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2023 IL App (5th) 210405-U 

NO. 5-21-0405 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of

Plaintiff-Appellee, ) Effingham County. 

 ) 

v. ) No. 17-CF-30 

 ) 

DENNIS M. MOULTON, ) Honorable 

 ) Christopher M. Matoush, 

Defendant-Appellant. ) Judge, presiding.

______________________________________________________________________________ 

PRESIDING JUSTICE BOIE delivered the judgment of the court.

Justices Welch and Vaughan concurred in the judgment.

 

 ORDER

¶ 1 Held: Where the issues raised in the defendant’s postconviction petition were 

procedurally defaulted because defendant failed to file a motion to withdraw his 

guilty plea within the required 30 days and lacked substantive merit, and 

postconviction counsel reasonably decided not to include issues from defendant’s 

pro se petition, the circuit court did not err in denying relief. As any argument to 

the contrary would lack merit, we grant defendant’s appointed counsel on appeal 

leave to withdraw and affirm the circuit court’s judgment. 

¶ 2 Defendant, Dennis M. Moulton, appeals the circuit court’s order denying his 

postconviction petition. Defendant’s appointed appellate counsel, the Office of the State Appellate 

Defender (OSAD), concludes that no arguably meritorious argument exists that the court erred in 

doing so. It has filed a motion to withdraw as counsel together with a supporting memorandum 

(see Pennsylvania v. Finley, 481 U.S. 551 (1987)). Counsel notified defendant of its motion and 

this court provided him with an opportunity to file a response, but he has not done so. After 

NOTICE

Decision filed 02/27/23. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.

NOTICE

This order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1).
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reviewing the record and considering OSAD’s motion and supporting memorandum, we agree that 

this appeal presents no arguably meritorious issues. Accordingly, we grant OSAD leave to 

withdraw and affirm the circuit court’s judgment.

¶ 3 BACKGROUND

¶ 4 Defendant pleaded guilty to predatory criminal sexual assault of a child. In exchange, the 

State agreed to a sentencing cap of 30 years’ imprisonment. The victim was defendant’s daughter, 

K.J.M.

¶ 5 The court admonished defendant pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 

2012). Defendant assured the court that his decision to plead guilty was voluntary, that he had 

been promised nothing beyond the agreement’s stated terms, and that he had not been threatened.

¶ 6 The factual basis was that detectives Travis Monnet and Darin Deters would testify that 

K.J.M. stated that, from approximately June 1, 2015, until October 23, 2016, defendant engaged 

in sexual activities with her. The detectives also interviewed defendant, who admitted molesting 

K.J.M. He knew that she was under the age of 13 when he did so.

¶ 7 The court found the plea voluntary and scheduled a sentencing hearing. There, Monnet 

testified that K.J.M. was interviewed at the Children’s Advocacy Center. She said that defendant 

began sexual contact with her at age 11, and it escalated for about 11⁄2 years to include oral sex and 

penetration. Monnet and other officers processed K.J.M.’s bedroom and found evidence of bodily 

fluids. Later, defendant called Deters and stated that he used to live in the bedroom, which would 

explain why his bodily fluids were there.

¶ 8 At some point, defendant was hospitalized for depression. Monnet talked to his attending 

physician, who relayed that defendant said he was depressed after admitting that he had engaged 

in a sexual relationship with his daughter. Monnet interviewed defendant in the hospital, and he 
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admitted to fondling K.J.M. However, he placed much of the blame on K.J.M. He stated that 

K.J.M. did not feel like his daughter because he had not had custody of her for much of her life.

¶ 9 The court sentenced defendant to 25 years’ imprisonment. Defendant did not move to 

withdraw his plea. He sought to file a late notice of appeal but ultimately did not. Instead, 

defendant filed a pro se petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 

5/122-1 et seq. (West 2018)). Defendant alleged that evidence collected from his home should 

have been tested for DNA, as it would have proved his innocence; defense counsel was ineffective 

for failing to seek testing of this evidence; counsel was ineffective for failing to seek suppression 

of his confession; and his sentence was excessive.

