People v. Stewart ( 2008 )

Filed 3/28/08 NO. 4-06-0828
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
BRIAN S. STEWART, ) No. 06CF476
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
In April 2006, defendant, Brian S. Stewart, pleaded
guilty to aggravated discharge of a firearm (720 ILCS 5/24-
1.2(a)(1) (West 2006)). Pursuant to a negotiated plea, defendant
was sentenced to six years in prison. In July 2006, defendant
then filed a pro se postconviction petition alleging that before
he pleaded, guilty-plea counsel erroneously informed him regard-
ing applicable portions of the truth-in-sentencing law (730 ILCS
5/3-6-3(a)(2)(iii), (a)(2)(iv) (West 2006)); trial counsel stated
that defendant was eligible to acquire day-for-day good-conduct
credit and might only have to serve 50% of his sentence while
defendant was statutorily required to serve at least 85% of his
sentence. The trial court appointed postconviction counsel, who
submitted an amended petition. The State filed a motion to
dismiss. After hearing on the petition and the State's motion,
the court denied the petition. Defendant appeals. We reverse
and remand.
I. BACKGROUND
On March 21, 2006, defendant was charged with aggra-
vated discharge of a firearm for knowingly discharging a firearm
into a building when he reasonably should have known that the
building was occupied. Defendant was also charged with reckless
discharge of a firearm (720 ILCS 5/24-1.5 (West 2006)) for
endangering the safety of Ryan Head and Britta Parker by dis-
charging a firearm and striking their residence with several
bullets.
On April 20, 2006, defendant pleaded guilty to aggra-
vated discharge of a firearm in exchange for a sentence of six
years in prison and dismissal of the reckless-discharge-of-a-
firearm charge.
On July 13, 2006, defendant filed a pro se
postconviction petition alleging that when he pleaded guilty he
thought he would be given day-for-day credit and might only have
to serve 50% of his sentence. After the 30-day period allowed
for filing to withdraw his plea, the Department of Corrections
(DOC) informed defendant that he must serve at least 85% of his
sentence. Attached to defendant's petition was a letter from his
attorney addressed to defendant wherein the attorney stated he
was not aware that defendant would have to serve 85% of his
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sentence. The letter stated that the attorney understood at the
time of the plea that day-for-day applied because the trial court
did not find any great bodily harm occurred. Counsel was not
aware that the statute had been amended and an automatic 85% rule
applied to all aggravated-discharge-of-a-firearm offenses even
absent a great-bodily-harm finding.
Based on the petition, the trial court appointed
defendant new counsel to represent him during the postconviction
proceedings. On August 10, 2006, counsel filed an amended
postconviction petition alleging defendant was not admonished
that he was to serve 85% and the court did not find that the
victim suffered great bodily harm. The petition did not
explicitly include a statement concerning the ineffectiveness of
defendant's guilty-plea counsel for improperly advising defendant
that he would serve 50% of his sentence. Postconviction counsel
did not file a Rule 651(c) (134 Ill. 2d R. 651(c)) certificate.
On September 21, 2006, the State filed a motion to
dismiss the petition claiming that the petition did not contain
the gist of a constitutional claim as the truth-in-sentencing law
was a collateral consequence of the guilty plea, beyond the
control of the trial court, and not a direct consequence of the
guilty plea.
Also on September 21, 2006, the trial court held a
hearing on the postconviction petition and the State's motion to
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dismiss it. At the hearing, defendant's counsel argued that (1)
defendant and his guilty-plea attorney were under a mistaken
belief that he only had to serve 50% of his sentence and (2)
defendant accepted the plea under that mistaken belief. The
trial court acknowledged the letter from defendant's guilty-plea
counsel. The court then pointed to the section in the Unified
Code of Corrections that states that a conviction for aggravated
discharge of a firearm resulted in a sentence of 85% if the court
entered a finding of great bodily harm to the victim and the next
section that stated that a conviction for aggravated discharge of
a firearm always results in a sentence of 85% (730 ILCS 5/3-6-
3(a)(2)(iii), (a)(2)(iv) (West 2006)). The court stated that
"when admonishing a defendant to the potential penalties, it is
not required that the defendant be told that it's 85 percent ***
the court need only admonish the defendant as to the potential
penalties." The court acknowledged that the statute was
confusing but found it was up to DOC to determine which section
to apply. The court denied defendant's petition. This appeal
followed.
