People v. Presley , 2012 IL App (2d) 100617 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Presley, 2012 IL App (2d) 100617
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JAMES PRESLEY, Defendant-Appellant.
District & No. Second District
Docket No. 2-10-0617
Filed May 18, 2012
Held The appellate court affirmed the entry of a directed finding for the State
(Note: This syllabus on defendant’s motion to withdraw his guilty plea to aggravated criminal
constitutes no part of sexual abuse on the ground that his attorney failed to advise him that a
the opinion of the court guilty plea would require lifetime registration as a sex offender, since,
but has been prepared even assuming the deficiency prong of Strickland was satisfied,
by the Reporter of defendant’s claim that he would not have pled guilty if he was advised of
Decisions for the the registration requirement was insufficient to establish prejudice,
convenience of the especially in view of the admonition of Padilla that prejudice required
reader.)
defendant to show that a decision to reject a plea bargain would have
been rational under the circumstances.
Decision Under Appeal from the Circuit Court of Du Page County, No. 07-CF-430; the
Review Hon. George J. Bakalis, Judge, presiding.
Judgment Affirmed.
Counsel on James K. Leven, of Chicago, for appellant.
Appeal
Robert B. Berlin, State’s Attorney, of Wheaton (Stephen E. Norris and
Patrick D. Daly, both of State’s Attorneys Appellate Prosecutor’s Office,
of counsel), for the People.
Panel JUSTICE BOWMAN delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Hutchinson concurred in the
judgment and opinion.
OPINION
¶1 Defendant, James Presley, entered an open guilty plea to one count of aggravated
criminal sexual abuse (720 ILCS 5/12-16(d) (West 2006)). Defendant subsequently moved
to withdraw his guilty plea based on ineffective assistance of counsel; namely, his attorney’s
failure to advise him that his guilty plea would result in lifetime sex offender registration.
Following a hearing on defendant’s motion, the trial court granted a directed finding in favor
of the State. Defendant appeals that finding, and we affirm.
¶2 I. BACKGROUND
¶3 On March 27, 2007, defendant was charged by indictment with two counts of aggravated
criminal sexual abuse. The charges alleged that defendant, who was at least 5 years older
than the victim, S.D., knowingly committed an act of sexual conduct with S.D., who was at
least 13 years of age but was under 17 years of age, in that he placed his hand on her breast
and his finger in her sex organ.
¶4 Due to a variety of issues and ongoing plea negotiations, the matter was continued on
numerous occasions. On April 7, 2009, the parties appeared in court as the case was set for
trial. Defense attorney Ronald Merel stated that, after extensive communications with
defendant and the State, defendant had wished to enter a plea, as recently as the day before.
However, defendant, who was in psychiatric care, had just changed his mind after a meeting
with his doctor and now wished to have a different attorney appointed to represent him. The
court refused “to do that,” noting that for one reason or another the case had been set for trial
seven times. Defendant then entered a plea of guilty to count II, a Class 2 offense, and the
State agreed to nol-pros count I. The court admonished defendant pursuant to Illinois
Supreme Court Rule 402 (eff. July 1, 1997) but did not mention that, as a consequence of his
plea, he would be subject to lifetime registration as a sex offender under the Sex Offender
Registration Act (Act). See 730 ILCS 150/1 et seq. (West 2006).
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¶5 As a factual basis for the plea, S.D. would testify that she met defendant around
Christmas in 2006. At the time, S.D. told defendant that she was 16 years old even though
she was only 14 years old. Defendant told her that he was 24 years old. In early January 2007,
S.D. arranged to meet with defendant. He picked her up in his car, and they drove to a side
street in Elmhurst. While in the car, defendant placed his finger in S.D.’s sex organ. Elmhurst
detective Mike Campise would testify that he met twice with defendant in February 2007.
Initially, defendant gave one version of events to the detective. Ultimately, defendant
admitted to placing his finger in S.D.’s sex organ. Defendant thought that S.D. was 16 years
old. The court accepted the plea and entered a finding of guilty. The matter was continued
for sentencing.
