People v. Jackson , 2024 IL App (4th) 231070-U ( 2024 )

NOTICE 2024 IL App (4th) 231070-UThis Order was filed under
FILED
Supreme Court Rule 23 and is October 17, 2024
not precedent except in the NO. 4-23-1070 Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Winnebago County
TIRINO C. JACKSON, ) No. 10CF3414
Defendant-Appellant. )
) Honorable
) Brendan A. Maher,
) Judge Presiding.
PRESIDING JUSTICE CAVANAGH delivered the judgment of the court.
Justices Steigmann and DeArmond concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding (1) the trial court’s denial of defendant’s
petition for postconviction relief at the third stage of postconviction proceedings
was not manifestly erroneous and (2) postconviction counsel did not provide
unreasonable assistance.
¶2 Following a May 2023 third-stage evidentiary hearing, the trial court denied
defendant Tirino C. Jackson’s petition for postconviction relief. Defendant, on appeal, argues
(1) the court erred when denying his petition and (2) his postconviction counsel provided
unreasonable assistance. We affirm.
¶3 I. BACKGROUND
¶4 In November 2010, defendant was charged by indictment with 12 counts. Counts
I and II alleged the offense of being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West
2010)) for knowingly possessing a firearm, a semiautomatic handgun and a revolver,
respectively, after having been previously convicted of a Class 1 felony for a violation of the
Illinois Controlled Substances Act in Winnebago County case No. 97-CF-1797 (drug offense)
and unlawful use of weapon by a felon in Winnebago County case No. 03-CF-1540 (weapon
offense). Counts III through X alleged unlawful possession of a weapon by a felon (id.
§ 24-1.1(a)), relying on the various combinations of defendant’s prior drug offense and/or his
prior weapon offense and his possession of a semiautomatic handgun and/or a revolver and/or
while wearing body armor, a bullet proof vest. Count XI alleged aggravated fleeing or attempting
to elude a peace officer (625 ILCS 5/11-204.1(a)(4) (West 2010)); and count XII alleged
criminal damage to state supported property (720 ILCS 5/21-4(a) (West 2010)).
¶5 In December 2011, the trial court conducted an Illinois Supreme Court Rule 402
(eff. July 1, 2012) conference with the parties. Defendant was not present, and the record does
not contain a transcript from this conference. However, following the Rule 402 conference,
defendant’s trial counsel informed the court, “I don’t think that we will be able to resolve the
case, but we’ll keep talking.”
¶6 The matter proceeded to a jury trial in December 2013. Prior to trial, defendant
confirmed to the trial court that he had rejected a plea offer from the State. A jury convicted
defendant on all counts.
¶7 In February 2014, prior to the sentencing hearing, the State informed the trial
court counts XI and XII could be imposed as consecutive terms in prison at the court’s
discretion. The State followed with
“The People, and I don’t think it’s a surprise to [defendant’s trial counsel], are
intending to ask for consecutive sentencing for all the counts that defendant will
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be convicted of, but we’re still looking into those *** and see if we can come to
an agreement as to which counts he should be sentenced on.”
¶8 In March 2014, prior to the sentencing hearing, the parties again appeared before
the trial court to discuss potential sentencing ranges for defendant’s convictions. Defendant’s
trial counsel stated to the court, “I agree with [the State] that there is no mandatory consecutive. I
understand she will be asking for these charges, all of them to be discretionary consecutive. I
have discussed that with [defendant].” The court then asked defendant’s trial counsel directly
whether the court could impose sentencing on counts XI and XII as concurrent or consecutive.
Counsel stated, “I believe that’s the case.”
¶9 At the sentencing hearing in April 2014, the trial court entered convictions on
counts I, V, XI, and XII. The court sentenced defendant to 30 years’ imprisonment on count I
and 20 years on count V, to run concurrently. The court then sentenced defendant to six years’
imprisonment on count XI, to run consecutive to counts I and V. Finally, the court sentenced
defendant to two years’ imprisonment on count XII concurrent with count XI. In total, defendant
was sentenced to an aggregate 36 years in prison. Defendant filed a motion to reconsider his
sentence, arguing, inter alia, the court abused its discretion when imposing the sentence on
counts XI and XII consecutive to counts I and V. The court denied defendant’s motion.
