2023 IL App (1st) 211537-U
No. 1-21-1537
Filed May 25, 2023
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) 18 CR 12291 ) EMMANUEL BOADU, ) Honorable ) Timothy J. Chambers, Defendant-Appellant. ) Judge, Presiding.
JUSTICE MARTIN delivered the judgment of the court. Presiding Justice Lampkin and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: Evidence was sufficient to prove defendant guilty of criminal sexual abuse beyond a reasonable doubt. The trial court did not abuse its discretion by denying defendant’s request for specific performance of a plea offer as a remedy for the State’s inadvertent discovery violation.
¶2 Resolution of this appeal is guided by the adage “no means no.” Defendant, Emmanuel
Boadu, was charged with various sex offenses in a seven-count indictment stemming from an
incident with D.D., a female college student: two counts of criminal sexual assault, one count of
attempted criminal sexual assault, and four counts of criminal sexual abuse. Following a bench
trial, defendant was convicted of three counts of criminal sexual abuse over his affirmative defense No. 1-21-1537
of consent. The trial court merged the counts and sentenced defendant to two years’ felony
probation, along with sex offender evaluation and treatment, sex offender registration, STD/HIV
testing, and a two-year civil no contact order.
¶3 On appeal, defendant contends that the evidence was insufficient to prove him guilty of
criminal sexual abuse beyond a reasonable doubt. Specifically, he argues the State failed to prove
force was used or threatened or that D.D. did not consent. Separately, defendant contends the trial
court erred in denying his request for specific performance of the State’s plea offer to simple
battery, a Class A misdemeanor, that he rejected before trial, as a remedy for the State’s failure to
disclose a recorded interview with D.D. in discovery. For the reasons that follow, we affirm. 1
¶4 I. Background
¶5 The evidence adduced at trial consisted of the testimony of the victim, D.D., admitted
exhibits, and stipulations. D.D. testified as follows. D.D. was participating in a summer academic
program at Northwestern University while on break from her studies at Baylor University in Texas.
Defendant and D.D. met by chance while walking in downtown Chicago. Shortly after, they began
communicating by text messages and telephone calls. They went on a few dates and one evening,
D.D. invited defendant to meet at her dormitory on the Northwestern University campus in
Evanston.
¶6 Defendant arrived at the dorm after midnight on July 28, 2018. He left his wallet and keys
in D.D.’s room before the two went to a common area where they watched a movie, talked, and
drank wine. After a while, defendant told D.D. that he was tired, and they returned to her dorm
room. D.D. expected the defendant to retrieve his wallet and keys and then be on his way. Instead,
once there, defendant laid down on D.D.’s twin-sized bed. At this time, D.D. decided to record her
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order. - 2 - No. 1-21-1537
interaction with defendant. She activated an audio recording application she had downloaded to
her iPad. D.D. testified that she did this as a “precaution” because she had never had a man in her
bedroom and her mother had advised her to do this to protect herself. The recording was played in
court. It and a transcript of the discernable dialogue were admitted into evidence and included in
the record before us. At trial, the court would pause the recording and allow D.D. to testify as to
what was occurring during various portions.
¶7 D.D. asked defendant what he was doing. Defendant said he wanted to spend the night, but
D.D. refused. D.D. left to use the bathroom and, when she returned, perceived that defendant was
pretending to be asleep. D.D. tickled defendant to “wake him up out of his fake slumber.”
Defendant tried to persuade D.D. to let him stay overnight. D.D. refused again and told defendant
that it was “too early [in their relationship],” and reminded him that they “had agreed to take things
slow.” The transcript shows that D.D. told defendant that he could not stay, said that he had to go
home, or used words to similar effect at least 10 times by this point.
¶8 “Things escalated quickly” from there. Defendant started kissing her and ignored her
requests to stop. Defendant started groping and kissing her breast. D.D. tried to remove his hand.
Defendant told her to stop. When she continued to resist, defendant tightened his grip and became
more forceful. Defendant was on top of D.D. by this point. She felt overwhelmed and scared. She
could not move from underneath the defendant. As she tried to push his arm away, he told her to
stop.
