2021 IL App (1st) 160060-U No. 1-16-0060 THIRD DIVISION JANUARY 27, 2021
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. ) No. 12 CR 8183 ) DYSHAWN BROWN, ) Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.
ORDER
¶1 Held: The trial court’s judgment summarily dismissing defendant’s postconviction petition is reversed. The petition states the gist of a claim defendant’s plea was involuntary where defendant was unaware of his sentencing rights as a juvenile under the eighth amendment; defendant accepted a 30-year plea agreement after the trial court admonished defendant he faced a 20-60 year sentence, however de facto life sentences of 40 years or more are unconstitutional without a finding of depravity as subsequently determined by the United States Supreme Court in Miller v. Alabama.
¶2 Pursuant to a negotiated guilty plea, defendant, Dyshawn Brown, was convicted of first
degree murder and sentenced to 30 years’ imprisonment. He appealed the summary dismissal of No. 1-16-0060
his postconviction petition. He contended he stated arguable claims that his plea was involuntary
because (1) counsel rendered ineffective assistance in the guilty-plea proceedings, and (2) his
plea was based upon his coerced confession and counsel was ineffective for not litigating a
motion to suppress that confession. Defendant also contended that he stated an arguable claim
that he was deprived of the benefit of the bargain on his negotiated plea by not being duly
admonished regarding mandatory supervised release (MSR). We affirmed. Defendant filed a
petition for rehearing from that judgment and later a motion to file a supplemental petition for
rehearing. We granted defendant’s motion for leave to file a supplemental petition and ordered
the State to respond. For the following reasons, we now reverse the trial court’s judgment
summarily dismissing defendant’s postconviction petition and remand for second-stage
postconviction proceedings.
¶3 BACKGROUND
¶4 The State charged defendant with first degree murder for allegedly intentionally or
knowingly killing Lawrence Wilson on or about August 7, 2011, while defendant was armed
with, and personally discharged, a firearm. Defendant was 15-years old at the time of the
offense. The same indictment charged Anthony Pettye with first degree murder but the record
does not include the allegations against him. An earlier indictment, 11 CR 14421, charged
defendant, Devonte Lamb, and Desmond Smart with the first degree murder of Wilson but was
superseded in June 2012.
¶5 In December 2011, on the State’s motion, the trial court ordered buccal swabs from
defendant, Lamb, and Smart. In January 2012, the State notified defendant that evidence
swabbed from the pump and stock of a particular shotgun would be consumed in DNA testing.
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¶6 In April 2012, counsel filed a motion to suppress defendant’s statements claiming that, in
questioning after his arrest on August 8, 2011, he was unable to understand his Miranda rights
“due to [his] physical, psychological, mental, education, emotional, and/or psychological state,
capacity and condition.” He also claimed that his statements were the “result of psychological
and mental coercion” and confrontation “with certain material misrepresentations.”
¶7 Also in April 2012, at the State’s behest, the trial court ordered a behavioral clinical
examination (BCX) of defendant to determine whether he was capable of understanding Miranda
warnings. In May 2012, psychiatrist Dr. Nishad Nadkarni of the court’s Forensic Clinical
Services reported to the court that he examined defendant and concluded to a reasonable degree
of psychiatric certainty that defendant was capable of comprehending Miranda warnings at or
about the time of his arrest.
¶8 On June 11, 2012, the original indictment was superseded. Counsel entered defendant’s
not-guilty plea and asked the trial court for a plea conference. Defendant acknowledged that he
wanted the conference and signed a written request for a pretrial conference. After the
conference, the case was continued to July 2.
¶9 On July 2, 2012, counsel told the trial court that defendant was “no longer interested in” a
plea, which defendant confirmed. Counsel noted that he had a pending motion to suppress. The
State moved for specificity on the motion to suppress, noting that defendant’s statement was on
video. Defense counsel stated that he was not alleging “any acts outside of the video.”
Defendant swore that the allegations in the motion to suppress were true to the best of his belief
and knowledge. The case was continued to July 26 for a hearing on the motion to suppress.
