People v. Reed , 2024 IL App (1st) 210798-U ( 2024 )

2024 IL App (1st) 210798-UNo. 1-21-0798
Order filed May 28, 2024.
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 09 CR 02212 02
)
DWAYNE REED, ) The Honorable
) Stanley L. Hill,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Coghlan concurred in the judgment.
ORDER
¶1 Held: Defendant failed to show that the trial judge’s failure to recuse himself during
postconviction proceedings resulted in plain error. In addition, the evidence set forth at the
evidentiary hearing on defendant’s petition supported the finding that trial counsel was not
ineffective.
¶2 Defendant Dwayne Reed appeals from the trial court’s order dismissing his
postconviction petition following an evidentiary hearing under the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 et seq. (West 2020)). On appeal, defendant asserts that the trial judge
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possessed pertinent knowledge outside the record and, thus, Illinois Supreme Court Rule 63 (eff.
Feb. 2, 2017), required the judge to recuse himself from the postconviction proceedings. 1
Defendant also challenges the court’s determination that trial counsel properly informed him that
he would be required to serve 85% of his sentence for aggravated kidnaping and did not lead him
to reject plea offers based on erroneous or incomplete information. For the following reasons, we
affirm the trial court’s judgment.
¶3 I. Background
¶4 Defendant was charged with offenses that occurred on March 11, 2008. Specifically, he
was charged with armed robbery (720 ILCS 5/18-2(A)(2) (West 2008)), aggravated unlawful
restraint (720 ILCS 5/10-3.1 (West 2008)), aggravated kidnaping based on the concealment of
his identity (720 ILCS 5/10-2(a)(4) (West 2008)), and, pertinent to this dispute, aggravated
kidnaping based on his possession of a firearm during the offense (720 ILCS 5/10-2(a)(6) (West
2008)). While both aggravated kidnaping charges were Class X felonies, the latter charge
required that a 15-year firearm enhancement be added to any sentence. 720 ILCS 5/10-2(b)
(West 2012). Thus, defendant was facing a minimum sentence of 21 years for that offense. See
730 ILCS 5/5-4.5-25 (West 2012) (setting forth a Class X sentencing range of 6 to 30 years in
prison). Additionally, defendant could not receive more than 4.5 days of good conduct credit per
month to offset any sentence for aggravated kidnaping. 730 ILCS 5/3-6 3(a)(2)(ii) (2008). Stated
differently, he would be required to serve at least 85% of that sentence.
¶5 A. Plea Negotiations
¶6 Before trial, defendant was represented by private attorney Ezra Hemphill, who was later
joined by John Benson. This case originally came before the Honorable Thomas M. Tucker but
1
Supreme Court Rule 63 was repealed on January 1, 2023.
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was later transferred to the Honorable Stanley L. Hill. Although plea conferences occurred
before both judges (Ill. S. Ct. R. 402 (eff. July 1, 2012)), no plea agreement was reached. No
contemporaneous record was made of any plea offer either.
¶7 B. Trial
¶8 The evidence at trial generally showed that at about 8:30 p.m. on March 11, 2008, Bianca
Muniz was closing the currency exchange where she worked. After she had manually locked the
front door, two men pried it open. She could see only one man’s face, as the other wore a hood.
According to Muniz, one man pointed a small gun at her head and directed her to the back,
where she was forced to lay face down on the ground while her hands and ankles were tied with
duct tape. Muniz, a non-smoker, noted the scent of cigarette smoke. When the men eventually
left, Muniz freed herself and called the police. A large amount of cash was missing, and the
police later recovered a partially burnt cigarette from the floor. DNA from the cigarette matched
defendant’s DNA profile. Following trial, the court found defendant guilty of all charges.
¶9 At sentencing, the trial court informed defendant that he would be statutorily required to
serve 85% of any sentence for aggravated kidnaping. Sentences for other counts would be served
at 50%. The court then imposed four concurrent 25-year sentences. Subsequently, the court
found that aggravated unlawful restraint merged into aggravated kidnaping and vacated the
conviction for the former offense. In addition, the court later reduced defendant’s remaining
sentences to 22 years in prison.