¶9 Defendant grew frustrated with D.D. and told her that he loved her. She replied that she
loved him, hoping that if she “told [defendant] what he wanted to hear [then] he would stop and
he would calm down.” Defendant’s tone became more aggressive. He told her to hold his penis
and she refused. Defendant then grabbed her hand and placed it on his penis. He then used his
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hand to move hers up and down. D.D. told defendant to stop and that she did not want to do this.
¶ 10 The transcript of their dialogue during this time reads as follows:
“D.D.: Emmanuel. No. Emmanuel. No. You have to go home. Emmanuel, don’t.
Emmanuel, you have to go home.
Defendant: (inaudible) I was hoping (inaudible).
D.D.: You have to go home. What are you doing?
Defendant: (Inaudible)
D.D.: No. No. No.
Defendant: You don’t want to be treated (inaudible).
D.D.: No.
Defendant: Stop what you’re doing, it’s fine.
D.D.: No. Emmanuel. No. No. (Moans) Okay. Okay.
Defendant: Yeah.
D.D.: Okay.
Defendant: Don’t touch me. I want to take care of you. Don’t touch my hand.
D.D.: Emmanuel, no. (Inaudible)
Defendant: Do you love me?
D.D.: Yes, I love you.
***
Defendant: Go and touch it.
D.D.: Emmanuel, no. I don’t want to.
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Defendant: Just go. Just go and touch it.
D.D.: No. Emmanuel, no.
Defendant: Come on. What you scared of d***? Hold it. I said hold it. Grab it. I said, grab
it. You don’t understand – grab it.
Defendant: I’m doing it because I love you. Come on. What’s wrong with you – you think
I’m doing cause I’m crazy or what? I do because I love you.
D.D.: You have – to go.”
Defendant: Come on, so chill out.
D.D.: Emmanuel, it’s three o’clock in the morning. You have to go home.
Defendant: Can you stop it? *** No. That’s what you trying to do. You’re trying to stop
me from loving you. You don’t want me to be touching you (inaudible). I want to touch
you. *** Stop grabbing my hand away.
D.D.: Emmanuel, stop. It’s time to go home.
Defendant: Relax.
D.D.: Emmanuel, you have to go.
Defendant: Just relax. What’s wrong with you?
D.D.: No, I don’t want to.
Defendant: Don’t want to what? So you trying to tell me I can’t have you?
D.D.: Yes. (Inaudible) cannot.
Defendant: Please, come on, baby. I don’t get it. What’s wrong?
D.D.: It’s time to go home.”
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Defendant: Then why you trying to push me away?”
¶ 11 Eventually, defendant got off D.D. and started to fall asleep. D.D. considered letting him
stay because he had stopped. Instead, she started arguing with defendant about trust and demanded
that he give her the password to his cellphone. She expected that he would not provide it and hoped
the argument would prompt him to leave.
¶ 12 After further conversation, defendant left to go to the bathroom. D.D. explained that she
decided not to leave at that time since she “felt [she] had successfully diffused everything.” She
discovered that her iPad had stopped recording and subsequently reactivated it upon defendant’s
return.
¶ 13 Defendant got on top of D.D. and started groping and sucking her breast. D.D. asked
defendant to stop and struggled to get away, but he grabbed her hand and held her down. Defendant
momentarily stopped when D.D. told him she was a virgin.
¶ 14 Defendant asked D.D. about her virginity and, after a while started groping her again. She
tried to stop him, but he held her left arm above her head and pinned her down. D.D. told defendant
she “wasn’t ready” and got up and turned on the lights. She testified that she was going to leave
the room but decided to slap defendant in the face multiple times because she was upset. She
claimed that defendant’s reaction to the slaps made her laugh and that she laughs when she is
uncomfortable or stressed.
¶ 15 D.D. then went downstairs to get campus security so they could remove defendant from
her room. The police eventually arrived and placed defendant in custody. The police collected
D.D.’s clothing, the wine bottles, and iPad. After being interviewed by the police, D.D. was taken
to the hospital where a sexual assault kit was collected.
