 23 In People v. Louderback,

,

(1985), this court found admonishments given at arraignment could not be relied upon to remedy

the lack of such admonishments at a subsequent hearing on a plea of guilty and did not amount to

substantial compliance with Rule 402. In a lengthy discussion of substantial compliance with

Rule 402, as well as an exhaustive listing of Illinois cases where substantial compliance was

either found or absent, this court in People v. Sutherland,

,

(1984), reiterating its holding in People v. Porter,

,

(1978), stated that “ ‘[t]o hold that admonitions given at earlier proceedings

in a particular case or in other concurrent cases carry over to a subsequent hearing on a plea of

guilty violates the spirit and purpose of Rule 402.’ ” Sutherland,

,

(quoting Porter,

,

).

¶ 24 Under the language of section 113-4(c), such admonishments might be sufficient

if defendant were pleading at the time of arraignment. Substantial compliance with Rule 402 is

what is required for all later proceedings. This is not to say the admonitions in section 113-4(c)

- 10 - could not be given later, but we have found no case where the later failure to give section 113-

4(c) admonishments has been considered error. Under the plain reading of the statute, they are to

be given at the time of arraignment.

¶ 25 Defendant complains that when the trial court accepted her guilty plea, it did not

advise her of the possible consequences pleading guilty might have on her ability to retain or

obtain employment. The admonishments required under subsection (c) do not apply in this case,

where defendant did not plead guilty at her arraignment. Thus, we find no error.

¶ 26 B. Mandatory or Permissive and Mandatory or Directory

¶ 27 Even if we were to find the admonishments of section 113-4 applicable to this

case, we would still find defendant’s argument that the trial court’s failure to admonish her as

required by section 113-4 violated a mandatory statutory provision without merit.

¶ 28 Our supreme court has noted two questions arise when considering the duty

imposed by a statute’s language and whether any possible consequences result from failing to

follow the dictates of the legislature. People v. Delvillar,

,

(2009). First, it must be determined whether the statute is mandatory or permissive.

Delvillar,

. “ ‘[T]he term “mandatory” refers to an obligatory duty which a

governmental entity is required to perform, as opposed to a permissive power which a

governmental entity may exercise or not as it chooses.’ ” People v. Robinson,

,

(2005) (quoting Morris v. County of Marin,

,

(1977)).

¶ 29 Under the language of section 113-4 of the Code, the trial court shall not accept a

guilty plea until the court fully explains the various consequences the defendant faces, including

the fact a guilty plea may have an impact on a defendant’s ability to retain or obtain employment.

- 11 - The language of the statute is mandatory, as the court does not have discretion in giving the

admonishment. See Delvillar,

. Thus, assuming it applies, the statute is

mandatory because it imposes an obligation on the court to give the explanation.

¶ 30 Now that the mandatory or permissive question has been answered, courts turn to

the second question to decide whether a statutory provision is mandatory or directory. Delvillar,

. “Under the mandatory or directory question, ‘statutes are mandatory if the

intent of the legislature dictates a particular consequence for failure to comply with the

provision.’ ” In re M.I.,

,

(quoting Delvillar,

). “However, in the absence of such legislative intent[,] ‘the statute is directory and no

particular consequence flows from noncompliance.’ ” M.I.,

(quoting

Delvillar,

); see also People v. Four Thousand Eight Hundred Fifty Dollars

($4,850) United States Currency,

,

(stating

“noncompliance with a mandatory provision vitiates the governmental action, whereas

noncompliance with a directory provision has no such effect”).

“ ‘With respect to the mandatory/directory dichotomy, we

presume that language issuing a procedural command to a

government official indicates an intent that the statute is directory.’

Delvillar,

. This presumption is overcome, and

the provision will be read as mandatory, under either of two

conditions: (1) when there is negative language prohibiting further

action in the case of noncompliance or (2) when the right the

provision is designed to protect would generally be injured under a

directory reading.” M.I.,

.

- 12 - Whether a statute is mandatory or directory is a question of statutory construction that courts

review de novo. Delvillar,

.

¶ 31 Defendant concedes the legislature did not explicitly dictate a particular

consequence for a trial court’s failure to comply with section 113-4(c)(4)(B) and, thus, the statute

is presumed to be directory. See Delvillar,

. However, defendant contends

the presumption is overcome because the right the provision is designed to protect would

generally be injured under a directory reading.

