People v. Torres ( 2008 )

Docket No. 104308.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
VICENTE TORRES, Appellee.
Opinion filed April 17, 2008.
CHIEF JUSTICE THOMAS delivered the judgment of the court,
with opinion.
Justices Freeman, Fitzgerald, Kilbride, Garman, Karmeier, and
Burke concurred in the judgment and opinion.
OPINION
Defendant, Vicente Torres, entered a blind plea of guilty to two
counts of first degree murder. The circuit court of Will County
sentenced him to 45 years’ imprisonment. Four months after his
sentence was imposed, defendant filed a pro se petition under the
Post-Conviction Hearing Act (the Act) (725 ILCS 5/122–1 et seq.
(West 2004)), contending that his trial attorney was ineffective for
failing to consult with him about the possibility of filing an appeal. The
trial court denied the petition, ruling that it was frivolous and patently
without merit. The appellate court reversed and remanded the cause
for further proceedings, holding that defendant stated the gist of a
constitutional claim for ineffective assistance of counsel. No.
3–05–0402 (unpublished order under Supreme Court Rule 23). We
granted the State’s petition for leave to appeal (210 Ill. 2d R. 315),
and we now reverse the appellate court.
BACKGROUND
On August 9, 2003, police officers responded to a report of a
shooting at 350 Hanover Drive in Bolingbrook, Illinois. At the scene,
the officers found a woman later identified as Maria Rivera lying on
the floor in a pool of blood. She had been shot in the head and was
pronounced dead. The wound was caused by a bullet fired from a
nine-millimeter handgun.
Two witnesses told police that a man fled the scene by car
immediately after the shooting. The witnesses followed the suspect
and were able to provide police with his current location. Police gave
chase for several miles and finally stopped the suspect’s vehicle,
apprehending the only person in the vehicle–defendant. The officers’
search of the car revealed a nine-millimeter handgun stowed on the
floorboard. The weapon was in the “discharge slide back position with
a magazine engaged.” The two witnesses identified defendant as the
person they followed from the scene of the murder.
Defendant was arrested, and an officer fluent in Spanish read
defendant his Miranda rights and interviewed him in that language.
Defendant told police that the victim was his longtime girlfriend. Eight
days before the murder, she told him that she was dating somebody
else and would not be reuniting with him. Defendant purchased the
gun recovered from his vehicle one day before the murder. The next
day, he traveled to the victim’s residence, hiding the gun in a pair of
pants, with the intent of killing the victim. When he arrived and
entered the victim’s room, she told him to quiet down because she
was sleeping, whereupon he replied, “Fine, you can go to sleep
forever.” Defendant had difficulty pulling the slide of the gun back,
allowing the victim to briefly run up some stairs, but as she reached
the top of the stairs, defendant fired the gun at her.
An autopsy revealed that the bullet struck the victim in her left
temple and exited through her right eye. The forensic testing showed
that the gun recovered by police when they apprehended defendant
matched the spent cartridge recovered from the scene of the murder.
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Defendant was charged with two counts of first degree murder
(720 ILCS 5/9–1(a)(1), (a)(2) (West 2002)). At a plea hearing on
April 30, 2004, defendant’s public defenders informed the trial court
that defendant wanted to enter a blind plea of guilty to both charges.
Counsel told the court that they had explained the concept of a blind
plea to defendant on multiple occasions. In response to the court’s
questioning, defendant answered that he was pleading guilty to both
counts, that he understood the nature of the charges, and that he
understood he had a right to plead not guilty. The State provided a
factual basis for the plea, which defendant agreed to, followed by a
lengthy inquiry by the trial court to ensure that defendant understood
the nature of the proceedings.
The trial court then explained to defendant that the charge carried
“a mandatory minimum prison sentence *** of 20 years, and that can
go as high as 60 years.” “So the range is,” the trial court began to
repeat, at which point defendant interrupted by stating, “they’ve
already told me that.” The trial court then told defendant that it
wanted “to make sure that [he] understood all that though.” The trial
court continued, “so it’s a minimum of 20 years in prison and a
maximum of 60 years in prison.” The trial court then explained that
the defendant would have to serve 100% of the sentence. The trial
court also explained the difference between a bench trial and a jury
trial, and defendant indicated that he understood that he was waiving
his right to either kind of trial. In response to further questions from
the trial court, defendant agreed that he had fully discussed his
decision to plead guilty with his attorneys and that they had explained
the consequences of a plea of guilty. He also acknowledged that he
was satisfied with the service his attorneys had rendered and that an
interpreter had always been present when he spoke with them.