¶ 10 The circuit court appointed counsel who filed an amended petition. Defendant expressed 

concern that counsel would not raise all of the issues in the pro se petition. Counsel asserted that 

some of the issues were frivolous. Ultimately, defendant agreed that he would adopt counsel’s 

petition and waive any issues not raised therein.

¶ 11 Counsel’s amended petition alleged as follows. Defendant’s original counsel did not 

adequately consult with him before the plea and failed to update him on the status of the case. 

Moreover, defendant was high on marijuana when he confessed. Although he asked counsel 

multiple times to move to suppress his statement, counsel refused. Defendant asserted that this 

was important because, had his statement been suppressed, he would likely have received a more 

favorable plea offer.

¶ 12 At a hearing on the petition, defendant testified that counsel usually met with him before 

court dates, although he did not do so on one occasion. The day he was arrested, he was high on 

marijuana. He remembered driving to the hospital and waking up in the suicide watch room in 

jail. He was high when he gave his statement and told his attorney that it should not be used 
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against him. He mentioned this at least three times. Defendant knew that he was guilty and did 

not want a trial but felt that suppressing his statements would have allowed him to receive a better 

plea offer.

¶ 13 Defendant felt that counsel did not communicate with him enough. He was only told about 

the 30-year cap the day he pleaded guilty. On cross-examination, defendant admitted telling a 

probation officer that he was “clean and sober,” but he meant only with regard to alcohol. 

Defendant acknowledged that the court explained how to perfect an appeal, including the 

requirement of a motion to withdraw the plea. However, he did not “process” that information 

because he was in shock at the sentence he received.

¶ 14 Defendant’s original counsel testified that he regularly consulted with defendant prior to 

the plea. Defendant was focused on getting a plea bargain and resolving the case quickly. 

Defendant never asked him to seek suppression of his statement. He never mentioned that he was 

high during his interview with Monnet. Counsel assumed that when defendant said he was sober 

that this included not using marijuana. Defendant never disputed what he told the police. Counsel 

thus saw no legal basis to file a suppression motion.

¶ 15 The court denied relief. Defendant timely appealed.

¶ 16 ANALYSIS 

¶ 17 OSAD concludes that there is no meritorious argument that the circuit court erred by 

denying defendant’s petition. We agree.

¶ 18 Initially, we note that defendant’s contentions have been procedurally defaulted. “No 

appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 

30 days of the date on which sentence is imposed, files in the trial court a motion to *** withdraw 

the plea of guilty and vacate the judgment.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Here, 
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defendant acknowledged that the circuit court admonished him about the need to file such a 

motion. His only reason for not doing so was that he did not “process” the information. 

¶ 19 Defendant may still have recourse through the Act. The Act provides a mechanism by 

which a criminal defendant may assert that his conviction resulted from a substantial denial of his 

constitutional rights. 725 ILCS 5/122-1(a) (West 2018); People v. Delton, 227 Ill. 2d 247, 253 

(2008). However, a postconviction proceeding is not a substitute for a direct appeal, but rather is 

a collateral attack on a prior conviction and sentence. People v. Davis, 2014 IL 115595, ¶ 13. 

“ ‘The purpose of the post-conviction proceeding is to allow inquiry into constitutional issues 

involved in the original conviction and sentence that have not been, and could not have been, 

adjudicated previously on direct appeal.’ ” Id. (quoting People v. Towns, 182 Ill. 2d 491, 502 

(1998)). Accordingly, issues that were raised and decided on direct appeal are barred by 

res judicata and issues that could have been raised, but were not, are forfeited. The issues about 

which defendant complains all arose prior to the guilty plea, so they could—and should—have 

been raised in a postplea motion.

