People v. House ( 2022 )

2022 IL App (2d) 210371-UNo. 2-21-0371
Order filed August 23, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 16-CF-1637
)
DEANTE L. HOUSE, ) Honorable
) Charles E. Petersen,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Justices Jorgensen and Brennan concurred in the judgment.
ORDER
¶1 Held: The trial court properly denied defendant’s motion to withdraw his guilty plea
alleging that plea counsel was ineffective for misadvising him that he would receive
double the sentencing credit for the 1052 actual days he spent in pretrial custody.
First, the trial court properly found defendant’s claim of improper advice incredible,
as defendant repeatedly acknowledged at the plea hearing that he would receive
1052 days’ credit. Second, defendant could not show prejudice because, even
though he claimed he would have gone to trial if he had known he would receive
only 1052 days’ credit, such a decision would not have been rational given the
favorable plea agreement.
¶2 Per a plea agreement, defendant, Deante L. House, was convicted of unlawful possession
of heroin with the intent to deliver (720 ILCS 570/401(a)(1)(B) (West 2016)) and sentenced to 9½
2022 IL App (2d) 210371-Uyears’ imprisonment with credit for 1052 days served. 1 Defendant moved to withdraw his guilty
plea, arguing that Greg Walker, his plea counsel, misadvised him about the amount of credit he
would receive. The trial court denied the motion. On appeal, defendant reasserts that Walker
misadvised him about sentencing credit and that the court erred in denying his motion to withdraw
his plea. We affirm.
¶3 I. BACKGROUND
¶4 On September 16, 2016, defendant was driving from Chicago to Wisconsin when the police
stopped him. The police arrested him for driving with a suspended license, and an inventory search
of his car uncovered various drugs. Defendant admitted to the police that he knew the drugs were
in the car and that he was being paid to transport them. Based on these facts, the State charged
defendant with six offenses: (1) unlawful possession of methamphetamine (720 ILCS 646/60(b)(3)
(West 2016)), (2) manufacturing or delivering methamphetamine (id. § 55(a)(2)(C)); (3) unlawful
possession of heroin (720 ILCS 570/402(a)(1)(B) (West 2016)), (4) unlawful possession of heroin
with the intent to deliver (id. § 401(a)(1)(B)), (5) unlawful possession of cocaine (id.
§ 402(a)(2)(B)), and (6) unlawful possession of cocaine with the intent to deliver (id.
§ 401(a)(2)(B)).
¶5 The court set bail and released defendant on bond on April 2, 2017. While out on bond,
defendant was arrested in Wisconsin for an offense committed before the offenses here. The
Wisconsin court placed him on electronic home monitoring. Defendant had permission to leave
Wisconsin only to attend court in Illinois on this case. On April 3, 2018, the State moved to revoke
1
As charged, this offense occurs when a defendant possesses with the intent to deliver “100
grams or more but less than 400 grams of a substance containing heroin.” Id.
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2022 IL App (2d) 210371-Udefendant’s bond because defendant committed new offenses in Wisconsin in March 2018. The
trial court increased defendant’s bail. The court also directed the Wisconsin court not to release
defendant unless Kane County sheriff’s deputies were there to take him into custody on the bail
increase.
¶6 On August 31, 2018, defendant was released from custody in Wisconsin and remanded to
the custody of the Kane County sheriff.
¶7 Defendant was still in custody on October 8, 2020, when the parties presented a plea
agreement to the trial court. After a conference pursuant to Illinois Supreme Court Rule 402 (eff.