¶6 As part of the presentence investigation, defendant was interviewed by Dr. Leslie Kane
on several occasions. On June 30, 2009, at a status hearing, defense attorney Merel explained
to the court what had transpired between defendant and Dr. Kane. According to defense
attorney Merel, Dr. Kane told defendant that she did not believe that “the potential sentence
of branding [defendant] on a plea of guilty as a lifetime sexual offender was a fair and
appropriate sentence.” Defense attorney Merel continued, “We know that the plea of guilty
was entered. And it was entered with the idea of [defendant] being aware of what the
consequences [were]. However, his discussions with Dr. Kane during their interviews, I
guess, potentially changed his mind about the plea that was entered to this charge on April
7.” Defense attorney Merel went on to say that he had spoken with Dr. Kane, who confirmed
that she had communicated to defendant the idea of withdrawing his plea. The court noted
that Dr. Kane had found defendant to be a very low risk to repeat. However, the court further
noted that Dr. Kane was not in a position to give any recommendation as to sentence; her job
was to evaluate him as a sex offender and predict his potential for reoffending. Still, the court
recognized that defendant had the right to file a motion to withdraw his plea.
¶7 Defense attorney Merel advised the court that he was not sure he would continue to
represent defendant; it put him in “a rather tenuous position.” Defense attorney Merel
explained that he had been on the case from its inception, which was nearly 2½ years earlier,
and that he had several meetings with defendant and his mother. Defense attorney Merel
stated:
“And I have had several meetings, the latest of which was this past Saturday, where
[defendant] and his mother and I spent several hours together. And I explained to him
what we are looking at here. And as I indicated, I, in fact, had some discussion with Dr.
Kane, as well, yesterday. And I am not suggesting, your Honor–and I agree
wholeheartedly that her evaluations are just that, and that is to enable the Court to make
a better determination of what an appropriate sentence is.
I am pretty sure that [defendant] was aware upon entering the plea of guilty, based
on my conversations with him, that, based on the plea that he was entering, that he would
have to register as a lifetime sexual offender. There had been some discussions between
myself and the State about certainly modifying some of the sentences. Those never came
to fruition. And in fact, the actual sentence that he pled guilty to would require him to
register as a lifetime sexual offender. And I believe that I imparted that to [defendant]
and his mother.
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What occurred during those discussions between Dr. Kane and [defendant], I was not
there and I cannot comment on.”
¶8 In August 2009, defendant obtained new counsel, defense attorney Frank Scarpino, and
defense attorney Merel withdrew. Defense attorney Scarpino advised the court that he would
be filing a motion to withdraw defendant’s guilty plea.
¶9 Defense attorney Scarpino filed such a motion on October 9, 2009, alleging that defense
attorney Merel was “ineffective in that he failed to fully advise [defendant] of all his
obligations under a plea of guilty to a Felony Sex Offense.” The State moved to strike
defendant’s motion, arguing that it failed to articulate a recognized basis for withdrawal of
his guilty plea. At the hearing on defendant’s motion, defense attorney Scarpino argued that
defendant was not “apprised of all of his rights and obligations under the plea of guilty under
the sex offender statute.” The trial court granted the State’s motion to strike on November
16, 2009. According to the court, defendant’s motion did not indicate what information
defendant was not apprised of in terms of pleading guilty, and it did not contain a defense
to the charge.
¶ 10 The sentencing hearing occurred in November 2009. The trial court sentenced defendant
to 24 months of sex offender probation and 100 days in jail, with credit for time served.
Pursuant to the Act, defendant was also required to register as a lifetime sex offender.
¶ 11 On December 22, 2009, defendant filed a pro se motion to withdraw his guilty plea. A
few months later, a third attorney, defense attorney Anthony Coco, appeared on behalf of
defendant and filed a motion to withdraw defendant’s guilty plea. In the motion, defendant
argued that his plea “was not intelligent,” because, at the time of the plea, defense attorney
Merel had rendered ineffective assistance of counsel for not warning him that a guilty plea
would, as a matter of law, force him to be a “life-time sexual offender registrant.” In support
of his position, defendant argued that the United States Supreme Court decision in Padilla
v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473 (2010), which held that defense counsel must
inform the client whether the plea carries a risk of deportation, had changed the law
regarding whether attorneys were obligated to advise their clients about collateral
consequences. In other words, under Padilla, defense attorney Merel was obligated to advise
defendant about the collateral consequence of registration, and his failure to do so rendered
him ineffective.
¶ 12 The State again moved to strike defendant’s motion, arguing that Padilla applied to
deportation and not sex offender registration. This meant, according to the State, that the case
law distinguishing direct consequences from collateral consequences was still in effect.
