People v. Pickens , 2024 IL App (5th) 220637-U ( 2024 )

NOTICE
2024 IL App (5th) 220637-UNOTICE
Decision filed 08/21/24. The
This order was filed under
text of this decision may be NO. 5-22-0637
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Champaign County.
)
v. ) No. 19-CF-1482
)
DAKIR D. PICKENS, ) Honorable
) Randall B. Rosenbaum,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Justice Welch and Moore concurred in the judgment.
ORDER
¶1 Held: Following an evidentiary hearing, the circuit court did not err in denying both
the defendant’s amended postconviction petition and amended motion to
withdraw guilty plea and vacate judgment, where the defendant did not
demonstrate by a preponderance of the evidence that his defense counsel’s
performance fell below an objective standard of reasonableness.
¶2 Dakir D. Pickens, the defendant, filed an amended postconviction petition and claimed that
his defense counsel was ineffective for failing to fully advise the defendant of the details of his
plea agreement. The defendant also filed an amended motion to withdraw guilty plea and vacate
the judgment, in which the defendant asserted that his decision to plead guilty was a result of
ineffective assistance of counsel. After a hearing, the circuit court denied both the amended
postconviction petition and the amended motion. The defendant appeals the circuit court’s orders
that denied his amended petition and amended motion. The defendant claims on appeal that the
1
circuit court erred when it refused to withdraw the defendant’s guilty plea, where his attorney
failed to advise him that the State’s plea offer could be withdrawn at any time, and where the State
withdrew the offer before the defendant had the opportunity to accept it. As a result of his counsel’s
conduct, the defendant claims he accepted a less favorable plea offer, which imposed a harsher
sentence than he would have received had he been allowed to accept the State’s previous plea
offer. For the following reasons, we affirm the judgment of the circuit court.
¶3 I. BACKGROUND
¶4 The State charged the defendant by information with armed violence (720 ILCS 5/33A-
3(b-5) (West 2018)), a Class X felony (count 1); armed violence (720 ILCS 5/33A-3(a) (West
2018)), a Class X felony (count 2); financial institution robbery (720 ILCS 5/17-10.6(f) (West
2018)), a Class 1 felony (count 3); and aggravated battery (720 ILCS 5/12-3.05(f)(1) (West 2018)),
a Class 3 felony (count 4). The information alleged that “the defendant struck Eva Ku in the head
repeatedly with a handgun” while he attempted to rob the Regions Bank in Champaign, Illinois.
The circuit court appointed counsel to represent the defendant.
¶5 While the case was pending, the defendant personally corresponded with the circuit court
on several occasions. On June 25, 2020, the defendant filed a pro se motion to dismiss counts 1
and 2. On July 9, 2020, the defendant filed a letter dated July 3, 2020, wherein the defendant
requested a new attorney. He claimed that his attorney had not explained defendant’s speedy trial
rights, and that the defendant and his attorney had disagreements about which motions were
appropriate to file. Specifically, defense counsel had informed the defendant that “if the motion
does not have merit [he] will not file it.” On July 14, 2020, the defendant filed a pro se motion to
discharge, wherein he argued that the State failed to bring the defendant to trial before his speedy
2
trial period expired. In a letter filed on July 24, 2020, the defendant again asked for a new attorney
because defense counsel would not adopt the pro se motion to dismiss counts 1 and 2.
¶6 At a hearing on July 21, 2020, the defendant requested that he be allowed to represent
himself. The circuit court admonished the defendant pursuant to Illinois Supreme Court Rule
401(a) (eff. July 1, 1984). After further consideration, the defendant decided to remain represented
by his defense counsel. Subsequently, on August 13, 2020, the defendant again requested a new
attorney in a letter filed with the circuit court.
¶7 A plea hearing occurred on September 23, 2020. The circuit court admonished the
defendant of his rights pursuant to Illinois Supreme Court Rule 402(a) (eff. July 1, 2012). The
defendant indicated to the trial court that he understood he was present in court to plead guilty to
count 2, armed violence. The circuit court advised the defendant of the sentencing range and that
he may be required to serve 85% of his sentence. The defendant confirmed he understood his rights
and that he was voluntarily pleading guilty. The prosecutor indicated that the State had agreed to
cap any recommendation for incarceration at 23 years and that the court would determine whether
the defendant’s conduct leading to the offense caused great bodily harm to the victim, Eva Ku. If
the court found that the defendant caused great bodily harm, he would be required to serve no less
than 85% of his sentence. Defense counsel added that absent a finding of great bodily harm, the
defendant would be required to serve 50% of his sentence.