¶ 32 In Delvillar,

, the supreme court considered the mandatory-

directory question in regard to section 113-8 of the Code (725 ILCS 5/113-8 (West 2006)),

which required the trial court to advise noncitizen defendants that a conviction could have “ ‘the

consequences of deportation, exclusion from admission to the United States, or denial of

naturalization under the laws of the United States.’ ” (Internal quotation marks omitted.) While

presuming the language was directory, the court stated the presumption could be overcome and

the provision found to be mandatory “when there is negative language prohibiting further action

in the case of noncompliance or when the right the provision is designed to protect would

generally be injured under a directory reading.” Delvillar,

. The court found

neither condition applicable. Delvillar,

.

¶ 33 In looking at the second condition, the court stated “[t]he right to be protected

here is the right of a defendant to intelligently waive a jury trial and enter a guilty plea.”

Delvillar,

. The court found section 113-8 sought to protect this right by

informing noncitizen defendants that possible immigration consequences could arise by pleading

guilty. Delvillar,

. The court then asked “whether the right that the statute

- 13 - intends to protect would be generally injured by a directory reading of the statute.” Delvillar,

.

¶ 34 The supreme court decided it could not conclude “the right the legislature

intended to protect would generally be injured.” Delvillar,

. The court found the

lack of the required admonishment would have no impact on a United States citizen desiring to

plead guilty. Delvillar,

. While the court found a noncitizen defendant’s right to

intelligently waive a jury trial and plead guilty might be affected by the lack of the

admonishment, “a defendant may have reasons for pleading guilty even in the face of such

consequences.” Delvillar,

. “Thus, because a defendant’s right to waive a jury

trial and enter a guilty plea will not necessarily be harmed in the absence of the admonishment,

we conclude that the presumption of a directory reading of section 113-8 is not overcome.”

Delvillar,

. The court stated as follows:

“In summary, we conclude that section 113-8 is mandatory

in that it imposes an obligation on the circuit court to admonish all

defendants of the potential immigration consequences of a guilty

plea. However, the admonishment is not mandatory with respect to

the mandatory-directory dichotomy. Thus, failing to issue the

admonishment does not automatically require the court to allow a

motion to withdraw a guilty plea. Rather, the failure to admonish a

defendant of the potential immigration consequences of a guilty

plea is but one factor to be considered by the court when ruling on

a defendant’s motion to withdraw a guilty plea.” Delvillar,

.

- 14 - ¶ 35 In looking at section 113-4 in this case, the right to be protected is the right of a

defendant to intelligently waive a jury trial and plead guilty. Section 113-4 attempts to protect

this right by informing defendants of various consequences that could arise by pleading guilty,

including, inter alia, higher sentences for any future convictions; restrictions on where a

defendant may work, live, or be present; or the inability to obtain housing, employment, a

firearm, or a driver’s license. The legislature clearly thought this information would be important

to a defendant when making the decision to plead guilty.

¶ 36 We next ask whether the right the statute intends to protect would be generally

injured by a directory reading of the statute. We find it would not. The presence or absence of

this admonishment does not affect a defendant’s right to waive a jury trial in general. A

defendant may have reasons for pleading guilty even in the face of employment consequences.

For example, even with the possibility of adverse employment consequences, a defendant may

still wish to plead guilty in hopes of avoiding jail time.

¶ 37 Moreover, as it applies in this case, when a defendant is convicted of or pleads

guilty to pilfering money from a client in the course of employment, common sense dictates that

particular job as well as future employment in a similar field could be negatively impacted. Thus,

like in Delvillar, the failure to provide the admonishment under section 113-4 does not

automatically require the trial court to allow a motion to withdraw a guilty plea. Instead, the

failure to admonish a defendant of the potential employment consequences of a guilty plea is but

one factor to be considered by the court when ruling on such a motion.

¶ 38 C. Manifest Injustice

¶ 39 In the alternative, defendant argues (1) she was prejudiced by the trial court’s

failure to admonish her as required by section 113-4, (2) a manifest injustice occurred when the

- 15 - court accepted her plea, and (3) her motion to withdraw her guilty plea should have been

allowed. We disagree.

¶ 40 “A defendant has no absolute right to withdraw his guilty plea.” People v.

Hughes,

,

. Instead, a “defendant must show a manifest

injustice under the facts involved.” Delvillar,

.

