No. 2--05--0699 Filed: 3-30-07

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_____________________________________________ _ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

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_____________________________ _ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Lak e C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 03--CF--2253 ) JOS E L. CRU Z, ) Honorab le ) Christopher C. Starck, Defend ant-App ellant. ) Judge , Pres idin g.

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______________________________________________________________________ _ _ PRESID ING

JUSTICE

GROMETER d

elivere d the opini on of the c ourt: Defend ant, Jose L. Cruz, entered a guilty plea in the circuit court

of Lake County to a sing le count of first deg ree mur der (720 IL CS 5/9--1( a)(1) (

West 2002)) in connection with the stabbing death of Eld a Port ela. P ortel a was de fendan t's bro ther's widow . In exch ange for defend ant's plea, the State agreed that his sentence would not excee d 55 yea rs' imprisonment. The trial court sentenced defenda nt to a 47- ye ar priso n term, a nd defen dant file d a timely

motion to wi

thdraw h is guilty plea an d v acate the judgment. The trial court denied the motion, and this appeal followed. We affir m. Defendant

is a citizen of Honduras and he was living in the United States illegally at the time of the offense. Defendant was assisted by an

interpreter throughout the proceeding s, including the hearing at which he enter ed his gu ilty plea. Ac cording

to th e pr ese nt enc e in ves ti gat io n re por t (P SI) prepared after d efenda nt enter ed his ple a, defe

ndant' s brother

had bee n murder ed in Ce ntral Ameri ca,No. 2--05--0699

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and defendant believe d that Portela h ad been involved i

n that cr ime. Def endant ki lled Porte la to avenge his brother's death. He also stated tha t he hadconsumed a substantial quantity of a lcohol before the killing. The PSI indicated that after b e ing arrested, defendant submitted to a psychologic al assessment conducted by Dr. James Choca, who foun d (accordi ng to the PSI) that de fendant was "mil dly

mentally retard ed." Af ter lear ning of Dr. Choca 's findi ng, the trial cour t ordered John V. Dunne, Ph.D., Direct or of the D ivision of Psychological Servic es of the Administrative Office of the 19th Judicial Circuit, to p erform a mental he alth eva

luation to determ ine whether defendant had been fit to enter his guilty plea. Dr . Dunne concluded tha t defenda nt had bee

n fit to enter the plea . (In

conjunct ion with Dr . Dunne' s assessme nt, Dr. Ni delia Welles administered an IQ test to defe ndant; however, it appears that the record doe s not include the results of the te st.) Afte

r sentencing, d

efenda nt moved to

withdraw his plea, asserting, inter ali a , that the interpreter assisting

him at the guilty plea he aring was incompetent. Defendant c laimed that the interpreter

had translat ed too swif

tly, and defe

ndant wa s thus impai

red in his understanding of the procee dings. A defendant has no absolute right to withdraw a guilty plea but, rather , must

establish some recognized

basis for withdrawal. People v. Mercado , 356 Ill. App. 3d 487, 494 (200 5). The trial court 's ruling on a

motion to withdraw is reviewed under an abuse of discr etion standard. Mercado , 356 Ill. A pp. 3d at 4 94. Defe

ndant ar gues tha t the gui l ty plea hea

ring violated his right to due process of law because he is not fluent in English, and althoug h the court provided

an interpreter, the record does not es tablish ei t her the identity or the qua lifications of the interpreter, and the interpreter

was not sworn to truly interpre t the proceedings, as provided under sec tion 2 of theNo. 2--05--0699

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Criminal Proceeding

Interpreter Act (Act) (725 IL CS 140/2 (West 2004)). Defendant contends that he is therefore entitled to withdraw his guilty plea. To comport w

ith the re quireme

nts of due

process , a guilty plea

must be knowing and
vo lu nt ar y. People v. Young , 355 Ill. App. 3d 317, 322 (2005). Due proce ss additionally requires that the r ecord affirmat

ively show that the plea was knowing and voluntary
. People v. Jones , 174 Ill. App. 3d 794 , 797 ( 1988) , citi ng Boy kin v. Ala bama , 395 U.S. 2 38, 23 L . Ed. 2d 274 , 89 S. Ct. 1709 (1969). Accordin

g to def endant, h is lack of fluency in English required

the appointment of a qualified and prop erly

sworn inte

rprete r to ensure that

he understood the proceedings. Although a n interpreter

was present at the hearing at whic h defendant

entered his guilty

plea, defendant is correct that the record does not disclo se the inte rprete r's ide ntity or qualif ications, and the interpreter was not place d under o ath as re quired un der sec tion 2 of th e Act. Unde r section 1 of the Act, the interpreter must be someone "w hom [the acc used] ca n understand

and who can

understa nd [the ac cused]." 725 I LCS 140 /1 (West 2004). The statute does notprescribe any

formal qualifications or credentials and, as defe ndant acknowledges, does not require that the record

disclose the interpreter's qualifications. Defe ndant asserts, however, that "due process requires that the record include some indication of the compe te nc y and credentials of the interpreter." Defendant c ites no author ity f or this proposition, but it is a rguab le, perhaps, that

it is
a corollary of the constit utional requirement that the record establish the voluntariness of the defend ant's plea. Defendant also contends that because of his low I Q, it was particularly important that he have the assistance of a skilled interpreter . In addition, defendant emphasizesthat Spani sh is spoken differently

in different regions, and the rec ord does not show that the int erpreter wa s capable of communicating in Spanish as spoken in Honduras.No. 2--05--0699

