People v. Aquisto

2023 IL App (4th) 230043-U

• Court: Appellate Court of Illinois
• Decided: October 3, 2023
• Docket: 4-23-0043
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 230043-U FILED This Order was filed under October 3, 2023 Supreme Court Rule 23 and is NO. 4-23-0043 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County BRANDON AQUISTO, ) No. 18CF166 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Harris and Knecht concurred in the judgment.

ORDER ¶1 Held: Because prejudice from defense counsel’s erroneous legal opinion is unarguable, the summary dismissal of the petition for postconviction relief was justified.

¶2 In a bench trial, the circuit court of Livingston County found defendant, Brandon

Aquisto, guilty of drug offenses. He is serving sentences of imprisonment for those offenses. He

petitioned the court for postconviction relief. In his pro se petition, he claimed that defense counsel

had rendered ineffective assistance. The deficient performance, according to the petition, was

defense counsel’s act of agreeing with the court and the prosecutor that a sentence of imprisonment

for the charged offenses would be served at 75% (given the maximum amount of good-conduct

credit), whereas, actually, a prison sentence would be served at 50%. The court summarily

dismissed the petition, finding that it was frivolous or patently without merit. Defendant appeals. In our de novo review, we conclude that an essential element of ineffective assistance—

prejudice—is unarguable under the circumstances of this case. Therefore, we affirm the judgment.

¶3 I. BACKGROUND

¶4 In all five counts of the information, the date of the charged offense was June 6,

2018. Count I charged defendant with aggravated participation in methamphetamine

manufacturing (720 ILCS 646/15(b)(1)(B) (West 2018)), a Class X felony (id. § 15(2)). Count II

charged him with methamphetamine-related child endangerment (id. § 50(a)(1)), a Class 2 felony

(id. § 50(a)(2)). Count III charged him with possession of methamphetamine-manufacturing

materials (id. § 30(a)), a Class 2 felony (id. § 30(b)). Count IV charged him with unlawful delivery

of methamphetamine (id. § 55(a)(1)), a Class 2 felony (id. § 55(a)(2)(A)). Count V charged him

with unlawful use of property for the manufacture of methamphetamine (id. § 35(a)), a Class 2

felony (id. § 35(b)).

¶5 The parties appear to agree that because the amount of methamphetamine that the

police recovered was less than 100 grams, each day of good conduct in prison would reduce the

term of imprisonment by one day. See 730 ILCS 5/3-6-3(a)(2)(v), 2.1 (West 2018). If, on the other

hand, “the substance containing the controlled substance or methamphetamine” had been “100

grams or more,” the offender could “receive no more than 7.5 days sentence credit for each month

of his or her sentence of imprisonment.” Id. § 3-6-3(a)(2)(v). But the amount of substance in this

case was less than 100 grams. Therefore, a prison sentence would be served at 50% instead of

75%.

¶6 On May 30, 2019, the parties appeared for the scheduled bench trial. The prosecutor

asked the circuit court if it “was planning on the pretrial admonitions regarding offers.” The court

began so admonishing defendant. After explaining to him the minimum and maximum punishment

-2- for each of the five counts, the court asked him if he understood the range of penalties. He replied

in the affirmative.

¶7 The circuit court then asked the prosecutor:

“THE COURT: And, Mr. Yedinak, did the State enter into negotiations with

defense counsel?

MR. YEDINAK: We did, Your Honor.

THE COURT: And was an offer extended?

MR. YEDINAK: Yes, Your Honor.

THE COURT: What was that offer?

MR. YEDINAK: The original offer in the case, Your Honor, was 23 years

in the Illinois Department of Corrections. The last offer that was tendered to Mr.

Ripley [(defense counsel)] was 18 years in the Department of Corrections.

THE COURT: And is that at 50% good time?

MR. YEDINAK: There’s, one of the things I need to check on, Your Honor;

and I apologize. I forgot my code book. I believe Count [I] may be 85% or 75%,

but otherwise that was the offer. And I just want, I would need time to double check

that.

THE COURT: Okay. So I’m looking at my little cheat sheet here that says

participation in methamphetamine manufacturing is a 75%.

MR. YEDINAK: Yes. So Count [I] would be, Your Honor, 75%.

THE COURT: All right. I mean, would the code help you double check

that?

MR. RIPLEY: Judge, I would concede that it’s 75.

-3- THE COURT: Is it 75?

MR. RIPLEY: It is.

THE COURT: Okay. All right. So, Mr. Ripley, is that the last offer that you

received, 18 years?