“ ‘Where it appears that the plea of guilty was entered on a

misapprehension of the facts or of the law, or in consequence of

misrepresentations by counsel or the State’s Attorney or someone

else in authority, or the case is one where there is doubt of the guilt

of the accused, or where the accused has a defense worthy of

consideration by a jury, or where the ends of justice will be better

served by submitting the case to a jury, the court should permit the

withdrawal of the plea of guilty and allow the accused to plead not

guilty.’ ” People v. Davis,

,

(1991) (quoting People v. Morreale,

,

(1952)).

“To vacate a plea based on a misapprehension of law or fact, the defendant must establish that

her mistaken beliefs or impressions were reasonably justified under all the circumstances when

those circumstances are judged by an objective standard rather than by the defendant’s own

subjective impression.” People v. Christensen,

,

(1990).

¶ 41 A trial court has discretion to permit a defendant to withdraw his guilty plea, and

that decision will not be reversed on appeal absent an abuse of discretion. People v. Manning,

- 16 -

,

(2008). “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.” Delvillar,

.

¶ 42 When considering whether the trial court erred in granting or denying a motion to

withdraw a guilty plea, “a reviewing court focuses on whether the guilty plea was affirmatively

shown to have been made voluntarily and intelligently.” Delvillar,

. “[W]ith

respect to voluntariness, the pertinent knowledge to be provided by the court prior to accepting a

guilty plea includes only the direct consequences of the defendant’s plea.” Delvillar,

. “A trial court’s obligation to ensure that a defendant understands the direct consequences

of his plea traditionally encompasses those consequences that affect the defendant’s sentence and

other punishment that the circuit court may impose.” Hughes,

.

“Collateral consequences, on the other hand, are effects

upon the defendant that the circuit court has no authority to

impose. A collateral consequence is one that results from an action

that may or may not be taken by an agency that the trial court does

not control. [Citation.] Due process does not require that the

defendant be informed of the collateral consequences of a guilty

plea.” Delvillar,

.

“Examples of collateral consequences have included loss of employment, loss of voting rights,

license suspension, and dishonorable discharge from the military.” Hughes,

.

¶ 43 As the supreme court has found, loss of employment is a collateral consequence.

See People v. Williams,

,

(1999). Thus, the failure to

- 17 - admonish a defendant of potential employment consequences does not affect the voluntariness of

the plea. Although the failure to admonish a defendant of the collateral consequence of the

potential loss of employment does not rise to the level of a constitutional violation, “reversal may

yet be required if real justice has been denied or if the defendant has been prejudiced by the

inadequate admonishment.” Delvillar,

.

¶ 44 At the hearing on the motion to withdraw the guilty plea, the trial court

considered whether defendant showed a manifest injustice under the facts. While the court found

defendant was adversely impacted by her decision to plead guilty, i.e., she later lost her job,

nothing indicates there was any doubt of defendant’s guilt or that she was acting under a

misapprehension of the facts or of the law at the time she pleaded guilty. Although defendant

claims she acted under a misapprehension of how pleading guilty would impact her employment,

this belief is dubious given the fact she stole from one of her clients while on the job. It is

common sense that any health care provider, current or future, would have legitimate concerns

about an employee’s ability to care for a patient when he or she is found to have committed a

crime against a patient. We find defendant has failed to meet her burden to establish she entered

her plea of guilty on a misapprehension of fact or law. Thus, no manifest injustice occurred.

Accordingly, the court did not abuse its discretion in denying defendant’s motion to withdraw

her guilty plea.

¶ 45 III. CONCLUSION

¶ 46 For the reasons stated, we affirm the trial court’s judgment.

¶ 47 Affirmed.

¶ 48 JUSTICE HARRIS, specially concurring:

¶ 49 I agree that the trial court’s denial of defendant’s motion to withdraw her guilty

- 18 - plea should be affirmed. However, I write separately to express my disagreement with the

majority decision on two points. First, I disagree with the majority’s determination that section

113-4(c) of the Code pertains only to guilty pleas entered at the time of arraignment. I find that

section is not so limited and the admonishments contained therein are required any time a

defendant pleads guilty. On this point, I note not even the State disputes the applicability of

section 113-4(c) admonishments to the guilty plea hearing in this case. Second, although I

ultimately agree that section 113-4(c) is a directory statute, I disagree with the analysis the

majority uses to reach that conclusion in the present case.

