People v. Rowell , 2022 IL App (5th) 200266-U ( 2022 )

2022 IL App (5th) 200266-UNOTICE
NOTICE
Decision filed 10/07/22. The
This order was filed under
text of this decision may be NO. 5-20-0266
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jackson County.
)
v. ) No. 10-CF-418
)
TRAVARIS M. ROWELL, ) Honorable
) Ralph R. Bloodworth III,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Justice Wharton concurred in the judgment.
Justice Barberis specially concurred.
ORDER
¶1 Held: Following a third stage evidentiary hearing, the circuit court did not err in denying
the defendant’s postconviction petition where the defendant did not demonstrate by
a preponderance of the evidence that plea counsel provided ineffective assistance
for failure to transmit the defendant’s acceptance of a plea offer.
¶2 The defendant, Travaris M. Rowell, appeals from the circuit court’s denial of his petition
for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)), after a
third stage evidentiary hearing. The defendant argues on appeal that his plea counsel provided
ineffective assistance by allowing an eight-year plea offer to lapse after the defendant allegedly
accepted the offer. We affirm.
1
¶3 I. BACKGROUND
¶4 This is the second time the defendant’s postconviction petition has been considered by this
court. Previously, we remanded the case for a third stage evidentiary hearing on the issue of
whether plea counsel was ineffective for failing to timely communicate the defendant’s acceptance
of the State’s initial plea offer. See People v. Rowell, 2018 IL App (5th) 150010-U. The history of
the case was set forth in detail in our prior order. Therefore, we provide only those facts necessary
to this disposition.
¶5 On August 5, 2010, the defendant, Travaris M. Rowell, and his codefendant were charged
with three counts of unlawful delivery of a controlled substance under section 401(c)(2) of the
Illinois Controlled Substances Act (720 ILCS 570/401(c)(2) (West 2010)) and one count of
unlawful possession of a controlled substance with the intent to deliver 400 to 900 grams of a
substance containing cocaine under section 401(a)(2)(C) of the Illinois Controlled Substances Act
(720 ILCS 570/401(a)(2)(C) (West 2010)).
¶6 A public defender was initially appointed to represent the defendant. The defendant
preferred to hire private counsel and retained Mark Costa to negotiate a plea agreement.
¶7 On October 9, 2012, the defendant appeared for a pretrial hearing. The defendant alleges
that on that date he met with Costa outside of the courtroom to discuss a plea offer form from the
State. The defendant’s girlfriend, Lisa McCoy, was present for the discussion. At that meeting, the
defendant claims that Costa indicated the State had offered eight years in the Department of
Corrections in exchange for the defendant pleading guilty. The defendant indicates he accepted
the offer.
¶8 On December 17, 2012, the circuit court held a negotiated plea hearing. The State informed
the court that the defendant agreed to plead guilty to count II, unlawful possession with the intent
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to deliver a controlled substance containing cocaine. Count II was a Class X felony with a
minimum sentence of 12 years and maximum sentence of 50 years in the Illinois Department of
Corrections. After the court reviewed the plea of guilty form, the court asked the defendant if he
had read the document and if he had questions. The defendant indicated that he had read the form
and did not have questions. The defendant then stated, “I’m looking at 15 years to life, so 15 years,
I would accept it if that’s the offer.” The State then provided a factual basis, and the parties waived
the preparation of a presentence investigation. The State explained that the defendant agreed to a
15-year sentence to be served at 75%, along with a 3-year period of mandatory supervised release.
In exchange for his plea of guilty, the three additional counts alleging unlawful delivery were
dismissed. The court accepted the defendant’s plea of guilty and informed the defendant that he
had 30 days to file a motion for leave to withdraw the guilty plea. Any issue not raised in the
motion for leave to withdraw the guilty plea would be deemed waived. The court further informed
the defendant that he had the right to appeal the court’s decision.
¶9 On January 11, 2013, the defendant filed a pro se motion for a reduction of his sentence.
