Opinion
No. 2-13-0411
10-20-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALTON GIRLEY, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County.
No. 08-CF-5086
Honorable John R. Truitt, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court.
Justices Hutchinson and Jorgensen concurred in the judgment.
ORDER
¶ 1 Held: The trial court properly dismissed the defendant's post-conviction petition at the first-stage as frivolous and patently without merit.
¶ 2 The defendant, Alton Girley, appeals the first-stage dismissal of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). The defendant argues that the dismissal was improper because he stated the gist of a claim of ineffective assistance of trial counsel. We affirm.
¶ 3 I. BACKGROUND
¶ 4 In January 2009, the defendant was charged with one count of vehicular invasion (720 ILCS 5/12-11.1 (West 2008)) and one count of burglary (720 ILCS 5/19-1(a) (West 2008)). At a hearing on August 17, 2009, the State indicated that a plea offer had been made, but that the defendant had rejected it. On April 5, 2010, just prior to the start of trial, the State dismissed the charge for vehicular invasion. At that time, the defendant was admonished that the burglary charge subjected him to class 2 extended-term sentencing, the offense was nonprobationable, and the sentencing range was 3 to 14 years. Following a jury trial, the defendant was convicted of one count of burglary (720 ILCS 5/19-1(a) (West 2008)).
¶ 5 On June 10, 2010, at the sentencing hearing, the State informed the trial court that the defendant's criminal history, including a class 1 conviction for armed robbery and a class 2 conviction for possession of a controlled substance with intent to deliver, mandated class X sentencing of between 6 to 30 years' imprisonment. The State acknowledged that the defendant had only been admonished of an extended-term class 2 sentence of 3 to 14 years. The State suggested that the trial court limit the sentencing range to between 6 and 14 years, so that the defendant's sentence would comply with class X sentencing but not exceed the sentencing range set forth in the defendant's admonishments. The State noted that the defendant had never been offered anything less than eight years as part of the plea-bargaining process.
¶ 6 Defense counsel informed the trial court that he did not believe the defendant was subject to class X sentencing because the defendant's conviction for armed robbery occurred when the defendant was 16 years old. Defense counsel stated that he always believed the defendant was subject to class 2 extended-term sentencing. The trial court stated that, so as not to be unfair, it would treat 14 years as the sentencing cap. Following the sentencing hearing, the trial court
sentenced the defendant to 12 years' imprisonment. This court affirmed the defendant's conviction and sentence on direct appeal. See People v. Girley, 2012 IL App (2d) 100702-U.
¶ 7 On January 9, 2013, the defendant filed a pro se post-conviction petition. In his petition, the defendant alleged that his trial counsel was ineffective because trial counsel erroneously believed that the defendant was not eligible for mandatory class X sentencing. Rather, because trial counsel believed that the defendant was only subject to class 2 sentencing, he allegedly advised the defendant not to accept a plea offer of eight years. In an affidavit attached to the petition, the defendant stated that he declined the plea offer based solely on the advice of counsel that he was not eligible for class X sentencing.
¶ 8 On March 19, 2013, the trial court dismissed the defendant's pro se postconviction petition as frivolous and patently without merit. The trial court found that the defendant was not prejudiced by trial counsel's failure to advise him of the mandatory class X sentencing because the defendant was sentenced within the range for an extended-term class 2 felony. Thereafter, the defendant filed a timely notice of appeal.
¶ 9 II. ANALYSIS
¶ 10 On appeal, the defendant argues that the trial court erred in summarily dismissing his postconviction petition. The defendant contends that trial counsel was ineffective in failing to advise him that he was subject to mandatory class X sentencing. The defendant argues that, had he known, he would have accepted the State's plea offer of eight years.
¶ 11 At the outset, we address the State's argument that this issue has been forfeited because the defendant failed to raise it on direct appeal. The State argues that the record shows that the State made a plea offer and that counsel misunderstood the defendant's sentencing range. Accordingly, the State argues that because the defendant's claim of ineffective assistance of
counsel was not based on matters outside the record, it has been forfeited for failure to raise it on direct appeal.
¶ 12 We decline to find the issue forfeited. "Claims of ineffective assistance of trial counsel are preferably brought on collateral review rather than direct appeal." People v. Clark, 406 Ill. App. 3d 622, 640 (2010). This is because, when an ineffective-assistance claim is brought on direct appeal, " 'appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose.' " People v. Bew, 228 Ill. 2d 122, 134 (2008), quoting Massaro v. United States, 538 U.S. 500, 504-05 (2003). "The benefit of raising an ineffective assistance claim in a collateral proceeding is that the defendant has a full opportunity to present evidence establishing ineffective assistance, the State has a full opportunity to present evidence to the contrary, the trial court has an opportunity to make credibility determinations, and the appellate court, if need be, has the benefit of a factual record bearing precisely on the issue." Clark, 406 Ill. App. 3d at 640-41.