¶ 10 C. Direct Appeal
¶ 11 On direct appeal, we rejected defendant’s assertion that his convictions for aggravated
robbery and aggravated kidnaping while in possession of a firearm had to be reduced to simple
robbery and kidnaping. People v. Reed, 2016 IL App (1st) 142174-U. We agreed, however, that
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the conviction for aggravated kidnaping based on the concealment of his identity was required to
be vacated under the one-act, one-crime doctrine. Id.¶ 12 D. Postconviction Petition
¶ 13 In March 2018, defendant filed a pro se postconviction petition alleging that trial counsel
was ineffective for telling him he would have to serve 50% of his sentence and for not informing
him that he would actually have to serve at least 85%. Defendant alleged that this failing
impacted his decision to reject plea offers made before trial.
¶ 14 According to the petition, Judge Tucker said he would impose a 10-year sentence,
without a firearm enhancement, to be served at 50%, if defendant proceeded to a bench trial. In
addition, no “deal or issue” as to aggravated kidnaping was raised before Judge Tucker. Before
Judge Hill, the State offered defendant a 25-year-sentence to be served at 50%. Judge Hill
himself offered defendant a 22-year sentence to be served at 50%. But see People v. Donelson,
2011 IL App (1st) 092594, ¶ 14 (stating that the trial court is not party to a plea agreement). We
note that the petition did not specify which counts the aforementioned plea offers applied to, but
did allege that Hemphill said Judge Hill would not come off the 15-year firearm enhancement for
armed robbery. The petition further alleged that the only issue discussed at the plea conferences
was whether he would be required to serve a 15-year firearm enhancement for armed robbery.
Conversely, no one mentioned that he would be required to serve 85% of any sentence. Had he
known, he would have accepted Judge Hill’s offer or the State’s offer.
¶ 15 Judge Hill appointed postconviction counsel and advanced the petition to the second
stage following the passage of 90 days. He also suggested that defendant’s complaint would be
cured if the court immediately imposed a 22-year sentence, to be served at 50%, without altering
any findings of guilt. In addition, the State moved to dismiss the petition, arguing, among other
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things, that defendant could not establish prejudice because he did not allege which counts the
plea offers pertained to. If defendant was offered statutorily unauthorized sentencing credit for
aggravated kidnaping, he would have to show that the trial court or the State would not have
corrected that error before the defective plea offer could be implemented.
¶ 16 At a hearing on October 18, 2019, the State said it could not agree to a percentage of
good conduct credit that deviated from statute. In addition, postconviction counsel agreed that
the petition did not specify the details of the State’s offer. Judge Hill speculated that because he
would not have offered defendant credit at 50% if that was not authorized, “there must have been
a piece there that said we're reducing it down in such a way that you can give day for day at 50
percent.” That being said, Judge Hill, lacked “any specific recollection of who said what.”
¶ 17 On December 13, 2019, Judge Hill denied the State’s motion to dismiss. In doing so, he
recalled that in pretrial negotiations, there was a question of whether the State would be able to
prove a firearm was used in the offense. Additionally, he recalled that “the State was prepared in
pretrial to dismiss that enhanced situation,” but he was unsure whether trial counsel advised
defendant of that. Furthermore, Judge Hill stated, “I did recommend that if he pled guilty that I
would sentence him I think to 22 years.”
¶ 18 A week later, Judge Hill acknowledged that he had “some personal knowledge of this”
since he had participated in plea conferences and observed that postconviction counsel was now
saying that the plea offers applied to all charges. The court rejected the State’s argument that
defendant needed to amend his petition to include that allegation.
¶ 19 At a hearing on October 16, 2020, Judge Hill, consulting his general practices, speculated
at length as to what the details of the plea offers may have been. On October 29, 2020, he further
speculated and found that certain internal records tendered by the State refreshed his recollection.
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During that hearing, Judge Hill also told postconviction counsel that he did not have the right to
call a State’s Attorney to find out what the offer was:
“You have the offer from me; the last offer was 22 years. That comes from me,
and I'm telling you, that's what I offered him. That's borne out by these files. So it’s
irrelevant what a State's Attorney may have said regarding that because it's right here, and
you've got me saying the offer, is 25 — I mean, sorry, 22 years on armed robbery.