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¶ 16 On cross-examination, D.D. testified that when she is heard on the audio recording telling
defendant, “Okay, okay,” she was trying to stop him from grabbing her breast so aggressively.
D.D. also explained that what sounded like moaning and heavy breathing was not sexual arousal
but resulted from her physical struggle to resist the defendant. D.D. acknowledged that she had
multiple opportunities to leave the room and summon security but did not do so.
¶ 17 D.D. was asked about an interview with an officer at the Northwestern University Police
Station. When she responded that the interview had been videotaped, defense counsel informed
the trial court that he was unaware of any such electronic recorded interview (ERI).
¶ 18 When the trial was continued, the parties conferred and agreed that the State had
inadvertently failed to tender the ERI to the defense in pretrial discovery. Defense counsel filed a
motion for discovery sanctions. He argued that the ERI would have affected his trial strategy,
particularly for counts 3 and 4, which were premised on acts D.D. claimed to have occurred when
her iPad was not recording. D.D.’s ERI was consistent with her trial testimony about those acts.
Counsel asserted that pretrial disclosure of the ERI would have also affected his advice to the
defendant about the State’s plea offer. As a remedy, counsel requested that the trial court order
specific performance of the misdemeanor plea offer that the State tendered prior to trial.
¶ 19 The State objected to specific performance of the prior plea offer, but it nolled counts 3
and 4: a count of attempt criminal sexual assault and a count of criminal sexual abuse. The trial
court denied defense counsel’s motion for discovery sanctions, ruling that “there was no intent on
the part of the State to withhold any evidence from the defense.” The court determined that any
prejudice to the defendant was cured by the State’s dismissal of counts 3 and 4.
¶ 20 When the trial resumed, stipulations were read into the record. These included that a sexual
assault kit was collected from D.D., a general exam uncovered no abnormalities, a genital exam
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was not performed, and a buccal swab standard was collected from the defendant. Additionally,
the parties stipulated that the defendant’s DNA was a match for a biological sample swab taken
from the right side of D.D.’s neck. The State rested.
¶ 21 Defense counsel moved for a directed finding of acquittal. The trial court granted the
motion as to the two counts of criminal sexual assault.
¶ 22 The parties then stipulated that, in the Spring following this incident, D.D. made assault
allegations against a professor at Baylor University, which she purported to have recorded on her
cell phone. D.D. claimed that the professor pushed her after she had gone to his office to complain
about his referral for academic discipline for plagiarism. The University investigated and
determined that she gave inconsistent and false statements, and her assault claim was unfounded.
¶ 23 Defendant chose not to testify.
¶ 24 The trial court found the defendant guilty of the remaining three counts of criminal sexual
abuse. The court remarked that it had “no doubt in [its] mind” that the State had proven the
defendant guilty beyond a reasonable doubt. The court subsequently denied defendant’s motion
for a new trial and sentenced him to two years’ felony probation, along with a sex offender
evaluation and treatment, sex offender registration, STD/HIV testing, and a two-year civil no
contact order. This timely appeal followed.
¶ 25 II. ANALYSIS
¶ 26 A. Sufficiency of the Evidence
¶ 27 Defendant contends the State failed to prove that he used or threatened force or disprove
his affirmative defense of consent beyond a reasonable doubt. When reviewing a challenge to the
sufficiency of the evidence, we must determine whether, after viewing the evidence in the light
most favorable to the State, any rational trier of fact could have found the essential elements of the
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crime beyond a reasonable doubt. People v. Cline, 2022 IL 126383, ¶ 25. The trier of fact
determines the credibility of witnesses, the weight to be given to their testimony, resolves conflicts
in evidence, and draws reasonable inferences from the evidence. People v. Sumler, 2015 IL App
(1st) 123381, ¶ 54. We will not substitute our judgment for that of the trier of fact on issues
concerning the credibility of witnesses and the weight of the evidence. People v. Siguenza-Brito,
235 Ill. 2d 213, 224-5 (2009). A criminal conviction will not be reversed unless the evidence is so
improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. Cline, 2022
IL 126383, ¶ 25.