¶ 10 On July 26, 2012, the State told the trial court that the parties reached a plea agreement
for 30 years imprisonment. Without objection, the State amended the indictment to remove the
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allegation that defendant was armed with, and had personally discharged, a firearm during the
first degree murder of Wilson. The court read the amended charge, and defendant agreed that he
was pleading guilty to that charge. The court admonished him that he “could be sentenced
anyplace from a minimum of 20 to a maximum of 60 years with three years mandatory
supervised release” and no probation or conditional discharge. Defendant said that he
understood. The court described defendant’s right to a jury trial. Defendant acknowledged the
admonishments and signed a jury waiver. The court described defendant’s rights in a trial,
including his rights to remain silent, present evidence, and cross-examine witnesses. Defendant
said that he understood and was waiving those rights. Defendant denied that any promises or
agreements other than the plea agreement had been made to him, he denied that “anybody forced
[him] to plead guilty,” and he agreed that he was pleading guilty of his own free will.
¶ 11 The State recited the factual basis for the plea, after which counsel stipulated thereto and
defendant swore that it was true to the best of his belief and knowledge. Defendant was with
Lamb and Smart at Pettye’s apartment on the night in question when Pettye offered them money
to kill a Gangster Disciples member. Pettye told defendant to do it, and he agreed. The four men
left the apartment and asked a passerby who had marijuana to sell. The man – Wilson – said that
he had some. They believed him to be a Gangster Disciple, so they told him they needed to get
money and went some distance away. A short time later, Lamb beckoned Wilson towards the
four men, and defendant shot Wilson in the chest as he approached. The four men returned to
Pettye’s apartment. Wilson died of his chest injuries.
¶ 12 The trial court accepted defendant’s plea, finding that he understood the charge and
sentencing he faced, and was pleading guilty voluntarily and knowingly. Defendant waived his
right to a presentencing investigation, and the State acknowledged that he had no prior
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convictions. The court asked defendant if he wanted to make a statement, and he said “Sir, could
I – no.” The court then sentenced defendant to “30 years in [prison], three years mandatory
supervised release, credit for 353 days.” The mittimus also stated that defendant’s sentence
included three years’ MSR in addition to 30 years’ imprisonment. Counsel withdrew the motion
to suppress, telling the court that he discussed the withdrawal with defendant, and defendant said
“yes” when asked if he was “okay” with the withdrawal. The court informed defendant of his
appeal rights, which he said he understood.
¶ 13 Defendant filed the instant pro se postconviction petition in August 2015. The petition
alleged defendant’s confession was involuntary because as a 15-year-old, police coerced his
confession by using his mother as a violent and threatening interrogator while defendant was
intoxicated on marijuana barefoot, and tied to a chair. Defendant also claimed that his right to
remain silent was violated because, during his interrogation, he repeatedly expressed his desire to
go home but questioning continued. He also claimed that “the detective persisted in efforts to
wear down my resistance and make me change my mind with constant questioning.” He claimed
that he was questioned for several hours while handcuffed and wearing no socks or shoes. His
mother attended his interrogation but “became more and more aggressive and hostile *** issuing
many threats, vile profanity, and promises.” The police made “the offer of leniency” including
by observing that at age 15 he was still a minor. He claimed that his confession was not
voluntary because he was a juvenile, was intoxicated from alcohol and marijuana, and was
threatened by his mother and “mentally coerc[ed]” by the detectives.
¶ 14 Defendant also claimed that counsel was ineffective for not presenting exculpatory
evidence that defendant’s DNA was excluded, and a codefendant’s DNA could not be excluded,
as being present on the murder weapon. He claimed that he would not have pled guilty had he
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known of that evidence but counsel never informed him of it, and that counsel had told him that
“all of the evidence is against” him. He claimed that counsel was ineffective for not filing a
motion to suppress his statements, for telling him that codefendants had agreed to testify against
him “when they didn’t,” and for threatening to withdraw as counsel if he did not plead guilty
“because of all ‘the evidence against you.’ “ He claimed actual innocence based on the DNA
evidence and the involuntary nature of his confession. He claimed that his MSR term extends
his sentence beyond the agreed 30 years. Lastly, he claimed that the statute by which his case
was automatically transferred to criminal court (rather than juvenile court) is unconstitutional.