¶ 10 Defendant filed a direct appeal, arguing the trial court’s failure to tender a written
limiting instruction for the use of evidence of his prior convictions was prejudicial error. People
v. Jackson, 2016 IL App (2d) 140774-U, ¶ 26. The appellate court affirmed. Id. ¶ 33.
¶ 11 In November 2017, defendant filed a pro se postconviction petition, alleging,
inter alia, his trial counsel misrepresented the possible sentencing range he faced during plea
negotiations. The trial court found defendant’s petition raised the gist of a constitutional claim
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and appointed counsel to represent him. Due to defendant’s other pending cases at the time, the
amended postconviction petition was not filed until July 2022. The amended petition alleged
defendant was offered a plea as to one count of being an armed habitual criminal, with a 20-year
prison sentence to be served at 85%. He had been advised his maximum sentencing exposure
was 30 years at 85%. The petition alleged trial counsel rendered ineffective assistance by failing
to inform defendant he faced potential discretionary consecutive sentencing, which prejudiced
defendant when he decided to reject the plea offer. The matter proceeded to an evidentiary
hearing in May 2023.
¶ 12 At the hearing, defendant testified trial counsel informed him his maximum
sentence would be 30 years in prison, stating, “[Trial counsel] told me that the [armed habitual
criminal charge] would eat up the rest of the other counts if I was found guilty.” By “eat up,”
defendant clarified that any remaining convictions would run concurrent to a conviction for
being an armed habitual criminal. He said trial counsel had informed him “it wasn’t possible for
us to win.” When rejecting the State’s plea offer of a 20-year sentence, defendant explained:
“I rejected the 20-year offer because I looked at it like—well, me and the lawyer
talked, but I looked at it like they offered 20 and the most I get is 30. And if the
Judge is any lenience, I can also get less than the 20 that they had on the table. So
I’m looking at getting less than 20 or getting a 15 where I can do 10 and I’ll be
home in time or I’m looking at doing the extra 10 is worth a risk. To me it was
kind of worth the risk for the extra 10 years when it’s only an extra 10 years that
I’m facing versus I can get like a 15 to be home in 12 years.”
¶ 13 Defendant stated the first time he learned he could be subjected to consecutive
sentencing was in the State’s posttrial motion. Defendant stated, when he learned he was subject
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to consecutive sentencing, that “killed everything [trial counsel] told [him].” Defendant
explained, based on his calculations, he faced a potential sentencing range of 18 to 82 years in
prison and had he known this, he would have accepted the 20-year plea offer.
¶ 14 On cross-examination, defendant initially denied that Shauna Riley—who
testified at trial to being in the vehicle when defendant fled police and that the guns found in the
vehicle were not hers—was his girlfriend. He also denied not expecting Riley to testify against
him at trial or believing that he would have been acquitted had she not testified against him.
Defendant added that his trial counsel had told him prior to retaining her services that he was
going to be found guilty, and it did not make sense for him to even pay her.
¶ 15 Defendant confirmed he understood the difference between consecutive and
concurrent sentencing and that he was present in court on February 27, 2014, when the State
indicated it was going to seek consecutive sentencing. Defendant also confirmed that on March
28, 2014, his trial counsel told the trial court they had discussed consecutive sentencing with him
prior to sentencing. Defendant, who was 33 years old at the time of sentencing, did not recall
saying during his statement in allocution that he did not want to be in prison until he was “50 or
80 years old.” He confirmed he did not personally object or raise a concern when he was
sentenced to a term of more than 30 years in prison. He reiterated he believed his trial counsel
when counsel told him the maximum penalty he faced was 30 years. He said when the State
sought consecutive sentences, he believed there was nothing he could do about it. He confirmed
trial counsel continued to represent him on his other cases for an additional two years after he
was sentenced in this case. Defendant stated it was not until he was transferred to prison and
“started talking to prison lawyers” that he learned he should have been advised prior to trial that
he could potentially receive consecutive sentences if found guilty.