¶ 28 Defendant was convicted of three counts of criminal sexual abuse pursuant to section
11-50(a)(1) of the Criminal Code of 2012 (Code) (720 ILCS 5/11-1.50(a)(1) (West 2014)). The
relevant portion of this section provides that a person commits criminal sexual abuse if the person
“commits an act of sexual conduct by the use of force or threat of force” Id. Under the Code
“Sexual conduct” means:
“any knowing touching or fondling by the victim or the accused, either directly or through
clothing, of the sex organs, anus, or breast of the victim or the accused, *** or any transfer
or transmission of semen by the accused upon any part of the clothed or unclothed body of
the victim, for the purpose of sexual gratification or arousal of the victim or the accused.”
720 ILCS 5/11-0.1 (West 2018).
¶ 29 When, as here, a defendant raises consent as an affirmative defense, the State has the
burden of proving lack of consent beyond a reasonable doubt. People v. Haywood, 118 Ill. 2d 263,
274 (1987). The Code defines “Consent” as:
“a freely given agreement to the act of sexual penetration or sexual conduct in question.
Lack of verbal or physical resistance or submission by the victim resulting from the use of
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force or threat of force by the accused shall not constitute consent. The manner of dress of
the victim at the time of the offense shall not constitute consent.” 720 ILCS 5/11-0.1 (West
2018).
The State, however, does not prove the offense of criminal sexual abuse by merely establishing
that the victim did not consent. People v. Mpulamasaka, 2016 IL App (2d) 130703, ¶ 74 (citing
Haywood, 118 Ill. 2d at 274). The State must also prove that the defendant used or threatened to
use force. Haywood, 118 Ill. 2d at 274 (“the State has a burden of proof beyond a reasonable doubt
on the issue of consent as well as on the issue of force.”).
¶ 30 “Force or threat of force” includes overcoming “the victim by use of superior strength or
size, physical restraint, or physical confinement.” 720 ILCS 5/11-0.1 (West 2018). “The element
of force refers to actions of the defendant that physically compel the victim to submit to the act of
sexual [conduct].” Mpulamasaka, 2016 IL App (2d) 130703, ¶ 74. “To prove force, there is no
definite standard establishing the amount of force the State must prove and each case must be
considered on its own facts.” People v. Gonzalez, 2019 IL App (1st) 152760, ¶ 38. However, the
force necessary to prove the criminal offense requires something more than the force inherent in
the sexual conduct itself. Id. When considering the evidence of force, courts may consider the size
and strength of the defendant and the victim as well as the place and conditions under which the
incident occurred. Id.
¶ 31 Although defendant challenges the sufficiency of the evidence as to both force and consent,
his argument on each issue is the same: D.D. consented to the sexual conduct, therefore, he did not
use or threaten force. Defendant relies on the audio recording, which he insists proves that D.D.
consented. Specifically, he points to portions where D.D. says, “Okay, okay,” and tells defendant
that she loves him. He also notes that D.D. had the chance to leave after the alleged abuse had
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occurred but remained in the room and spoke with defendant for more than an hour. What is more,
she started an argument about defendant’s phone password and referred to his communications
with other women. Defendant further submits that despite knowing she was recording their
interaction, D.D. never states that defendant is doing anything to force the acts of sexual conduct.
Above all, defendant emphasizes that D.D. can be heard moaning and breathing heavily, which he
asserts as proof that D.D. was sexually aroused. Defendant acknowledges that the trial court’s
assessment of D.D.’s credibility and the weight of the evidence is due deference, but he contends
that the audio recording makes the evidence so unreasonable, improbable, and unsatisfactory as to
justify a reasonable doubt of his guilt.