The defendant claimed that on December 17, 2012, he was under the influence of drugs and
alcohol, and he misunderstood the terms of the plea. The defendant also claimed multiple
mitigating factors that the court should have considered in reducing the sentence. The defendant
did not mention the eight-year plea offer. He did not request to vacate his guilty plea. Without
holding a hearing, the court denied the motion for reduction of sentence. The defendant did not
appeal his conviction or sentence.
¶ 10 On September 23, 2013, the defendant filed a pro se postconviction petition seeking to
vacate his guilty plea. The defendant’s petition contained four claims: that his plea was made
involuntarily and without full knowledge of the consequences; that the circuit court failed to
3
properly admonish the defendant of the consequences of the plea and the maximum sentence
permitted; that Costa was ineffective for allowing the defendant to sign a plea agreement
“erroneously waiving his constitutional rights”; and that Costa was ineffective for failing to
communicate the defendant’s acceptance of a more favorable plea agreement while allowing the
prosecution’s offer to lapse. The defendant attached an affidavit dated September 16, 2013, where
he attested that Costa had informed him that the State had offered to reduce the charge if the
defendant served eight years in the Department of Corrections. The defendant attested that he
directed Costa to accept the eight-year offer. The defendant further attested that on December 17,
2013, Costa informed the defendant that the State was no longer offering a plea deal of eight years.
¶ 11 Christian Baril was appointed to represent the defendant as postconviction counsel. On
October 31, 2014, Baril filed an amended postconviction petition. The amended petition contained
the claim from the defendant’s pro se petition that Costa failed to provide reasonable assistance
by allowing the prosecution’s eight-year plea offer to lapse. The amended petition additionally
claimed that the defendant did not enter his plea voluntarily because he was not able to understand
the plea of guilty form due to his diminished mental capacity and because he received
misinformation from plea counsel that day-for-day credit would be received while serving his
sentence. Baril attached the defendant’s September 16, 2013, affidavit to the amended
postconviction petition.
¶ 12 The State did not file a motion to dismiss or an answer to the amended postconviction
petition. On January 2, 2015, the cause proceeded to an evidentiary hearing. Baril did not present
any evidence or argument regarding the circumstances related to the eight-year plea offer.
Following the hearing, the court denied the defendant’s request for postconviction relief.
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¶ 13 The defendant appealed the issue of whether postconviction counsel, Baril, provided
reasonable assistance of counsel. On appeal, the State conceded that Baril did not render reasonable
assistance where he failed to argue and seek a ruling on the issue of whether the defendant’s plea
counsel failed to timely convey the defendant’s acceptance of the State’s alleged eight-year plea
offer.1 This court reversed the circuit court’s order denying the defendant’s postconviction
petition. We remanded for a third stage evidentiary hearing on the sole issue of whether plea
counsel failed to timely communicate the defendant’s acceptance of the State’s alleged plea offer.
Rowell, 2018 IL App (5th) 150010-U.
¶ 14 On remand, the defendant was appointed new postconviction counsel, Timothy Ting. A
new prosecutor was assigned to the case because Mark Hamrock, the prior prosecutor, had retired.
¶ 15 During a status conference on February 28, 2019, Ting requested an extension of time.
Ting advised the court that his efforts to locate Costa had, thus far, been unsuccessful. The State
did not object to a continuance, as it was also having a difficult time locating its file.
¶ 16 The third stage evidentiary hearing was held on November 21, 2019. At the start of the
hearing, Ting advised the court that he had made several attempts to subpoena Costa, and that his
last attempt was made on October 23, 2019. Ting stated that he had also contacted the
codefendant’s attorney in an attempt to review the codefendant’s file. The codefendant’s counsel
could not locate her case file. Nevertheless, Ting advised the court he was ready to proceed and
stated,
“Your Honor, I’ve spoke with Mr. Rowell several times within the department of
corrections regarding his contentions with this particular issue, and I believe we are as
prepared as we can be to adjudicate the issue at this time.”
1
Notably, in the first appeal, the State made no argument regarding the issue of waiver.
5
¶ 17 The State informed the court that it was also ready to proceed with the evidentiary hearing.
The State additionally advised,
“I would also note for this Court that the People have attempted to locate the, the file as
well in our office to no avail. We have searched high and low throughout the State’s
Attorney’s Office, throughout the basement in this matter. However, the file for either Mr.