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¶ 16 The State’s evidence included defendant’s affidavit, which was attached to his
initial pro se postconviction petition, and defendant’s trial counsel’s affidavit, which stated:
“1. I am an Illinois licensed attorney, and I currently serve as an Associate Judge
in the 17th Judicial Circuit.
2. I represented defendant *** in this case during trial and in post-trial hearings
including sentencing.
3. I am aware that [defendant] has alleged that I failed to properly advise him of
the possible sentencing range for his offenses if he chose to proceed to trial and
lose.
4. I am sure I discussed with [defendant] that he faced up to 30 years in the
Department of Corrections to be served at 85% per truth-in-sentencing on the
armed habitual criminal charge. However, I have no current recollection of
whether or not I advised [defendant] that the Court could discretionarily sentence
him to consecutive sentences for the other offenses.
5. I believe the State’s plea offer in this case was 20 years at 85%, but I believe
the offer would have resolved the charges under this case number only, not
[defendant’s] other pending matters. [Defendant] had three additional pending
case numbers involving very serious charges including first degree murder,
attempt murder (of one person from one incident and three people from another)
and several armed habitual criminal counts.
6. While I do not recall our specific conversations about the plea negotiations, I
do not recall [defendant] ever expressing any interest in taking the State’s plea
offer.
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7. I believe [defendant] was confident that a key witness against him would not
appear to testify at trial which may have been a consideration in his rejection of
the State’s plea offer.
8. My recollection is that, after conviction and sentencing, [defendant] did not
raise any concerns to me regarding the fact that he was sentenced to a term in the
Department of Corrections on the Counts 11 and 12 which was consecutive to
Counts 1 and 5.
9. Following the sentencing, I filed a motion to reconsider sentence on
[defendant’s] behalf. My representation on this case ended on August 6, 2014,
with the filing of the notice of appeal.
10. I continued to represent [defendant] in his other criminal matters pending at
the time he was sentenced in this case, namely Winnebago County case numbers
2010 CF 999, 2010 CF 3177 and 2010 CF 3415. I represented [defendant] in 2010
CF 999 until March 11, 2016, at which time the case was dismissed. I represented
[defendant] in 2010 CF 3415 until September 22, 2016, at which time I withdrew
as counsel for reasons related to [defendant’s] inability to pay legal fees.”
¶ 17 The trial court noted it had reviewed defendant’s amended petition, the trial
testimony, trial counsel’s affidavit, defendant’s affidavit attached to his pro se petition, the
witness list, defendant’s testimony from the evidentiary hearing, the appellate court’s decision in
Jackson, and the Illinois Supreme Court’s decision in People v. Hale, 2013 IL 113140. The court
found the “only evidence” supporting defendant’s claim he was not properly advised of the
potential for consecutive sentencing was his own “self-serving” testimony at the hearing.
Defendant never raised any issues regarding his consecutive sentence after his sentencing
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hearing or for the next two years afterwards, when his trial counsel continued to represent him on
his other pending matters. The court pointed to trial counsel’s affidavit, stating defendant had
never expressed an interest in accepting a plea offer and was confident Riley would not testify
against him at trial. The court concluded defendant had not met his burden and denied the
petition.
¶ 18 This appeal followed.
¶ 19 II. ANALYSIS
¶ 20 On appeal, defendant contends (1) the trial court’s findings following the
evidentiary hearing were manifestly erroneous and (2) he was denied the reasonable assistance of
postconviction counsel when counsel failed to raise the issue of an extended-term sentence
imposed on a lesser-class conviction. We address each claim in turn.
¶ 21 A. Manifestly Erroneous Claim
¶ 22 The Post-Conviction Hearing Act provides a three-stage process to remedy a
defendant’s conviction that resulted from a substantial violation of their constitutional rights. 725
ILCS 5/122-1 et seq. (West 2022); People v. Edwards, 197 Ill. 2d 239, 243-44 (2001). At the
third stage, a defendant has the burden of proving a substantial showing of a constitutional
violation. People v. Pendleton, 223 Ill. 2d 458, 472-73 (2006). “Following an evidentiary hearing
where fact-finding and credibility determinations are involved, the trial court’s decision will not
be reversed unless it is manifestly erroneous.” People v. Beaman, 229 Ill. 2d 56, 72 (2008). A
trial court’s “ruling is manifestly erroneous if it contains error that is clearly evident, plain, and
indisputable.” People v. Hughes, 329 Ill. App. 3d 322, 325 (2002).
