People v. Thomas , 2017 IL App (4th) 150815 ( 2018 )

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People v. Thomas, 2017 IL App (4th) 150815Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CHRISTIAN DIOR THOMAS, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-15-0815
Filed December 22, 2017
Decision Under Appeal from the Circuit Court of McLean County, No. 14-CF-617; the
Review Hon. Robert L. Freitag, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Mysza, and Karl H. Mundt, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
David J. Robinson, and John M. Zimmerman, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE DeARMOND delivered the judgment of the court, with
opinion.
Presiding Justice Turner and Justice Knecht concurred in the judgment
and opinion.
OPINION
¶1 In January 2015, the trial court found defendant, Christian Dior Thomas, guilty of armed
robbery with a firearm and aggravated vehicular hijacking. At the March 2015 sentencing
hearing, the court sentenced defendant to 26 years in prison on the aggravated vehicular
hijacking conviction.
¶2 On appeal, defendant argues (1) he was denied the effective assistance of counsel and (2)
the trial court erred by not conducting an inquiry under People v. Krankel, 102 Ill. 2d 181, 464
N.E.2d 1045 (1984). We affirm.
¶3 I. BACKGROUND
¶4 In June 2014, a grand jury indicted defendant on single counts of armed robbery with a
firearm (count I) (720 ILCS 5/18-2(a)(2) (West 2014)) and aggravated vehicular hijacking
(count II) (720 ILCS 5/18-4(a)(4) (West 2014)). In count I, the State alleged defendant
committed the offense of armed robbery with a firearm when he knowingly took property, a
Chevrolet Tahoe, by threatening the use of imminent force while armed with a firearm. In
count II, the State alleged defendant committed the offense of aggravated vehicular hijacking
when he knowingly took a motor vehicle, a Chevrolet Tahoe, by threatening the imminent use
of force while carrying a firearm on or about his person.
¶5 Following a January 2015 bench trial, the trial court found defendant guilty on both counts.
In March 2015, during the sentencing hearing, it was determined that defendant could be
sentenced on only one count because of the one-act, one-crime rule, and the State asked for a
judgment on the aggravated-vehicular-hijacking conviction. The court informed the parties it
believed the sentence would be served at 50% because the State did not allege or prove great
bodily harm (730 ILCS 5/3-6-3(a)(2)(iii) (West 2014)), but it was willing to hear arguments
from both sides. The State agreed it did not plead great bodily harm, nor would the evidence
support a finding of great bodily harm. Defense counsel stated he originally “had no doubt that
it was an 85 percent sentence,” but upon reviewing the statute, he agreed the court was correct
in its assessment of the sentence. After further discussion and arguments on aggravating and
mitigating factors, the court sentenced defendant to 11 years with a 15-year add-on in the
Illinois Department of Corrections.
¶6 After the sentencing hearing, defendant filed a motion for a new trial and a motion to
reconsider the sentence. The trial court deemed the motion for a new trial untimely and denied
the motion to reconsider the sentence. This appeal followed.
¶7 II. ANALYSIS
¶8 A. Ineffective Assistance of Counsel
¶9 Defendant argues he received ineffective assistance of counsel because his attorney told
him the plea offers would be served at 85%, which was not possible given the pleadings in the
bill of indictment. We disagree.
¶ 10 A defendant’s claim of ineffective assistance of counsel is analyzed under the two-pronged
test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Henderson, 2013 IL
114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, “a defendant must show both that
counsel’s performance was deficient and that the deficient performance prejudiced the
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defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203 (2010). To
establish deficient performance, the defendant must show his attorney’s performance fell
below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219, 808
N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687). “ ‘Effective assistance of counsel
refers to competent, not perfect representation.’ ” Id. at 220 (quoting People v. Stewart, 104 Ill.
2d 463, 491-92, 473 N.E.2d 1227, 1240 (1984)). Mistakes in trial strategy or tactics do not
necessarily render counsel’s representation defective. See People v. Kyse, 220 Ill. App. 3d 971,
974, 581 N.E.2d 285, 287 (1991) (finding defense counsel’s decision not to tender an
affirmative defense of voluntary intoxication was a trial tactic and did not constitute ineffective
assistance of counsel).