Rowell and [the codefendant] can’t be located at this time, but we do have witnesses here.”
¶ 18 The defendant proceeded to call his witnesses. Lisa McCoy, the defendant’s fiancée, stated
she was present for the defendant’s October 9, 2012, court appearance. McCoy testified that she
heard Costa inform the defendant that the State had agreed to offer an eight-year sentence in
exchange for a plea of guilty. McCoy recalled the defendant’s response to the eight-year plea offer
as, “if that’s the best you can do, I accept.” According to McCoy, Costa did not indicate there was
a time limitation on the offer. During cross-examination, McCoy testified that she could not recall
the discussion on which count the offer was made. She was unaware if the charges against the
defendant would be amended. McCoy testified that she believed the defendant received a 15-year
offer prior to the 8-year offer. Costa did not show her a written offer. She did not know whether
Costa had presented the defendant with a written offer. She also did not know whether Costa had
communicated the acceptance of the eight-year offer to the state’s attorney. She testified that after
the October 9, 2012, court appearance, she went to Costa’s office, and they only discussed attorney
fees. McCoy testified that she had called Costa’s office about the offer after the court date and
Costa did not return her call.
¶ 19 The defendant also called Mark Hamrock, the former prosecutor assigned to the case.
Hamrock testified that he could not recall any specifics about the plea negotiations in the
defendant’s case. He explained that he had “handled thousands of files” after the defendant’s case.
Hamrock also testified that written offers were normally given a deadline of either 24 or 48 hours
prior to the pretrial hearing, but “that wasn’t a hard and fast rule.” With regard to the plea offer
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alleged by the defendant, Hamrock was asked, “Now, as to your recollection, do you remember
making an eight-year offer in that particular case?” Hamrock responded, “I do not.” Hamrock was
also asked if he remembered any specifics regarding negotiations with Costa. Hamrock answered:
“I do not. The only, the only thing I will say is I know that at one point I made a
15-year offer, but I only remember that or know that because I reviewed the transcript of
the plea hearing in this case. So, I know that at some time I made an offer for 15 years.
When this matter first came to my attention, I contacted Mr. Suthard[2] to see if he
had my old file so that I could look at my notes to see what offers had been made but the
offers I had made were typically in writing and any amendments or changes or alterations
would have been noted in the file.
However, as has been stated on the record, the file can’t be located; so, I could not
look at it. So, I don’t have any independent recollection. It’s been nine years.”
Hamrock agreed that an eight-year offer could have been made for a case of this nature. He then
conceded that it would have been possible that he had made an eight-year offer in this case.
Hamrock testified that if such an offer had been made, and a defense attorney had accepted the
offer, Hamrock would have honored the agreement. Hamrock additionally testified that when an
agreement was made between the parties on a negotiated plea, “it would be very close to 100
percent that [the circuit court] would have accepted that [plea deal].” Hamrock believed that he
spoke to Baril about the case before the initial postconviction evidentiary hearing but did not
remember their conversation.
¶ 20 The defendant was the final witness called in support of his petition. The defendant recalled
that he hired Costa to negotiate a plea in his case. On October 9, 2012, Costa met with the defendant
outside of the courtroom to discuss an offer made by the State. Costa told the defendant that the
State had offered a plea to eight years in the Department of Corrections. The defendant questioned
Costa about the eight-year offer. Costa indicated that the offer would be the best offer that the
2
After Hamrock retired, Mr. Suthard was the prosecutor assigned to this case.
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defendant would receive. The defendant responded, “if that’s the best you can do, yes.” The
defendant was led to believe that the eight-year offer was going to be accepted on the next court
date. While the defendant was waiting for the next court date, he was told by his codefendant that
the State had increased the terms of the plea offer. The defendant testified that he called Costa
several times between October 9, 2012, and the December 17, 2012, hearing date to discuss his
codefendant’s statement, but could not reach Costa.
¶ 21 On the December 17, 2012, hearing date, the defendant asked Costa about the eight-year
offer. Costa told the defendant that the State had increased its offer to 15 years because the
defendant had not accepted the 8-year offer. When the defendant was questioned by the State about
the validity of the eight-year offer, the defendant stated, “[Costa] led me to believe something that
was never there, I guess. I don’t know.” On redirect examination, the defendant testified that from
his knowledge, he was offered an eight-year plea deal.