II. ANALYSIS
Defendant argues that his petition should be remanded
to the trial court for a third-stage evidentiary hearing under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through
122-8 (West 2006)). According to defendant, he was denied his
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right to a reasonable level of assistance during postconviction
proceedings because his appointed counsel filed only a cursory,
unsupported amended petition and failed to file a Rule 651(c)
certificate. Also, defendant was entitled to an evidentiary
hearing because the application of the truth-in-sentencing
provision was a direct consequence of his guilty plea and the
trial court should have admonished him concerning that provision
before accepting his plea. Even if the application of the
provision was a collateral consequence, guilty-plea counsel's
erroneous advice made counsel ineffective and rendered
defendant's plea involuntary. The State maintains that the court
properly dismissed the petition because defendant did not
demonstrate a constitutional violation to warrant an evidentiary
hearing.
We agree that the trial court need not admonish
defendant concerning a collateral consequence of his guilty plea.
For the following reasons though, we hold that when defense
counsel affirmatively misrepresents to the defendant the
collateral consequences of his guilty plea and the defendant
pleads guilty based on the affirmative misrepresentations, the
defendant alleges a constitutional violation that warrants an
evidentiary hearing under the Act.
Under the Act (725 ILCS 5/122-1 through 122-8 (West
2006)), the trial court follows a three-stage process to
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determine whether a defendant suffered a substantial violation of
constitutional rights at trial, and if so, what remedy is
appropriate. See People v. Edwards, 197 Ill. 2d 239, 243-44, 757
N.E.2d 442, 445 (2001). In the first stage, the trial court
determines, without input from the State, whether a petition is
frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2)
(2006 West). If the petition states the gist of a claim, the
court advances it to the second stage where counsel may be
appointed for the petitioner, appointed counsel may file an
amended petition, and the State may file responsive pleadings.
725 ILCS 5/122-2.1(a)(2), 122-4, 122-5 (West 2006); see also
Edwards, 197 Ill. 2d at 245-46, 757 N.E.2d at 446. In the second
stage, the court determines whether defendant's petition and
documentation "make a substantial showing of a constitutional
violation." Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446. If
defendant has made a substantial showing of a constitutional
violation, the petition advances to the third stage, at which
point the court holds an evidentiary hearing. Edwards, 197 Ill.
2d at 246, 757 N.E.2d at 446, citing 725 ILCS 5/122-6 (West
1998).
In this case, defendant's petition was dismissed during
the second stage without an evidentiary hearing. We review such
dismissals de novo. People v. Coleman, 183 Ill. 2d 366, 388-89,
701 N.E.2d 1063, 1075 (1998). "The question raised in an appeal
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from an order dismissing a post[]conviction petition is whether
the allegations in the petition, liberally construed and taken as
true, are sufficient to invoke relief under the Act." Coleman,
183 Ill. 2d at 388, 701 N.E.2d at 1075. A petitioner is not
entitled to an evidentiary hearing unless he has made a
substantial showing, based on the record and supporting
affidavits, that his constitutional rights were violated. People
v. Erickson, 183 Ill. 2d 213, 222, 700 N.E.2d 1027, 1032 (1998).
Defendant claims his postconviction counsel was
ineffective for failing to clearly assert that his guilty-plea
counsel was ineffective when he gave defendant erroneous legal
advice. Defendant then claims that despite postconviction
counsel's ineffectiveness, the trial court should have advanced
his petition to the third stage, an evidentiary hearing, to
determine the exact nature of the legal advice given and the
impact of that advice on defendant's decision to plead guilty.