July 1, 2012), the State informed the court that defendant would plead guilty to unlawful
possession of heroin with the intent to deliver, a Class X felony (720 ILCS 570/401(a)(1)(B)). The
State specified that the sentencing range for this offense was 9 to 40 years’ imprisonment (id.) and
must be served at 75% (730 ILCS 5/3-6-3(a)(2)(v) (West 2016)). Defendant and the State agreed
that, in return for his guilty plea, defendant would be sentenced to 9½ years’ imprisonment, the
remaining five charges would be dismissed, and defendant would “receive credit for 1,048 days
that he has served in custody.” The State explained that the 1048 days would consist of “969 days
in the Kane County jail” and “an additional 79 days served in the LaCrosse [sic] County,
Wisconsin jail.” Moreover, defendant would be assessed various fines and fees and “receiv[e] the
financial credit *** for the time that he served in custody, as well.”
¶8 After the State outlined the plea agreement’s terms, Walker asked the trial court for time
to talk to the State. After that discussion, the State informed the court that “we asked to pass the
case to recalculate the credit that [defendant] would be receiving.” The State continued,
“[D]efendant would be receiving credit for a total of 1,052 days in custody. *** He’s receiving
credit for 973 days served in the Kane County jail, and he’s receiving credit for 79 days served in
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2022 IL App (2d) 210371-ULaCrosse [sic] County, Wisconsin jail.” The court asked Walker if that was correct, and Walker
agreed that it was. The court also asked defendant, “[T]hat’s your understanding, sir?” Defendant
replied, “Yes, sir, Your Honor.” The State then computed the monetary credit defendant would
receive based on his days served. The court asked Walker if the State’s figure was consistent with
his understanding of the agreement, and Walker said it was.
¶9 The court then had the following exchange with defendant:
“THE COURT: [Defendant], is that your understanding of the terms of the
agreement?
THE DEFENDANT: Your Honor, yes. I’m just making sure that the credit was
day-for-day.
THE COURT: All right. Now, is that—
MR. WALKER: 1,052 actual days.
THE COURT: That’s what it’s been represented.
THE DEFENDANT: Credit for day-for-day, right?
THE COURT: Yeah. Correct?
THE DEFENDANT: All right.
THE COURT: Correct?
MR. WALKER: Yes, sir.
MR. MERKEL [(ASSISTANT STATE’S ATTORNEY)]: Judge, he’s receiving
credit for 1,052 actual days. His sentence will be served at 75 percent. I want to make sure
the defendant is not expecting that it’s served at 50 percent because the sentence itself will
be served at 75 percent.
THE COURT: We’re going to talk about that.
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2022 IL App (2d) 210371-UYou understand that, right, sir?
THE DEFENDANT: Correct, sir.
THE COURT: Okay. Very well.”
¶ 10 The trial court then asked defendant various questions to ascertain whether his plea was
being made knowingly and voluntarily. Specifically, the court determined that defendant (1) had
no difficulty reading or understanding English, (2) did not suffer from any physical or mental
disability that would affect his ability to understand the plea proceedings, 2 (3) had enough time to
discuss the terms of the agreement with Walker, (4) understood the sentencing range he faced on
the charge to which he was pleading guilty, and (5) understood the maximum fines and costs that
the court could impose. Defendant also assured the court that he knew that, by pleading guilty, he
was giving up his right to insist on a bench or jury trial where he could cross-examine the State’s
witnesses, call his own witnesses, and testify on his own behalf. Defendant affirmed that he had
signed a document entitled “Plea of Guilty” in which he acknowledged the charge to which he was
pleading guilty, “the imposition of a specific sentence,” and the rights he was relinquishing. The
signed form also indicated that the sentencing hearing would take place instanter.
¶ 11 The trial court’s sentencing order, entered on the day of the plea, reflected a sentence of
9½ years’ imprisonment, and his “[c]redit for time served” was “1052 [a]ctual days.” Defendant’s
signature was at the bottom of the document. The “Financial Sentencing Order,” which defendant
also signed the same day, reflected that defendant received credit for 1052 days of time served.
2
Defendant advised the court that he suffered from diabetes but took medication for it and
was not undergoing a diabetic reaction that would affect his understanding of the plea proceedings.