¶ 23 To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy
the two-pronged test from Strickland v. Washington, 466 U.S. 668 (1984). Specifically, “a
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defendant must prove that defense counsel’s performance fell below an objective standard of
reasonableness and that this substandard performance created a reasonable probability that, but
for counsel’s errors, the result of the proceeding would have been different.” People v. Graham,
206 Ill. 2d 465, 476 (2003). “ ‘A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ ” Hale, 2013 IL 113140, ¶ 18 (quoting Strickland, 466 U.S. at 694).
The right to effective assistance of counsel applies to the plea-bargaining process as well. Id.
¶ 15.
¶ 24 Defendant specifically contends his trial counsel rendered ineffective assistance
that was both deficient and prejudicial. He argues trial counsel’s performance was objectively
unreasonable because she failed to inform him that his maximum aggregate sentence was 76
years in prison, not 30 years in prison. He notes our supreme court, in Hale, stated, “ ‘[a]
criminal defendant has the constitutional right to be reasonably informed with respect to the
direct consequences of accepting or rejecting a plea offer.’ ” (Emphasis in original.) (quoting
Hale, 2013 IL 113140, ¶ 16, quoting People v. Curry, 178 Ill. 2d 509, 528 (1997)). Defendant
also argues he was prejudiced by trial counsel’s error because he would have accepted the State’s
20-year plea offer had he been aware he faced a sentence in excess of 30 years in prison.
¶ 25 Defendant concedes that to show prejudice, he must provide more than his own
“subjective, self-serving” testimony. (Internal quotation marks omitted.) Hale, 2013 IL 113140,
¶ 18. “Rather, there must be ‘independent, objective confirmation that defendant’s rejection of
the proffered plea was based upon counsel’s erroneous advice,’ and not on other considerations.”
Id. (quoting Curry, 178 Ill. 2d at 532).
¶ 26 However, defendant contends the record corroborates his testimony. Specifically,
he notes (1) the record is silent on the issue of consecutive sentencing until after he was found
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guilty at trial, (2) trial counsel’s affidavit does not directly contradict his claim he was never
advised of the potential for consecutive sentencing, and (3) the trial court explicitly stated
defendant’s testimony at the evidentiary hearing was “truthful” and “candid.”
¶ 27 We are not persuaded by defendant’s arguments on appeal. See Insurance Benefit
Group, Inc. v. Guarantee Trust Life Insurance Co., 2017 IL App (1st) 162808, ¶ 44 (noting the
appellant bears the burden of persuasion as to his or her claims of error). While defendant is
correct the record is silent on the issue of consecutive sentencing until after he was convicted by
a jury and trial counsel’s affidavit does not explicitly state she informed defendant of the
potential for consecutive sentencing prior to trial, the record does not corroborate his testimony.
¶ 28 Defendant testified at the evidentiary hearing he learned he was subject to
potential discretionary consecutive sentencing after the trial but prior to sentencing. This is
corroborated by the record wherein at both appearances in February and March 2014, prior to the
sentencing hearing, the issue of consecutive sentencing was raised. Trial counsel is on record in
February 2014 stating she spoke with defendant about the consecutive sentencing issue.
Defendant testified at the evidentiary hearing he understood the difference between consecutive
and concurrent sentences prior to his sentencing hearing. He testified that, prior to sentencing,
when he learned he would be subject to potential consecutive sentences, it “killed everything
[trial counsel] told [him].” He said he contemplated facing as much as 82 years in prison. Yet, at
no point did he raise this concern with either his trial counsel or the sentencing court.
