People v. Trujillo , 972 N.E.2d 184 ( 2012 )


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  •                            ILLINOIS OFFICIAL REPORTS
    Appellate Court
    People v. Trujillo, 
    2012 IL App (1st) 103212
    Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
    Caption                    MANUEL TRUJILLO, Defendant-Appellant.
    District & No.             First District, Second Division
    Docket No. 1-10-3212
    Filed                      May 8, 2012
    Held                       The summary dismissal of defendant’s pro se postconviction petition was
    (Note: This syllabus       reversed and the cause was remanded for further proceedings where
    constitutes no part of     defendant sufficiently alleged an arguable claim of ineffective assistance
    the opinion of the court   of counsel based on his counsel’s alleged failure to inform him of a guilty
    but has been prepared      plea offer for multiple controlled substance charges, and on remand, the
    by the Reporter of         trial court was directed to reconsider the credit due defendant for his
    Decisions for the          pretrial custody.
    convenience of the
    reader.)
    Decision Under             Appeal from the Circuit Court of Cook County, No. 07-CR-791; the Hon.
    Review                     Thomas M. Tucker, Judge, presiding.
    Judgment                   Reversed and remanded.
    Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Jeffrey Svehla, all of State
    Appeal                      Appellate Defender’s Office, of Chicago, for appellant.
    Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
    Kathryn A. Schierl, and Annette Collins, Assistant State’s Attorneys, of
    counsel), for the People.
    Panel                       JUSTICE CUNNINGHAM delivered the judgment of the court, with
    opinion.
    Presiding Justice Quinn and Justice Harris concurred in the judgment and
    opinion.
    OPINION
    ¶1          Defendant Manuel Trujillo appeals from the summary dismissal of his pro se petition for
    relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 to 122-8 (West 2010).
    On appeal, the defendant contends that the petition presented an arguable claim of ineffective
    assistance of counsel based on counsel’s alleged failure to inform him of the State’s guilty
    plea offer, and that the mittimus must be corrected to reflect the correct amount of
    presentence custody credit. We reverse and remand for further proceedings.
    ¶2          At a jury trial, the State’s evidence established that on December 6, 2006, the police
    executed a search warrant of the defendant’s home. In addition to a large amount of
    narcotics, they also recovered scales and plastic baggies, which are generally used for the
    packaging and sale of drugs. On December 7, 2006, the defendant was arrested. He waived
    his Miranda rights and gave an inculpatory statement which was introduced at trial. The
    defendant was convicted of 10 counts of possession of a controlled substance and possession
    with intent to deliver, including a Super Class X felony (720 ILCS 570/401(a)(2)(C) (West
    2006)). The defendant was sentenced to an aggregate term of 12 years in prison and received
    62 days of presentence custody credit.
    ¶3          On direct appeal this court vacated seven of the defendant’s convictions and sentences
    as a violation of the one-act, one-crime rule, modified the mittimus to reflect only the
    remaining three convictions, and affirmed the sentences for those convictions. People v.
    Trujillo, No. 1-07-3320 (2009) (unpublished order pursuant to Supreme Court Rule 23).
    ¶4          In September 2010, the defendant filed the instant pro se petition alleging, in relevant
    part, that his trial counsel was ineffective for failing to inform him of a plea offer made by
    the State prior to trial. Specifically, the defendant alleges that the State made a plea offer of
    six years, that he would have accepted the plea offer if he had known of it, and that he only
    learned a plea offer was made from a letter which counsel sent to the Attorney Registration
    and Disciplinary Commission (ARDC). He also alleges that “[c]ontrary to what [counsel]
    said to the ARDC he never told [defendant] about this offer.” In support of his allegations,
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    the defendant attached an affidavit in which he averred the same. The defendant also attached
    the letter counsel wrote to the ARDC, dated June 14, 2010. In the letter, counsel states that
    before trial, “the State’s Attorney offered six years in the penitentiary for the Defendant to
    plead guilty.” The letter also says that he “recommended to [defendant] prior to trial that he
    accept the offer due to the overwhelming evidence against him,” that the trial court
    admonished the defendant about the plea offer, and that the defendant rejected the offer.
    ¶5        On September 24, 2010, the trial court summarily dismissed the defendant’s petition.
    ¶6        On appeal, the defendant first contends that his petition adequately presented the gist of
    a claim of ineffective assistance of counsel based on his allegation that counsel failed to
    inform him of the State’s plea offer. Specifically, the defendant argues that he adequately
    supported his allegations by attaching counsel’s letter, that his allegations are not
    contradicted by the record, and that his petition successfully presented a claim with an
    arguable basis in both law and fact.