MR. RIPLEY: It was, Judge. We had made a counteroffer to that which we

were not able to come to an agreement on.

THE COURT: So was the 18 year offer conveyed to [defendant]?

MR. RIPLEY: Yes.

THE COURT: And that’s the offer, the last offer you received from the

State, [defendant], is 18 years?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And you understand that’s at 75%?

THE DEFENDANT: Yes.

***

THE COURT: Okay. Now whether or not you accept this offer is your

decision. You should consult with your attorney, and I would encourage you to rely

on his advice. But ultimately in the end you decide whether to accept the offer or

not.

Do you understand that?

THE COURT: And, Mr. Ripley, I guess he didn’t say this; but I presume by

the fact that we’re going forward with the trial today and that a counteroffer was

made with no response—

-4- MR. RIPLEY: No, no. I won’t say there was no response from the State.

THE COURT: Oh, pardon me.

MR. RIPLEY: I’m sorry. If I misstated that, I apologize. For the record, the

State declined our counteroffer.

THE COURT: Gotcha.

MR. RIPLEY: Mr. Yedinak and I have spoken several times over the last

week, and I had come to him with what our final proposal was. He considered that

over the weekend and responded to me sometime Tuesday morning that they were

at their lowest number.

THE COURT: Okay. So, [defendant], then, I’m just confirming that you are

rejecting the State’s offer of 18 years.

THE DEFENDANT: Yes, Your Honor.”

¶8 In the ensuing bench trial, the circuit court found defendant guilty of all five

charged counts.

¶9 On October 31, 2019, the circuit court sentenced defendant to concurrent terms of

25 years’ imprisonment for count I and 7 years’ imprisonment for count IV. The sentencing order

noted that these prison terms were to be “served at 50%.”

¶ 10 Defendant took a direct appeal. On February 24, 2022, we affirmed the circuit

court’s judgment. People v. Aquisto, 2022 IL App (4th) 200081, ¶ 7.

¶ 11 On October 26, 2022, defendant filed a pro se petition for postconviction relief. (In

an attached affidavit, he explained that, “[d]ue to Covid-19 restrictions, mail delay, [and] a tactical

team shakedown of Hill Correctional Center,” he had been unable to get his petition “notarized

-5- and sent in [the] required time.”) Under the preprinted language of the petition, “Fully state here

how you were denied a fair trial,” defendant wrote:

“I *** rejected a plea offer of 18 years to be served at 75% based on

deficient advice of counsel and improper admonishment by the court of what count

I in the indictment was to [be] served at. (See Exhibit A). Having then stood trial

and was sentenced to 25 years under the correct statute that carries 50%, I was

denied effective Assistance of Counsel. But for the ineffective advice of counsel,

the corrected plea agreement of 18 years at 50% would have been presented to the

court, i.e., that I *** would have accepted the plea and also the court would have

accepted its terms, and that the conviction or sentence under the offer’s terms would

have been less severe than under the Judgment and Sentence that were in fact

imposed.”

The referenced exhibit A was the transcript of the plea-offer discussion, quoted in paragraph 7,

above. The other exhibit was exhibit B, a copy of the Supreme Court’s decision in Lafler v. Cooper,

566 U.S. 156. Those two exhibits were the only supporting materials attached to the petition. The

affidavit by defendant merely explained why the petition was late.

¶ 12 On November 29, 2022, the circuit court summarily dismissed the petition.

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 Within 90 days after a postconviction petition is filed, the circuit court may

summarily dismiss the petition if the court determines it is “frivolous or *** patently without

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2022). We review the summary dismissal de novo. People

v. Lewis, 2017 IL App (1st) 150070, ¶ 14.

-6- ¶ 16 “In the review of a first-stage postconviction petition, well-pled factual allegations

in a petition and its supporting evidence must be taken as true unless they are positively rebutted

by the record, but nonfactual and nonspecific assertions which merely amount to conclusions are

not sufficient.” Id. “Although defendant need only set forth the gist of a constitutional claim at this

stage and need not set forth the claim in its entirety,” the defendant must “clearly set forth the

respects in which his [or her] constitutional rights were violated” and must “attach affidavits,

records[,] or other evidence supporting the allegations” or, alternatively, give a valid excuse for

the omission of such supporting materials. Id.

¶ 17 The question at the first stage is whether the petition and its supporting materials

make an “arguable” claim that the defendant’s constitutional rights were substantially violated.