Because sex offender registration was a collateral consequence of defendant’s plea, the State
argued, defense attorney Merel was not obligated to advise him of it and there was no basis
to invalidate the plea. In addition, the State argued that defendant’s motion was not supported
by affidavit, despite its articulation of facts that did not appear in the record. The State
pointed out that the June 30, 2009, transcript contradicted defendant’s statement and
illustrated that defense attorney Merel had in fact informed defendant of the collateral
consequences of his plea. In response, defense attorney Coco filed his own affidavit, which
averred that defendant told him that defense attorney Merel failed to advise him that his plea
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could require him to register as a lifetime sex offender.
¶ 13 The parties appeared before the court to argue the State’s motion to strike. The court
denied the State’s motion, conditioned upon defense attorney Coco filing an affidavit on
behalf of defendant, which he did. In that affidavit, defendant averred that defense attorney
Merel did not inform him that pleading guilty to aggravated criminal sexual abuse would
force him to register as a lifetime sex offender as a matter of law. Defendant further averred
that he would never have pled guilty to the charge had he known of that requirement and all
the hardships that being a sex offender registrant entailed. According to defendant, he would
have maintained his not-guilty plea and demanded that the State prove the charges against
him.
¶ 14 A hearing on defendant’s motion to withdraw his plea was held on June 11, 2010.
Defendant testified as follows. Defendant, who was represented by defense attorney Merel
at the time, entered a guilty plea on April 7, 2009. When they appeared in court on that date,
defense attorney Merel asked the court for a continuance for another status hearing, but the
court refused to allow any more status hearings. Defendant then went into a side room with
defense attorney Merel, who told defendant that he needed to either go to trial or plead guilty
that day. Defendant pled guilty. Defense attorney Merel told defendant that sentencing was
up to the court; he never mentioned “being a lifetime registrant sex offender.”
¶ 15 Defendant further testified that the possibility of registering as a sex offender came up
once prior to his guilty plea on April 7, 2009. In 2008, the State made a plea offer that
included 10 years’ registration. Defendant had one day to think about the offer “but that’s the
only time it came up.” Defendant was thus aware that there was such a thing as sex offender
registration. When defense attorney Merel said that sentencing was up to the court, defendant
had “no knowledge of it being anywhere near registration.” Defense attorney Merel told
defendant that he could receive probation or “sit in prison” for three to five years; “[n]o
registration came up whatsoever.” On the day he pled guilty, defendant was not aware of the
lifetime registration requirement. Defendant “didn’t even think it would come up,” because
“it never got mentioned up any time I talked to [defense attorney Merel] in the past two and
three-quarter years of him handling [his] case, besides the one plea deal from [the State].”
Had defendant known he would have to be a lifetime registrant, he would not have pled
guilty on April 7. As a result of registration, defendant could not pick up his two children,
ages three and six, from school. Also, he could not “live anywhere.” Defendant was living
in a hotel with his mother; he could not find a job. According to defendant, it had been “a
lifetime of hell for the past year or seven months,” and he could not obtain partial custody
because he had “no case” as a “sex offender.”
¶ 16 On cross-examination, defendant testified that he found out about the lifetime registration
requirement on November 30, 2009, when he was sentenced. At that time, defense attorney
Scarpino was representing him. With respect to defense attorney Merel, defendant denied
that his mother was present when he met with him. Defendant met with Dr. Kane, who spoke
with him about possible sentences if he were found guilty. Defendant admitted telling her he
could receive three to five years in prison; he denied saying he was offered probation but
would have to register as a sex offender. When asked if he ever brought up the subject of sex
offender registration with Dr. Kane, defendant replied “I don’t believe so.” Defendant
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admitted telling Dr. Kane that in June 2008 he was offered a plea agreement that included
10 years of registration as a sex offender. That was the only offer by the State. Defendant told
defense attorney Merel that he did not want to accept the offer, and “that was never brought
up again.”
¶ 17 On redirect, defendant testified that there was also talk of a possible plea agreement
involving an unlawful restraint charge. Defense attorney Merel told defendant that that
charge had no registry requirement. On recross, defendant testified that defense attorney
Merel brought up that possible plea agreement to the State, but that the State rejected it in
about two minutes.
¶ 18 At this point, the State moved for a directed finding on several grounds. First, the State
argued that defendant failed to establish the prejudice prong for an ineffective-assistance-of-
counsel claim, because he did not set forth a claim of actual innocence or a plausible defense.