¶ 22 The defendant also testified to Baril’s level of assistance during the evidentiary hearing on
his postconviction petition. According to the defendant, Baril did not discuss the strategy for the
evidentiary hearing. Baril failed to inform the defendant that he was not going to address the issue
of ineffective assistance of counsel regarding the eight-year plea offer. According to the defendant,
Baril had not attempted to subpoena Costa to testify, although the defendant had asked Baril to do
so.
¶ 23 Following the close of the defendant’s testimony, the State presented its evidence. Baril
was the State’s only witness. Because of attorney-client privilege, Baril did not answer questions
that involved discussions with the defendant. Baril testified that he had a difficult time
remembering the case because of a traumatic event that had occurred in his personal life during
the time he represented the defendant. Baril believed that before the first evidentiary hearing,
8
Hamrock indicated that he had not made an eight-year offer to the defendant. Baril admitted,
however, that his testimony was “very speculative” regarding what had occurred five years prior
when he was working on this case.
¶ 24 After the conclusion of the testimony, postconviction counsel, Ting, asked the court to take
judicial notice of Costa’s status as an attorney under the Illinois Attorney Registration and
Disciplinary Commission. 3 Ting argued that the defendant’s testimony was uncontradicted
because the State’s file could not be located, Costa could not be found, and the codefendant’s
attorney no longer had her case file. Ting further argued that the defendant and McCoy had
testified, under oath, that an eight-year offer had been made. He concluded that sufficient evidence
was offered through testimony to demonstrate a substantial denial of a Constitutional right by a
preponderance of the evidence. The defendant requested that the court allow the defendant to
withdraw his guilty plea or reconsider the defendant’s sentence.
¶ 25 The State argued that the defendant did not meet his burden of proof because he could not
show that the State had made an eight-year offer. The State claimed that the testimony that the
defendant was “led to believe” there was an eight-year offer by Costa did not prove that an offer
was actually made. Although McCoy testified that there were “eight years on the table,” she could
not remember anything else about the conversation.
¶ 26 Ting responded that there was clear evidence of an eight-year offer through the testimony
of two individuals. The State had possession of the file, and the exclusive ability to review it, but
could not locate it. In sum, Ting argued that State failed to produce any reliable evidence to rebut
the defendant’s evidence as to the eight-year plea offer.
3
In the Matter of Mark W. Costa, No. 6224716, Supreme Court No. M.R. 27466 (Sept. 21, 2015),
Costa was suspended from practicing law for failing to diligently represent two clients. Costa had converted
costs from those clients, and he made misrepresentations to one of those clients.
9
¶ 27 At the close of the evidence and arguments, the court issued its ruling. The court stated as
follows:
“The motion is going to be denied. The Court cannot find that he was denied ineffective
assistance of counsel due to failure to timely communicate an acceptance of a plea offer in
this case. Based upon the testimony, it’s not—Well, the testimony speaks for itself. Mr.
Hamrock doesn’t remember making that offer. Mr. Rowell testified that the offer was
made. Miss McCoy testifies the same. The Court’s considered it all.”
¶ 28 On February 11, 2020, the court heard the defendant’s motion to reconsider. Ting argued
that the State’s missing file and Hamrock’s inability to recall the plea negotiations should not be
held against the defendant. Ting claimed there was a substantial showing of a significant
deprivation of Constitutional rights sufficient to satisfy the defendant’s burden of proof in a third
stage postconviction hearing. In response, the State argued that the circuit court had judged the
credibility of the witness testimony and the testimony did not show a deprivation of the defendant’s
rights. The State requested that the court deny the defendant’s motion to reconsider. The circuit
court considered the arguments of counsel and denied the motion. This appeal followed.
¶ 29 II. ANALYSIS
¶ 30 On appeal, the defendant claims that he proved, by a preponderance of the evidence, that
plea counsel, Costa, provided ineffective assistance by failing to timely communicate the
acceptance of the eight-year plea offer. Before addressing the defendant’s claim on the merits, we
consider the State’s claim of waiver.