¶ 13 In the present case, the record affirmatively establishes only that a plea offer was made prior to the dismissal of the charge for vehicular invasion, and that it was rejected. The State's comments at the sentencing hearing indicate that perhaps there were multiple plea offers and that they were for "no less" than eight years' imprisonment. However, the record does not show when the subsequent plea offers were made or what exactly the State offered. Additionally, while the record indicates that trial counsel was confused as to the application of mandatory class X sentencing, it does not indicate what advice counsel actually gave to the defendant regarding his potential sentence and any plea offer. Further, the record on direct appeal did not include the defendant's present affidavit, indicating that he would have accepted the State's alleged eight
year plea offer had it not been for trial counsel's erroneous advice. Accordingly, the record was not sufficiently developed on direct appeal to support an ineffective-assistance claim and the issue is therefore not forfeited. Clark, 406 Ill. App. 3d at 640-42.
¶ 14 Turning to the merits, the Act provides a three-step process for a defendant to challenge a conviction or sentence based on an alleged violation of federal or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). At the first stage of postconviction review, the circuit court independently reviews the petition to determine whether it is "frivolous or is patently without merit" and dismisses the petition if it finds that is the case. 725 ILCS 5/122-2.1(a)(2) (West 2010). A defendant need only present a limited amount of detail at the first stage and need not set forth a claim in its entirety, include legal argument, or cite legal authority. People v. Brown, 236 Ill. 2d 175, 184 (2010). A court must take as true all well-pleaded facts unless positively rebutted by the record. Id. at 189. The petition need only present the "gist" of a constitutional claim. Id. at 184. A petition may be dismissed under this standard only if it has no arguable basis either in law or in fact. People v. Hodges, 234 Ill. 2d 1, 11-12 (2009). A petition has no arguable basis in law or fact if it is based on an indisputably meritless legal theory or a fanciful factual allegation. Id. at 16. An indisputably meritless legal theory is one which is completely contradicted by the record and fanciful factual allegations include those which are fantastic or delusional. Id. at 16-17. The summary dismissal of a postconviction petition at the first stage is reviewed de novo. Brown, 236 Ill. 2d at 184.
¶ 15 As the defendant's claim alleges the ineffective assistance of counsel, the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), apply. People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). Generally, to succeed on such a claim, a defendant must show both that his counsel's performance "fell below an objective standard of reasonableness" (Strickland, 466
U.S. at 688) and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (id. at 694). However, applying a more lenient standard for a first stage postconviction proceeding, a petition alleging ineffective assistance of counsel may not be summarily dismissed if: (1) it is arguable that counsel's performance fell below an objective standard of reasonableness and (2) it is arguable that the defendant was prejudiced. People v. Tate, 2012 IL 112214 at ¶ 19.
¶ 16 In the present case, taking all the defendant's well-pleaded allegations as true, the defendant has not established any arguable prejudice. The record makes clear that the defendant was at all times subject to a maximum sentence of 14 years' imprisonment. The defendant was admonished of the 14-year maximum for an extended-term class 2 felony, and, when the parties realized the defendant was subject to class X sentencing, the trial court stated that it would nonetheless impose a sentencing cap of 14 years. Moreover, the defendant cannot claim that he would have accepted a plea offer of eight years had he known his minimum sentence was six years, rather than three years. See People v. Miller, 2013 IL App (1st) 111147, ¶ 42 (affirming summary dismissal even though defendant was misadvised about minimum sentence, because defendant rejected plea offer knowing he faced a much longer maximum sentence). Regardless of whether the minimum sentence was three or six years, the defendant declined the State's eight-year plea offer and instead decided to go to trial and risk a 14-year sentence. Any claim that he would have accepted the State's plea offer had he been properly advised of the minimum sentence would be fanciful. Id. Accordingly, for these reasons, and because the defendant's sentence fell within the range of sentence about which he was admonished, the defendant cannot establish prejudice.
¶ 17 In so ruling, we note that the defendant relies on People v. Barghouti, 2013 IL App (1st) 112373, and People v. Trujillo, 2012 IL App (1st) 103212, in arguing that his petition was improperly dismissed. However, we find the defendant's reliance on these cases unpersuasive. In Barghouti, the defendant alleged that trial counsel never informed him of his minimum and maximum sentence and erroneously advised him that he was eligible for probation. Barghouti, ¶ 8. The Barghouti defendant had rejected a 12-year plea offer and was sentenced to 35 years' imprisonment. Id. at ¶¶ 6, 8.
¶ 18 In Trujillo, the defendant alleged, in a postconviction petition, that trial counsel never told him that the State had made a guilty plea offer. Trujillo, ¶ 4. Attached to the petition was a letter from trial counsel acknowledging the State's plea offer but stating that he had informed the defendant of the plea offer and that the defendant rejected it. Id. The reviewing court found summary dismissal inappropriate because whether trial counsel informed defendant of the plea offer was a credibility determination that could not be resolved at the first stage. Id. at ¶ 14.
¶ 19 Both cases are distinguishable. Barghouti is distinguishable from the present case because the sentence imposed in Barghouti greatly exceeded that State's alleged plea offer, which supported a claim of prejudice. People v. Hale, 2013 IL 113140, ¶ 18. In this case, the 12-year sentence did not greatly exceed the eight-year plea offer. Additionally, whether or not trial counsel in Barghouti informed the defendant of his minimum and maximum sentence, and whether trial counsel in Trujillo informed the defendant of the alleged plea offer, involved credibility determinations that could not be resolved at the first stage of postconviction proceedings. In the present case, because we are able to resolve this issue based on the prejudice prong of Strickland, there are no credibility determinations at issue.
¶ 20 III. CONCLUSION
¶ 21 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.
¶ 22 Affirmed.