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At the time he

entere d his plea , defend

ant did not

object to the failu re to inqu ire into th e inter preter 's identity

and quali fication s and to pla ce her u nder oat h. Nor did

defenda nt specif ically raisethese issues in his motion to withdraw his guilty plea, whi ch ess entially challeng ed the interpreter's performanc e rather than her qualifications as such. Defe ndant raises these issues for the first time on appeal. To preserve an issue for review, a de fendant must object in the tri al court
. Peoplev. Le

wis , 223 Ill. 2d 393, 400 (2006). I n the absence o f a pr oper obje ction, an error is ordinar ily subject to review only if it rises to the le vel of plain error. "Under the plai n error ru le, issues no t p ro pe rl y p reserved may be consider ed by a re

viewing court under two limited circumstance s : (1) where the evidence is closely balanced, so as to preclude arg ument that an innocent person was wrongfully

convicted; or (2) where the alleg ed error is so subs tantial th at it affected the fundamental fairness of the proceeding , and remedy ing the error

is necessary

to preserve the in tegrity of the judici al process." People v. Hall , 194 Ill. 2d 305, 335 (2000). Courts in ot he r jurisdict io ns have held that absent a timely objec tion, a defendant complaining that the trial court failed to deter mine an in

terpreter's q

ualifica tions or failed

to administer an oath to the interpreter must show plain error. See United States v. Paz , 981 F.2d 199 (5th Cir. 1992) (failure to inquire as to interpreter's creden

tials); Redma

n v. United States , 616 A.2d 336 (D.C. 1992) (sa

me); United States v. Perez , 651 F.2d 268 (5th Cir. 1981) (failure to administer oath). Because defendant

pleaded guilty, no evide

nce was present ed, so the first par t of the pla

in
error test does n ot app ly. Theref

ore, the salient question is whether the failure to inquire into the inter preter 's identity

and quali fication s a

nd to pl ace her under oath was err or that affected the fundamental fairne ss of the proceed ing and compromis ed the int

egrity of the jud

icial process. I n Paz , the cour

t conside red whe ther the trial cou rt's fa ilure to de

termine ( a) whether an unc ertifie dNo. 2--05--0699

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interpreter

was competent, and (b) whether the defe ndant could com

prehend the Eng lish

language,
was plain error, defined by the c ourt as " 'error which, whe n examined in the context of the entire case, is so obviou s and subst antial tha t failure to notic e and co rrect it

would af fect the fairne ss, integr ity or public reputation of judicial proceedings.' " Paz , 981 F .2d at 201, q uoti ng United States v. Lopez , 923 F.2d 47, 50 (5th Cir. 1991). Th is definit ion of pla in error is substan

tially similar to the definition under Illinois law; thus we look to Paz for gui dance in determin ing whe ther pla inerror occurred in this case. In Paz , the co urt co nclud ed tha t the f ailur e to de termi ne the inter preter 's qualifications was not plain error:

"Neither [the defendant] nor her attorney ever i ndicated b elow that the interpreter was inadequate. Also, nothing in the record reflects, and [the defendant] never asserted below, that she could not understand the procee dings ; and t hrough out t he pro ceedin gs the c ourt's inquiries to [the defenda

nt] were f ully answered by

her without any indication that she was experiencingany

difficult y comprehe

nding the court. When the trial court asked if [the defenda nt] could 'understand the proceeding s today,' he r attorney responded that she could. [The defen dant] state d that she was satis fied with

her atto rney

and ack nowledg ed that sh e had read the plea ag reemen t with her counsel, that she understood it, and that she voluntar ily agreed to it. Her attorne y a lso acknowledge d that [the d efenda nt's] decision to enter into the plea agreement was 'a

n informed and voluntary one.' Finally , when asked by the trial court at the cl ose of

the pr oceedi ngs if there was any thing further, [the defendant's] attorney replied that there was not. The rec ord simply does not in

dicate that the inte

rprete r was ina dequate or that [t he defendant] lacked compreh ension." Paz , 981 F.2d at 201.No. 2--05--0699