¶8 The State then provided a factual basis for the charge. On October 15, 2019, two individuals
entered a Regions Bank in Champaign, Illinois. The first suspect, now known to be the defendant,
wore a blue hoodie and carried a loaded firearm. The second suspect, now known to be Dasheem
Pickens, was the defendant’s brother. Both suspects wore hats and glasses to conceal their
3
identities. The defendant grabbed Ku, the bank manager, by her hair, brandished a firearm, and
demanded money. Dasheem attempted to apprehend a second bank employee.
¶9 Ku refused to give the suspects access to the locked teller area where other employees were
hiding. The defendant hit Ku in the head repeatedly with his weapon. The defendant kicked the
glass wall, leaving a shoe print. Unable to access the locked area, the suspects then fled the bank.
The incident was captured on surveillance video.
¶ 10 A postal employee observed the suspects flee the bank and turn into an alley. The suspects
returned from the alley wearing different clothes. The postal employee provided a description of
the two suspects.
¶ 11 When the police arrived at the bank, they found Ku bleeding from a wound on her head.
The police located the suspects in the area of the bank. After a foot chase, both suspects were
apprehended and taken into custody. The postal employee identified the suspects, and their
appearance was consistent with the bank surveillance video. When the defendant was taken into
custody, he was wearing different shoes than when he kicked the glass in the bank. The two
suspects had apparently traded shoes. The police found the sweatshirt worn by the defendant with
a loaded .22-caliber firearm in the alley where the individuals had changed clothes.
¶ 12 When officers advised the defendant they would be taking “GSR” (gunshot residue)
samples, the defendant attempted to spit on his hands. The defendant also stated that he should
have urinated on his hands to prevent the State from recovering any possible gunshot residue on
his hands. At a later date, with counsel present, the defendant made a recorded statement admitting
his role in the offense.
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¶ 13 Following the State’s factual basis, the defendant pled guilty to armed violence. The circuit
court found that the guilty plea was made knowingly, understandingly, and voluntarily. The circuit
court also found that there was a factual basis for the plea and accepted the plea.
¶ 14 The sentencing hearing was held on November 17, 2020, and November 18, 2020. During
the hearing on November 17, 2020, evidence was presented regarding whether the defendant
caused great bodily harm to the victim. The State first presented the circuit court with its legal
memorandum describing when injuries constitute great bodily harm. The circuit court confirmed
that it had received a copy of the victim impact statement and various pages of Detective Cherry’s
police report. The State then called its first witness.
¶ 15 The State’s first witness was Dr. James R. DeSalvio. The parties stipulated that Dr.
DeSalvio was an expert in the field of physical medicine. Dr. DeSalvio was one of Ku’s treating
physicians. Dr. DeSalvio testified that the victim had presented with a head injury and symptoms
of a concussion. Dr. DeSalvio testified that being struck in the head with a pistol would have
caused the laceration on her scalp and the concussion. The symptoms of the concussion Ku
experienced included difficulty concentrating, sensitivity to light, headaches, ringing in her ears,
and loss of balance. Dr. DeSalvio testified that the victim’s concussion was a serious condition
because her symptoms persisted from the incident and were still present at the time of the
sentencing hearing, nearly a year later. Dr. DeSalvio stated that the victim’s symptoms have had a
very profound effect on her day-to-day life. In addition, Dr. DeSalvio testified that the victim had
various musculoskeletal injuries and a significant amount of mental distress and trauma from the
incident. The victim’s musculoskeletal injuries caused pain in the muscles of the cervical spine,
the neck area, and particularly the low back. Her pain made it difficult to perform daily life
activities, such as getting up, walking, showering, and housework. The musculoskeletal issues
5
have also persisted and were present at the time of the sentencing hearing. Dr. DeSalvio stated that
his notes reflect the most serious issues the patient presented with at the time, and the issues
impacting the patient most may shift over the course of treatment.
¶ 16 During cross-examination, Dr. DeSalvio acknowledged that the laceration on the victim’s
head was only two centimeters long. Dr. DeSalvio also testified on cross-examination that his notes
from an early appointment with the victim did not mention musculoskeletal pain. In notes from
April 24, 2020, Dr. DeSalvio stated that the “patient is continuing to struggle more from a mental
health point of view than from a musculoskeletal point of view.