Period.”
Judge Hill acknowledged, however, that the State’s records did not specifically mention
“aggravated kidnaping.” Moreover, he found that based on the practice in Cook County, the
aggravated kidnaping charges and unlawful restraint charge probably would have been dismissed
if defendant pled guilty to armed robbery in exchange for 22 years or 25 years in prison.
When the State observed, “[w]e don’t know that,” Judge Hill responded, “I'm telling you, based
upon what I'm thinking was the case.” He also speculated that defendant went to trial because he
did not believe the State would be able to prove a firearm was involved:
“I don’t think it was about the 85%; I think it was about the fact that he thought he
might be able to get off with just straight robbery. Period. He was bargaining for 15 years
off.”
Judge Hill nonetheless clarified that he had an open mind.
¶ 20 On June 28, 2021, the State objected to postconviction counsel’s intent to use the
transcript of the October 29th hearing at the upcoming evidentiary hearing:
“He is asking you, your Honor, to be a witness in your own case that you're
sitting as a trier of fact. We – I do not have the opportunity to cross-exam you, and that is
not the only statement that I believe that counsel wants to use.”
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Over the State’s objection, the court granted postconviction counsel’s request for the court to
take judicial notice of the court’s statement that the court had offered defendant 22 years and the
State had offered 25 years.
¶ 21 The State also objected to postconviction counsel’s use of Judge Hill’s prior statement
that counsel could not call an assistant State’s Attorney to testify because Judge Hill had already
determined what the offer had been. The State argued that another witness “may very well give
you a different version of that.” Judge Hill responded that while he did not know what
defendant’s trial lawyers had told him, Judge Hill’s recollection was refreshed.
¶ 22 At the evidentiary hearing on defendant’s petition, postconviction counsel asked that the
court “consider not only the evidence presented, but also your Honor's knowledge and
experience with the case as the trial judge who presided over the trial as well as guilty-plea
negotiations and the 402 conferences.”
¶ 23 Defendant testified that both Hemphill and Benson were authorized to negotiate on his
behalf, and they spoke with him after every court date. Hemphill told defendant that if he chose a
bench trial, Judge Tucker would sentence him to 10 years in prison, without a firearm
enhancement, because no firearm was recovered. Hemphill also said that the armed robbery
count would be served at 50%. That being said, Hemphill never explained what would happen to
the aggravated kidnaping charges if he accepted the plea offer.
¶ 24 Following hearings before Judge Hill, Hemphill told defendant that the State had offered
“25 years at 50%, since no one got hurt,” and that “Judge Hill was offering 22 years to be served
at 50%.” Hemphill did not convey that the offer was for a particular offense but indicated that it
pertained to all of the charges. Hemphill also said, however, that Judge Hill “wasn’t coming off
the gun enhancement.”
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¶ 25 Defendant testified that while Benson was not present for the aforementioned
conversations with Hemphill, Benson spoke to defendant, in the presence of Hemphill, on June
27, 2012. At that time, Benson told defendant he could not accept Judge Tucker’s offer of 10
years in prison because there was a lack of legal clarity surrounding the firearm enhancement
and a guilty plea to that offer would be unconstitutional. Defendant did not recall whether he had
any discussions with Benson about plea negotiations after Judge Hill took over the case.
¶ 26 According to defendant, his attorneys had said that the “whole entire case” would be
served at 50%. They never discussed the aggravated kidnaping counts or said he would be
required to serve 85% of any sentence for those offenses. At sentencing, he learned for the first
time that he would be required to serve 85% of his aggravated kidnaping sentences. Had
defendant known, he would have accepted Judge Hill’s plea offer. Yet, defendant also
acknowledged that a primary concern during plea negotiations was whether or not he would be
subject to a firearm enhancement. Furthermore, his subsequent motion for a new sentence, as
well as pro se letters sent to the court, did not raise the amount of available good conduct credit
as an issue. Moreover, while testifying on the State’s behalf in a separate murder-for-hire case,
defendant acknowledged that he had not wanted to accept the offers in this case and that a 25-
year sentence was too long.