Defendant told the court that he was pleading guilty because his
attorneys had told him that he had no defense. One of defendant’s
attorneys then explained that he and his colleagues had had numerous
conversations with defendant, going over the evidence and giving their
opinions as to what the ultimate result in the case would be if there
was a trial. Defendant again interjected that his attorneys had told him
that they “shouldn’t fight this because there is no defense for what [he
had] done” and he “wanted a trial but his attorneys said no.” Defense
counsel responded by telling the court that if defendant wanted a trial,
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he was willing to try the case. The trial court then instructed defendant
on the difference between the public defender’s informing a defendant
of the strength of his case and telling him how to plead. The court
stressed to defendant that nobody could make him plead guilty and
that the decision on how to plead was his alone. The court told
defendant that if he wanted a trial, he would set the case for a trial.
The trial judge also drew from his former experience as a defense
attorney and told defendant the following:
“When I had your attorney’s job of defending people,
including in murder cases, I always discussed the evidence
with my clients. Most of them wanted opinions on how good
I thought their case was, and if I thought it was a good case,
I told them so. And if I thought their case was garbage, I told
them that, too. There is nothing wrong with your attorneys
giving their opinion of the evidence that’s against you and the
evidence that’s in your favor, but the ultimate decision on
whether you plead guilty or go to trial is still yours. You
decide, not anybody else. You decide.”
Following this colloquy, defendant stated three times that he wanted
to plead guilty, but the trial court insisted on postponing the plea
hearing so defendant could further consider his options and consult
with his attorneys.
The trial court conducted a second plea hearing 11 days later, on
May 11, 2004. Defense counsel informed the court that defendant was
prepared to enter a blind guilty plea. One of defendant’s attorneys told
the court that he was fluent in Spanish and had spoken to defendant
about the plea. In response to questions from the trial court, defendant
indicated that he understood the nature of the charges and that he had
a right to plead not guilty. The State recited a factual basis for the
charges: officers found the victim dead from a gunshot wound to her
head; witnesses had followed defendant fleeing the scene in a car and
provided details regarding his whereabouts; officers stopped the
vehicle, apprehended defendant, and recovered a nine-millimeter
handgun from the floorboard; and defendant stated to police that he
had purchased the murder weapon, driven to the scene, had difficulty
pulling back the slide, and shot the victim in the head as she reached
the top of the stairs. Following this recitation, defendant stated that he
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had nothing to add and that if the case went to trial, the evidence
would support the State’s summary.
The trial court then asked a series of questions designed to ensure
that defendant understood the nature of the proceedings and his
actions. The court then turned to the sentencing range, explaining that
if it accepted the plea of guilty, the range of the sentence that could be
imposed was from a minimum of 20 years in prison up to and
including 60 years in prison. Defendant stated that he understood. The
trial court repeated that the full sentence would be mandatorily served,
and that there would be no probation or the possibility of good-time
credit. The court asked defendant if he had any questions “about the
minimum and maximum sentences prescribed by law for this offense.”
Defendant said that he did not have any questions.
The trial court next explained how jury trials and bench trials
work. Defendant stated that he understood, had no questions, and
comprehended that he would have neither kind of trial if he pled
guilty. Defendant also indicated that he had discussed his guilty plea
with his attorneys, including its consequences, that an interpreter was
always present, and that he was satisfied with the performance of his
attorneys. The court then asked defendant if “anybody promised [him]
anything to get [him] to plead guilty?” “No,” defendant said.
On October 29, 2004, the trial court held the first sentencing
hearing. The State presented the testimony of seven witnesses, which
included four police officers and three of the victim’s family members.
The defense presented no witnesses, but defendant spoke on his own
behalf, telling the court that he was sorry for the harm he had caused
his family.
Counsel for both sides made arguments and sentencing
recommendations. The State argued that the murder was premeditated
and asked for the maximum sentence provided by law. Defense
counsel argued that defendant had no prior criminal history, had taken
responsibility for the crime, and had pled guilty to save his family “the
aggravation of a trial.” Defense counsel asked for a sentence “closer
to the minimum.” The trial court took the arguments under
advisement and told the parties it wanted to look at the exhibits and
presentence investigation report.