¶ 17 Detective Jody Cherry of the Champaign Police Department testified next for the State.
Detective Cherry was one of the responding officers to the bank robbery and was the assigned case
agent. While Detective Cherry testified, a video of the robbery was introduced into evidence. As
the video was played, Detective Cherry narrated various portions. Detective Cherry also testified
that six shell casings and one live round were discovered throughout the bank. The defendant had
fired one shot into the ceiling of the breakroom, one shot at the teller station door, and four into
the bulletproof glass. The defendant also kicked the bulletproof glass. Detective Cherry testified
that prior to the bank robbery a third party used the defendant’s phone to call 911 to report “shots
fired” on the opposite side of Champaign. The 911 call caused several squad cars to be dispatched
to the opposite side of Champaign to address the “shots fired” call. Detective Cherry stated that
they had also located the clothing worn by the defendant and his brother during the robbery and
had recovered a weapon. Once the individuals were in custody, police backtracked to where the
individuals had been seen. Through that investigation the police found the firearm buried in a pile
of rocks near an apartment building.
6
¶ 18 Eva Ku, the victim, testified about the attack and how it had impacted her. Before the
robbery, Ku was about to have lunch. Ku went to the breakroom to get a plastic spoon when she
heard a gunshot. The defendant approached her, grabbed her hair, threw her to the ground, and hit
her on her head with a gun. The defendant demanded that she give him the money and access to
the teller area. Ku was in shock and remained on the ground trying to protect her head. After the
gunmen left, Ku went to the emergency room. She was bleeding profusely from her head, and she
received four staples to treat her wound. Ku returned to the emergency room the next day because
she had extreme pain in her head.
¶ 19 Ku described her recovery since the incident. She testified she had migraines every day
because of the head injury. Ku’s migraines also caused nausea. Due to the severity of Ku’s
migraines, Ku’s mother helped care for Ku’s two children. Ku also had an issue with her balance
and ringing in her left ear. In addition, Ku experienced pain in her neck, shoulder, and lower back.
Pain bothered her daily. Ku was still participating in physical therapy at the time of trial. As a
result of her injuries, Ku was unable to return to work or pursue a master’s degree. The injuries
prevented Ku from being able to look at screens for more than a half hour, otherwise she would
get a headache, eye pain, dizziness, and nausea.
¶ 20 The State also presented the testimony of Erika Ecker, who worked as a teller at the time
of the robbery. Ecker testified about her experience during the robbery. She was behind the glass
wall that the defendant shot at when he tried to access the money at the bank. Ecker still worked
at the bank, but the robbery made her nervous and she no longer goes places by herself. That
testimony concluded the State’s evidence.
¶ 21 Defense counsel presented two witnesses in mitigation. Greg Jahiel, a social worker from
the “READY Program,” testified that he knew the defendant from when he attended the alternative
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high school for the 2016 to 2017 school year. Jahiel testified that the defendant was polite and did
well in school when he was present. Any issues that Jahiel had noticed were related to the
defendant’s attendance. April Whitney, a teacher from the “READY Program,” also testified.
Whitney also knew the defendant when he attended the alternative school. Whitney recalled the
defendant as “a very gentle young man who wanted to do well.”
¶ 22 The sentencing hearing continued on November 18, 2020. The State recommended that the
defendant serve 23 years in the Illinois Department of Corrections and that the circuit court find
that the defendant’s conduct caused great bodily harm to Ku. Defense counsel argued that there
were not sufficient facts presented to prove great bodily harm. Defense counsel recommended that
the defendant be sentenced to 15 years, that the circuit court not make a finding of great bodily
harm, and that the defendant receive substance abuse treatment while incarcerated. The circuit
court sentenced the defendant to 19 years of imprisonment. The circuit court found that the State
proved that the defendant’s actions caused great bodily harm, and, therefore, his sentence would
be served at 85%.
¶ 23 On December 17, 2020, defense counsel filed a motion to reconsider sentence that argued
the circuit court improperly considered the firearm to find great bodily harm where the use of the
firearm is included within the definition of the offense. On February 4, 2021, the circuit court
denied the motion. The defendant appealed.