¶ 11 To establish the second prong of Strickland, “[a] defendant establishes prejudice by
showing that, but for counsel’s unprofessional errors, there is a reasonable probability that the
result of the proceeding would have been different.” People v. Houston, 229 Ill. 2d 1, 4, 890
N.E.2d 424, 426 (2008). A “reasonable probability” has been defined as a probability that
would be sufficient to undermine confidence in the outcome of the trial. Id. “A defendant must
satisfy both prongs of the Strickland test and a failure to satisfy any one of the prongs precludes
a finding of ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
“Although a defendant has no constitutional right to plea bargain, if the State chooses
to bargain, the defendant has the right to the effective assistance of counsel in
negotiations with the State. [Citation.] Moreover, the right to the effective assistance of
counsel extends to the defendant’s decision to reject a plea offer, even if the defendant
subsequently receives a fair trial.” People v. Brown, 309 Ill. App. 3d 599, 604, 723
N.E.2d 362, 366 (1999) (citing People v. Curry, 178 Ill. 2d 509, 517, 687 N.E.2d 877,
882 (1997)).
¶ 12 In this case, the prosecutor and defense counsel were mistaken in their belief the sentence
would be served at 85%. Under section 3-6-3(a)(2)(iii) of the Unified Code of Corrections (730
ILCS 5/3-6-3(a)(2)(iii) (West 2014)), defendant would receive “no more than 4.5 days of
sentence credit for each month of his *** imprisonment” upon the court “enter[ing] a finding
*** that the conduct leading to conviction for the enumerated offense [of armed robbery or
aggravated vehicular hijacking] resulted in great bodily harm to a victim.” As the State failed
to prove great bodily harm, resulting in the trial court declining to make such a finding, the
conduct falls under section 3-6-3(a)(2.1) of the Unified Code of Corrections, which states
“[f]or all offenses, other than those enumerated in subdivision (a)(2)(i), (ii), or (iii) *** a
prisoner who is serving a term of imprisonment shall receive one day of sentence credit for
each day of his or her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2.1) (West 2014).
While the State offered several plea deals to defendant—the lowest alleged plea deal being 21
years—these deals were all to be served at 85%. Only at the sentencing hearing did the court
correct the misconception of the parties and note defendant could not get 85%, as the State
requested. The court then sentenced defendant to a total of 26 years at 50%. After discovering
he was misinformed, defendant sent a letter to the court, seeking an appeal of his sentence
and/or a reduction of his sentence, saying that if he knew his sentence would be served at 50%,
he “might have” taken the State’s plea offer of 21 years.
¶ 13 In People v. Williams, 2016 IL App (4th) 140502, 54 N.E.3d 934, this court discussed in
detail the burden on a defendant asserting an ineffective assistance of counsel claim based on
plea negotiations. Citing the Illinois Supreme Court’s holding in People v. Hale, 2013 IL
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113140, ¶ 19, 996 N.E.2d 607, this court noted how the requirements for establishing prejudice
in plea negotiations discussed in Curry had since been addressed by the United States Supreme
Court in Missouri v. Frye, 566 U.S. 134 (2012), and Lafler v. Cooper, 566 U.S. 156 (2012).
Williams, 2016 IL App (4th) 140502, ¶ 27, 54 N.E.3d 934. In cases where a defendant claims
but for counsel’s ineffective assistance, he might have accepted a plea offer, the Hale court
added an additional factor that required a defendant to also show a reasonable probability the
offer would not have been withdrawn by the State or rejected by the court. Hale, 2013 IL
113140, ¶ 19, 996 N.E.2d 607.
“Thus, to prevail on a claim that a trial attorney’s given deficient performance
denied a defendant his constitutional right to the effective assistance of counsel during
guilty-plea negotiations with the State, a defendant must also demonstrate that (1) a
reasonable probability existed that the defendant would have accepted the guilty-plea
offer absent counsel’s deficient performance and (2) the guilty-plea offer would have
been entered without the prosecution rescinding the offer or the court’s refusing to
accept the parties’ agreement. [Citations.]” Williams, 2016 IL App (4th) 140502, ¶ 29,
54 N.E.3d 934.
¶ 14 We find defendant cannot satisfy the prejudice prong of the Strickland standard for two
reasons. First, nothing in the record indicates the State would not have increased its offer upon
recognition of the error about the percentage of time defendant would serve. See People v.