    ¶7        The summary dismissal of a postconviction petition is reviewed de novo. People v.
    Hodges, 
    234 Ill. 2d 1
    , 9 (2009). At the first stage of postconviction proceedings, a petition
    will only be dismissed if it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2)
    (West 2008); People v. Brown, 
    236 Ill. 2d 175
    , 184 (2010). A petition is considered frivolous
    or without merit only if it has “no arguable basis either in law or in fact.” Hodges, 
    234 Ill. 2d at 11-12
    . Petitions based on meritless legal theory or fanciful factual allegations will be
    dismissed. Hodges, 
    234 Ill. 2d at 16
    .
    ¶8        In particular, a first-stage petition claiming ineffective assistance of counsel must show
    that it is arguable that counsel’s performance fell below an objective standard of
    reasonableness and that it is arguable that the defendant was prejudiced by counsel’s
    performance. Hodges, 
    234 Ill. 2d at 17
    .
    ¶9        Here, the defendant’s claim of ineffective assistance of counsel is based on a meritorious
    legal theory. A defendant has the right to decide whether to plead guilty. People v. Whitfield,
    
    40 Ill. 2d 308
    , 311 (1968). As such, an attorney’s failure to disclose a plea offer to the
    defendant may give rise to a constitutional claim, regardless of whether the defendant
    subsequently received a fair trial. People v. Curry, 
    178 Ill. 2d 509
    , 517 (1997); Whitfield, 
    40 Ill. 2d at 311
    . Notably, the importance of defense counsel’s effective representation in the
    context of plea negotiations was recently reinforced by two recent United States Supreme
    Court opinions. See Lafler v. Cooper, ___ U.S.___, 
    132 S. Ct. 1376
     (2012) (holding that a
    defendant can succeed on an ineffective assistance of counsel claim where that defendant
    rejects a plea offer based on counsel’s erroneous advice and can show that, but for the
    erroneous advice, he would have accepted the plea offer and the ultimate outcome of the plea
    process would have been different); Missouri v. Frye, ___ U.S. ___, 
    132 S. Ct. 1399
     (2012)
    (where the defendant showed that counsel did not inform him of a formal offer from the State
    and there was a reasonable probability the defendant would have accepted the offer had it
    been presented to him, counsel’s performance was constitutionally deficient). In fact, the
    Supreme Court specifically held that, as a general rule, “defense counsel has the duty to
    communicate formal offers from the prosecution to accept a plea on terms and conditions
    that may be favorable to the accused.” Frye, ___ U.S. at ___, 132 S. Ct. at 1408.
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    ¶ 10        If counsel in this case failed to inform defendant of the guilty plea offer, it is arguable
    that his assistance was deficient. Moreover, in his petition, the defendant also alleged that
    he would have accepted the offer if he had been advised of it. Therefore if he can establish
    that the offer was not communicated to him, arguably he has been prejudiced by counsel’s
    alleged deficiency. We find that the defendant’s assertion that his counsel was ineffective for
    failing to communicate the State’s guilty plea offer to him did not lack merit.
    ¶ 11        Additionally, the factual basis for the defendant’s claim is neither fantastic nor
    delusional. According to his allegations, the State presented an offer of a six-year prison term
    in exchange for his guilty plea, but his counsel failed to inform him of the offer and the
    defendant did not learn of it until counsel filed a letter with the ARDC in June 2010, long
    after the case had concluded. These allegations are supported by both the defendant’s
    affidavit, in which he avers the same, and counsel’s letter to the ARDC, which states,
    “[p]rior to trial the State’s Attorney offered six years in the penitentiary for the Defendant
    to plead guilty.” Based on the record before us, the defendant’s factual allegations are not
    fanciful.
    ¶ 12        Where the record rebuts the allegations in a petition, summary dismissal is proper. People
    v. Rogers, 
    197 Ill. 2d 216
    , 222 (2001). Here, the State mistakenly suggests that the
    defendant’s allegation concerning his counsel’s failure to communicate the State’s plea offer
    to him is flawed because it is rebutted by counsel’s letter, which states that he told the
    defendant about the plea offer. Counsel’s letter, however, is outside the actual trial record
    and was attached to the postconviction petition. The supreme court has said that under such
    circumstances, “ ‘it is not the intent of the [A]ct that [such] claims be adjudicated on the
    pleadings.’ ” People v. Coleman, 
    183 Ill. 2d 366
    , 382 (1998) (quoting People v. Airmers, 
    34 Ill. 2d 222
    , 226 (1966)).