¶ 15 Attached to the petition was defendant’s affidavit generally verifying the allegations of
the petition. He did not state in his petition or affidavit how he knew that codefendants had not
agreed to testify against him, nor did he attach an affidavit from any codefendant. The only
other affidavits attached were from Nicole Brown. Nicole averred that she knew defendant was
intoxicated when she saw him at the police station, recognizing the change in his mannerisms
and speech. She asked the detectives for a drug test but they did not acknowledge her request.
Defendant was “shaking cold with no shoes or socks on, [and] was handcuffed to a chair.”
Nicole averred that she was attending court for defendant’s case and asked defendant’s counsel
for his opinion of the case. Counsel told her that, if defendant lost, he faced a prison sentence of
45 years to life. He told her that Lamb and Smart had agreed to testify against defendant, and he
did not tell her that defendant would have to testify against Pettye. Counsel advised Nicole that
defendant should “take the plea.”
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¶ 16 Also attached to the petition were selected portions 1 of the transcript of defendant’s
August 2011 interrogation, in which defendant answered questions about the events of the night
in question. Throughout the transcript, defendant’s mother exhorted him, sometimes in vulgar
language, to be forthcoming and tell the truth rather than face imprisonment for someone else’s
crime. Defendant’s mother threatened him multiple times, and at one point the detective
questioning defendant asked her to “stop threatening him.” In the transcript, defendant at first
implicated Pettye as the shooter and denied knowing what Pettye intended to do, but the
detective and defendant’s mother told him that they did not believe him. Defendant then
admitted that he knew Pettye had set out to kill a Gangster Disciples member. When the
detective and defendant’s mother again doubted his account and urged him to tell the truth,
defendant repeated his account that Pettye shot Wilson. When the detective and defendant’s
mother again doubted his account, he offered to testify against Pettye. He then repeatedly
expressed his desire to go home and insisted that he had given a true and full account. When
defendant’s mother asked him if Pettye had threatened him, defendant said that he already knew
that the others were going to blame him. The detective and defendant’s mother again exhorted
him to tell the truth. Subsequent pages of the transcript are absent, until defendant and his
mother are marking and initialing a photograph. The transcript ends with defendant asking how
long a sentence he faces and the detective replying “Can’t say, you’re 15 years old, I don’t
know” and “Tell the truth (inaudible) judge I don’t know. (inaudible) show you some leniency.”
1 The portion attached to the petition begins on page 25 and ends at page 36, recommences at page 41 and ends at page 56, and concludes with pages 67-68. -7- No. 1-16-0060
¶ 17 Lastly, attached to the petition were copies of a court order and police and laboratory
reports related to testing DNA from defendant and three redacted 2 codefendants or suspects
against DNA from a shotgun. The results of the testing, reported in February 2012, were that
defendant and two redacted suspects did not contribute to the DNA on the shotgun and a
redacted suspect could not be excluded as a source of the DNA on the shotgun.
¶ 18 The trial court summarily dismissed the petition in October 2015. Regarding the right to
remain silent, the court noted that defendant was relying upon People v. Jackson, 180 Ill. App.
3d 78 (1989), where this court found that a defendant invoked that right by saying that she
wanted to stop talking and go home. However, defendant merely said that he wanted to go home,
which the court found to not be an unequivocal invocation of the right to remain silent. The
court found that defendant’s confession was voluntary, noting that his mother was present,
finding that handcuffing him was not unreasonable given the nature of the crimes at issue, and
finding from the transcript of the interrogation that the officer engaged in no “abusive or
coercive” behavior, made no promises or threats, and used no “trickery.” As to counsel being
ineffective for not filing a motion to suppress, the court noted that counsel filed such a motion.