¶ 50 Here, the majority concludes that the admonishments required under section 113-

4(c) of the Code did not apply to defendant because she “did not plead guilty at her

arraignment.” Supra ¶ 25. In so holding, it cites cases finding that section 113-4 admonishments

should be given at the time of arraignment, including the supreme court’s decision in Phillips,

. It cites language from Phillips that “ ‘[s]ection 4 of article 113 of the Code

governs when a defendant is called upon to plead at arraignment.’ ” Supra ¶ 15 (quoting Phillips,

).

¶ 51 Given its holding, the majority clearly interprets the aforementioned statement in

Phillips as suggesting that section 113-4 applies only when a defendant pleads guilty at

arraignment. In doing so, it reads a limitation into that case that was not expressed by the

supreme court. In my view, the statement in Phillips that section 113-4 “governs” when a

defendant pleads at arraignment reflects that the admonishments in that section are required to be

given at that time. I have no quarrel with this proposition. I simply find that it does not also

suggest that they are not required when a defendant pleads guilty at some later stage of the case.

I note that subsection (c) of section 113-4 of the Code does not contain the word “arraignment,”

- 19 - and I find no supreme court decision that limits its applicability in the same manner as the

majority. See Brouhard,

(finding that the duty of trial courts in admonishing

defendants was governed by section 113-4(c) of the Code in a case where the defendant pleaded

guilty on the morning his case was set for trial); People v. Medina,

,

(2006) (generally stating that section 113-4(c) of the Code “requires that a

defendant’s plea of guilty ‘shall not be accepted until the court’ ” admonishes the defendant as

set forth therein (quoting 725 ILCS 5/113-4(c) (West 2002))).

¶ 52 Additionally, I find the supreme court’s decision in Delvillar,

, is

instructive. There, the defendant filed a motion to withdraw his guilty plea, arguing he was not

properly admonished about the possible immigration consequences of his guilty plea pursuant to

section 113-8 of the Code (725 ILCS 5/113-8 (West 2006)). Delvillar,

. Both

then and now, section 113-8 requires that before accepting a defendant’s guilty plea, the trial

court must admonish a defendant that if he or she is a noncitizen, a conviction for the charged

offense may result in deportation, exclusion from admission to the United States, or denial of

naturalization under the laws of this country. 725 ILCS 5/113-8 (West 2016).

¶ 53 Of particular note, the defendant in Delvillar pleaded guilty more than two years

after he was charged and well after his arraignment. Delvillar,

.

Notwithstanding that the statutes involved in the instant case and Delvillar are both contained in

article 113 of the Code—entitled “Arraignment”—the supreme court did not find, as the majority

finds here, that the statutory admonishments apply only to guilty pleas at arraignment. Instead, it

considered whether section 113-8 was “mandatory or directory” to determine whether reversal

was required—the same analysis engaged in by the parties in this appeal. See

.

Ultimately, the court determined that trial courts have an obligation “to admonish all defendants

- 20 - of the potential immigration consequences of a guilty plea” under section 113-8, but with respect

to the mandatory-directory dichotomy, the statute is directory.

. It seems unlikely that

the court would have engaged in the analysis that it did if, simply due to section 8’s location in

article 113 of the Code it could have held that the statutory admonishments pertain only to guilty

pleas at arraignment.

¶ 54 Finally, the majority states that it has “found no case where the later failure to

give section 113-4(c) admonishments has been considered error.” Supra ¶ 24. I note, however,

that the specific section 113-4(c) admonishments at issue in this appeal, addressing the collateral

consequences of pleading guilty, are the result of recent amendments to the statute that became

effective on January 1, 2017. See Pub. Act 99-871, § 5 (eff. Jan. 1, 2017) (amending 725 ILCS

5/113-4). Prior to that date, section 113-4(c) required only that the trial court admonish a

defendant pleading guilty regarding “the consequences of such plea and the maximum penalty

provided by law for the offense which may be imposed by the court.” 725 ILCS 5/113-4(c)

(West 2014). Also, the preamended version of 113-4(c) was less specific than the guilty plea

admonishments otherwise required by Illinois Supreme Court Rule 402 (eff. July 1, 2012).

Accordingly, given the recent amendments to section 113-4(c) and the fact that the

admonishments required under the previous version of the statute were encompassed within

those required by Rule 402, the lack of relevant case authority on the subject is no surprise.