    ¶ 13        Furthermore, counsel’s letter stated that the trial judge admonished the defendant “prior
    to trial regarding the offer and what he faced if he lost the trial.” Somehow, the State
    extrapolates from this statement that the trial court’s admonishment about the plea offer was
    likely contained in two missing transcripts from the trial record, for the dates of July 9, 2007,
    and September 7, 2007. After the parties filed their respective briefs on appeal, the two
    missing transcripts were accounted for in a supplement to the record. In an affidavit, the
    official court reporter who took notes for the trial court on July 9, 2007, avers that she “made
    a thorough and diligent search” but was unable to find any record of the proceeding for the
    present case from that date. However, the memorandum of orders shows that on July 9, 2007,
    both parties were present and the case was continued by agreement to August 16, 2007. The
    transcript from September 7, 2007, shows that on that date the case was continued to October
    3, 2007. Accordingly, nothing of substance occurred on either date. Accordingly, the record
    fails to show that the trial court admonished the defendant about a guilty plea offer on the
    two dates inferred by the State or any other date and therefore does not positively rebut the
    defendant’s allegation that he did not know of the offer. Furthermore, although counsel’s
    letter contradicts some of the defendant’s allegations, credibility determinations are improper
    at this stage of proceedings. Coleman, 
    183 Ill. 2d at 385
    .
    ¶ 14        In sum, the defendant’s allegation as supported by trial counsel’s letter established that
    the State had made a guilty plea offer. In turn, trial counsel has a duty to disclose the plea
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    offer to the defendant because only the defendant can decide what plea to enter. Whether or
    not counsel informed the defendant of the State’s plea offer cannot be resolved at the first
    stage of these postconviction proceedings because it would require a credibility
    determination. The defendant alleges that counsel did not tell him about the plea and, in
    contrast, counsel states that he told the defendant about the plea. The defendant alleges that
    he would have accepted the offer and counsel states that the defendant rejected it. The actual
    record neither supports nor rebuts either position. We hold that the defendant sufficiently
    alleged an arguable claim of ineffective assistance of counsel to withstand summary
    dismissal. Accordingly, upon remand the trial court is directed to conduct further proceedings
    consistent with this opinion.
    ¶ 15       The defendant next asserts that the mittimus must be modified to credit him with the full
    number of days he spent in pretrial custody. The defendant was given 62 days of presentence
    custody credit, but claims that he should have been credited for 96 days.
    ¶ 16       A defendant is entitled to credit “for time spent in custody as a result of the offense for
    which the sentence was imposed.” 730 ILCS 5/5-8-7(b) (West 2006). Here, the parties agree
    that the defendant was in custody starting December 7, 2006, posted bail on December 11,
    2006, and was ultimately released from state custody on January 31, 2007. They also agree
    that the defendant was in the custody of the Immigration and Naturalization Service (INS)
    at some point between December 11 and January 31, but disagree as to the specifics of when
    he was in state and federal custody.
    ¶ 17       The defendant’s calculation of additional days of presentencing custody credit is
    premised on his position that he was in state custody the entire time from December 7, 2006
    (the date of his arrest) through January 31, 2007 (the date of his release on bond). However,
    the record indicates that the defendant was in federal custody of the INS from December 11,
    2006 (the date the defendant posted bail) through January 22, 2007, when defense counsel
    informed the court at an arraignment hearing that the defendant was presently in INS custody
    and would be released from the INS later that same day. The defendant can only receive
    credit for the time he spent in federal custody if it was “a consequence of the offenses upon
    which he seeks credit.” Thomas v. Greer, 
    143 Ill. 2d 271
    , 280 (1991). Therefore, if the
    defendant was in federal custody as a consequence of the present case, he is entitled to credit
    for those days. The record does not establish the reason for, or the definitive time frame of,
    the defendant’s days in federal custody and, therefore, we cannot determine if the defendant
    is entitled to any additional days of credit. Accordingly, on remand, we direct the trial court
    to make a determination regarding the appropriate amount of custody credit to which the
    defendant is entitled. See People v. Gilkey, 
    263 Ill. App. 3d 706
    , 714-15 (1994) (where the
    record was unclear as to what days the defendant served on unrelated charges and what days
    he served on charges related to the matter at hand, this court remanded the cause to the trial
    court for recalculation of presentence custody credit).
    ¶ 18       For the foregoing reasons, we reverse the ruling of the circuit court of Cook County and
    remand for further proceedings consistent with this opinion.
    ¶ 19      Reversed and remanded.
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