¶ 31 The State argues that the defendant waived his postconviction claim of ineffective
assistance of plea counsel because he failed to move to withdraw his guilty plea pursuant to Illinois
Supreme Court Rule 604(d) (eff. July 1, 2017). Rule 604(d) requires the defendant to file a motion
10
to vacate the guilty plea to preserve the issue. 4 Under the Post-Conviction Hearing Act, the State
was required to file either an answer or motion to dismiss within 30 days from the date of the order
allowing the second stage proceeding. 725 ILCS 5/122-5 (West 2012). “By its answer, a party
either admits or denies the allegations contained in the complaint, thereby framing the issues to be
resolved later by litigation[;] [a] motion to dismiss, on the other hand, attacks the sufficiency of
the complaint.” (Internal quotation marks omitted.) People v. Thompson, 2016 IL App (3d)
140586, ¶ 25. The State may forfeit a claim of waiver by failing to raise the issue before the circuit
court. People v. Bahena, 2020 IL App (1st) 180197, ¶ 29. Additionally, “where a question was
open to consideration in a prior appeal and it could have been presented but was not, the question
will be deemed to be waived.” Turner v. Commonwealth Edison Co., 63 Ill. App. 3d 693, 698
(1978). A second appeal addresses issues in the proceedings after remand. People v. Thornton, 85
Ill. App. 3d 325, 332 (1980).
¶ 32 Here, during the second stage of the proceeding, the State did not file a motion to dismiss
the amended postconviction petition asserting that the defendant had waived his claim of
ineffective assistance of plea counsel. In addition, the State did not raise the issue of waiver in the
first postconviction appeal. In fact, the State conceded that postconviction counsel did not render
reasonable assistance by failing to argue the merits of the issue. Rowell, 2018 IL App (5th) 150010-
U. We accepted the State’s confession of error and remanded for a third stage evidentiary hearing.
Therefore, we reject the State’s contention of waiver. Furthermore, “[w]aiver is a limitation on the
parties and not on the court.” People v. Miranda, 329 Ill. App. 3d 837, 844 (2002). The strict
application of the waiver rule will be relaxed in postconviction proceedings where “fundamental
4
In its brief, the State uses the terms “waiver” and “forfeiture” interchangeably. Its argument,
however, is based on the waiver doctrine.
11
fairness so requires.” (Internal quotation marks omitted.) Miranda, 329 Ill. App. 3d at 843. Given
our previous disposition and our order granting the defendant a third stage evidentiary hearing,
fundamental fairness requires that we proceed with a review on the merits.
¶ 33 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)) provides a three-
step process to resolve a criminal defendant’s conviction or sentence that resulted from a violation
of rights protected under the state or federal constitution. People v. York, 2016 IL App (5th)
130579, ¶ 15. “At the first stage of postconviction proceedings, the court reviews the petition to
determine whether it is frivolous and patently without merit.” York, 2016 IL App (5th) 130579,
¶ 15. The defendant must make a “substantial showing of a constitutional violation” at the second
stage. (Internal quotation marks omitted.) York, 2016 IL App (5th) 130579, ¶ 16. Then, if the
petition advances to the third stage, the court will hold an evidentiary hearing on the defendant’s
claims. People v. Wallace, 2018 IL App (5th) 140385, ¶ 27. The petitioner has the burden to show
a substantial denial of a constitutional right by a preponderance of the evidence during the third
stage. People v. Coleman, 2013 IL 113307, ¶ 92.
¶ 34 Claims raising ineffective assistance of counsel present mixed questions of law and fact.
Strickland v. Washington, 466 U.S. 668, 698 (1984). We review de novo the legal issue of whether
counsel provided ineffective assistance. People v. Coleman, 2015 IL App (4th) 131045, ¶ 66. After
an evidentiary hearing where fact-finding and credibility determinations are involved, the circuit
court’s decision will not be reversed unless it is manifestly erroneous. People v. English, 2013 IL
112890, ¶ 23. Manifest error is “clearly evident, plain, and indisputable” (internal quotation marks
omitted), and a “decision is manifestly erroneous when the opposite conclusion is clearly evident.”