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2022 IL App (2d) 210371-U¶ 12 The trial court then admonished defendant about the collateral consequences of pleading
guilty, such as possible deportation, extended-term sentencing, and potential problems with
obtaining employment. The court confirmed that no one had induced defendant’s plea by threats
or by making promises beyond the plea agreement. The court then heard a factual basis for the
guilty plea.3 The State recited that an Illinois state trooper stopped defendant for speeding on
Interstate 90. The trooper smelled the odor of burnt cannabis emanating from the vehicle. The
trooper eventually searched the vehicle, and found in the trunk a substance that later tested positive
for the presence of heroin. The amount of heroin exceeded what one would possess for personal
consumption. Also, they found about $3000 in cash on defendant’s person. During an interview
with officers, defendant admitted that he knew that there were drugs in the car. He further admitted
that he was paid to transport the drugs from Wisconsin to Chicago.
¶ 13 After the State finished with the factual basis, the trial court inquired about defendant’s
criminal history. The State informed the court that defendant’s history included two convictions
of unlawful delivery of a controlled substance, and one conviction each of aggravated fleeing and
eluding, bail jumping, and obstructing identification. The court then accepted defendant’s plea,
3
While the State was reciting the factual basis, defendant personally objected, and the trial
court asked Walker to speak with him. After consulting with defendant, Walker explained to the
court that defendant was concerned that the factual basis would become a public record. Defendant
was worried that details of the crime could threaten him and his family’s safety. The court invited
Walker and the State to confer and try to agree on a factual basis. After Walker and the State had
their discussion, the State continued with the factual basis, which presumably had limited detail
per defendant’s request.
-6-
2022 IL App (2d) 210371-Ufinding it knowingly and voluntarily entered. The court imposed the agreed-upon sentence and
advised defendant about his right to appeal.
¶ 14 Before concluding, the trial court asked defendant, “Now, do you have any questions about
what’s happened here today?” Defendant said that he did, and the court asked defendant to speak
to Walker. After they spoke, the court had the following exchange with defendant:
“THE DEFENANT: Your Honor, I understand the time that I’m pleading-out to is
75 percent, but the time that I’m sitting here is day-for-day, right?
THE COURT: That’s what the calculation for your credit was.
THE DEFENDANT: Okay, okay. I just—that’s confusing me.
THE COURT: I understand. They gave you X number of days against your
sentence.
THE DEFENDANT: Okay. Thank you, Your Honor.
THE COURT: Is that correct, Mr. Merkel?
MR. MERKEL: Judge, he’s receiving credit for 1,052 actual days. I can’t be any
more—I don’t know that there’s any way to put it any more clearly than that, Judge.
THE COURT: Does that answer your question, sir?
THE DEFENDANT: Yes, sir, Your Honor.
THE COURT: All right. Very well.
Anything further?
MR. WALKER: No, sir.
THE DEFENDANT: No, sir.”4
4
Defendant immediately added that he had a drug problem. Walker interjected, asking the
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2022 IL App (2d) 210371-U¶ 15 On October 11, 2020, three days after defendant pleaded guilty, he filed by mail a motion
to withdraw his guilty plea. 5 Defendant argued, among other things, that Walker was ineffective
because he did not properly advise defendant about his sentencing credit. Defendant claimed that
Walker told him “if [he] plea out [he] be free an [sic] a few month’s [sic] because the State would
credit [him] day for day. [F]or all the time have served in custody already.”
¶ 16 The trial court appointed conflict counsel. Counsel twice amended defendant’s motion to
withdraw the guilty plea and filed a certificate under Illinois Supreme Court Rule 604(d) (eff. July
1, 2017). As relevant here, the amended motion alleged that Walker was ineffective “for not
correctly informing [defendant] of how much time remaining he had to serve.” Given a “lack of
meaningful communication between defendant and [Walker],” defendant “did not have a clear
understanding of the ramifications of his plea of guilty and [the plea] was therefore not knowingly
and voluntarily made.”