According to the State, a bare allegation that he would not have pled guilty was not sufficient
to establish prejudice. Second, the State attacked defendant’s credibility as to whether he was
aware of the lifetime registration requirement. Third, the State pointed out that defendant
never alleged that defense attorney Merel gave him false information; rather, defendant
alleged that he gave him no information, and the registration requirement was a collateral
consequence, meaning that the failure to advise him of it could not invalidate his plea.
Finally, the State argued that the Padilla case relied upon by defendant was limited to the
special circumstances of deportation and did not apply to the sex offender registration
requirement. Defendant countered the State’s position by arguing that registering as a
lifetime sex offender could be a worse penalty than deportation. As a result, Padilla, which
abolished the collateral versus noncollateral consequence distinction, applied to his case.
¶ 19 The court granted the State’s motion for a directed finding and denied defendant’s motion
to withdraw his guilty plea, ruling as follows. It agreed with the State that, in order for
defendant to withdraw his guilty plea, he needed to put forth “some defense worthy of
consideration in this case,” which he failed to do. But even setting that issue aside, there was
not “any question in [the court’s] mind based on [defendant’s] testimony that he was aware
that there was some type of a sex offender registration requirement.” According to the court,
defendant “clearly understood that was part of some offer that was made to him at one
point.” In addition, with respect to the unlawful restraint plea negotiation, defendant “clearly
understood the difference between having to register as a sex offender and not having to
register as a sex offender.” The court went on to say that defendant “may have not known”
that the charge he eventually pled guilty to required lifetime registration, but he was aware
that there would be some registration requirement. It was “really more of a matter of the
degree of registration that he was required to abide by,” because there was no question that
he knew that he had to register in some form as a sex offender. Regarding the impact of the
Padilla case, the court distinguished it on the basis that deportation was a particularly severe
penalty whereas registration, though a severe penalty as well, had a purpose of public
protection. The court reasoned that registration was a collateral consequence rather than a
direct consequence of the plea, and it declined to “interpret Padilla to say that sex offender
registration [was] now something that [was] a direct consequence of a plea of guilty to that
offense.”
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¶ 20 Defendant timely appealed the denial of his motion to withdraw his guilty plea.
¶ 21 II. ANALYSIS
¶ 22 A. Standard of Review
¶ 23 In this case, defendant’s motion to withdraw his guilty plea was based on the alleged
ineffectiveness of defense attorney Merel. Specifically, defendant asserted that defense
attorney Merel was ineffective for failing to advise him of a consequence of his plea, which
was lifetime registration as a sex offender. A challenge to a guilty plea based on ineffective
assistance of counsel is subject to the standard set forth in Strickland v. Washington, 466
U.S. 668 (1984). People v. Rissley, 206 Ill. 2d 403, 457 (2003). Because a plea is valid only
if it was voluntary and intelligent (People v. Hughes, 2011 IL App (2d) 090992, ¶ 14),
counsel’s conduct was deficient under the first prong of Strickland if the attorney failed to
ensure that the defendant entered the plea voluntarily and intelligently. Rissley, 206 Ill. 2d
at 457. To establish prejudice, the second prong under Strickland, a defendant must show
that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial. Id.
¶ 24 Ordinarily, the decision to grant or deny a motion to withdraw a guilty plea rests in the
discretion of the trial court and will not be reversed absent an abuse of discretion. People v.
Delvillar, 235 Ill. 2d 507, 520 (2009). Defendant argues that our review in this case is
different, however, in that it occurs within the context of a directed finding. Although our
research has revealed no case directly on point, we agree with defendant that the issue is
whether he presented a prima facie case of defense attorney Merel’s ineffectiveness so as to
shift the burden to the State. See People v. Nitz, 371 Ill. App. 3d 747, 750 (2007) (where the
trial court granted the State’s motion for a directed finding on defendant’s motion to quash
an arrest and suppress evidence, the reviewing court stated that it must determine whether
the defendant made a prima facie case so as to shift the burden of going forward to the State).
Citing to the standard of review for ineffective-assistance-of-counsel claims, defendant
argues that our review is de novo. See People v. Bailey, 375 Ill. App. 3d 1055, 1059 (2007)
(the question of whether defense counsel provided ineffective assistance requires a bifurcated
standard of review, wherein a reviewing court must defer to the trial court’s findings of fact
unless they are against the manifest weight of the evidence but must make a de novo
assessment of the ultimate legal issue of whether counsel’s omission supports an ineffective-
assistance claim). However, regardless of what standard we apply, we determine that
defendant did not make a prima facie case of ineffectiveness under Strickland.