¶ 32 Even though defendant recognizes that we will not substitute our judgment for the trial
court, his arguments, to an extent, ask that we do so. Some aspects of the audio recording are open
to interpretation. D.D. testified that when she said, “Okay, okay,” and told defendant that she loved
him, she was trying to make defendant relent. She further explained that she did not leave her room
at earlier opportunities because she felt that she had diffused the situation. Likewise, D.D.
explained that the password argument was a strategy to prompt defendant to leave. And she
attributed her moaning and heavy breathing to physical exertion to resist the defendant who was
on top of her and grasping her hand. See Mpulamasaka, 2016 IL App (2d) 130703, ¶ 74 (“Force
can be established by evidence that the defendant used his bodily inertia to prevent the victim from
disengaging.”). Defendant asserts that D.D. explanations are “post hoc recharacterizations” of
evidence that show her consent and the lack of force. By arguing so, however, defendant demands
that we interpret the evidence as he wishes. That would amount to retrying the defendant and
substituting our judgment for the trial court. The trial court was free to accept or reject all or part
of D.D.’s testimony. People v. Corral, 2019 IL App (1st) 171501, ¶ 85. So, even if the trial court
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found some of D.D.’s testimony incredible, it was not required to find her wholly incredible.
People v. Cunningham, 212 Ill. 2d 274, 283 (2004). Moreover, her explanations, which defendant
calls “post hoc recharacterizations,” were not so unreasonable, improbable, and unsatisfactory that
the trial court could not accept them. The trial court was in the best position to judge D.D.’s
credibility. Likewise, “[t]he question of whether force or threat of force was used is best left to the
trier of fact who heard the evidence and observed the demeanor of the witnesses.” Gonzalez, 2019
IL App (1st) 152760, ¶ 38. We will not substitute our judgment for the trial court on these issues.
¶ 33 Nevertheless, defendant seems to argue that the audio recording is not open to
interpretation. Rather, he contends that the recording so clearly evinces D.D.’s consent that he
cannot be guilty of criminal sexual abuse. We disagree.
¶ 34 Defendant argues that the audio recording reveals there was no force since D.D. never
made any contemporaneous statement that defendant was using force. It was not what D.D. said,
however, that shows he was using force: it was the defendant’s own words. Defendant tells D.D.,
“Stop what you’re doing. *** Don’t touch me. *** Don’t touch my hand.” He later exclaims,
“That’s what you[‘re] trying to do. You’re trying to stop me from loving you. You don’t want me
touching you. *** I want to touch you. *** Stop grabbing my hand.” Thus, he acknowledged that
D.D. was physically resisting him while he was touching her. At another point, defendant says,
“Hold it. I said hold it. Grab it. I said, grab it. I said, grab, it.” Defendant’s repeated commands
indicate D.D. was not touching his penis of her own volition. Then, defendant puts a finer point of
what is happening when he says, “I’m doing it because I love you.” What was he doing? Recall
that defendant does not deny that he touched her breast or her hand with his penis. Since that
occurred while D.D. was resisting him and not heeding his commands, which his words show, it
follows that defendant did so by overcoming D.D. with superior physical strength; that is, force.
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Also recall that, all the while, D.D. is saying, “No,” “I don’t want to,” and “You have to go.”
Although physical resistance or demonstrative protestations are not necessary to prove that a
victim was forced (Mpulamasaka, 2016 IL App (2d) 130703, ¶ 74), the repeated and unmistakable
presence of both in this case are strong indicia that D.D. was forced.
¶ 35 Similarly, we reject defendant’s suggestion that D.D. saying “no” in the audio recording
merely shows hesitance or ambivalence while “she is consenting by her nonverbal reactions to the
contact.” D.D. tells defendant to leave or “go home” at least 25 times before or while the abuse
occurs. She was very clear that he was not permitted to stay, and she had no intention of sexual
conduct with the defendant that night as she insisted they “take things slow.” There was no
equivocation. Just before and during the abuse, D.D. said “no,” “stop,” “I don’t want to,” or words
to similar effect at least 20 times by our count—hardly ambivalence. To be sure, defendant supplies
the evidence that D.D. is not consenting when he asks, “So you trying to tell me I can’t have you?”
and she answers, “Yes.” Contrary to defendant’s interpretation, the audio recording gives clear
evidence, including the defendant’s own words, to show that D.D. did not consent. No “nonverbal
reaction,” whatever that means, could be reasonably understood to negate her repeated
unambiguous statements. No doesn’t mean maybe. No doesn’t mean convince me. No means no.