¶ 17 At the hearing on the motion, defendant testified:
“[Walker] told me that basically that I was gonna get—he said I get day-for-day if
I take [the plea agreement] and all the time that I am sitting here [in jail], which he said he
added it up, that I was gonna get—I had to think a-thousand-and-like-50-some days.
court to recommend that defendant serve his sentence where there was a drug treatment facility.
The court replied that it did not control where the DOC would place defendant.
5
Defendant’s motion to withdraw was filed when mailed. People v. Shines, 2015 IL App
(1st) 121070, ¶ 31 (“Under the mailbox rule, pleadings, including posttrial motions [citation], are
considered timely filed on the day they are placed in the prison mail system by an incarcerated
defendant [citation].”).
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2022 IL App (2d) 210371-UHe said I was gonna get day-for-day and it was gonna be 2,000-some days. And
then if I take it, I get up out of here.”
Defendant continued:
“And [Walker] was like, you know, your family can’t come up with the money to bond
you out, so this is the best way. You will be home in maybe eight, nine months at the most.
And, you know, it’s worth just getting it over with. I mean, you been going through this
for a long time.
Basically, [Walker] put the burden on me saying that my family—you know, I am
a burden to my family—you know, I am a burden to my family and I just need to get it
over with so that’s what I did. I took the time because that’s what he told me. He said you
gonna get day-for-day.”
¶ 18 Defendant testified that, based on what Walker told him, he pleaded guilty to unlawful
possession of heroin with the intent to deliver in exchange for 9½ years’ imprisonment and “day-
for-day credit.” When asked if that “day-for-day credit” amounted to 1052 days, defendant replied,
“[Walker] said it gonna be 2,000-some days.” So, defendant’s “understanding was that [he] would
get double the credit of [his] 1,052 days, that [he] would get 2,104 days.” “And that was because
that’s what Mr. Walker told [him].” Counsel asked, “But the paperwork said 1,052; correct?”
Defendant responded, “1,000-something, yeah.” Defendant asserted, “Once I pled guilty [Walker]
told me *** that I will have to do probably another ten months or so at the most and I would be
home.” Defendant stated that he “relied on what [Walker] told [him] as far as how much time [he]
would have left to serve when [he] decided to take the plea.” When defendant arrived at the
Department of Corrections (DOC), he was told that his release date was December 21, 2024—far
beyond the 10 additional months Walker said he would have to serve. Defendant assured the trial
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2022 IL App (2d) 210371-Ucourt that, if he had known that he would not be released until December 2024, he would not have
pleaded guilty.
¶ 19 On cross-examination, defendant remembered asking the trial court if “the credit is day-
for-day” and alerting Walker that the correct calculation of days was 1052, not 1048. Moreover,
he remembered Walker telling him that it was “1,052 actual days” that he was “gonna get credit
for.” Defendant also remembered the State telling the trial court that defendant would get credit
for 1052 days. Defendant, however, claimed that he “misunderstood” the credit he was owed.
When asked if anyone ever told him during the plea proceedings that he was going to receive over
2000 days of credit, defendant responded, “[Walker] was whispering [that] in my ear.” Defendant
agreed that he “never said anything” when he was told “multiple times [by] the [trial court] and
[by the State]” that he was “only getting credit for 1,052 days.”
¶ 20 After defendant testified, the State moved for a directed finding. The court took the motion
under advisement.
¶ 21 On June 21, 2021, the trial court denied defendant’s motion to withdraw his plea. In doing
so, the court noted that “when discussions were had that [defendant] had to do 9½ years [in the
DOC] with credit for 1,052 days, he did not object nor complain nor did he state that he thought
he had to only serve another 8-10 months.” “[Defendant] had every opportunity to raise the alleged
statement he attribute[d] to Attorney Walker but did not do so.” It “strain[ed] credulity” for
defendant to claim that Walker gave that erroneous advice where defendant did not interject to
challenge the State’s contrary assertions about sentencing credit as defendant had interjected over
the factual basis.