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At a hearing 17 days later, the trial court imposed defendant’s
sentence. The court noted that defendant had taken responsibility for
his actions and did not have a prior criminal record. But the court
further noted that this was one of the most premeditated first degree
murders that it had come across in nearly three decades on the bench.
Taking all of these factors into consideration, the trial court sentenced
defendant to 45 years’ imprisonment.
The trial court then explained to defendant his appeal rights,
specifically making sure that he understood that he still had a right to
appeal. The court then explained the procedural requirements that
defendant would have to satisfy prior to appealing, telling defendant
the following:
“[P]rior to taking an appeal you must file here in the trial court
within 30 days a written motion asking to have the trial court
reconsider the sentence, or to have the judgment vacated and
for leave to withdraw your plea of guilty. If that motion is
allowed the sentence will be modified, or the plea of guilty,
sentence, and judgment will be vacated, and a trial date will be
set on the charges to which the plea of guilty was made. If you
are indigent a copy of the transcript of these proceedings ***
can be provided to you without costs, and an attorney can be
appointed to assist you with the preparation of the motions.”
The trial court asked defendant if he understood all of this. Defendant
responded, “Yes.” The court then asked defendant if he had any
questions about anything they had covered. Defendant answered in the
negative.
More than two months after he was sentenced, defendant wrote
to the circuit clerk, asking whether his trial counsel had filed an appeal
on his behalf because after sentencing counsel left without speaking
to defendant. The circuit clerk responded by sending defendant a letter
informing him that an appeal had not been filed in his case. The clerk
included the form for filing a notice of appeal.
Fifty-two days after the clerk mailed the letter, defendant filed a
postconviction petition, alleging that he did not understand the
consequences of a blind plea. Specifically, defendant alleged that
counsel told him he would receive the minimum sentence of 20 years’
imprisonment if he pled guilty. He also alleged that “he thinks that his
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counsel told him that if he went to trial on this case he would get a
longer sentence than if he took the plea agreement” and “this may
have been misunderstood in the translation.” He also alleged that his
counsel did not spend any time with him to make sure he understood
the sentence or his options for appeal.
In an accompanying affidavit, defendant reiterated that his
attorney left the courtroom after sentencing without speaking to him.
Defendant asserted that he was confused as to the reason he received
a 45-year sentence. He claimed that if not for the help he was now
receiving with his postconviction petition, he would not have known
that he had a right to appeal and to have the court reconsider his
sentence. Along with his postconviction petition, defendant included
a motion to withdraw his guilty plea and to vacate his sentence.
Defendant appeared pro se at the hearing set for the first-stage
review of his postconviction petition. The trial court found the petition
to be frivolous and patently without merit. Accordingly, it summarily
dismissed it. The court also found the motion to withdraw the guilty
plea to have been filed in an untimely fashion, and the court therefore
denied the motion.
The trial court’s written order denying the petition specifically
found that prior to the guilty plea, defendant was admonished on two
separate occasions about the ramifications of a guilty plea pursuant to
Supreme Court Rule 402, and both times defendant indicated that he
understood his rights, which were explained to him one at a time and
in detail. At the April 30, 2004, hearing, defendant stated, without
prompting, that his attorneys had already informed him of the
sentencing range. At the May 11, 2004, hearing, defendant indicated
that no promises had been made to him. Moreover, there is no
mention anywhere in the record of a guarantee of a 20-year sentence,
and the court instead referred to the sentence as “whatever it might
be.” Furthermore, the plea hearing was not continued because
defendant did not understand his rights, but to afford defendant
another opportunity to talk to his attorneys, in spite of defendant’s
insistence that he would not change his mind and would still plead
guilty. Following the guilty plea on May 11, 2004, defendant was
properly admonished as to his right to reconsider his sentence, and
those admonishments were almost verbatim from Supreme Court Rule
605. Finally, the court noted that defendant always had a court-
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appointed interpreter present in court, always had an interpreter
present when he talked to his attorneys, and was actually represented
by an attorney who was fluent in Spanish.