As to the claim that defendant’s plea resulted from counsel’s erroneous advice and threat to
withdraw, the court found that counsel “was being honest with” defendant that his case “was
difficult” and noted that defendant denied in the plea hearing that counsel pressured him into
pleading guilty. The court found no legal merit in defendant’s MSR claim or challenge to the
automatic transfer statute, noting that the latter had been found constitutional by this court.
Lastly, as to defendant’s actual-innocence claim, the court found that the DNA report was
2 Every instance of the names of the codefendants or suspects other than defendant in the attached order and reports is obscured with a black box. -8- No. 1-16-0060
available five months before his plea and was not exonerative because the absence of defendant’s
DNA on the fatal weapon did not “absolve” his statements admitting to participating in the
shooting.
¶ 19 On appeal, defendant contends that his petition stated various arguable claims and should
not have been summarily dismissed. He contends that his plea was involuntary based on two
legal theories: (1) counsel rendered ineffective assistance in misinforming him of the strength of
the State’s case and in threatening to withdraw if he did not plead guilty; (2) his plea was based
upon his coerced or involuntary confession. Defendant also contended he was deprived of the
benefit of the bargain on his negotiated plea by not being duly admonished regarding MSR.
¶ 20 Defendant’s supplemental petition added as a theory in support of his claim his plea was
involuntary an argument that he pleaded guilty under threat of a now unconstitutional sentence of
up to 60 years’ imprisonment without consideration of his youth and its attendant circumstances.
The State responded defendant waived that argument as untimely and that it lacked substantive
merit.
¶ 21 ANALYSIS
¶ 22 A postconviction petition may be summarily dismissed within 90 days of its filing if “the
court determines the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2)
(West 2016). A petition may be summarily dismissed if it has no arguable basis in law or fact
because it relies on an indisputably meritless legal theory or a fanciful factual allegation, or it is
substantially incomplete because it does not include objective or independent corroboration of its
allegations. People v. Allen, 2015 IL 113135, ¶¶ 24-26. Regarding the latter, a defendant raising
claims outside the record must either attach evidence beyond his own verification of the petition,
such as affidavits, supporting those claims or explain why such evidence is not attached. 725
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ILCS 5/122-2 (West 2014); Allen, ¶¶ 26-27. At the first stage, documented factual allegations
are construed liberally and accepted as true unless affirmatively refuted by the record. People v.
Brown, 2017 IL 121681, ¶ 27; Allen, ¶¶ 25-26. We review de novo the summary dismissal of a
postconviction petition. Allen, ¶ 19.
¶ 23 Defendant initially argued on appeal that his confession was coerced and would have
been suppressed because of (1) his age, (2) his lack of experience with law enforcement, (3) the
physical conditions of his interrogation, and (4) his intoxication. He then argued that the conduct
of his mother supports his claim his statement was coerced. As noted above, after this court
issued its initial Order affirming the trial court’s summary dismissal of defendant’s pro se
postconviction petition defendant filed a petition for rehearing (PFR) pursuant to Illinois
Supreme Court Rule 367 (eff. Nov. 1, 2017). While defendant’s PFR was pending in this court
defendant filed a motion to allow supplemental briefing on the PFR to cite additional authority in
support of an additional theory in support of his claim that his plea was involuntary. Specifically
defendant sought to cite People v. Parker, 2019 IL App (5th) 150192, a case which was decided
while defendant’s petition was pending, to argue that defendant’s plea was involuntary because it
was based on the threat of a now-unconstitutional sentence; that is, the possibility of 60 years’
imprisonment without consideration of the attendant circumstances of defendant’s youth as
required by the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460
(2012) and our supreme court’s decisions in People v. Reyes, 2016 IL 119271 and People v.
Buffer, 2019 IL 122327.