(Internal quotation marks omitted.) Id. ¶ 13. Thus, if the petition accuses defense counsel of having

rendered ineffective assistance, the question is whether “(i) it is arguable that counsel’s

performance fell below an objective standard of reasonableness and (ii) it is arguable that the

defendant was prejudiced.” (Emphases in original and internal quotation marks omitted.) Id. ¶ 16.

¶ 18 A claim of ineffective assistance in plea negotiations is made up of two elements,

the two-part test in Strickland v. Washington, 466 U.S. 668, 687 (1984): (1) deficient performance

and (2) resulting prejudice. People v. Hale, 2013 IL 113140, ¶ 15. To establish prejudice, the

defendant must provide more than his own “subjective, self-serving testimony” that, but for

defense counsel’s erroneous advice, he would have accepted the plea offer. (Internal quotation

marks omitted.) Id. ¶ 18. “Rather, there must be independent, objective confirmation that

defendant’s rejection of the proffered plea was based upon counsel’s erroneous advice, and not on

other considerations.” (Internal quotation marks omitted.) Id. Defendant “must also demonstrate a

reasonable probability that the plea would have been entered without the prosecution canceling it

-7- or the trial court refusing to accept it, if they had the authority to exercise that discretion under

state law.” (Emphasis and internal quotation marks omitted.) Id. ¶ 19. The reason why all these

demonstrations are necessary is that prejudice, in a claim of ineffective assistance, is “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” (Internal quotation marks omitted.) Id. ¶ 18.

¶ 19 Defendant’s self-serving assertion in his petition—that, but for defense counsel’s

mistake about good-conduct credit (see 730 ILCS 5/3-6-3(a)(2)(v) (West 2018)), defendant would

have accepted the State’s offer of 18 years—does not arguably establish prejudice. See Hale, 2013

IL 113140, ¶ 18. Instead of being an allegation of fact, this counterfactual assertion is a conclusion,

which we do not assume to be true. See Lewis, 2017 IL App (1st) 150070, ¶ 14. Nor does the

transcript attached to the petition establish arguable prejudice. Rather, it establishes that before

defense counsel mistakenly agreed that a prison sentence would have to be served at 75%,

defendant rejected the State’s offer of 18 years. Before the parties appeared for the bench trial—

before the circuit court, the prosecutor, and defense counsel arrived at their misguided

understanding that a prison sentence would be served at 75%—defendant made a counteroffer,

thereby rejecting the State’s offer.

¶ 20 The supreme court has explained:

“Although the application of contract law principles to plea agreements may

require tempering in some instances in order to satisfy concerns for due process,

plea agreements are nonetheless subject to traditional principles of contract law

absent such concerns. [Citations.] Pursuant to traditional principles of contract, the

legal effect of a counteroffer is the rejection of a standing offer. [Citation.] A

rejected offer cannot be revived by a later acceptance. [Citations.] When a

-8- defendant rejects a State offer, the parties go back to the drawing board. [Citation.]”

(Internal quotation marks omitted.) People v. Henderson, 211 Ill. 2d 90, 103-04

(2004).

In the record before us, we see no suggestion—let alone any supporting evidence (see 725 ILCS

5/122-2 (West 2022))—that before defendant made his counteroffer, defense counsel told him that

a prison sentence would have to be served at 75%. All we know from the record is that after the

counteroffer, defense counsel agreed with the circuit court and the prosecutor that the prison

sentence would have to be served at 75%.

¶ 21 To be sure, by so agreeing, defense counsel rendered deficient performance.

Because the amount of methamphetamine the police recovered was less than 100 grams, the prison

sentence would be served at 50% instead of 75%. See 730 ILCS 5/3-6-3(a)(2)(v) (West 2018).

Thus, the first element of ineffective assistance, deficient performance, is more than arguable. The

deficient performance, however, caused no apparent prejudice. Defendant could not have rejected

the State’s plea offer in reliance on defense counsel’s misguided concession, for by the time

defense counsel made the concession, there was no longer any plea offer to reject. See Henderson,

211 Ill. 2d at 103-04. Defendant had already rejected the offer by making the counteroffer. The

record appears to lack evidence that when defendant rejected the plea offer, defense counsel had

as yet given him any advice about good-conduct credit. Prejudice, therefore, is unarguable. See

Lewis, 2017 IL App (1st) 150070, ¶ 16. This essential element of ineffective assistance is missing.

See Hale, 2013 IL 113140, ¶ 17.

¶ 22 III. CONCLUSION

¶ 23 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 24 Affirmed.

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