After reviewing the trial court’s written orders with his interpreter,
defendant told the court that he had intended to assert in his petition
that he was held incommunicado at Stateville and did not have the
chance to talk to anyone about filing an appeal. Defendant then added
that he “thought” he told his interpreter, before his trial attorney left,
that he wanted to appeal, but that the interpreter walked away without
paying any attention to him.
The trial court explained to defendant his appeal rights from the
denial of his postconviction petition, at which point defendant inquired
further about filing an appeal. Defendant also asked that an attorney
be appointed on his behalf. The trial court directed the clerk to file a
notice of appeal on defendant’s behalf and appointed the Appellate
Defender to represent defendant on appeal.
A divided appellate court reversed the trial court, holding that
defendant stated the gist of a constitutional claim of ineffective
assistance of counsel. The appellate court acknowledged that in Roe
v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029
(2000), the United States Supreme Court rejected a per se rule
imposing a constitutional obligation on counsel in all cases to discuss
the possibility of an appeal with the defendant. The appellate court
recognized that the Supreme Court instead held that counsel “ ‘has a
constitutionally imposed duty to consult with the defendant about an
appeal when there is reason to think either (1) that a rational
defendant would want to appeal ***, or (2) that this particular
defendant reasonably demonstrated to counsel that he was interested
in appealing.’ ” See No. 3–05–0402 (unpublished order under
Supreme Court Rule 23), quoting Flores-Ortega, 528 U.S. at 480,
145 L. Ed. 2d at 997, 120 S. Ct. at 1036. The appellate court majority
found, however, that “whether a ‘rational defendant’ would have
desired an appeal in the circumstances presented here is irrelevant.”
Instead, the appellate court majority found that defense counsel must
give defendant a meaningful opportunity to express his interest in
appealing before leaving the courtroom. No. 3–05–0402 (unpublished
order under Supreme Court Rule 23).
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Justice Schmidt dissented, asserting that counsel had no
constitutional obligation to consult with defendant about an appeal,
given the facts of this case. According to the dissent, the majority
abandoned the Supreme Court’s rejection of a per se duty to consult.
The dissent found that there was no reason to believe that a rational
defendant would want to appeal in this case. Also, despite ample
opportunity, defendant did not demonstrate to counsel an interest in
appealing, and any claim to the contrary is belied by the record. No.
3–05–0402 (unpublished order under Supreme Court Rule 23)
(Schmidt, J., dissenting).
ANALYSIS
In this appeal, the parties dispute whether defendant’s
postconviction petition claim–that his attorneys were ineffective for
failing to consult with him about an appeal–should have been
summarily dismissed by the trial court based on the facts presented by
this case.
I. Standard of Review
The Post-Conviction Hearing Act provides a procedural method
by which those under criminal sentence in this state can assert that
their convictions were the result of a substantial denial of their rights
under either the federal or the state constitution. See 725 ILCS
5/122–1 et seq. (West 2004). Proceedings under the Act are
commenced by the filing of a petition in the circuit court in which the
original proceeding took place. 725 ILCS 5/122–2 (West 2004).
Section 122–2 of the Act requires that the petition must, among other
things, clearly set forth the respects in which defendant’s
constitutional rights were violated. 725 ILCS 5/122–2 (West 2004).
Section 122–2.1 directs that if the defendant is sentenced to
imprisonment (rather than death) and the circuit court determines that
the petition is frivolous or patently without merit, it shall be dismissed
in a written order. 725 ILCS 5/122–2.1(a)(2) (West 2004).
A postconviction petition is considered frivolous or patently
without merit if the petition’s allegations, taken as true, fail to present
the gist of a constitutional claim. People v. Delton, 227 Ill. 2d 247,
254 (2008). Because most petitions are drafted at this stage by
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defendants with little legal knowledge, this court views the threshold
for survival as low (Delton, 227 Ill. 2d at 254), requiring only a
limited amount of detail in the petition (People v. Jones, 211 Ill. 2d
140, 144 (2004)). But nonfactual and nonspecific assertions that
merely amount to conclusions are not sufficient to require a hearing
under the Act. People v. Coleman, 183 Ill. 2d 366, 381 (1998).