¶ 27 Benson testified that after he was appointed to represent defendant, he wrote down the
charges, the sentencing ranges, the applicable firearm enhancements and the percentage of
available good conduct credit. Specifically, he wrote that aggravated kidnaping would be served
at 85%. Benson testified, “[t]he reason I do this is the first thing a client wants to know is: What
am I facing? The lawyer always has to know what the sentencing range is.” Benson discussed the
sentencing range with defendant multiple times. On August 10, 2012, in particular, Benson met
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with defendant in jail to discuss sentencing. Benson, in the presence of Hemphill, told defendant
that he would have to serve 85% of a sentence for aggravated kidnaping.
¶ 28 As to plea negotiations, Benson told defendant that “[t]he courtroom prosecutors would
never agree to come off the aggravated kidnaping; therefore, we could never get out from under
the 85 percent.” During Benson’s conversations with multiple prosecutors, he never received “an
offer that did not involve aggravated kidnaping.” That being said, Benson was not present at
every court date during defendant’s prosecution, and he was not aware whether defendant
otherwise received such an offer. While Benson had notes regarding the sentencing scheme, he
had no notes regarding plea offers.
¶ 29 Defendant’s father, mother and sister, all of whom had spoken with defense counsel,
testified that they believed defendant would serve 50% of his sentence and did not learn until
sentencing that he would have to serve 85%.
¶ 30 After considering the forgoing evidence, the trial court denied defendant’s petition. Judge
Hill believed that the 22-year plea offer contemplated that the aggravated kidnaping counts
would be nol-prossed and recognized that Benson’s recollection differed. Benson testified
credibly, however, that he told defendant he would be required to serve 85% of any sentence for
aggravated kidnaping. Defendant had simply chosen to forget that Benson relayed this
information. Moreover, Judge Hill believed that defendant’s concern during plea negotiations
was avoiding the 15-year firearm enhancement for armed robbery, although “none of that’s come
out in this hearing.”
¶ 31 II. Analysis
¶ 32 A. Recusal
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¶ 33 On appeal, defendant first asserts that Judge Hill abused his discretion by failing to
recuse himself from postconviction proceedings because he possessed, and relied upon, personal
knowledge outside of the record. Defendant asserts that Judge Hill’s personal knowledge of off-
the-record plea conferences was pertinent to the factual dispute surrounding defendant’s claim
that he would have accepted a plea offer had trial counsel told him that he would be required to
serve 85%, rather than 50%, of any sentence for aggravated kidnaping. See Ill. S. Ct. R.
63(c)(1)(a) (Feb. 2, 2017) (stating that “[a] judge shall disqualify himself or herself in a
proceeding in which the judge's impartiality might reasonably be questioned, including but not
limited to instances where: (a) the judge has***personal knowledge of disputed evidentiary facts
concerning the proceeding”); see also People v. Washington, 38 Ill. 2d 446, 448, 450-51 (1967)
(in reversing for an evidentiary hearing on the defendant’s postconviction claim, the supreme
court found that the proceeding should be transferred to a different judge because he would be a
material witness or have knowledge outside the record regarding the truth of the allegations that
the defense, the State and the judge had agreed to a 14-year sentence); People v. Wilson, 37 Ill.
2d 617, 621 (1967) (finding that the trial judge failed to recuse himself from a postconviction
proceeding where the defendant relied on alleged in camera conversations between his attorney
and the court and the trial judge would be a material witness or have knowledge outside the
record as to the veracity of the allegations). 2
¶ 34 Here, Judge Hill referred extensively to his recollection of what ensued during plea
negotiations, matters outside of the record. Yet, defendant acknowledges that he did not ask the
2
We note that the parties have not addressed whether defendant, as opposed to the trial court
itself, may invoke Rule 63. See In re Marriage of O’Brien, 2011 IL 109039, ¶ 45 (stating that “[w]hether
a judge should recuse himself is a decision in Illinois that rests exclusively within the determination of the
individual judge” and “[t]he Judicial Code, which is a part of our rules, says nothing that would give the
impression that its provisions could be used by a party or his lawyer as a means to force a judge to recuse
himself, once the judge does not do so on his own”).