The underlying contention in both of these claims is that
defendant's guilty plea was involuntary because his guilty-plea
counsel was ineffective when he misinformed defendant as to the
application of the truth-in-sentencing law; namely, whether he
was eligible for day-for-day good-conduct credit or required to
serve at least 85% of his sentence.
The State maintains that the misinformation did not
render guilty-plea counsel ineffective or the plea involuntary
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because the advice concerned a collateral consequence of
defendant's sentence. Illinois courts have recognized that the
impact of counsel's advice regarding a guilty plea may depend on
whether the advice involved a direct consequence of the guilty
plea or a collateral consequence. See People v. Frison, 365 Ill.
App. 3d 932, 934, 851 N.E.2d 890, 892-93 (2006). "Direct
consequences are those that are definite, immediate, and largely
automatic in their effect upon a defendant's punishment."
Frison, 365 Ill. App. 3d at 934, 851 N.E.2d at 893; see also
People v. Blackburn, 46 Ill. App. 3d 213, 215, 360 N.E.2d 1159,
1160 (1977) (the mandatory parole term that attaches to a
defendant's sentence is a direct consequence of a plea of
guilty). Collateral consequences are things beyond the court's
control and do not relate to the length of the sentence imposed.
Frison, 365 Ill. App. 3d at 934, 851 N.E.2d at 893; see also
People v. Williams, 188 Ill. 2d 365, 372, 721 N.E.2d 539, 544
(1999) (including as collateral consequences the following:
"'"loss of public or private employment, effect on immigration
status, voting rights, possible auto license suspension, possible
dishonorable discharge from the military, or anything else"'
(Emphasis added.) [Citation.]"); In re Detention of Lindsay, 333
Ill. App. 3d 474, 477, 776 N.E.2d 304, 306 (2002) (the
possibility of commitment under the Sexually Violent Persons
Commitment Act is a collateral consequence).
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As defendant's claim relates to DOC's discretion in
awarding defendant good-conduct credit, the advice concerned a
collateral consequence of defendant's sentence. The
misinformation did not affect the sentence imposed and DOC
ultimately has discretion as to whether defendant will be awarded
any credit. See Frison, 365 Ill. App. 3d at 934, 851 N.E.2d at
893 (ruling counsel's advice regarding good-conduct credit under
the truth-in-sentencing law is a collateral consequence as the
truth-in-sentencing law may affect the sentence defendant
ultimately serves but does not affect the sentence imposed by the
trial court and the law's application is not definite, immediate,
or automatic).
Defendant argues, though, that even if the advice
concerning the truth-in-sentencing law is considered a collateral
consequence of his sentence, he should be allowed to withdraw his
plea because his attorney did more than passively refuse to
instruct him. Defendant claims his attorney actively misinformed
him that he was eligible for more good-conduct credit than that
for which he was statutorily eligible. Believing he might only
have to serve three years, defendant claimed he decided to plead
guilty. Defendant argues his claim should be advanced to the
third stage to present evidence that he only pleaded guilty
because of his attorney's explicit wrong advice and he would not
have pleaded guilty had it not been for this bad information.
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The Illinois Supreme Court, in People v. Correa, 108
Ill. 2d 541, 485 N.E.2d 307 (1985), held that defense counsel's
incorrect advice on a collateral consequence of defendant's plea
fell below the constitutionally required range of competence and
rendered defendant's guilty plea involuntary. Six years later
the Illinois Supreme Court in People v. Huante, 143 Ill. 2d 61,
571 N.E.2d 736 (1991), held that counsel's failure to advise
defendant of a collateral consequence of defendant's guilty plea
did not fall below the constitutionally required range of
competence and did not render defendant's guilty plea
involuntary. In Huante, the court acknowledged Correa and
acknowledged that Huante raised a different question, "whether
'the passive conduct of counsel in failing to discuss with a
defendant the collateral consequences of a guilty plea'
constituted ineffective assistance of counsel." Huante, 143 Ill.