Powers, 2011 IL App (2d) 090292, ¶ 8, 961 N.E.2d 906. In Powers, the defendant alleged the
State made several plea offers to him to serve the sentence at 85%, with the lowest sentence
being 14 years at 85%. Id. ¶ 6. The defendant claimed he was eligible to serve only 50%, and
his counsel was ineffective because he would have taken the plea deal if it was accurately
conveyed to him. Id. ¶¶ 6, 7. The Second District found the defendant’s argument “a
counterfactual conditional, a conclusion based on a false premise.” Id. ¶ 7.
“Defendant’s premise is that, had his attorney been competent in raising the correct
good-conduct credit calculation, the State would have stood by the offer of 14 years
with the more generous credit applying. This premise is both speculative and
counterintuitive. Not only is there nothing in the record to support this premise,
common sense leads one to conclude that the State would have amended its offer
upwards when it learned of the proper good-conduct credit calculation.” Id.
The court noted the defendant did not accept the plea deal and there was no “meeting of the
minds on that offer.” Id. ¶ 8. “However, there was a meeting of the minds regarding the State’s
intention in extending the offer: defendant would serve at least 11.9 years in prison.” Id. The
court found the same result could have been achieved by offering a plea of 24 years, and thus,
there was “no showing of a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different.” Id. As a result, the court
denied the defendant’s claim of ineffective assistance of counsel because he could not prove
prejudice. Id.
¶ 15 In this case, as in Powers, there was a meeting of the minds regarding the State’s intention
in extending the offer with a requirement that defendant serve 17.85 years (21 years served at
85%). To reach the same result served at 50%, the State could have offered 36 years, which
was possible under the sentencing range available for aggravated vehicular hijacking. See 720
ILCS 5/18-4(b) (West 2014) (indicating a violation of subsection (a)(4) is a Class X felony
with a 15-year add-on); 730 ILCS 5/5-4.5-25(a) (West 2014) (stating the sentence for a Class
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X felony is 6 to 30 years in prison). As such, defendant cannot show the outcome would have
changed as a result of counsel’s lack of knowledge about the percentage of time served under
the statute.
¶ 16 In addition, counsel’s failure to inform the defendant of a collateral consequence of his
guilty plea, i.e., actual time served, will not normally provide a basis for relief. People v.
Frison, 365 Ill. App. 3d 932, 851 N.E.2d 890 (2006). “[T]he failure to inform a defendant of a
consequence of a guilty plea is material only if the consequence is a direct consequence of the
guilty plea. [Citations.] Collateral consequences on the other hand, provide no basis for
reversal.” Id. at 934, 851 N.E.2d at 892-93.
¶ 17 The Powers court discussed Frison, noting how “[a] direct consequence is one that is
definite, immediate, and largely automatic in its effect on a defendant’s punishment, while a
collateral consequence does not relate to the length of the sentence that is imposed.” Powers,
2011 IL App (2d) 090292, ¶ 9. The court pointed out how the focus, in such an analysis, is on
the sentence imposed, not the time to be actually served. Id.¶ 18 Although defendant’s counsel claimed at oral argument our supreme court has done away
with the “direct vs. collateral” consequences analysis when a defendant is given incorrect
advice by counsel as a result of its decision in People v. Correa, 108 Ill. 2d 541, 485 N.E.2d
307 (1985), such is not the case. The court in Correa merely noted how a failure by counsel to
properly advise a defendant of the collateral consequences of deportation pursuant to a plea of
guilty, after being specifically asked whether he was subject to deportation, could result in a
finding of ineffective assistance, even though deportation was a collateral consequence. Id. at
551-52, 485 N.E.2d at 311. A failure to advise of such consequences is still considered a
collateral consequence, which does not amount to ineffective assistance.
¶ 19 The Illinois Supreme Court confirmed the continued existence of the “direct vs. collateral”
consequences analysis necessary in assessing claims of ineffective assistance at guilty pleas in
People v. Manning, 227 Ill. 2d 403, 883 N.E.2d 492 (2008). Although the court found it
inapplicable to the particular facts of their case, the court noted how the direct-consequences
doctrine requires a defendant must understand the direct results of any plea he enters. Id. at
415, 883 N.E.2d at 501. “ ‘[A] trial court’s obligation to ensure that a defendant understands
the direct consequences of his or her plea encompasses only those consequences of the
sentence that the trial judge can impose.’ ” (Emphasis omitted.) Id. (quoting People v.