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judge to recuse himself or disregard his personal knowledge. Instead, defendant urged the court
to consider his personal knowledge, over the State’s objection. See People v. Bridgeforth, 2017
IL App (1st) 143637, ¶ 46 (stating that an issue is forfeited absent a contemporaneous objection).
Defendant therefor acknowledges that he not only forfeited this error, but invited it.
¶ 35 Nonetheless, defendant observes that the State has not raised waiver based on the invited
error doctrine, only simple forfeiture. Defendant argues that as a result, the State has forfeited
any reliance on that doctrine. See Id. (recognizing that the State may waive forfeiture). In
addition, he asserts that the plain error doctrine overcomes his mere forfeiture of this contention.
Plain error exists when either (1) the evidence is so closely balanced or (2) the error was so
serious as to deny the defendant a fair and impartial trial. People v. Hutt, 2023 IL 128170, ¶ 28.
¶ 36 Defendant has cited no authority supporting his suggestion that the plain error doctrine
applies in postconviction proceedings. See People v. Davis, 156 Ill. 2d 149, 159 (1993)
(declining to apply plain error in the context of postconviction proceedings); see also People v.
Gibson, 2021 IL App (1st) 190137, ¶ 16 (stating that “the plain-error doctrine does not apply in
cases that involve invited error”). In addition, defendant has not developed an argument that the
court violated due process in this instance or cited authority supporting the suggestion that a
violation of Rule 63 in and of itself constitutes second prong plain error. Cf. People v.
Wallenberg, 24 Ill. 2d 350, 354 (1962) (stating on direct appeal that a trial judge’s deliberations
“are limited to the record made before him during the course of the trial” and that “[a]
determination made by the trial judge *** based upon private knowledge of the court, untested
by cross-examination, or any of the rules of evidence constitutes a denial of due process of law”).
Absent a thorough cohesive argument as to how the court’s conduct would amount to second-
prong plain error under these circumstances, we find his contention remains forfeited. Ill. S. Ct.
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R. 341(h)(7) (eff. Oct. 1, 2020) (stating that points not argued are forfeited); People v. Bell, 2021
IL App (1st) 190366, ¶ 117 (recognizing that arguments not sufficiently developed are forfeited);
People v. Jacobs, 405 Ill. App. 3d 210, 218 (2010) (recognizing that a reviewing court is entitled
to clearly defined issues supported by pertinent authority and cohesive arguments). 3
¶ 37 II. Ineffective Assistance of Counsel
¶ 38 We now address defendant’s assertion that trial counsel was ineffective.
¶ 39 The Act provides a statutory vehicle for defendants to assert substantial violations of their
constitutional rights that occurred at trial. People v. Robinson, 2020 IL 123849, ¶ 42. At a third-
stage evidentiary hearing, the defendant has the burden of demonstrating by a preponderance of
the evidence that a substantial violation has occurred. People v. Brickhouse, 2018 IL App (3d)
150807, ¶ 38. Additionally, the trial court may make determinations regarding the credibility and
reliability of the evidence (Robinson, 2020 IL 123849, ¶ 61), and resolve conflicts in the
evidence (People v. Domagala, 2013 IL 113688, ¶ 34). Ultimately, the trial court must decide
whether the evidence shows that the defendant is, in fact, entitled to postconviction relief. Id. We
will not reverse the court’s determination unless it is against the manifest weight of the evidence.
People v. English, 2013 IL 112890, ¶ 23.
¶ 40 The right to effective counsel applies to the plea-bargaining process and a defendant’s
decision to reject a plea offer. People v. Hale, 2013 IL 113140, ¶¶ 16-18. A defendant has the
right to be reasonably informed as to the direct consequences of accepting or rejecting the State’s
plea offer. People v. Curry, 178 Ill. 2d 509, 528 (1997) (abrogated on other grounds by Hale,
2013 IL 113140, ¶ 20); cf. People v. Burge, 2021 IL 125642, ¶ 38 (recognizing that due process
does not require a defendant to be informed about the collateral consequences of a guilty plea).
3
We also note that defendant has not suggested that postconviction counsel provided
unreasonable assistance by asking the court to consider matters outside the record.