Coleman, 2013 IL 113307, ¶ 98.
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¶ 35 To prove ineffective assistance of counsel, the defendant must show that (1) counsel’s
conduct fell below an objective standard of reasonableness and (2) counsel’s deficient
performance prejudiced the defendant, and it is reasonably probable that the result would have
been different but for counsel’s deficient performance. Strickland, 466 U.S. at 687. Where the
issue involves a plea offer that lapsed or was rejected due to plea counsel’s deficient performance,
to show prejudice from ineffective assistance of counsel the defendant must demonstrate a
reasonable probability that he would have accepted the offer had he received effective assistance
of counsel. Missouri v. Frye, 566 U.S. 134, 147 (2012). The defendant also must demonstrate a
reasonable probability that the plea would have been entered without the prosecution cancelling
the plea or the circuit court rejecting the plea. Frye, 566 U.S. at 147. Prejudice is established by
demonstrating a reasonable probability that the end result would be a plea to a lesser charge or a
shorter sentence. Frye, 566 U.S. at 147.
¶ 36 During the third stage evidentiary hearing, both the defendant and McCoy testified that
Costa presented the defendant with a plea offer of eight years. This testimony was consistent with
the defendant’s affidavit attached to his amended postconviction petition. However, neither the
defendant nor McCoy testified with any specificity about the terms of the alleged eight-year offer.
McCoy was unaware if the charges against the defendant would be amended, and she could not
recall a discussion on which count the offer was made. We note that the defendant would not have
been able to receive an 8-year sentence in exchange for pleading guilty to count II where the
minimum sentence was 12 years. 720 ILCS 570/401(a)(2)(C) (West 2010). McCoy was not shown
a written offer and did not know if the defendant was shown a written offer. She additionally
believed that the defendant had received a 15-year offer before Costa had presented the defendant
with an 8-year offer.
13
¶ 37 The defendant testified that he was unaware of the conversations that Costa had with the
State regarding plea offers. The defendant had a conversation with Costa in the hallway at the
courthouse where he believed he had accepted an eight-year plea offer. The defendant, however,
also testified that, “[Costa] led me to believe something that was never there, I guess. I don’t
know.” The defendant did not testify to which charge(s) he would have pled guilty to in exchange
for serving eight years in the Department of Corrections. It was not clear whether an eight-year
offer had been made by the State.
¶ 38 Hamrock, the prosecutor on the defendant’s case, agreed that for cases of this nature, an
eight-year offer could have been made and it would have been possible that he had made an eight-
year offer in this case. Hamrock also testified that had he made that offer, he would have honored
the agreement. Hamrock, however, did not remember making the eight-year plea offer.
¶ 39 The defendant has the burden to show a substantial denial of a constitutional right by a
preponderance of the evidence. During a third stage postconviction hearing, the circuit court is
“able to observe and hear the witnesses at the evidentiary hearing and, therefore, occupies a
position of advantage in a search for the truth which is infinitely superior to that of a tribunal where
the sole guide is the printed record.” (Internal quotation marks omitted.) People v. Coleman, 183
Ill. 2d 366, 384 (1998). Based upon the record, the circuit court’s determination was not manifestly
erroneous, where the circuit court was in the best position to observe and determine the credibility
of the witnesses. The circuit court considered the evidence and determined that the defendant and
McCoy’s testimonies lacked credibility, and Hamrock could not remember making an offer of
eight years. We are unable to conclude that the court erred by denying the defendant’s petition
where the court was in the best position to assesses the credibility of the witnesses.
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¶ 40 The defendant has failed to show that, but for plea counsel’s deficient performance, it was
reasonably probable that the result would have been different. The standard for ineffective
assistance under Strickland has not been satisfied. We, therefore, affirm the ruling by the circuit
court.
¶ 41 III. CONCLUSION
¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court of Jackson County.
¶ 43 Affirmed.