¶ 25 B. Deficiency Prong
¶ 26 With respect to the first Strickland prong, defendant makes three arguments. First, he
argues that defense attorney Merel was deficient for failing to advise him of the lifetime
registration requirement as a consequence of his plea. Second, he goes a step further by
arguing that defense attorney Merel made affirmative misrepresentations as to that
consequence of his plea. Third, he argues that, regardless of the outcome of the first two
arguments, defense attorney Merel was deficient under the analysis in Padilla. We consider
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each argument in turn.
¶ 27 “Generally, for a plea to be deemed voluntary and intelligent, a defendant must be fully
aware of the direct consequences of entering the plea.” Hughes, 2011 IL App (2d) 090992,
¶ 14. Direct consequences of a plea are those consequences affecting the defendant’s
sentence and other punishment that the trial court may impose. Delvillar, 235 Ill. 2d at 520.
On the other hand, a defendant’s knowledge–or lack thereof–of the collateral consequences
of a plea has no bearing on the validity of the plea. Hughes, 2011 IL App (2d) 090992, ¶ 14.
Collateral consequences are effects upon the defendant that the trial court has no authority
to impose; they result from an action that might or might not be taken by an agency that the
trial court does not control. Delvillar, 235 Ill. 2d at 520.
¶ 28 In measuring the reasonableness of an attorney’s performance under the Strickland test,
courts have emphasized the distinction between advising a defendant of the direct
consequences of a guilty plea and advising him of consequences that arise collaterally from
the plea. People v. Huante, 143 Ill. 2d 61, 70 (1991). It has been held that lifetime
registration as a sex offender, the consequence at issue here, is not a constraint on liberty and
is merely a collateral consequence of the defendant’s conviction. People v. Downin, 394 Ill.
App. 3d 141, 146 (2009). Thus, prior to Padilla, the failure of counsel to advise defendant
of this collateral consequence would not have provided a basis to invalidate his plea.
¶ 29 Even so, case law prior to Padilla draws a distinction between an attorney’s failure to
advise and affirmative, misleading advice regarding the collateral consequences of a plea.
For this reason, defendant also argues that defense attorney Merel affirmatively misled him
regarding the lifetime sex offender registration requirement. The State agrees that this
distinction is critical based on People v. Correa, 108 Ill. 2d 541 (1985), in which the
attorney’s erroneous and misleading advice to the defendant on the collateral consequence
of deportation invalidated the defendant’s guilty plea. Correa, 108 Ill. 2d at 553; see also
People v. Young, 355 Ill. App. 3d 317, 323 (2005) (noting the distinction between the passive
conduct of counsel in failing to discuss with a defendant the collateral consequences of a
guilty plea and unequivocal, erroneous, misleading representations that counsel makes in
response to a defendant’s specific inquiries). According to the State, if this court finds that
defendant was affirmatively misled by defense attorney Merel, then defendant has made a
prima facie case of deficiency, and this court need not consider the impact of Padilla on the
facts of this case.
¶ 30 In reviewing the record, there is no support for defendant’s assertion that defense attorney
Merel made “affirmative misrepresentations” regarding the lifetime sex offender registration
requirement. In defendant’s motion to withdraw his plea, he alleged that defense attorney
Merel was ineffective for not warning him of the lifetime registration requirement. Likewise,
at the hearing on the motion to withdraw the plea, defendant testified that, when he pled
guilty, defense attorney Merel never mentioned the lifetime registration requirement; thus,
he was not aware of it. Defendant went as far as stating that a sex offender registration
requirement was never mentioned by defense attorney Merel except in the context of the
rejected plea offer by the State and in the context of the plea negotiation involving unlawful
restraint. Accordingly, while defendant admitted that he was aware that there was such a
thing as sex offender registration, he clarified that he was never advised of a lifetime
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registration requirement as a consequence of his plea. Defendant does not explain how his
awareness of sex offender registration from plea negotiations somehow translates into
affirmative misrepresentations by defense attorney Merel. Nor does he explain how defense
attorney Merel’s correct advice that sentencing was up to the court constitutes an affirmative
misrepresentation as to the lifetime registration requirement. As the court found, the most
that can be said is that defendant was unaware of the degree of the registration requirement.
¶ 31 Having determined that defendant was not affirmatively misled by defense attorney
Merel, we turn to defendant’s third argument, which is that Padilla applies to this case. As
previously mentioned, the Supreme Court recently held in Padilla that counsel must inform
his or her client whether a plea carries a risk of deportation. Padilla, 559 U.S. at ___, 130 S.