Moreover, this court has consistently upheld the dismissal of a
postconviction petition when the allegations are contradicted by the
record from the original trial proceedings. Coleman, 183 Ill. 2d at
381-82. To determine whether a petition is frivolous or patently
without merit, the circuit court examines the petition independently
without input from the parties. People v. Gaultney, 174 Ill. 2d 410,
418 (1996). Our review of a dismissal of a postconviction petition is
de novo. Coleman, 183 Ill. 2d at 389.
II. Ineffective Assistance of Counsel
Generally, claims of ineffective assistance of counsel are governed
by the now-familiar test set forth in Strickland v. Washington, 466
U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). That test
requires a defendant claiming ineffective assistance to show (1) that
counsel’s representation fell below an objective standard of
reasonableness, and (2) that the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct.
at 2064. In Flores-Ortega, the Supreme Court extended Strickland to
claims of ineffective assistance based on a defense counsel’s failure to
file a notice of appeal. Flores-Ortega, 528 U.S. at 476-77, 145 L. Ed.
2d at 994-95, 120 S. Ct. at 1034. For the reasons that follow, we find
that defendant failed to satisfy the first prong of Strickland, and thus
we need not consider the second prong of whether defendant was
prejudiced.
A. “Reasonableness” Standard
With respect to the “reasonableness” prong of Strickland, Flores-
Ortega rejected a bright-line rule that counsel must always consult
with a defendant regarding an appeal. Flores-Ortega, 528 U.S. at 480,
145 L. Ed. 2d at 996-97, 120 S. Ct. at 1036. The Court noted that
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such a rule would be inconsistent with both Strickland and common
sense, citing two hypotheticals:
“For example, suppose that a defendant consults with counsel;
counsel advises the defendant that a guilty plea probably will
lead to a 2 year sentence; the defendant expresses satisfaction
and pleads guilty; the court sentences the defendant to 2 years’
imprisonment as expected and informs the defendant of his
appeal rights; the defendant does not express any interest in
appealing, and counsel concludes that there are no
nonfrivolous grounds for appeal. Under these circumstances,
it would be difficult to say that counsel is ‘professionally
unreasonable,’ [citation], as a constitutional matter, in not
consulting with such a defendant regarding an appeal. Or, for
example, suppose a sentencing court’s instructions to a
defendant about his appeal rights in a particular case are so
clear and informative as to substitute for counsel’s duty to
consult. In some cases, counsel might then reasonably decide
that he need not repeat that information.” Flores-Ortega, 528
U.S. at 479-80, 145 L. Ed. 2d at 996, 120 S. Ct. at 1036.
1. “Rational Defendant” Prong of Flores-Ortega Test
a. Alleged Promise of a 20-year Sentence
Here, defendant does not allege that he instructed counsel to file
an appeal or that counsel discussed an appeal with him. Rather,
defendant alleges, and it is undisputed, that counsel failed to consult
with him about an appeal. Flores-Ortega held that in such cases
counsel has a constitutionally imposed duty to consult with a
defendant about the possibility of an appeal “when there is reason to
think either (1) that a rational defendant would want to appeal (for
example, because there are nonfrivolous grounds for appeal), or (2)
that this particular defendant reasonably demonstrated to counsel that
he was interested in appealing.” Flores-Ortega, 528 U.S. at 480, 145
L. Ed. 2d at 997, 120 S. Ct. at 1036. We now examine these two
parts of the Flores-Ortega test and apply them to the facts before us.
The first part of the test indicates there is reason to think that a
rational defendant would want to appeal if nonfrivolous grounds for
an appeal exist. We are not aware of any nonfrivolous grounds in the
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instant case. The crux of defendant’s postconviction petition alleged
that defendant did not understand the consequences of entering a blind
plea of guilty and his counsel had promised him that he would receive
the minimum sentence of 20 years’ imprisonment if he pled guilty.
Defendant has now abandoned this claim and does not argue it in his
brief before this court as a nonfrivolous ground for appeal. This is
probably because the claim is belied by the record of the guilty-plea
proceeding and is therefore frivolous and patently without merit.