¶ 44 JUSTICE BARBERIS, specially concurring:
¶ 45 I agree with the majority’s overall conclusion affirming this matter where the trial court
was in the best position to assess the credibility of the witnesses. I write separately, however, to
clarify that waiver applies to defendant’s claim pursuant to recent changes in the law set forth in
People v. Jones, 2021 IL 126432, and People v. Sophanavong, 2020 IL 124337. In its brief to this
court, the State points to Jones, 2021 IL 126432, ¶ 20, for the proposition that “ ‘[i]t is well
established that a voluntary guilty plea waives all non-jurisdictional errors or irregularities,
including constitutional ones.’ ” (Emphasis added.) Sophanavong, 2020 IL 124337, ¶ 33 (quoting
People v. Townsell, 209 Ill. 2d 543, 545 (2004)). “[P]lea agreements are contracts, and principles
of waiver apply equally to them.” Jones, 2021 IL 126432, ¶ 21 (citing People v. Absher, 242 Ill.
2d 77, 87 (2011)). Based on this recent precedent, I find defendant’s claim waived.
¶ 46 Here, defendant voluntarily entered into a negotiated plea agreement in exchange for the
dismissal of additional charges against him. Defendant failed to file a motion to withdraw a guilty
plea—rather, he filed a pro se motion to reduce sentence wherein defendant argued that he “was
under the influence of drugs and alcohol when [he] was arrested for this case” and as such “was
not in [his] right mind when [he] plead out for [his] sentence.” He also argued that he
15
“misunderstood and was told [he] could get good time from [his] lawyer.” Defendant did not claim
that his plea counsel failed to accept an eight-year offer from the State. Rather, defendant argued
that he believed he was eligible for good time credit. Succinctly stated, defendant failed to raise
an issue regarding the alleged eight-year offer in his motion to reduce sentence. See Sophanavong,
2020 IL 124337, ¶ 22 (“Moreover, ‘[u]pon appeal any issue not raised by the defendant in the
motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be
deemed waived.’ ” (quoting Ill. S. Ct. R. 604(d) (eff. July 1, 2017))); see also People v. Evans, 174
Ill. 2d 320, 329 (1996) (“Any issue not raised in the motion to reconsider or to withdraw the plea
shall be deemed waived.”).
¶ 47 In my view, this case presents precisely the type of collateral claim our Illinois Supreme
Court intends to decline to extend collateral relief, where a defendant knowingly entered into a
negotiated plea and failed to raise the issue in either a motion to reconsider or to withdraw the plea.
Thus, I would conclude that defendant’s knowing and voluntary guilty plea waived any
constitutional challenge, as envisioned in recent Illinois Supreme Court precedent set forth in
Sophanavong, 2020 IL 124337, ¶ 33, and Jones, 2021 IL 126432, ¶ 21.
¶ 48 When a defendant fails to timely raise an issue, over time, evidence is lost and memories
fade. See Sophanavong, 2020 IL 124337, ¶ 23 (“Along with allowing the circuit court to
immediately correct any errors that may have led to the guilty plea or the length of the sentence,
Rule 604(d) ‘ensures that fact finding takes place and a record is made at a time when witnesses
are still available and memories are fresh. If the motion to withdraw the plea is denied, that decision
can be considered on review. If the motion is granted, the need for an appeal has been
eliminated.’ ” (quoting Evans, 174 Ill. 2d at 329)). In this case, defendant entered into a negotiated
guilty plea on December 17, 2012. Now, approximately 10 years later, defendant claims that he
16
was denied the effective assistance of counsel. Our own United States Supreme Court stressed “the
importance for constitutional purposes of good or bad faith on the part of the Government when
the claim is based on loss of evidence attributable to the Government.” Arizona v. Youngblood,
488 U.S. 51, 57 (1988). Defendant seemingly does not allege that the State or plea counsel acted
in bad faith, nor does the majority contend that the State acted in bad faith or with ill intent in
losing the file. Rather, in my view, defendant failed to timely raise this issue, and as such, witnesses
and attorneys moved on from this matter. Defendant should be held to the benefit of his bargain.
¶ 49 Therefore, I agree with the majority’s decision to affirm. However, I would affirm the trial
court’s denial of defendant’s third-stage postconviction petition, where defendant’s claim is
waived. For these reasons, I respectfully specially concur in the majority’s decision.
17