Ct. at 1486. Noting that deportation was often considered by lower courts to be a collateral
consequence, the Court declined to apply a distinction between direct and collateral
consequences in light of the unique nature of deportation. Id. at ___, 130 S. Ct. at 1481.
Equally important, the Court refused to find that Strickland applied only to affirmative
misadvice about whether the defendant’s conviction would result in deportation. Id. at ___,
130 S. Ct. at 1483-84. According to the Court, there was no relevant difference between an
act of commission and an act of omission in this context. Id. at ___, 130 S. Ct. at 1484.
Therefore, regardless of whether sex offender registration is a collateral consequence of
pleading guilty, and regardless of whether defense attorney Merel affirmatively misled
defendant or merely failed to inform him of this consequence, defendant argues that he has
shown a prima facie case of deficiency under Padilla.
¶ 32 In addition, to counter the State’s argument that Padilla applies only to deportation and
should not be extended to sex offender registration, defendant cites two out-of-state cases
applying Padilla to sex offender registration. See People v. Fonville, 804 N.W.2d 878, 894-
95 (Mich. Ct. App. 2011) (holding that under Padilla defense counsel must advise a
defendant that registration as a sex offender is a consequence of the defendant’s guilty plea);
Taylor v. State, 698 S.E.2d 384, 385 (Ga. Ct. App. 2010) (holding that it is constitutionally
deficient for counsel not to advise his client that pleading guilty will subject him to sex
offender registration requirements). The State responds by pointing to a case with the
opposite result. See Maxwell v. Larkins, No. 4:08 CV 1896 DDN, 2010 WL 2680333, at *10
(E.D. Mo. July 1, 2010) (given the difference between the deportation context and the sex
offender context, the Padilla decision did not indicate that the performance of the attorney
was constitutionally deficient).
¶ 33 It is unclear whether Padilla applies to collateral consequences other than deportation.
For example, in Hughes, this court recently considered the issue of whether the failure to
advise the defendant of a collateral consequence, that the State could file a sexually-violent-
person petition, rendered his plea involuntary. Hughes, 2011 IL App (2d) 090992, ¶ 13.
Although the defendant in Hughes relied on Padilla for the proposition that the filing of a
sexually-violent-person petition would have consequences for him as great as deportation,
this court rejected that argument, stating that “[w]e simply cannot read Padilla as upsetting
the traditional collateral-direct consequence distinction outside the context of deportation,
and we decline to extend Padilla in such a manner.” Id. ¶¶ 19, 22.
¶ 34 We recognize that being declared a sexually violent person is not a definite, immediate,
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or automatic consequence of a guilty plea, whereas registration as a sex offender is
mandatory in this case.1 However, we need not decide whether defense attorney Merel’s
alleged failure to advise defendant of the lifetime registration requirement constitutes a prima
facie case of deficient representation under Padilla, because defendant has failed to present
a prima facie case of prejudice under Strickland. See Strickland, 466 U.S. at 697; People v.
Albanese, 104 Ill. 2d 504, 527 (1984) (if it is easier to dispose of an ineffectiveness claim on
the grounds of lack of sufficient prejudice, it is not necessary to determine whether defense
counsel’s performance was deficient). The Court in Padilla considered only the first prong
of Strickland; it did not resolve the issue of prejudice or relieve the defendant of the burden
of showing it. According to the Court, “[w]hether [the defendant] is entitled to relief on his
claim will depend on whether he can satisfy Strickland’s second prong, prejudice, a matter
we leave to the Kentucky courts to consider in the first instance.” Padilla, 559 U.S. at ___,
130 S. Ct. at 1483-84.
¶ 35 C. Prejudice Prong
¶ 36 In order to establish prejudice, defendant had to show a reasonable probability that, but
for counsel’s errors, he would not have pled guilty and would have insisted on going to trial.
Rissley, 206 Ill. 2d at 458. In articulating what is required, our supreme court has stated that
“[a] bare allegation that the defendant would have pleaded not guilty and insisted on a trial
if counsel had not been deficient is not enough to establish prejudice.” People v. Hall, 217
Ill. 2d 324, 335 (2005). Instead, the defendant’s claim must be accompanied by either a claim
of innocence or the articulation of a plausible defense that could have been raised at trial. Id.
at 336. The United States Supreme Court in Hill v. Lockhart, 474 U.S. 52 (1985), explained:
“In many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry
engaged in by courts reviewing ineffective-assistance challenges to convictions obtained
through a trial. For example, where the alleged error of counsel is a failure to investigate
or discover potentially exculpatory evidence, the determination whether the error
‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will
depend on the likelihood that discovery of the evidence would have led counsel to change
his recommendation as to the plea. This assessment, in turn, will depend in large part on
a prediction whether the evidence likely would have changed the outcome of a trial.