¶ 22 In a later order filed June 25, 2021, the court granted the State’s motion for a directed
finding, reaffirming that the record rebutted defendant’s claim that he believed he would receive
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2022 IL App (2d) 210371-U2104 days of credit. The court observed that defendant’s
- only personal objection concerned the
factual basis.
¶ 23 Defendant filed a notice of appeal on July 7, 2021, and an amended notice of appeal on
July 26, 2021.
¶ 24 II. ANALYSIS
¶ 25 At issue in this appeal is whether the trial court erred in denying defendant’s motion to
withdraw his guilty plea. However, before we consider that issue, we briefly address our
jurisdiction.
¶ 26 A. Jurisdiction
¶ 27 “[A]n appeal is perfected by the timely filing of a notice of appeal, and it is this step which
vests the appellate court with jurisdiction.” In re J.T., 221 Ill. 2d 338, 346 (2006). Under Illinois
Supreme Court Rule 606(b) (eff. July 1, 2017), a notice of appeal is timely if it is filed “within 30
days after the entry of the final judgment appealed from or[,] if a motion directed against the
judgment is timely filed, within 30 days after the entry of the order disposing of the motion.” The
final judgment in a criminal case is the sentence. People v. Caballero, 102 Ill. 2d 23, 51 (1984).
A motion to withdraw a plea is timely if it is filed within 30 days after sentencing. Ill. S. Ct. R.
604(d) (eff. July 1, 2017).
¶ 28 Here, within 30 days after sentencing, defendant moved to withdraw his guilty plea. The
trial court appointed counsel, who filed an amended motion to withdraw the guilty plea. The trial
court denied the motion, and defendant filed a timely notice of appeal in July 2021.
¶ 29 The record, however, contains a transcript of a proceeding dated December 7, 2021—five
months after defendant filed his notice of appeal. In that proceeding, an assistant public defender
notes that she was appointed to represent defendant on his pro se motion to withdraw the guilty
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2022 IL App (2d) 210371-Uplea and that she was seeking a date to present her amended motion to withdraw the plea. The
discussions on the record did not disclose the substance of the motion or the date counsel filed it.
As requested, the court set a date for appointed counsel to present her amended motion. Because
the transcript appeared to reference a motion to withdraw that defendant filed after appealing to
this court, we asked the parties to address our jurisdiction, given that the motion might have raised
an issue under Illinois Supreme Court Rule 472 (eff. May 17, 2019).
¶ 30 According to the supplemental briefs and record the parties filed, the transcript erroneously
dated the proceeding as December 17, 2021, rather than December 17, 2020. We agree that the
transcript was erroneously dated. Accordingly, we conclude that the transcript does not place our
jurisdiction in question.
¶ 31 That said, in the supplemental record is a pro se motion to correct the mittimus that
defendant mailed to the trial court and the State on December 30, 2021. In that motion, defendant
asserted that he “entered a plea agreement *** from [his] understanding of 9½ years in [the DOC]
with 3 year’s [sic] of M.S.R. and credit for # 1,052 day’s [sic] on that sentence.” Defendant asked
the court to correct the mittimus because the in-custody dates were incorrect. Defendant signed
the motion, verifying that:
“Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure [(735 ILCS 5/1-109 (West 2020))], the undersigned certifies that the statements
set forth in this instrument are true and correct, except as to matters therein stated to be on
information and belief and as to such matters the undersigned certifies as aforesaid that he
verily believes the same to be true.”
¶ 32 We agree with the parties that this motion does not impact our jurisdiction (see Ill. S. Ct.
R. 472(a)(3), (d) (eff. May 17, 2019) (a defendant may file a motion to correct presentence custody
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2022 IL App (2d) 210371-Ucredit, and such motion will not impact a pending appeal). However, we are concerned that
defendant verified that everything contained in his pro se motion was true, including that he knew
he would receive only 1052 days, not 2104 days, of sentencing credit against his 9½ sentence.
