In his state petition for post-conviction relief, filed pro se, Fern alleged, inter alia, that his attorney rendered ineffective assistance by failing to preserve his direct appeal. The trial court summarily dismissed Fern's petition, and the Illinois appellate court affirmed. People v. Fern, 607 N.E.2d 951 (Ill.App.Ct.), appeal denied, 616 N.E.2d 340 (Ill. 1993). Fern then brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. Β§ 2254.
The credibility of the testimony offered by a defendant and the trial court's recollection and observation of the defendant's demeanor may be taken into account in assessing whether the plea was knowing and voluntary. See, e.g., People v. Moore (1991), 214 Ill. App.3d 938, 941. Where the trial record refutes a defendant's assertions that his plea was not knowingly and voluntarily made, courts may properly dismiss or deny a defendant's petition ( People v. Fern (1993), 240 Ill. App.3d 1031, 1041), and a proper and meticulous admonition of the defendant according to Supreme Court Rule 402(b) (134 Ill. R. 402(b)) cannot simply be ignored ( People v. Jones (1991), 144 Ill.2d 242, 263; Fern, 240 Ill. App.3d at 1041; People v. Radunz (1989), 180 Ill. App.3d 734, 742; Smithey, 120 Ill. App.3d at 31). β’ 3 Defendant has failed in his burden to show by substantive, objective proof that his subjective impression that he would get the minimum sentence was reasonably justified for several reasons.
To be entitled to postconviction relief, a defendant must establish that a substantial violation of his constitutional rights occurred at the proceeding that produced the judgment. People v. Fern, 240 Ill. App.3d 1031, 1037 (1993). Under section 122-2.1 of the Post-Conviction Hearing Act, the trial court may summarily dismiss a postconviction petition without the appointment of counsel or an evidentiary hearing if it deems the petition "frivolous" or "patently without merit."
The defendant must do more than state conclusory allegations of constitutional issues to obtain a hearing. People v. Fern, 240 Ill.App.3d 1031, 1041, 180 Ill.Dec. 651, 607 N.E.2d 951 (1993). We will not disturb a trial court's decision to dismiss a post-conviction petition absent an abuse of discretion.
. See People v. Fern, 240 Ill.App.3d 1031, 1043 (1993) (for trial counsel to be ineffective for failing to file a motion to withdraw a guilty plea, it must be shown that he was requested to do so).
This court is not bound by federal or out-of-state decisions other than, in appropriate cases, those of the United States Supreme Court. People v. Fern, 240 Ill.App.3d 1031, 1039-40 (1993). ΒΆ 102 Likewise, People v. Smith, 256 Ill.App.3d 610 (1994) (Raymond Smith), another case upon which defendant relies, is inapplicable, as it involves the issue of whether the State argued improper hearsay testimony during closing argument, which is not at issue in this case.
ΒΆ 45 In conclusion, we note that had defendant filed a motion to withdraw his guilty plea within 30 days of pleading guilty, asserting the same facts he asserts in his motion for leave to file a successive petition, it would constitute almost certainly an abuse of discretion if the trial court denied the motion. See People v. Fern, 240 Ill.App.3d 1031, 1043, 607 N.E.2d 951, 961 (1993) ("The withdrawal of a guilty plea may be allowed in circumstances where the plea resulted from a misapprehension of law or fact, or in cases where it appears the plea was entered as a result of a misrepresentation by counsel, the State's Attorney, or someone else in authority."). Based on the information in the record and taking defendant's allegations as true, the difference between a sentencing range of 6 to 30 years and 15 to 30 years was significant, and we conclude, under the specific facts of this case, defendant is entitled to file his successive postconviction petition.
Defendant's mere belief or hope he would receive a shorter sentence by pleading guilty does not permit him to withdraw his plea when that expectation is unfulfilled. See People v. Fern, 240 Ill.App.3d 1031, 1042, 607 N.E.2d 951, 961 (1993). Defendant's case of buyer's remorse is no basis for allowing him to withdraw his plea of guilty.
See People v. Fern, 240 Ill.App.3d 1031, 1039-40 (1993) ("In construing our own State laws, we are not bound by Federal court decisions other than, in appropriate cases, those of the United States Supreme Court ***."). We observe that no evidence presented at defendant's trial suggested that the weapon he threatened Shimmel with and then pointed at Olson was anything but a firearm.
First, a defendant must show that he requested counsel to file a motion to withdraw. People v. Fern, 240 Ill. App. 3d 1031, 1043, 607 N.E.2d 951, 961 (1993). Next, the defendant must show the necessity of withdrawing a guilty plea. Id. "The withdrawal of a guilty plea may be allowed in circumstances where the plea resulted from a misapprehension of law or fact, or in cases where it appears the plea was entered as a result of a misrepresentation by counsel, the State's Attorney, or someone else in authority."