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¶ 41 To demonstrate that trial counsel was ineffective, a defendant must show both that
counsel’s performance was deficient, and that this deficient performance resulted in prejudice.
People v. Moore, 2020 IL 124538, ¶ 29. More specifically, the defendant must establish that his
counsel’s assistance was objectively unreasonable and that a reasonable probability exists that
the result of proceedings would have been different absent counsel’s deficiency. People v.
Nicholson, 2021 IL App (3d) 180010, ¶ 15. In the context of a rejected plea offer, the defendant
must show a reasonable probability exists that he would have accepted the offer absent counsel’s
deficient advice (Curry, 178 Ill. 2d at 531), and that he would have entered the plea without the
prosecutor canceling the offer or the court refusing to accept it (Hale, 2013 IL 113140, ¶¶ 19-20).
¶ 42 Here, the record supports the trial court’s determination that trial counsel informed
defendant before trial that he would be required to serve 85% of any sentence for aggravated
kidnaping. The court found that Benson testified credibly in that regard and nothing in the record
renders that finding unreasonable. The trial court was not required to find that defendant’s self-
serving testimony to the contrary was more credible. In addition, defendant’s family members
were not present for all conversations between defendant and counsel, and could not rebut
Benson’s testimony that he informed defendant he would be required to serve 85%. Even if they
could rebut that testimony, the court was not required to find defendant’s family members were
entirely disinterested.
¶ 43 Defendant nonetheless argues that Judge Hill’s belief that the plea offers involved the
dismissal of the aggravated kidnaping counts undermined the credibility of Benson’s testimony
to the contrary. Defendant argues “it was impossible for counsel to accurately inform the
petitioner of the terms of the offer because counsel himself did not know what those terms were.”
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No. 1-21-0798
¶ 44 First, we observe that plaintiff’s petition did not assert that he was unaware of the plea
offers’ terms; rather, the petition asserted only that he did not understand what would happen
outside those offers. We find defendant’s attempt to raise a new claim on appeal to be
disingenuous. Defendant never sought to amend his petition to include such a claim. See 725
ILCS 5/122-3 (West 2020) (stating that “[a]ny claim of substantial denial of constitutional rights
not raised in the original or an amended petition is waived”).
¶ 45 Defendant also conflates Judge Hill’s challenge to Benson’s memory with a challenge to
Benson’s contemporaneous understanding of the plea offers. Any inability to remember the
details of the plea offers does not mean that Benson failed to understand the offers in the first
instance. Furthermore, any defect in Benson’s memory regarding the contours of the offers did
not require the court to reject Benson’s testimony that he told defendant that he would serve 85%
if sentenced for aggravated kidnaping. See People v. Gray, 2017 IL 120958, ¶ 47 (recognizing
that the trial court is entitled to determine when, if ever, the witness testified credibility and that
flaws in part of the testimony do not necessarily destroy the credibility of the whole). Although
defendant notes that the State argued below that proving the contours of the offers was crucial to
his ability to show prejudice, defendant ignores that he argued below that the lack of detail did
not defeat his claim. In any event, the contours of the offers are not crucial here given that
defendant’s claim is otherwise defective.
¶ 46 Defendant further argues that because Hemphill did not testify at the evidentiary hearing,
defendant’s testimony that Hemphill never told him he would have to serve 85% of his
aggravated kidnaping sentence remains unrebutted. Yet, we fail to see how the lack of testimony
from Hemphill negates Benson’s testimony that he informed defendant of this fact.
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¶ 47 Here, the trial court’s finding that Benson told defendant he would have to serve 85%
percent of a sentence for aggravated kidnaping was not against the manifest weight of the
evidence. It follows that trial counsel’s performance was neither deficient nor prejudicial in this
regard.
¶ 48 III. Conclusion
¶ 49 Defendant has not demonstrated that the trial court’s reference to off-the-record plea
discussions amounted to plain error. In addition, the evidence supported the trial court’s
determination that trial counsel was not ineffective.
¶ 50 For the forgoing reasons, we affirm the trial court’s judgment.
¶ 51 Affirmed.
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