¶ 24 While the appeal was pending, the defendant filed a pro se postconviction petition. The
defendant alleged in his petition that in May 2020, assistant State’s Attorney Lozar had extended
a plea offer for an open plea to count 2 for 15-20 years to be served at 50%. The defendant
expressed to his counsel that he wanted to accept the plea offer. His defense counsel responded,
8
“No I’m going to give you a day to think about it.” The plea offer was retracted the following day.
The defendant’s petition was advanced to the second stage with a public defender to be appointed.
¶ 25 In the meantime, the appellate court remanded the defendant’s appeal to the circuit court
to comply with the requirements of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). Upon
remand, the defendant’s new attorney, Horwick, filed a 604(d) certificate and an amended motion
to withdraw guilty plea and vacate the judgment. The amended motion argued that defense counsel
had provided ineffective assistance because he told the defendant not to accept the State’s plea
offer where defendant would be allowed to plead guilty to count 3 with a sentencing cap of 20
years on the day the offer was made. Further, defense counsel did not advise the defendant that
there was an expiration date on the plea offer, and the following day the State revoked the offer.
If the defendant had known that the offer would be revoked the next day, he would have accepted
the offer.
¶ 26 On March 7, 2022, the defendant’s postconviction counsel, Horwick, filed an amended
postconviction petition. 1 The amended petition also alleged an ineffective assistance of counsel
claim but changed the date and terms of the plea offer. It alleged that defense counsel had informed
the defendant about an offer to plead guilty to count 2 with a sentencing cap of 20 years, which
would be served at 50%. It further alleged that the defendant wanted to accept the offer, but his
defense counsel told him to think about it for a day. The following day the defendant was informed
that the offer was no longer available. The amended petition argued that defense counsel was
ineffective because he did not fully advise the defendant regarding the details of the plea
agreement, including that the offer would expire.
1
Attorney Horwick was appointed to represent the defendant on the postconviction petition and
the motion to withdraw guilty plea and vacate judgment.
9
¶ 27 On September 23, 2022, the circuit court held a hearing on the amended motion to
withdraw guilty plea and vacate judgment and the amended petition for postconviction relief. The
defendant’s counsel, Horwick, was present at the hearing and represented the defendant on his
amended motion to withdraw guilty plea and vacate judgment and amended postconviction
petition. Defense counsel called the defendant as the first witness. The defendant testified that he
spoke with his plea counsel 2 on August 6, 2020, but his memory of the conversation was “kind of
blurry.” During the conversation the defendant and his attorney discussed a plea offer that had
been made by the State. The plea offer was a minimum 15 years with a cap of 20 years, which
would be served at 50%. The defendant stated that he wanted to accept the plea offer the same day
it was made, but his defense counsel advised him to “think about it.” The defendant’s counsel
admitted a letter from plea counsel dated August 7, 2020, which detailed the plea negotiations.
The defendant reiterated that his memory was “a little blurry.” He thought he spoke to his plea
counsel the day after the plea offer was conveyed and told his plea counsel that he still wanted to
accept the offer. Plea counsel then informed the defendant that the offer had been revoked. The
defendant testified that he would have accepted the offer immediately had his plea counsel not told
him to wait.
¶ 28 On cross-examination, the defendant testified that he believed that the entire initial
conversation regarding the plea offer occurred on August 6, 2020. The defendant testified that he
did not express any hesitation when he told his plea counsel that he wanted to accept the offer. The
defendant also testified that his plea counsel did not tell him that the offer could be revoked. The
defendant’s testimony was the only evidence presented by defense counsel.
2
The attorney that represented the defendant prior to and at the time of the defendant’s plea is
hereafter referred to as “plea counsel.”
10
¶ 29 The State then called the defendant’s plea counsel as a witness. Plea counsel explained that
he had been assigned to represent the defendant in a case involving a bank robbery. After a review
of the evidence, he believed that the case against the defendant was “fairly strong,” in part because
the defendant was found near the bank shortly after the incident, portions of the robbery were
captured on surveillance video, and the defendant made incriminating statements about gunshot
residue.
¶ 30 The first plea offer was for the defendant to plead guilty to count 1, armed violence while
discharging a firearm, with a sentencing range of 20 to 30 years, to be served at 50%. Plea counsel
thought the defendant would serve 50% because his review of the statute and the police reports
did not reveal any evidence of great bodily harm. During the first meeting, the defendant indicated
that he wanted to cooperate with the State and implicate another person who had provided the guns
and the plan to rob the bank. The defendant was not able to produce enough corroboration to
support the defendant’s attestations. As a result, the defendant’s priority became negotiating a
better resolution.