¶ 20 In any event, we agree with OSAD that these issues lack substantive merit. Defendant 

contended that his original counsel did not communicate with him sufficiently. However, he 

acknowledged in his testimony that, with one possible exception, counsel met with him before 

every court appearance. Prior to defendant’s accepting the plea, the court admonished him about 

the possible sentences, and the terms of the agreement, including the 30-year sentence cap, were 

explained at the hearing. Defendant has failed to show that any lack of communication rendered 

the plea involuntary.

¶ 21 Defendant also contended that counsel was ineffective for failing to file a motion to 

suppress his confession on the ground that defendant was under the influence of marijuana when 
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he gave the statement. Apparently anticipating the objection that his guilty plea waived the issue 

(see People v. Mueller, 2013 IL App (5th) 120566, ¶ 12 (voluntary guilty plea waives all 

nonjurisdictional defenses and defects)), defendant alleged that he could have received a more 

favorable plea offer had his statement been suppressed.

¶ 22 Of course, defendant’s claim that he would have received a more beneficial plea offer in 

the absence of his confession is pure speculation. But in any event, the record does not support a 

conclusion that such a motion would have been successful.

¶ 23 Initially, original counsel denied that defendant ever broached the subject of a suppression 

motion with him. He testified that defendant’s primary concern was a plea deal that would lead to 

a speedy resolution. Moreover, defendant never mentioned being under the influence of marijuana 

at any relevant time. Indeed, defendant prided himself on his “sobriety,” which counsel reasonably 

understood to include marijuana as well as alcohol.

¶ 24 Moreover, there is simply no evidence that defendant was impaired to the extent of making 

his confession involuntary. That a defendant is under the influence of alcohol or drugs at the time 

of a confession does not automatically render his statements inadmissible. People v. Foster, 168 

Ill. 2d 465, 476 (1995). A defendant’s confession will be considered involuntary only when his 

will was overborne such that the confession “ ‘cannot be deemed the product of a rational intellect 

and a free will.’ ” Id. (quoting People v. Kincaid, 87 Ill. 2d 107, 117 (1981)).

¶ 25 Here, neither officer who interviewed defendant thought that he was impaired and, save 

for a hospital record showing that he was “non-negative” for marijuana, defendant offers no 

contrary evidence. See People v. Hicks, 35 Ill. 2d 390, 395-96 (1966) (both officers who 

interviewed defendant testified that he appeared normal so that, despite evidence that his bloodalcohol level was .19, trial court’s finding that his confession was voluntary was supported by the 
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evidence). Defendant simply cannot establish that a suppression motion likely would have been 

granted. 

¶ 26 Finally, OSAD concludes that there is no meritorious argument that postconviction counsel 

was unreasonable in failing to include issues from defendant’s pro se petition. There is no 

constitutional right to assistance of counsel during postconviction proceedings, but the Act 

guarantees a postconviction petitioner a “reasonable” level of assistance. People v. Cotto, 2016 

IL 119006, ¶ 29. Here, defendant could not establish that postconviction counsel provided 

unreasonable assistance by failing to incorporate into the amended petition additional allegations 

from defendant’s pro se filing.

¶ 27 The principal such contention appears to be that bodily fluids found in K.J.M.’s bedroom 

should have been tested for DNA. However, he failed to explain how testing this evidence would 

help to establish his innocence. He admitted that K.J.M.’s room had formerly been his and, thus, 

his DNA would likely be found there. He has not presented evidence that any other men frequented 

his daughter’s bedroom. Thus, there is no logical way that testing this evidence for DNA would 

tend to exonerate defendant.

¶ 28 The pro se petition also sought reconsideration of defendant’s sentence. OSAD correctly 

argues that this was improper. A defendant who agrees to plead guilty in exchange for a sentencing 

cap may not challenge a sentence within the cap without successfully moving to withdraw his plea. 

People v. Linder, 186 Ill. 2d 67, 74 (1999). Thus, there is no meritorious argument that 

postconviction counsel was unreasonable in failing to pursue this issue.

¶ 29 CONCLUSION

¶ 30 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and 

affirm the circuit court’s judgment.
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¶ 31 Motion granted; judgment affirmed.