While that admission could end our consideration of the merits of this appeal, we choose to address
the merits.
¶ 33 B. Motion to Withdraw the Guilty Plea
¶ 34 “When a trial court reaches the merits of a motion to withdraw a guilty plea, the decision
to grant or deny that motion ‘rests in the sound discretion of the [trial] court and, as such, is
reviewed for an abuse of discretion.’ ” People v. Glover, 2017 IL App (4th) 160586, ¶ 29 (quoting
People v. Hughes, 2012 IL 112817, ¶ 32). A trial court abuses its discretion when its ruling is so
arbitrary or unreasonable that no reasonable person would adopt the court’s view. People v. Boyd,
2018 IL App (5th) 140556, ¶ 14.
¶ 35 “One basis for the withdrawal of a guilty plea is where defense counsel gives the defendant
inadequate advice prior to entering the plea.” Glover, 2017 IL App (4th) 160586, ¶ 39. However,
while “ ‘[a] defendant may enter a guilty plea because of some erroneous advice by counsel, ***
that fact alone does not destroy the voluntary nature of the plea.’ ” Id. (quoting People v.
Cunningham, 286 Ill. App. 3d 346, 349 (1997)). Rather, “ ‘it must be shown that defendant was
denied the effective assistance of counsel.’ ” Id. (quoting Cunningham, 286 Ill. App. 3d at 349).
¶ 36 To establish that counsel was ineffective in such a circumstance, a defendant must satisfy
the two-prong test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See People v.
Valdez, 2016 IL 119860, ¶¶ 13-14. Under the first prong of that test, a defendant must demonstrate
that his attorney’s performance “ ‘fell below an objective standard of reasonableness.’ ” Id. ¶ 14
(quoting Strickland, 466 U.S. at 688). Overcoming Strickland’s high bar is no easy task, as judicial
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2022 IL App (2d) 210371-Uscrutiny of counsel’s performance is highly deferential. Hughes, 2012 IL 112817, ¶ 63. To satisfy
the second prong, a defendant must establish that he was prejudiced because of counsel’s deficient
performance. Id. Prejudice in guilty-plea proceedings is evaluated in light of the surrounding
circumstances. People v. Brown, 2017 IL 121681, ¶ 48. To establish prejudice based on a claim
that he pleaded guilty based on his counsel’s erroneous advice, the defendant must show that a
decision to reject the plea offer would have been rational under the circumstances. Id.¶ 37 The defendant bears the burden of establishing both parts of the Strickland test. People v.
Jones, 219 Ill. App. 3d 301, 305 (1991). “[F]ailure to make the requisite showing of either
deficient performance or sufficient prejudice defeats an ineffectiveness claim.” People v. Palmer,
162 Ill. 2d 465, 475 (1994). Similarly, claims that the record rebuts cannot succeed. People v.
Strickland, 363 Ill. App. 3d 598, 607 (2006).
¶ 38 Here, in addressing whether counsel was ineffective, we first observe that the parties do
not dispute that defendant spent 1052 actual days in pretrial custody. They disagree about whether
defendant was told that he would receive double that amount of credit, i.e., 2104 days, toward his
sentence. Defendant claims that Walker “told him before his plea hearing that he would receive
‘day-for-day’ credit for his time spent in pre-plea custody.” “This led [defendant] to believe that
his time already served—1,052 days—would be doubled, for a total of 2,104 days that would be
applied toward his nine-and-one-half year sentence.” Defendant continues that “[a]lthough the
[State] and the court attempted to clarify matters for [defendant] at the time of his plea, their
explanations were deficient, and [defendant] did not enter his guilty plea with an understanding of
the amount of pre-sentence credit he was to receive.” The State argues that counsel was not
ineffective, because “[o]ther than defendant’s subjective impression, there is no evidence that
[Walker] made *** statement[s] to defendant” that he would receive 2104 days of credit. The
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2022 IL App (2d) 210371-UState contends that “even if [we] find that defendant has proven that [Walker] misinformed him,
the trial court’s admonishments and clarifications by the [State] remedied any potential
misunderstanding.” We agree with the State.