¶ 29 Furthermore, despite defendant’s testimony, the record shows other plausible
considerations for why defendant chose to go to trial. Trial counsel’s affidavit explicitly noted
defendant showed no interest in accepting a plea offer, the plea offer did not resolve any of his
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other pending matters where he faced substantially more severe sentences, and defendant’s
purported belief that Riley would not testify against him.
¶ 30 The fact is, defendant’s self-serving testimony alone does not overcome the
evidence of other considerations for rejecting the State’s plea offer and fails to establish
prejudice, even if counsel had erroneously failed to inform him of potential discretionary
consecutive sentencing. Therefore, we conclude the trial court’s judgment was not manifestly
erroneous.
¶ 31 B. Unreasonable Assistance of Postconviction Counsel Claim
¶ 32 Defendant next contends his postconviction counsel rendered unreasonable
assistance by failing to raise a meritorious argument in the amended postconviction petition. He
claims counsel should have raised the issue that he received an illegal extended-term sentence for
aggravated fleeing and eluding.
¶ 33 In postconviction proceedings, there is no constitutional right to counsel; rather,
the right is supplied by statute. People v. Addison, 2023 IL 127119, ¶ 19. A defendant is entitled
to a reasonable level of assistance, which is less than what is afforded by the federal and state
constitutions. Id. At a minimum, Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) requires
postconviction counsel to (1) consult with defendant to ascertain his contentions, (2) examine the
record of the trial proceedings, and (3) make “any amendments to the petitions filed pro se that
are necessary for an adequate presentation of [defendant’s] contentions.”
¶ 34 The Unified Code of Corrections permits an extended sentence “within the class
of the most serious offense of which the offender was convicted.” 730 ILCS 5/5-8-2(a) (West
2014). Where “multiple convictions stem from related courses of conduct, a defendant may only
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be sentenced to an extended-term sentence for the most serious classification of offense.” People
v. Cruz, 2019 IL App (1st) 170886, ¶ 57.
¶ 35 Here, defendant was sentenced to six years’ imprisonment on count XI for
aggravated fleeing or attempting to elude a peace officer. Aggravated fleeing or attempting to
elude a peace officer was a Class 4 felony as charged against defendant. 625 ILCS 5/11-204.1(b)
(West 2010). A Class 4 offense ordinarily carries a sentencing range of not less than one year
and not more than three years in prison. 730 ILCS 5/5-4.5-45(a) (West 2010). A Class 4 offense
is subject to an extended-term-eligible sentence of three to six years in prison. Id. However, in
this case, defendant was also convicted and sentenced to a more serious class offense: being an
armed habitual criminal, which is a Class X offense. 720 ILCS 5/24-1.7(b) (West 2010). The
record shows all of defendant’s charges and subsequent convictions stemmed from a related
course of conduct, as defendant was apprehended after fleeing from police officers in a car chase
and two firearms belonging to defendant were recovered from the vehicle. Therefore, it is
abundantly clear from the record that defendant received an improper sentence when the trial
court imposed an extended-term sentence for the lesser Class 4 felony of aggravated fleeing or
attempting to elude a peace officer.
¶ 36 We note, however, “[p]ostconviction counsel may conduct a more thorough
examination of the record and raise additional claims, but he or she is under no obligation to do
so.” People v. Perry, 2017 IL App (1st) 150587, ¶ 26. “Under Rule 651(c), postconviction
counsel is required to examine as much of the record as is necessary to adequately present and
support those constitutional claims raised by the [defendant].” (Internal quotation marks
omitted.) Id. Defendant’s initial pro se petition did not raise an issue regarding his extended-term
sentence for aggravated fleeing or attempting to elude a peace officer. Our supreme court has
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already stated postconviction counsel does not render unreasonable assistance by failing to raise
an issue not raised in the pro se petition. Pendleton, 223 Ill. 2d at 475. “ ‘[P]ostconviction
counsel is only required to investigate and properly present the petitioner’s claims.’ ” (Emphasis
in original.) Id. (quoting People v. Davis, 156 Ill. 2d 149, 164 (1993)). Accordingly, defendant
has failed to show his postconviction counsel rendered unreasonable assistance.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we affirm the judgment of the trial court.
¶ 39 Affirmed.
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