Similarly, where the alleged error of counsel is a failure to advise the defendant of a
potential affirmative defense to the crime charged, the resolution of the ‘prejudice’
inquiry will depend largely on whether the affirmative defense likely would have
succeeded at trial.” Id. at 59.
Citing Hill, our supreme court has stated that the question of whether counsel’s deficient
representation caused the defendant to plead guilty depends in large part on predicting
whether the defendant likely would have been successful at trial. Hall, 217 Ill. 2d at 336.
1
By pleading guilty to aggravated criminal sexual abuse, defendant is considered a “sexual
predator” under the Act (730 ILCS 150/2(E) (West 2006)), meaning he must register for life (730
ILCS 150/7 (West 2006)).
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¶ 37 In this case, defendant did not make a claim of innocence or articulate a plausible
defense; he simply rested on the bare allegation that he would have pled not guilty had he
known of the lifetime sex offender registration requirement. In his motion to withdraw his
plea, the attached affidavits, and his testimony at the hearing, defendant focused only on his
lack of awareness of the registration requirement. Defendant excuses this omission by relying
on Correa and People v. Edmonson, 408 Ill. App. 3d 880 (2011). Defendant argues that,
under the rationale of those cases, he was not required to make a claim of innocence or
articulate a plausible defense. We agree that the defendants in Correa and Edmonson were
not required to make a claim of actual innocence or raise a plausible defense in order to
establish prejudice under Strickland. As we explain, however, those cases are distinguishable
from the case at bar.
¶ 38 In Correa, the defendant claimed that his pleas were involuntary based on his attorney’s
mistaken advice that, because his wife was an American citizen, he had nothing to worry
about in terms of deportation, even though his convictions were actually grounds for
deportation. Correa, 108 Ill. 2d at 544, 547-48. The supreme court, which applied Strickland
but never used the word “prejudice,” stated that the effect of the defendant’s pleas on his
status as an immigrant was a prime factor in his decision whether to plead guilty. Id. at 553.
Noting that the advice that counsel gave the defendant was erroneous and misleading, the
court held that the defendant’s pleas of guilty were not intelligently and knowingly made and
therefore not voluntary. Id.
¶ 39 Correa offers little guidance in this case for two reasons. First, it did not discuss what
is necessary to show prejudice under Strickland. The reason for this, presumably, is that it
predated the United States Supreme Court’s decision in Hill, which held that the two-part
Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel.
Hill, 474 U.S. at 58; see also People v. Black, 207 Ill. App. 3d 304, 309-10 (1991)
(recognizing that, after Correa, Hill clarified that the prejudice prong must also be satisfied
in order to establish ineffective assistance of counsel in the context of guilty pleas). Second,
a key consideration for the Correa court was the effect of erroneous, misleading advice about
deportation on the defendant’s decision to plead guilty, as opposed to the passive conduct of
counsel in failing to discuss that consequence of a guilty plea. Correa, 108 Ill. 2d at 551, 553.
However, this distinction is no longer important under Padilla, which found no relevant
difference between an act of commission and an act of omission on the part of counsel in the
context of deportation.
¶ 40 In Edmonson, the defendant moved to withdraw his plea based on his counsel incorrectly
advising him that he could still challenge his sentence by filing a motion to reconsider his
sentence and by appealing if that motion were denied. Edmonson, 408 Ill. App. 3d at 883.
The State conceded that defense counsel incorrectly advised the defendant but it contended
that the defendant was not entitled to withdraw his plea, because he did not provide evidence
of actual innocence and because he was not prejudiced by the misinformation, as his sentence
was not excessive. Id. at 884. This court found Correa controlling due to the fact that the
defendant had been affirmatively misinformed about his ability to challenge his sentence. Id.
at 886. Because the evidence showed that the defendant had relied on the misinformation
when he entered his plea and that it played a key role in his decision, counsel was ineffective
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and the defendant’s plea was not voluntary. Id. We further stated that the only prejudice the
defendant needed to show was that, absent his counsel’s misinformation, he would not have
pled guilty. Id.