¶ 39 The record reflects that defendant’s guilty plea was knowingly and voluntarily made. The
court recited the terms of the plea agreement and explained that defendant would receive 1052
days of sentencing credit. The State, too, asserted that defendant would receive 1052 days of
sentencing credit. When defendant asked questions about the amount of credit he would receive
and the court and State further explained the sentencing credit, defendant assured the court that he
understood. Although defendant had no issue interrupting the plea proceedings to ask that the
State provide a less detailed factual basis and alert the court about his drug problem, defendant
never at any time during the lengthy plea proceedings interjected that he thought he was going to
receive 2104 days of credit.
¶ 40 At the hearing on the motion to withdraw the guilty plea, defendant’s testimony was
equivocal. When asked whether anyone indicated at the plea hearing that he would receive over
2000 days of credit, defendant replied that Walker “whisper[ed]” as much in his ear during the
proceedings. However, defendant admitted that the State told the court that defendant was
“receiving credit for 1,052 actual days” and that defendant assured the court that he understood.
Defendant explained that he must have “misunderstood” the amount of credit he was due.
¶ 41 That misunderstanding cannot serve as a basis for defendant to withdraw his guilty plea.
In the absence of substantial objective proof showing that a defendant’s mistaken impressions were
reasonably justified, subjective impressions alone are not sufficient grounds on which to vacate a
guilty plea. People v. Hale, 82 Ill. 2d 172, 176 (1980). The record is devoid of substantial
objective proof that defendant was reasonably justified in his belief that he would receive 2104
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2022 IL App (2d) 210371-Udays of sentencing credit. In denying defendant’s motion to withdraw his plea, the trial court
specifically found incredible defendant’s claim that Walker whispered in his ear during the plea
proceeding that he would receive over 2000 days of credit. The court provided sound reasons for
that finding, and we find no basis to upset it. The court and the State told defendant multiple times
during the plea hearing that he would receive 1052 days of credit; defendant never challenged their
positions. Given the lack of substantial objective proof that Walker caused defendant’s
misunderstanding of his credit, coupled with the trial court’s admonishments, we cannot conclude
that Walker’s representation of defendant was deficient. See People v. Radunz, 180 Ill. App. 3d
734, 741 (1989) (trial court’s admonishments cannot be ignored).
¶ 42 We also cannot conclude that defendant was prejudiced—in other words, that a decision to
reject the plea offer would have been rational under the circumstances. Brown, 2017 IL 121681,
¶ 48. Brown is instructive on this point. There, the defendant pleaded guilty to a charge of being
an armed habitual criminal in exchange for an 18-year sentence and the dismissal of a home
invasion charge. Id. ¶ 5. Thereafter, the defendant filed a postconviction petition, alleging that
his trial counsel was ineffective because, among other things, counsel misinformed the defendant
as to how much of his sentence he would have to serve. Id. ¶ 15. The defendant alleged “that his
counsel’s ineffective assistance prejudiced him because he pleaded guilty based on the erroneous
belief that he would serve only 50% of his 18-year sentence when he actually must serve 85%, an
additional 6 years in prison.” Id. The defendant claimed that “had he been properly advised on
sentencing, he ‘would not have accepted the plea and would have taken the case to trial wherein
he would have been acquitted.’ ” Id. The State moved to dismiss, the trial court granted the
motion, and our supreme court affirmed. Id. ¶¶ 18-19, 52. Our supreme court found a lack of
prejudice, noting that (1) the defendant most likely would have been convicted of both offenses,
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2022 IL App (2d) 210371-Uas the police found him in the victims’ home; (2) by pleading guilty, the defendant was convicted
of only one offense and received a sentence within the middle of the sentencing range; and
(3) given the defendant’s significant criminal history, he probably would have received lengthy
sentences. Id. ¶¶ 49-50. Accordingly, the court determined that the defendant was not prejudiced,
as rejecting the plea offer would not have been rational under those circumstances. Id. ¶ 52.