It is well settled that a defendant’s acknowledgment in open court,
at a plea hearing, that there were no agreements or promises regarding
his plea serves to contradict a postconviction assertion that he pled
guilty in reliance upon an alleged, undisclosed promise by defense
counsel regarding sentencing. People v. Greer, 212 Ill. 2d 192, 211
(2004); People v. Rissley, 206 Ill. 2d 403, 454 (2003) (defendant’s
allegations were “totally contradicted by the record of the plea”);
People v. Jones, 144 Ill. 2d 242, 263 (1991); People v. Maury, 287
Ill. App. 3d 77, 83 (1997) (record indicated that defendant answered
“no” when the circuit court inquired whether any extraneous promises
had been made to him). In Greer, the defendant claimed that his
counsel told him that he had reached an agreement on a 45-year
sentence. The defendant further claimed he pled guilty in reliance on
his counsel’s representations, but was instead sentenced to a 60-year
term of imprisonment. This court concluded in Greer that the record
itself demonstrated that the defendant’s postconviction allegations
were patently without merit and frivolous because the defendant had
responded in the negative in open court when asked whether any
promises had been made in connection with his plea. Greer, 212 Ill.
2d at 211.
Similarly, defendant in this case was asked by the trial court at the
plea hearing whether any promises had been made to cause him to
enter his plea of guilty, and defendant responded, “No.” The record
also shows that defendant was repeatedly admonished by the trial
court that the maximum sentence that it might impose could be as high
as 60 years. Defendant always indicated that he understood this when
asked. Thus, defendant’s own words refute his postconviction
allegations. Defendant’s postconviction allegations are also
contradicted by his own counsel’s sentencing recommendation in open
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court, which merely requested a sentence “closer to the minimum,”
not the minimum sentence.
b. Imperfect Admonishment as to the Minimum Sentence
Defendant argues for the first time before this court that he has a
nonfrivolous ground for appeal because the trial court incorrectly
admonished him about the possible minimum sentence and his trial
attorney should have known that he was incorrectly admonished. The
trial court admonished him in accordance with section 5–8–1 (a)(1)(a)
of the Unified Code of Corrections (the Code), which provides that
the sentence of imprisonment for first degree murder shall be for a
term of “not less than 20 years and not more than 60 years.” See 730
ILCS 5/5–8–1(a)(1)(a) (West 2004). Defendant correctly notes,
however, that the statutory minimum sentence available in this case
was actually 45 years because section 5–8–1(a)(1)(d)(iii) of the Code
provides that 25 years of imprisonment be added to the sentence if,
during the commission of the offense, defendant personally discharged
a firearm that caused the death of another person. See 730 ILCS
5/5–8–1(a)(1)(d)(iii) (West 2004). Relying on People v. Davis, 145
Ill. 2d 240, 250 (1991), defendant argues that the failure of the trial
court to properly admonish a guilty-plea defendant as to the correct,
minimum sentence is grounds for vacating the guilty plea. Defendant
acknowledges that he could not have negotiated a lesser sentence
given that the 45-year sentence he received was the minimum possible
under the sentencing scheme. But he contends that the decision to
forgo an appeal belonged to him and not his counsel, citing four
federal cases where guilty pleas were vacated because the defendants
either were not informed of the correct minimum sentence or were not
informed of the applicability of sentencing enhancements. See United
States v. Fernandez, 205 F.3d 1020 (7th Cir. 2000); United States v.
Goins, 51 F.3d 400 (4th Cir. 1995); United States v. Watch, 7 F.3d
422 (5th Cir. 1993); United States v. Hourihan, 936 F.2d 508 (11th
Cir. 1991).
Initially, we note that to the extent that defendant would now
attempt to raise the admonishment issue as an independent claim apart
from the duty-to-consult issue, it would be forfeited because the
admonishment issue was not raised in defendant’s postconviction
petition, nor was it raised in the appellate court. See People v.
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Pendleton, 223 Ill. 2d 458, 475 (2006); People v. Jones, 211 Ill. 2d
140, 148 (2004). Thus, we consider defendant’s admonishment claim
only in the context of the Flores-Ortega framework of whether it
amounts to a nonfrivolous ground for appeal that a rational defendant
would have wanted to raise under the circumstances. We find that it
is not, and that the issue is frivolous and without merit.
Whether reversal is required for an imperfect admonishment
depends on whether real justice has been denied or whether defendant
has been prejudiced by the inadequate admonishment. Davis, 145 Ill.