¶ 31 The State then presented plea counsel with email correspondence regarding a plea offer
made by the State on June 16, 2020. The State’s offer was an “open cap of 20 [years] on count
two, armed violence.” The sentencing range for count two would be 15 to 20 years. At that time,
plea counsel still believed that the sentence would be served at 50%. He relayed this offer to the
defendant the same day. Plea counsel testified that the defendant was not enthusiastic about the
offer. The defendant expressed he wanted 15 years pursuant to a previous offer that plea counsel
had proposed to the State. Plea counsel indicated that he “thought it was a fairly good offer with
all the facts consider[ed] in the case,” including that the defendant could not produce evidence
about the third-party involvement and the defendant might still get 15 years. Plea counsel testified
11
that the defendant did not accept or reject the State’s offer. At the end of the conversation, plea
counsel testified that he told the defendant to think about the offer. Plea counsel testified that he
would often give indecisive clients time to consider their decision because he did not want to
pressure a client. Since there was no expiration date on the offer, plea counsel did not inform the
defendant that the offer could be revoked. Plea counsel, on the same day, sent an email to the
assistant State’s attorney, Lozar, indicating plea counsel had relayed the plea offer to the defendant,
and “will let you know what he says.” The following day, plea counsel received an email from the
State that retracted the offer. The email was admitted into evidence and plea counsel read the email
into the record. In the email, the State’s attorney apologized for retracting the offer, which he rarely
did, but after he had spoken with the victim, he learned that the victim’s injuries and long-term
effects from the incident were more severe than initially related to him. The State needed to decide
whether the offer was still appropriate and if the injuries constituted great bodily harm. Plea
counsel testified that on the same day as receiving the email, he informed the defendant that the
State had retracted the offer. The defendant was not happy because he thought he would have to
serve 50%, not 85% of his sentence.
¶ 32 After the plea offer was retracted, the defendant indicated that he wanted to represent
himself because plea counsel would not file certain motions the defendant believed were relevant
to the case. Plea counsel and the defendant disagreed about the strength of the motions requested
by the defendant. Plea counsel testified that the defendant did not mention the retracted offer during
his conversations with the defendant or in the circuit court filings made by the defendant. After
plea counsel reviewed the medical records for the victim, he asked the State to re-extend its offer.
The State declined. Plea negotiations continued until the defendant accepted an offer of an open
plea with a cap of 23 years, the dismissal of a misdemeanor, and the circuit court would make the
12
determination of whether there was great bodily harm to the victim. Plea counsel also testified that
a plea would not have been executed the day an agreement was made, especially when the
agreement occurred later in the day, as it was in this case. It could have been arranged for the next
day if the jail had been willing to bring the defendant to court.
¶ 33 On cross-examination, plea counsel testified that he typically had 50 clients at a time, but
the number of clients varied between 40 and 60. Plea counsel also confirmed that the defendant
did not accept the State’s offer and plea counsel had given the defendant time to think about it.
Further, plea counsel did not have the opportunity to speak with the defendant the following day
regarding the offer because the defendant did not have court scheduled. Plea counsel’s testimony
concluded the State’s evidence.
¶ 34 The defendant’s postconviction counsel argued that the defendant received ineffective
representation because plea counsel told the defendant to take some time to think about the offer
and the defendant listened to his counsel’s advice. If the defendant had accepted the offer
immediately, there would have been a chance that the outcome would have been different because
the defendant would be serving 50% instead of 85% of his sentence.
¶ 35 The State then argued that the circuit court did not have jurisdiction over the motion to
withdraw guilty plea because it was not timely. The State argued that plea counsel was not
ineffective because he believed that this offense would be served at 50% because great bodily harm
was not alleged by the State until the offer was retracted. The State also argued that plea counsel
was not ineffective when he failed to convey that the offer could be retracted because there was
no suggestion that there was a deadline on the offer, and it was rare for the State to retract an offer.
The dispute whether the defendant accepted the offer was a credibility determination for the court
to make, but the defendant had not complained about it in any of his previous pro se filings with
13
the court. Alternatively, the State argued that if plea counsel acted unreasonably when he failed to
immediately convey the defendant’s acceptance of the offer, there had been no showing that the
outcome would have been different.