¶ 55 I find only two appellate court decisions, both from the Third District, addressing

the amended version of section 113-4(c), and both do so in the context of whether the January

2017 amendments to that section should apply retroactively. See People v. Stefanski,

, and People v. Young,

. Neither case analyzes section

113-4(c) as the majority does nor do they hold that its admonishments apply only at the time of

- 21 - arraignment. Further, I note that, in Young, the defendant pleaded guilty more than five months

after the State filed charges against her, making it unlikely that she pleaded guilty at her

arraignment. Id. ¶ 3. In that case, the court also stated that if it had found remand was necessary

due to “some other error in the proceedings ***, the amended admonishment statute would apply

when the matter return[ed] to the circuit court.” Id. ¶ 27. Ultimately, neither of these cases

support the majority’s analysis, and Young, in fact, appears to contradict the majority’s holding.

¶ 56 As stated, although I disagree with the majority’s analysis and find that section

113-4(c) of the Code is not limited to guilty pleas at arraignment, I nevertheless agree with its

ultimate determination that section 113-4(c) is a directory statute, as well as its decision to affirm

the trial court’s judgment. That being said, I find that section 113-4(c) is a directory statute for

different reasons than those expressed by the majority.

¶ 57 “With respect to the mandatory/directory dichotomy, we presume that language

issuing a procedural command to a government official indicates an intent that the statute is

directory.” Delvillar,

. However, the presumption is overcome under either of

two conditions: (1) “when there is negative language prohibiting further action in the case of

noncompliance” or (2) “when the right the provision is designed to protect would generally be

injured under a directory reading.”

Here, I think the majority too quickly accepts defendant’s

concession that the first condition was not met.

¶ 58 In Delvillar, when analyzing whether section 113-8 of the Code was mandatory or

directory, the supreme court found no “negative language prohibiting further action.”

The

court elaborated on its finding by noting as follows: “For example, the statute does not prevent

the circuit court from accepting defendant’s guilty plea if the court fails to give the section 113-8

admonishment.”

Here, section 113-4(c) does contain such language, providing that the court

- 22 - “shall not” accept a guilty plea in the absence of the admonishments set forth therein. 725 ILCS

5/113-4(c) (West 2016). This language suggests a mandatory reading of the statute.

¶ 59 However, “[a] statute should be interpreted so as to avoid a construction which

would raise doubts as to its validity.” People v. Davis,

,

(1982). Where a mandatory interpretation of a statutory provision would make it constitutionally

invalid based on separation-of-powers principles, the provision should be held to be directory.

People v. Gray,

,

(2006); see also Davis,

.

¶ 60 Shortly before Delvillar was decided by the supreme court, this court addressed

the same section 113-8 issue in People v. Manoharan,

,

(2009). There, we also concluded that section 113-8 was directory rather than mandatory.

. However, in so holding, we stated that if section 113-8 was determined to be mandatory, it

would violate the separation of powers clause of the Illinois Constitution.

(citing Ill. Const.

1970, art. II, § 1). We found as follows:

“Our supreme court has already set forth with specificity the admonitions

that trial courts are required to give defendants prior to accepting a plea of guilty

in [Illinois] Supreme Court Rule 402 [(eff. July 1, 1997)]. Accordingly, if section

113-8 were a legislative mandate to further admonish a defendant, the section

would violate the separation-of-powers clause of the Illinois Constitution by

treading upon an area of courtroom procedures that the Supreme Court of Illinois,

through its long-standing, detailed rules governing guilty pleas, has entirely

preempted. If the new, additional admonitions affecting guilty pleas that section

113-8 of Code *** purported to mandate are a good idea, the Supreme Court of

- 23 - Illinois must be so persuaded before these additional admonitions can properly be

made mandatory.” Id. at 769.

¶ 61 Here, for the same reasons expressed in Manoharan, a mandatory, rather than

directory, reading of section 113-4(c) would violate the separation-of-powers clause of the

Illinois Constitution, rendering the statute unconstitutional. Accordingly, section 113-4(c) should

be held to be directory rather than mandatory. As a directory statute, the trial court was not

required to strictly adhere to its provisions and defendant was required to show a manifest

injustice to have the right to withdraw her plea. I agree with the majority that defendant failed to

make such a showing in the instant case.

- 24 - No. 4-17-0399

Cite as: People v. Burge,

Decision Under Review: Appeal from the Circuit Court of Champaign County, No. 16- CM-1074; the Hon. John R. Kennedy, Judge, presiding.

Attorneys James E. Chadd, Paul M. McCarthy, and Mariah K. Shaver, of for State Appellate Defender’s Office, of Springfield, for appellant. Appellant:

Attorneys Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David for J. Robinson, and Melissa Schwoerer, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

- 25 -