¶ 36 We find that the evidence was sufficient for a reasonable fact finder to find, beyond a
reasonable doubt, that defendant used force and that D.D. did not consent.
¶ 37 B. Discovery Violation
¶ 38 Defendant finally contends the trial court erred by denying his request for specific
performance of a plea offer, as a remedy for the State’s inadvertent pretrial discovery violation.
Defendant argues he was prejudiced by his inability to review the ERI prior to trial because it
affected his strategy and his decision whether to accept the State’s plea offers.
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¶ 39 “The goals of discovery are to eliminate surprise and unfairness and to afford an
opportunity to investigate. [Citation]. Discovery sanctions are designed to further these goals and
to compel compliance rather than to punish. [Citation].” People v. Rubino, 305 Ill. App. 3d 85, 87
(1999).
¶ 40 Illinois Supreme Court Rule 415(g)(i) authorizes a trial court’s imposition of sanctions for
a party’s inadvertent failure to comply with discovery orders. Ill. S.Ct. R. 415(g)(i) (eff. Oct. 1,
1971); Rubino, 305 Ill. App. 3d at 87. The correct sanction to be applied for a discovery violation
is a decision resting within the discretion of the trial court whose decision will not be disturbed
absent a showing of prejudice or surprise. People v. Carr, 149 Ill. App. 3d 918, 929 (1986).
¶ 41 In this case, we cannot find that defendant was surprised or prejudiced. The record reveals
that approximately a year prior to trial, as part of the original discovery, the State tendered a police
report that included information that an officer had conducted an audio-videotaped interview with
D.D., which was referenced in a supplemental report. The supplemental report contained a written
summary of the recorded ERI. Thus, defendant was on notice of the substance of the ERI well in
advance of trial and he cannot show surprise. In addition, the defendant was not prejudiced since
the trial court gave defendant approximately two weeks to review the actual ERI before the trial
resumed. Moreover, any potential prejudice was cured when the State nolled counts 3 and 4.
Defendant’s claimed prejudice related solely to those counts.
¶ 42 We also find that since there was no plea agreement, specific performance cannot be
ordered. “In the absence of a guilty plea, or a defendant’s surrendering of a constitutional right in
reliance on the plea agreement, specific performance is not available.” People v. Budinger, 230 Ill.
App. 3d 279, 286 (1992).
¶ 43 Here, the record shows that defendant rejected three separate pretrial plea offers, each of
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which would have resulted in only a misdemeanor conviction. On January 20, 2021, the State
tendered an offer to reduce the charges to misdemeanor battery. Defendant rejected the offer and
was given admonishments pursuant to People v. Curry, 178 Ill. 2d 509 (1997). On April 26, 2021,
the State renewed its offer to reduce the charges to a misdemeanor and offered probation with sex
offender treatment. Defendant rejected that offer as well. The State again, on July 14, 2021,
renewed its offer to reduce the charges to a misdemeanor with 18 months supervision. Defendant
was again given Curry admonishments and declined the offer. Thus, as the record shows, there
was never an accepted plea offer and therefore a plea agreement to be enforced.
¶ 44 The cases cited by defendant are distinguishable and do not support his contention that the
correct remedy for the discovery violation was specific performance of the misdemeanor plea
offers. Lafler v. Cooper, 566 U.S. 156 (2021) and Curry both concern claims of ineffective
assistance of counsel related to plea offers. See People v. Hale, 2013 IL 113140, ¶ 19. In Lafler,
the issue was whether the petitioner was prejudiced by counsel’s advice to reject a plea offer and
proceed to trial. Lafler, 566 U.S. at 160. In Curry, our supreme court determined that the defendant
was denied effective assistance during plea negotiations when counsel incorrectly informed
defendant about mandatory consecutive sentencing. Curry, 178 Ill. 2d at 536-37. This appeal does
not involve allegations of ineffective assistance of counsel during plea negotiations.
¶ 45 In sum, we find the trial court did not abuse its discretion by denying defendant’s request
for specific performance of a plea offer as a remedy for the State’s inadvertent discovery violation.
¶ 46 III. CONCLUSION
¶ 47 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 48 Affirmed.
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