¶ 36 After hearing evidence and argument from counsel on both the amended motion to
withdraw plea and the amended postconviction petition, the circuit court found that plea counsel
was credible and the defendant was “less credible.” The circuit court then addressed whether plea
counsel was ineffective. Based on the evidence presented at the hearing, the circuit court could not
find that plea counsel was ineffective. Plea counsel had properly advised the defendant about the
percentage of time to be served with the information he had at the time. There was no deadline on
the offer, so plea counsel was not at fault for failing to declare a deadline. The circuit court
considered the testimony, corroborating emails and letters presented, and found that the defendant
did not accept the offer. As a result, plea counsel did nothing wrong by not conveying an
acceptance of the offer. As a matter of law, the circuit court found that plea counsel’s conduct did
not fall below that of a reasonable attorney. The circuit court did not make a finding on whether
there was prejudice to the defendant because it did not believe that plea counsel acted
inappropriately. The circuit court denied the amended motion to withdraw guilty plea and the
amended postconviction petition. This appeal followed.
¶ 37 II. ANALYSIS
¶ 38 On appeal, the defendant claims that the circuit court erred when it refused to withdraw the
defendant’s guilty plea, where his plea counsel failed to advise him that the State’s plea offer could
be withdrawn at any time, and where the State withdrew the plea offer before the defendant had
the opportunity to accept it. Alternatively, the defendant argues that plea counsel could have
attempted to secure more specific terms from the State, including a firm expiration date for its
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offer. Before addressing the defendant’s claim on the merits, we consider the State’s claim of
waiver.
¶ 39 The State argues that the defendant waived any alleged error because he pled guilty while
fully aware of the circumstances of the earlier plea offer and its withdrawal. “ ‘It is well established
that a voluntary guilty plea waives all non-jurisdictional errors or irregularities, including
constitutional ones.’ ” People v. Sophanavong, 2020 IL 124337, ¶ 33 (quoting People v. Townsell,
209 Ill. 2d 543, 545 (2004)). Under the Post-Conviction Hearing Act, the State was required to file
either an answer or motion to dismiss within 30 days from the date of the order allowing the second
stage proceeding. 725 ILCS 5/122-5 (West 2020). “By its answer, a party either admits or denies
the allegations contained in the complaint, thereby framing the issues to be resolved later by
litigation. A motion to dismiss, on the other hand, attacks the sufficiency of the complaint.”
(Internal quotation marks omitted.) People v. Thompson, 2016 IL App (3d) 140586, ¶ 25. The State
may forfeit a claim of waiver by failing to raise the issue before the circuit court. People v. Behena,
2020 IL App (1st) 180197, ¶ 29.
¶ 40 Here, during the second stage of the proceedings, the State filed an answer to the amended
postconviction petition. The State did not argue that the defendant had waived his claim of
ineffective assistance of defense counsel in its answer or at the evidentiary hearing. Therefore, we
reject the State’s contention of waiver.
¶ 41 We then turn to the merits of the defendant’s appeal. The Post-Conviction Hearing Act
(725 ILCS 5/122-1 et seq. (West 2020)) provides a three-step process to resolve a criminal
defendant’s conviction or sentence that resulted from a violation of rights protected under the state
or federal constitution. People v. York, 2016 IL App (5th) 130579, ¶ 15. “At the first stage of
postconviction proceedings, the court reviews the petition to determine whether it is frivolous and
15
patently without merit.” York, 2016 IL App (5th) 130579, ¶ 15. This review is undertaken
independently, without input from the State. “To survive first-stage dismissal, the defendant need
only assert the gist of a constitutional claim.” York, 2016 IL App (5th) 130579, ¶ 15. If the circuit
court does not dismiss the claim, the petition is docketed for further proceedings and counsel is
appointed for the defendant. At the second stage, an amended petition may be filed by counsel,
and the State may file a motion to dismiss or an answer. The defendant is required to make a
“substantial showing of a constitutional violation” at the second stage. (Internal quotation marks
omitted.) York, 2016 IL App (5th) 130579, ¶ 16. If the petition is not dismissed at the second stage,
it advances to the third stage, where the court will hold an evidentiary hearing on the defendant’s
claims. People v. Wallace, 2018 IL App (5th) 140385, ¶ 27. The defendant has the burden to prove
a substantial denial of a constitutional right by a preponderance of the evidence during the third
stage. People v. Coleman, 2013 IL 113307, ¶ 92.