Williams, 188 Ill. 2d 365, 372, 721 N.E.2d 539, 544 (1999)).
¶ 20 Both Correa and People v. Young, 355 Ill. App. 3d 317, 822 N.E.2d 920 (2005), were cited
by defendant’s counsel as support for his position that erroneous advice regarding collateral
consequences may form the basis for an ineffective assistance of counsel claim. It is
particularly important to note however, both cases involved affirmative erroneous statements
or misinformation in response to specific inquiries by the defendant. Correa, 108 Ill. 2d 541,
485 N.E.2d 307; Young, 355 Ill. App. 3d 317, 822 N.E.2d 920.
¶ 21 The second reason defendant cannot show prejudice is defendant claims he “might have”
taken the deal, not that he would have taken the deal. To succeed on a claim of ineffective
assistance of counsel, defendant has to show a probability sufficient to undermine the
confidence in the outcome of the trial. Houston, 229 Ill. 2d at 4, 890 N.E.2d at 426. His
wavering statement in his letter to the trial court fails to show a reasonable probability existed,
if given the 21-year plea deal at 50%, defendant would not have proceeded to trial. If the
noncommittal statement “might have” satisfies the prejudice prong under Strickland, it would
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completely dismantle the nature of the proof required to show prejudice in guilty pleas, as
many defendants would claim they might have taken the plea deal if the sentence after trial
proved to be harsher than the plea offered. However, the standard is “a probability sufficient to
undermine confidence in the outcome” of the trial, and defendant’s lackadaisical assertion is
clearly insufficient to undermine the confidence in the outcome of the trial. Id. As such,
counsel’s performance at trial was not constitutionally ineffective.
¶ 22 B. Krankel Inquiry
¶ 23 Defendant argues he was entitled to a Krankel inquiry on his claim of ineffective assistance
of counsel. We disagree.
¶ 24 “[W]hen a defendant presents a pro se posttrial claim of ineffective assistance of counsel,
the trial court should first examine the factual basis of the defendant’s claim.” People v.
Moore, 207 Ill. 2d 68, 77-78, 797 N.E.2d 631, 637 (2003). “[A] pro se defendant is not
required to do any more than bring his or her claim to the trial court’s attention.” Id. at 79, 797
N.E.2d at 638. “[W]hen a defendant brings a clear claim asserting ineffective assistance of
counsel, either orally or in writing, this is sufficient to trigger the trial court’s duty to conduct a
Krankel inquiry.” People v. Ayres, 2017 IL 120071, ¶ 18. “If a defendant does not make a valid
ineffective assistance claim, [he] does not trigger the need for the trial court to inquire.” People
v. King, 2017 IL App (1st) 142297, ¶ 15, 80 N.E.3d 599 (citing People v. Taylor, 237 Ill. 2d 68,
927 N.E.2d 1172 (2010)). “The issue of whether the circuit court properly conducted a
preliminary Krankel inquiry presents a legal question that we review de novo.” People v. Jolly,
2014 IL 117142, ¶ 28, 25 N.E.3d 1127.
¶ 25 In this case, defendant wrote a letter to the trial court after sentencing, which stated, in part:
“I would also like a motion filed for a reduction of sentence. I was sentenced 3/5/15 to
26 years at 50%. I would like this motion filed due to the fact that during my time in the
county I was offered three plea deals at 85% not knowing that I had the option of 50%.
If told I had the option of 50% or even told that I could not get a 85% offer due to the
nature of my offense, at my plea offer of 21 yrs at 85% if known I could get 50% I
might have taken the plea instead of going to trial.”
Defendant argues he made an implicit claim of ineffective assistance of counsel in his letter to
the court.