¶ 43 The same holds true here. Defendant’s chances of success at trial were dim, given that
(1) he admitted that he knew drugs were in his car and that he was being paid to transport them
from Wisconsin to Chicago and (2) a large amount of cash was found on his person. The plea
agreement called for defendant to plead guilty to one of six drug charges—unlawful possession of
heroin with the intent to deliver—in exchange for which he would receive a sentence only six
months longer than the minimum. See 720 ILCS 570/401(a)(1)(B) (West 2016). If defendant had
gone to trial, he faced a sentence of up to 40 years on that charge alone. See id. Given his
substantial criminal history, which included two convictions of unlawful delivery of a controlled
substance, a lengthier sentence than what the agreement called for was more than likely.
Moreover, by going to trial, defendant would also face conviction on five other serious offenses:
(1) unlawful possession of methamphetamine (720 ILCS 646/60(b)(3) (West 2016));
(2) manufacturing or delivering methamphetamine (id. § 55(a)(2)(C)); (3) unlawful possession of
heroin (720 ILCS 570/402(a)(1)(B) (West 2016)); (4) unlawful possession of cocaine (id.
§ 401(a)(2)(B)); and (5) unlawful possession of cocaine with the intent to deliver (id.
§ 402(a)(2)(B)). In these circumstances, we simply cannot conclude that a decision to reject the
plea offer would have been rational. Brown, 2017 IL 121681, ¶ 48.
¶ 44 In reaching our conclusion, we find defendant’s reliance on Boyd unfounded. First,
defendant claims that, “[a]s in Boyd, the circumstances of this case independently corroborate
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2022 IL App (2d) 210371-U[defendant’s] assertion that he would not have pled guilty in the absence of plea counsel’s
erroneous advice.” See Boyd, 2018 IL App (5th) 140556, ¶ 20 (“[I]f plea counsel gives wrong or
incorrect advice, even as to a collateral consequence of the plea, and the defendant relies on that
advice in making the decision to plead guilty, the [sic] counsel’s performance falls below an
objective standard of reasonableness and amounts to ineffective assistance.”). As noted, the
question is not simply whether the defendant would have gone to trial if not for counsel’s erroneous
advice. Brown, 2017 IL 121681, ¶ 48 (standard for determining prejudice is whether a “decision
to reject [the] plea bargain would have been rational under the circumstances” (Internal quotation
marks omitted.)). Second, Boyd is clearly distinguishable. There, “[p]lea counsel’s testimony
corroborate[d the] defendant’s testimony that the possibility of a reduction in his sentence was a
major factor in [the] defendant’s decision to enter his guilty plea.” Boyd, 2018 IL App (5th)
140556, ¶ 26. There is no such supporting evidence or testimony in this case from Walker or
anyone else.
¶ 45 We also reject defendant’s claim that Walker “pressured him into accepting the plea by
telling him that he didn’t have any other choice, calling him a burden to his family, and claiming
that if [sic] he would get close to the maximum sentence if he went to trial.” Not only does the
record reflect that defendant assured the court that he was not forced or threatened to plead guilty,
but Walker had a duty to advise defendant what, in his professional opinion, defendant faced if he
went to trial. See People v. Buchanan, 403 Ill. App. 3d 600, 607 (2010) (“An attorney’s honest
assessment of a case, when made based on his or her professional experience, cannot be considered
misleading.”).
¶ 46 For these reasons, we simply cannot conclude that Walker was ineffective. Thus, the trial
court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea.
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2022 IL App (2d) 210371-U¶ 47 III. CONCLUSION
¶ 48 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 49 Affirmed.
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