¶ 42 To prove ineffective assistance of counsel, the defendant must prove both (1) counsel’s
conduct fell below an objective standard of reasonableness and (2) counsel’s deficient
performance prejudiced the defendant, and it is reasonably probable that the result would have
been different but for counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668,
687 (1984). It is well settled that there is a strong presumption that counsel’s conduct falls within
the wide range of professional assistance. People v. Crutchfield, 2015 IL App (5th) 120371, ¶ 34.
Whether to enter a plea is a decision that belongs to the defendant, not a decision that counsel may
make as a part of trial strategy. People v. Boyd, 2018 IL App (5th) 140556, ¶ 17.
¶ 43 “[W]here a defendant pleads guilty to less favorable terms and claims that ineffective
assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland’s
inquiry into whether ‘the result of the proceeding would have been different,’ 466 U.S., at 694,
16
requires looking not at whether the defendant would have proceeded to trial absent ineffective
assistance but whether he would have accepted the offer to plead pursuant to the terms earlier
proposed.” Missouri v. Frye, 566 U.S. 134, 148 (2012). The defendant must also demonstrate a
reasonable probability that the plea would have been entered into without the prosecution
cancelling the plea or the circuit court rejecting the plea. Frye, 566 U.S. at 148.
¶ 44 If the defendant fails to satisfy either prong under Strickland, the claim will fail. Boyd,
2018 IL App (5th) 140556, ¶ 19. Where allegations of ineffective assistance of counsel survive to
a third-stage hearing, we review the trial court’s decision as a mixed question of fact and law.
People v. Coleman, 2015 IL App (4th) 131045, ¶ 66. We accept the trial court’s findings of fact
so long as they are not against the manifest weight of the evidence. But we review whether the
facts found by the trial court prove ineffective assistance of counsel de novo. Coleman, 2015 IL
App (4th) 131045, ¶ 66. A finding is against the manifest weight of the evidence only if it contains
error that is clearly evident, plain, and indisputable. People v. Hughes, 329 Ill. App. 3d 322, 325
(2002).
¶ 45 Here, the record shows that plea counsel relayed the details of the State’s offer to the
defendant the same day that it was made. Plea counsel did not mention that the offer could be
retracted because the State did not include a deadline in its offer. Plea counsel testified that the
defendant was not enthusiastic about the offer and that the defendant did not accept or reject the
offer. Plea counsel testified that he believed that it was a favorable offer and suggested that the
defendant take a day to consider it. Defendant, on the other hand, testified that he wanted to take
the offer, but that his plea counsel advised him to “think about it.”
¶ 46 The following day, the State’s attorney emailed plea counsel to retract the offer. In the
State’s attorney’s email, he noted that this was a rare occurrence, and he apologized for the
17
necessity to retract the offer in this case. The State’s attorney indicated that the victim’s injuries
and long-term effects were more serious than initially related to him, so he needed to check
whether the injuries would constitute great bodily harm, and whether the 15- to 20-year sentence
was appropriate. Since no court had been scheduled on the day following the plea offer, plea
counsel did not have the opportunity to follow up with his client before the State withdrew its
offer.
¶ 47 The circuit court stated that there was no corroboration for what the defendant claimed
occurred and there was corroboration for what plea counsel testified had occurred. As a result, the
circuit court found that plea counsel’s testimony was more credible than the defendant’s testimony.
¶ 48 Based on the foregoing, plea counsel’s conduct did not fall below an objective standard of
reasonableness. Plea counsel promptly relayed the terms and conditions of the State’s offer to the
defendant, which did not include a deadline. When plea counsel presented the offer to the
defendant, he was not enthusiastic about the offer and indicated that he wanted a previous offer
declined by the State. As plea counsel often did with indecisive clients, he suggested that the
defendant take a day to think about the offer. Allowing the defendant time to reflect was not
unreasonable because whether to accept a plea offer is a decision only the defendant can make.
Boyd, 2018 IL App (5th) 140556, ¶ 17. Further, the State’s attorney’s email acknowledged he
“rarely” retracted offers. There was simply no indication that the offer would be retracted so
quickly.