2d at 68, 571 N.E.2d at 739-40, quoting Correa, 108 Ill. 2d at
551, 485 N.E.2d at 311. The court in Huante explicitly overruled
some appellate court decisions that held defense counsel's
failure to advise the defendant regarding collateral consequences
amounted to ineffective assistance of counsel and rendered the
guilty plea involuntary. Huante, 143 Ill. 2d at 74, 571 N.E.2d
at 742. The court did not, however, state that it overruled
Correa or any other case wherein defense counsel actively
misinformed the defendant.
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In 1997, the Illinois First District Appellate Court
held in People v. Maury, 287 Ill. App. 3d 77, 678 N.E.2d 30
(1997), that defense counsel was not ineffective for allegedly
giving defendant erroneous advice regarding early release. The
Maury court cited Huante when it determined that the defense
counsel's advice concerned a collateral consequence of the
defendant's guilty plea. Maury, 287 Ill. App. 3d at 82, 678
N.E.2d at 33. The court also noted that unlike the defense
counsel in Huante, who failed to advise an accused of a
collateral consequence, the defense counsel in its case gave the
accused erroneous advice. Maury, 287 Ill. App. 3d at 83, 678
N.E.2d at 34. The court determined that the distinction between
failing to advise and actively giving wrong advice was irrelevant
because either way the advice concerned a collateral consequence
of the plea. Maury, 287 Ill. App. 3d at 83, 678 N.E.2d at 34.
The court did not discuss Correa.
In 2005, the Second District of the Illinois Appellate
Court in People v. Young, 355 Ill. App. 3d 317, 822 N.E.2d 920
(2005), pointed out the Maury court's failure to consider Correa,
"which draws a crucial distinction between 'the passive conduct
of counsel in failing to discuss with a defendant the collateral
consequences of a guilty plea' and 'unequivocal, erroneous,
misleading representations' that counsel makes in response to a
defendant's specific inquiries." Young, 355 Ill. App. 3d at 323,
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822 N.E.2d at 925, quoting Correa, 108 Ill. 2d at 551-52, 485
N.E.2d at 311. Because of its failure to address Correa, the
Young court declined to follow Maury as it was "simply mistaken
in holding that there is no legally meaningful distinction
between counsel's passive failure to inform a defendant of the
collateral consequences of a guilty plea and counsel's
affirmative misrepresentation of those consequences." Young, 355
Ill. App. 3d at 323, 822 N.E.2d at 926. The Young court held
that defendant's allegation that he pleaded guilty based on his
guilty-plea counsel's erroneous advice was legally sufficient
under the Act to entitle the defendant to an evidentiary hearing
to determine whether the defendant could prove his contention
that his counsel was ineffective and his plea was involuntary.
Young, 355 Ill. App. 3d at 323-24, 822 N.E.2d at 926.
We agree with Young that the Illinois Supreme Court
drew a distinction in Correa and Huante between failure to give
advice and actively giving wrong advice regarding collateral
consequences of a plea. In this case, defendant's pro se
petition, the attached letter from guilty-plea counsel, the
amended petition, and the arguments during the postconviction
proceedings demonstrate that defendant alleges that (1) guilty-
plea counsel gave him erroneous advice, (2) based on that
erroneous advice he decided to plead guilty, and (3) he would not
have pleaded guilty had it not been for the misinformation.
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Defendant's contention that counsel gave him wrong advice and he
relied on that advice is sufficient under the Act to entitle him
to an evidentiary hearing--even though the advice involved a
collateral consequence of his guilty plea. Whether defendant can
ultimately prove his contention will be resolved at the
evidentiary hearing. As we are remanding this case for an
evidentiary hearing, we need not address defendant's claim of
ineffective assistance of postconviction counsel.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for an evidentiary hearing.
Reversed and remanded.
McCULLOUGH and MYERSCOUGH, JJ., concur.
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