¶ 26 Courts have found a defendant is entitled to a Krankel inquiry when the defendant makes
an explicit or “clear” complaint of trial counsel’s performance or ineffective assistance of
counsel. See Ayres, 2017 IL 120071, ¶ 18 (finding the defendant was entitled to a Krankel
inquiry after claiming ineffective assistance of counsel in his petition to withdraw his guilty
plea); Moore, 207 Ill. 2d at 81, 797 N.E.2d at 639-40 (finding the defendant’s claim in open
court that his attorney could not adequately represent him entitled him to a Krankel inquiry);
People v. Giles, 261 Ill. App. 3d 833, 848, 635 N.E.2d 969, 979-80 (1994) (finding the trial
court inquired into defendant’s allegation of counsel’s incompetence in a pro se posttrial
motion and found it without merit); People v. Finley, 222 Ill. App. 3d 571, 584, 584 N.E.2d
276, 284-85 (1991) (finding the defendant was entitled to a Krankel inquiry after the defendant
wrote letters to the judge claiming his attorney failed to call witnesses on his behalf). People v.
Lobdell, 2017 IL App (3d) 150074, cited by defendant as supplemental authority, is inapposite.
In Lobdell, the court found the defendant was entitled to a Krankel inquiry when he wrote a
letter to the trial court, claiming his attorney did not bring up fourth and fifth amendment
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claims. Id. ¶ 37. Such is not the case before this court. In instances where the defendant’s claim
is implicit and could be subject to different interpretations, a Krankel inquiry is not required.
See Taylor, 237 Ill. 2d at 77, 927 N.E.2d at 1777 (finding a defendant’s statement, which could
be subject to multiple interpretations, including regret over a rejected plea deal, was not
sufficient to trigger a Krankel inquiry); King, 2017 IL App (1st) 142297, ¶ 20, 80 N.E.3d 599(finding the defendant was not entitled to Krankel inquiry when, at sentencing, the defendant
claimed error in that a witness was not called without mentioning her attorney).
¶ 27 Here, defendant did not mention his attorney in his letter to the trial court. In addition,
when considered in context, the court was aware, by the time it received defendant’s letter, that
both parties had been operating under the misconception defendant’s charges were subject to
sentencing at 85%. In addition, the defendant was present before the court when both the State
and his counsel were informed of their error in calculating the actual sentence to be served. The
letter sent to the judge two days after the sentencing hearing requested a “motion for appeal”
and a “motion for a reduction of sentence” be filed on his behalf. Defendant’s letter, under
these circumstances, could have easily appeared to be his hoping to somehow get another
chance at a lesser sentence.
¶ 28 As he made no mention of his attorney, or any assertion of ineffective assistance, the letter
was subject to many interpretations, including defendant’s ex post facto regret at not taking the
State’s alleged offer.
¶ 29 The trial court had before it the defendant’s presentence report, in which he maintained his
innocence of the offenses charged. It also heard defendant during his opportunity for allocution
at the conclusion of the sentencing hearing make no comment about the differences in actual
time to be served and again assert his innocence of the offense. The court was also aware, from
its review of the presentence report, that the defendant was no stranger to the criminal justice
process. Coupled with the fact that he also sought to file a notice of appeal, his assertion that he
“might have taken the plea” may have carried even less weight.
¶ 30 There is no question our courts have lessened the burden on defendants, unskilled in the
law, to make an assertion sufficient to warrant a Krankel inquiry. However, it is equally clear
courts of review are, and reasonably should be, reluctant to require trial courts to somehow
glean an ineffective-assistance-of-counsel claim from every obscure complaint or comment
made by a defendant.
¶ 31 Defendant argued the State was suggesting that a defendant was required to use the magic
words “ineffective assistance of counsel” before a trial court need conduct the type of inquiry
required by Krankel. This is not true. The court held in Ayres that judicial economy is best
served by allowing an express claim of ineffective assistance of counsel to trigger a Krankel
inquiry. Ayres, 2017 IL 120071, ¶ 21. However, for a defendant to make a “clear claim” of
ineffective assistance of counsel, the defendant must at least mention his attorney. The trial
court was in a position to review defendant’s letter within the context of the circumstances
surrounding the plea and sentencing. Here, defendant did not request the appointment of new
counsel, or reference his counsel in any way, which might have directed the court’s attention to
some perceived deficiency in trial counsel’s representation. See Finley, 222 Ill. App. 3d at 576,
584 N.E.2d at 279. As defendant’s letter falls short of a “clear claim asserting ineffective
assistance of counsel” (Ayres, 2017 IL 120071, ¶ 18), he is not entitled to a Krankel inquiry.
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¶ 32 III. CONCLUSION
¶ 33 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
award the State its $75 statutory assessment against defendant as costs of this appeal.
¶ 34 Affirmed.
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