2d at 250. In this case, it is undisputed that the trial court never
applied the 25-year enhancement.1 During the trial court proceedings,
the parties and the court understood the sentencing range to be 20 to
60 years’ imprisonment. Defendant was then sentenced exactly as his
admonishments advised him he would be. This crucial fact makes all
of the authority relied upon by defendant fatally distinguishable. In
each case defendant cites, the defendants were told one thing and
subjected to another at sentencing.
For example, in Davis, the trial court’s admonishment prior to
taking the guilty plea led the defendant to believe that he would be
eligible for probation under the Treatment Alternatives to Street
Crime (TASC) program. Sometime during the 51 days between the
date the guilty plea was entered and the date the defendant’s sentence
was imposed, defense counsel discovered that the defendant was not
eligible for TASC probation. Defense counsel brought this to the
attention of the trial court by way of a motion for a continuance and
later with a motion to vacate the guilty plea on the grounds that the
purpose of the plea–to request TASC probation–had been frustrated.
1
Even though the court did not apply the enhancement, the sentence is not
void because it is still within the lawful statutory range. With the 25-year
enhancement, the sentencing range for first degree murder, during which the
defendant discharged a firearm that caused the death of another person, was
45 to 85 years. See 730 ILCS 5/5–8–1(a)(1)(a), (a)(1)(d)(iii) (West 2004).
Defendant’s sentence was within this range, so it conforms to the statutory
requirements and is therefore not void. See People v. Brown, 225 Ill. 2d 188,
205 (2007) (a sentence not authorized by statute is void only to the extent
that it exceeds what the law permits; the legally authorized portion remains
valid).
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The trial court denied both motions and imposed a 10-year prison
sentence. This court found that the defendant’s motion to vacate the
guilty plea should have been granted. Davis, 145 Ill. 2d at 250-51.
In Fernandez, defense counsel told the defendant and the trial
judge in open court at a plea hearing that the minimum sentence was
70 months. The judge did not inform the defendant prior to his plea
that the statutorily mandated minimum sentence was actually 10 years.
Instead, the judge accepted defendant’s guilty plea and then later
sentenced him based on the understanding that the minimum sentence
was 10 years, not 70 months. In Watch, the district court allowed the
defendant to be admonished that the applicable sentencing range was
between “zero and the statutory maximum of 20 [years].” But at
sentencing, the court found that a mandatory minimum sentence of
110 months’ imprisonment applied. The court then sentenced him
within that range to 120 months. Watch, 7 F.3d at 425.
In contrast to the above-mentioned cases, the trial court in this
case sentenced defendant exactly as he had been admonished. The
court informed defendant that he would be sentenced to between 20
and 60 years, and the court selected 45 years from within this range
based on the extreme premeditation of the murder, which was
mitigated by defendant’s lack of a criminal history. Defendant
essentially argues that the trial court should have added 25 years to his
sentence, making his sentence 70 years, and because the court should
have added 25 years, it should have admonished defendant that it
would add 25 years to the 20- to 60-year sentencing range. Given that
the trial court did not add or even consider the 25 years that defendant
complains about, we find no merit to defendant’s argument.
c. No Reason to Think a Rational Defendant Would Want Appeal
Flores-Ortega directs that, in considering whether counsel had a
duty to consult about an appeal, “ ‘a highly relevant factor *** will be
whether the conviction follows a *** guilty plea, both because a guilty
plea reduces the scope of potentially appealable issues and because
such a plea may indicate that the defendant seeks an end to judicial
proceedings.’ ” United States v. Taylor, 339 F.3d 973, 980 (D.C. Cir.
2003), quoting Flores-Ortega, 528 U.S. at 480, 145 L. Ed. 2d at 997,
120 S. Ct. at 1036. Here, defendant did plead guilty and that plea did
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in fact reduce the scope of potentially appealable issues–to the degree
that defendant had nothing left other than the frivolous claims
discussed above. See Taylor, 339 F.3d at 980. It is also clear that
defendant sought an end to the judicial proceedings by pleading guilty.
As the defense explained at the sentencing hearing, defendant pled
guilty to save his family “the aggravation of a trial.” Defendant also
admitted that his attorneys had no defense for him to mount against
the charges, and the facts in the record easily confirm that this is an
accurate assessment.