¶ 41 At first glance, Edmonson seems to support defendant’s argument that the only prejudice
he need show is that he would not have pled guilty had he known of the lifetime registration
requirement. However, what separates Edmonson from the case at bar is that the defendant
in Edmonson demonstrated how he was prejudiced by his attorney’s erroneous advice: he lost
the right to challenge his sentence after pleading guilty–a right he intended to exercise and
believed he could exercise despite pleading guilty. The prejudice became evident when the
defendant did in fact attack his sentence by arguing that the trial court had ignored various
mitigating factors, only to find out that his guilty plea foreclosed him from doing so.
Therefore, the defendant did more than make the bare assertion that, but for his attorney’s
deficiency, he would not have pled guilty; he showed prejudice in the lost opportunity to
challenge his sentence.
¶ 42 The critical inquiry in this case is what is necessary to show a prima facie case of
prejudice. Even if we excused defendant’s failure to claim innocence or raise a plausible
defense as Hall seems to require, defendant does not explain how his alleged ignorance of
the lifetime registration requirement factored into his decision to plead guilty. Or, stated
differently, he does not explain why, had he known of that consequence, he would have pled
not guilty and insisted on going to trial. While Padilla did not resolve the prejudice prong,
it stated what was required for a defendant to show prejudice: “a petitioner must convince
the court that a decision to reject the plea bargain would have been rational under the
circumstances.” Padilla, 559 U.S. at ___, 130 S. Ct. at 1485. It is hard to imagine how
rejection of the plea offer in this case would have been rational, since defendant confessed
to the crime and would have subjected himself to an additional charge by going to trial.
Going to trial would not have spared defendant of the effect of lifetime registration if he were
convicted, which was likely, and would also have subjected him to the possible penalty of
imprisonment instead of probation. Essentially, the prejudice that defendant alleges is
dissatisfaction about the effects of registration, which would not have changed if he had gone
to trial and been convicted.
¶ 43 Even assuming that defendant can satisfy Strickland’s deficiency prong, which means
that Padilla applies and that defense counsel was deficient for failing to advise defendant of
the consequence of lifetime sex offender registration, this does not result in automatic
prejudice under Padilla. See Padilla, 559 U.S. at ___ n.12, 130 S. Ct. at 1485 n.12 (the
Court’s rejection of the defendant’s prejudice claim in Hill “further underscores the fact that
it is often quite difficult for petitioners who have acknowledged their guilt to satisfy
Strickland’s prejudice prong”). Like defendant in this case, the defendant in Padilla argued
that, had he known of the deportation consequence, he would not have pled guilty but would
have insisted on going to trial. After finding defense counsel deficient for failing to advise
of the deportation consequence, Padilla did not determine that the defendant’s insistence that
he would have gone to trial was sufficient to establish prejudice. Instead, it recognized that
“prejudice” was a separate hurdle for the defendant, and it remanded the case for the lower
court to consider that issue in the first instance. Padilla, 559 U.S. at ___, 130 S. Ct. at 1483-
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84.
¶ 44 Here, to establish prejudice, defendant offers nothing more than the bare assertion that
he would not have pled guilty but would have insisted on going to trial. This is not sufficient,
given Padilla’s admonition that prejudice requires a defendant to convince the court that a
decision to reject the plea bargain would have been rational under the circumstances. Padilla,
559 U.S. at ___, 130 S. Ct. at 1485. Admittedly, the standard of proving prejudice continues
to evolve, and there may be cases where a defendant’s ignorance of the registration
requirement (or its duration) could result in prejudice. This is not such a case.
¶ 45 Finally, although defendant did not make this argument before the trial court, we note
that, on appeal, defendant makes the alternative argument that “the record reflects prima
facie evidence of a plausible defense to the charge.” Defendant points out that the record
shows that S.D. lied about her age to defendant and that he believed that she was not a minor.
The State points out that this argument is forfeited. See People v. Hall, 2011 IL App (2d)
100262, ¶ 19 (a party cannot make an argument for the first time on appeal). In any event,
the record shows that defendant believed that S.D. was 16 years old at the time of the
incident, which is not a defense. Therefore, for all of these reasons, defendant failed to
present a prima facie case of prejudice, and it was proper for the trial court to deny his
motion to withdraw his guilty plea.
¶ 46 III. CONCLUSION
¶ 47 For the aforementioned reasons, we affirm the judgment of the circuit court of Du Page
County.
¶ 48 Affirmed.
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