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It is true that in Paz the record tended to indicate that the d ef endant had at least a working knowl edge of the English language and did not eve n need an interpreter ( Paz , 981 F.2d at 201 n.3), whichis apparently more than can be said in this case. However, witho ut disco unting the significance of the defendant's understanding of the English language in Paz , it is alsofair to say that her familiarity with the

language was not essential to the cour t's decision. Rather, the critical issue
was her comprehension

of the consequences of he r plea. V iewing this case from the s ame vanta ge pointleads to the same outcome: defendant sufficiently understood the consequences of his plea, and thus the failure to identify the inter preter, inquire into her qualifications, and place her under oath did not amount to plain error. Indetermin

ing whe ther def endant' s plea wa s voluntar y, t he trial c ourt askeddefenda nt a series of questi ons about h is unders tanding

of the rig

hts he wa s waiving

by p leading

guilty ; hi s understandingof the punishment that might be imposed; and his oppo rtunity and abili

ty to communic ate with his at torney s ab out the nature of the State's case, possible defe nses, and the desirab ility

of a neg otiated p lea. De fendant never in dicated that he di d not unde

rstand th e questio ns,
nor did he ask to have any

question repeated, as would be a natural human response if difficulties with the interpreter prevented h im from fo llowing t he proce edings. Defend ant raise d his first objectiononly after

receiving a se

ntence w ith which he eviden

tly was disap

pointed. H is failur

e to object sooner is a factor that we ighs hea

vily against a claim of inadequate compre hension. See Paz , 981 F.2d at 201 n. 2, quo ting Valladares v. United States , 871 F.2d 1564, 1566 (11th Cir. 1989) (" 'To allow a defendant to remain silent thro ughout the t rial and then, upo n being

found g uilty , to assert a claim of inadequate translation would be an ope n invitation to abuse' ").No. 2--05--0699

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It is possible , of cours e, that when a non-English-speaking de fendant is naturally timid or retic ent, the daunting nature of a criminal proce eding might stifle any impulse to ex pres s dissatisfactionwith the in terpreter. Tha

t was, more or less, the explanation defendant offered at the hearing on his motion

to withdra

w his plea . He te stified that al though he did not understand the interpreter, he did

not interrupt the trial judge because he " didn't know any thing about

these thin

gs" and did notknow he had the right to interrupt to inform the court that he did not understand wha t
was being sa

id. Howev er, the t

rial cou rt did not f

ind defe ndant' s testimony

to be cre dible. I

t is firmly established that " a trial c ourt is in a superior position to determine and weigh the credibi lity of the witne sses, obse

rve the w itnesses' demeanor, and resolve confl icts in th eir testim ony." People v. Cortez , 361 Ill. App. 3d 456, 463 (2005). Moreover, Dr. Dunne's evaluation of defenda nt's fitness tends to confirm that defenda n t understood

the ramifications of pleading guilty . Dr. Dunne interviewed defendant after he entered his guilty plea, but before he was se

ntenced . Accor

ding to D r. Dunne 's repo

rt: "[Defe ndant] understood that he did not go to trial. He understood that a statement he made to the police an d the we apon rec overed c ould be use d again st him. *** H e told h ow his attorneys advised a gainst going to trial because the y thought he would be foun d guilty . [Defend

ant] stated

that they told him he could go to prison for 60 to 120 years if he went to trial and

lo st . H e s ai d f

iv e o r s ix mo nt hs ag o h e a gr ee d t o t el l t he ju dg e h e i s g ui lt y. [Defenda nt] told how 'they

made an o ffer to m

y a ttorney ' involvi ng a pos sible sentence of 20 to 55 years. [Def

endant] understood that this means that he would have to serve at least 20 years andat the most

55 years. H e did not kn ow what th e judge

would tak

e into consideration

when determining the sentence. When asked wha targuments could be madeNo. 2--05--0699

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for leniency, [defe

ndant] noted the report from the doctor (Dr. Choca), how he be haves and his lack of a prior criminal record. When asked wha t arguments the [S]tate' s [A]ttorney might make for a sever e senten ce, [def endant] indicated

that the [S]ta

te's [A]ttorney

would say that he is a

bad pers on beca

use of wh at he did. [Defenda nt] stated t

h at his a tt or ne ys informed him that the

y w ould do ev ery

thing pos sible to try and g et him the 20-year sentence, butthat this sentence is not certain. He noted that his attorney told him that the 20 to 55 year offer was the best deal they could get for him. He indicated that he trusts his attorney s." Under these ci rcumstan ces, we are persu a ded that defendant sufficiently comprehended the consequences of his guilty plea. Therefore, the failure to inquire into the inter preter's identity

and qualifications and to place her under oath was not plain er ror. For the foregoing r

easons, the judgment of the circuit court of Lake County is affirme d. Affirmed. O'MALL EY and CALL

UM, JJ., concur.