Flores-Ortega further provides that “ ‘[e]ven in cases when the
defendant pleads guilty, the court must consider such factors as
whether the defendant received the sentence bargained for as part of
the plea and whether the plea expressly reserved or waived some or
all appeal rights.’ ” Taylor, 339 F.3d at 980, quoting Flores-Ortega,
528 U.S. at 480, 145 L. Ed. 2d at 997, 120 S. Ct. at 1036. As to the
first factor, defendant did in fact receive the sentence that he
bargained for. The trial court repeatedly informed him that it would
impose a sentence between 20 and 60 years. Defendant always
indicated that he understood this. When defendant “said that he
understood and wanted to plead guilty nonetheless, he accepted the
possibility–as part of the ‘sentence bargained for’–that the court’s
[sentencing determination] would differ” from any predictions his
lawyers may have made about how lenient the court’s determination
would be. See Taylor, 339 F.3d at 981. The second factor is also
unavailing to defendant because, even though defendant did not waive
the right to appeal his sentence, he had no nonfrivolous ground upon
which to base any such appeal. See Taylor, 339 F.3d at 980.
Accordingly, we conclude that defendant has not established any
ground that would have given his trial counsel “reason to think ***
that a rational defendant would want to appeal” the sentence imposed
in this case. Flores-Ortega, 528 U.S. at 480, 145 L. Ed. 2d at 997,
120 S. Ct. at 1036. Thus, defendant cannot meet the first part of the
Flores-Ortega test.
2. “Interested in Appealing” Prong of Flores-Ortega Test
The second part of the test requires us to determine whether
“there is reason to think *** that this particular defendant reasonably
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demonstrated to counsel that he was interested in appealing.” Flores-
Ortega, 528 U.S. at 480, 145 L. Ed. 2d at 997, 120 S. Ct. at 1036.
“In making this determination, we ‘must take into account all the
information counsel knew or should have known.’ ” Taylor, 339 F.3d
at 980, quoting Flores-Ortega, 528 U.S. at 480, 145 L. Ed. 2d at 997,
120 S. Ct. at 1036.
One thing that defendant’s counsel knew was that their client had
pled guilty and had expressly indicated that he sought an end to the
judicial proceedings. Counsel also knew that the evidence against their
client was beyond overwhelming, leaving no serious grounds for a trial
defense on the issue of guilt. Moreover, even if defendant’s
postconviction allegations could be liberally construed to indicate that
prior to his guilty plea, defense counsel expressed to him that they
thought the trial court would impose a more lenient sentence than 45
years, this still does not help defendant’s cause where the record
indisputably shows that the court advised him that his sentence could
be as high as 60 years and he indicated he understood this. Defendant
was also meticulously admonished by the trial court about his appeal
rights. Defendant indicated that he understood those rights, but
expressed no intention to the court of any desire to appeal nor did he
express any displeasure with his sentence. It is also undisputed that
defendant had no conversation with his counsel following imposition
of the sentence. Finally, we note that even if defendant was displeased
with his sentence, he actually received the minimum sentence allowed
by law and so any challenge to his sentence on the ground that it was
excessive would be without merit at this point. Under these
circumstances, there was simply no reason for defendant’s lawyers to
think that defendant was dissatisfied or would want to appeal.
Accordingly, we conclude that “this particular defendant did not
“reasonably demonstrate[ ] to counsel that he was interested in
appealing” (Flores-Ortega, 528 U.S. at 480, 145 L. Ed. 2d at 997,
120 S. Ct. at 1036), and he is thus unable to satisfy the second part of
the Flores-Ortega test.
CONCLUSION
Finally, we believe that the “better practice” is for counsel to
consult with his client about the possibility of an appeal following the
imposition of a sentence imposed upon a plea of guilty, and we exhort
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all defense counsel practicing in our state courts to follow this
practice. Flores-Ortega, 528 U.S. at 479, 145 L. Ed. 2d at 996, 120
S. Ct. at 1035; see also Taylor, 339 F.3d at 982. The Supreme Court
has made clear, however, that such consultation is not constitutionally
required in all cases, and this case is one in which there was no
constitutionally mandated duty to consult. Thus, we hold that the
circuit court properly dismissed defendant’s postconviction petition.
For the foregoing reasons, we reverse the judgment of the
appellate court and we affirm the judgment of the circuit court.
Appellate court judgment reversed;
circuit court judgment affirmed.
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