¶ 49 The defendant also argues that the circuit court made a factual finding that was manifestly
erroneous when it concluded that the defendant told plea counsel “no, I don’t want” the offer.
When considering whether the defendant accepted the offer, the circuit court made the following
statements:
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“Defendant’s the only one who says, yes, I wanted it, and it begs the question really
of what stake does Mr. Ham[3] have in all this.
Mr. Ham has a lot of caseload, a heavy caseload. He’s really, really busy.
If he conveys an offer to a defendant and the defendant says, yes, I’ll take it why in
the world would Mr. Ham say no, you know what, why don’t you sleep on it, why
don’t you think about it which then ultimately caused Mr. Lozar the next day to
revoke the offer due to something totally unrelated. It seems to me that the
Defendant very likely said, just as *** Mr. Ham said, he didn’t want it. He wasn’t
enthusiastic about it. Mr. Ham likely told him I think this is a good offer and when
the Defendant said, no, I don’t want it, I’m not enthusiastic about it that’s what
caused Mr. Ham to say, you know what, think about it. I’ll give you some time to
think about [it] to see if you will, in fact, accept that offer. That’s why he emailed
the State after talking with Mr. Pickens to say I’ve relayed it to my client. I’ll let
you know what he says implying clearly that Mr. Pickens did not say, yes, I want
it but, no, I don’t want it, and Mr. Ham’s the one who said let me buy you some
time essentially.
So, the real issue is what did Mr. Pickens say to Mr. Ham, and I don’t
find based on the testimony here, as well as the corroboration of the emails and
other letters, that he accepted the offer and therefore Mr. Ham did something wrong
by not conveying it.”
The full context of the court’s statement demonstrates that the circuit court did not incorrectly
remember plea counsel’s testimony. Plea counsel testified that the defendant was not enthusiastic
about the offer and did not accept or reject it. The circuit court commented that if the defendant
had accepted the offer, plea counsel would have readily conveyed the defendant’s acceptance due
to defense counsel’s heavy workload. Based on the testimony and corroboration of emails and
letters, the circuit court found that the defendant did not accept the offer. Therefore, we find that
the circuit court’s finding is not against the manifest weight of the evidence.
¶ 50 The defendant has the burden to show a substantial denial of constitutional right by
preponderance of the evidence. During a third stage postconviction hearing, the circuit court is
“able to observe and hear the witnesses at the evidentiary hearing and, therefore, occupies a
3
The reference to Mr. Ham is plea counsel.
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position of advantage in a search for the truth which is infinitely superior to that of a tribunal where
the sole guide is the printed record.” (Internal quotation marks omitted.) People v. Coleman, 183
Ill. 2d 366, 384 (1998). Based upon the record, the circuit court’s determination was not manifestly
erroneous, where the circuit court was in the best position to observe and determine the credibility
of witnesses. The circuit court considered the evidence and determined that plea counsel was more
credible than the defendant and that plea counsel’s testimony was supported by correspondence.
We are unable to conclude that the circuit court erred by denying the defendant’s petition where
the circuit court was in the best position to assess the credibility of the witnesses. The defendant
has failed to show that plea counsel’s conduct fell below an objective standard of reasonableness.
The standard for ineffective assistance under Strickland has not been satisfied.
¶ 51 The defendant also appeals the circuit court’s denial of his amended motion to withdraw
guilty plea and vacate judgment. The amended motion also alleged that his counsel provided
ineffective assistance during plea negotiations, which resulted in the imposition of a significantly
harsher sentence. The circuit court’s denial of a defendant’s motion to withdraw guilty plea should
be reviewed for an abuse of discretion. Boyd, 2018 IL App (5th) 140556, ¶ 13. “An abuse of
discretion occurs only where the court’s ruling is so arbitrary or unreasonable that no reasonable
person would take the view adopted by the trial court.” Boyd, 2018 IL App (5th) 140556, ¶ 14.
Challenges to guilty pleas based on ineffective assistance of counsel are subject to the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Illinois Supreme Court
in People v. Albanese, 104 Ill. 2d 504, 525-28 (1984). Based on the reasons discussed above, we
similarly find that the circuit court did not abuse its discretion when it denied the defendant’s
motion to withdraw guilty plea and vacate judgment.
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¶ 52 III. CONCLUSION
¶ 53 For the foregoing reasons, we affirm the judgment of the circuit court of Champaign
County.
¶ 54 Affirmed.
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