¶ 24 In Miller, the United States Supreme Court held “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole for juvenile
offenders.” Miller, 567 U.S. at 479. Courts must now “take into account how children are
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different, and how those differences counsel against irrevocably sentencing them to a lifetime in
prison.” Id. at 480. The court noted that “appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon.” Id. at 479. In Reyes, our supreme court held that
Miller applies to “a mandatory, de facto life-without-parole sentence.” Reyes, 2016 IL 119271, ¶
10. A “de facto life-without-parole sentence” is one under which the defendant “will most
certainly not live long enough to ever become eligible for release” or an “unsurvivable prison
term.” Id. ¶¶ 9-10. Finally, in Buffer, our supreme court held that for juveniles, “a prison
sentence of [more than] 40 years *** constitute[s] a de facto life sentence in violation of the
eighth amendment.” Buffer, 2019 IL 122327, ¶ 41.
¶ 25 Defendant asserts he should now be allowed to argue in support of his postconviction
petition that the combination of these authorities renders his plea involuntary because defendant
pleaded guilty under the threat of an unconstitutional sentence. Again, that threatened sentence
was more than 40 years’ imprisonment absent any consideration of defendant’s “youth and its
attendant characteristics.” Stated differently, defendant argues he pleaded guilty based on a
threatened sentence of up to 60 years in prison regardless of defendant’s “age at the time of the
offense, *** particular immaturity, impetuosity, *** failure to appreciate risks and
consequences; ***[his] family and home environment; *** peer pressures that may have affected
him; *** incompetence, *** inability to deal with police [or] “his incapacity to assist his own
attorneys.” See People v. Holman, 2017 IL 120655, ¶ 46. See also 730 ILCS 5/2-4.5-105(a)
(West 2018). Defendant now asserts he would not have pleaded guilty in exchange for a 30-year
sentence had he known that 40 years’ imprisonment was the maximum the court could impose
unless the court found that defendant’s conduct, at 16-years old, “showed irretrievable depravity,
permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.”
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People v. Holman, 2017 IL 120655, ¶ 46. Therefore, defendant argues, he has “stated the gist of
a claim that he was subjected to an unfair plea proceeding under Miller and Buffer” and the trial
court’s judgment summarily reversing his postconviction petition should be reversed and the
cause remanded for second stage postconviction proceedings.
¶ 26 The State argues defendant is too late. The State does not dispute that defendant’s pro se
postconviction petition argued his plea was involuntary (for different reasons) but asserts that
defendant had to argue the involuntariness of his plea based specifically on “the threat of a now
unconstitutional de facto life sentence” either in his initial pro se petition or in defendant’s
opening brief on appeal from the summary dismissal of that petition (unless the State’s response
brief invited the argument—which it contends did not). In support of that position the State
argues “that where [defendant] did not challenge the statutory sentencing range as
unconstitutional in his [postconviction] petition, his claim cannot be raised” in proceedings on a
petition for rehearing (1) under the Post-Conviction Hearing Act or (2) Illinois Supreme Court
Rule 341(h)(7) (eff. May 25, 2018).
¶ 27 On the merits of defendant’s claim the State argues defendant has failed to “set forth the
gist of a constitutional claim where his sentence was well within constitutional guidelines.” The
State argues defendant “cannot show that he received a life sentence ***, natural or de facto,
where his aggregate sentence was less than 40 years’ imprisonment;” therefore, defendant’s
sentence does not violate Buffer. Finally, the State argues that Buffer “is totally unrelated to the
trial court’s accurately informing [defendant] that he was subject to a potential 20 to 60-year
sentence for first degree murder.”
¶ 28 In support of his position that he can raise this argument defendant relied upon the
decision in Parker, which defendant contends involves a “nearly identical” claim to his own. In - 12 - No. 1-16-0060
Parker, the appellate court reversed the trial court’s judgment denying the defendant leave to file
a successive postconviction petition. Parker, 2019 IL App (5th) 150192, ¶ 1. In Parker the
State charged a 16-year old defendant with first degree murder; and the defendant in Parker, like
defendant here, entered a negotiated plea of guilty. Id. ¶¶ 2-3. The State in Parker agreed to ask
for a sentence of imprisonment not to exceed 50 years. Id. ¶ 3. At the plea hearing the trial court
admonished the defendant in Parker that “the possible sentencing range was 20 to 60 years’
imprisonment or, under certain circumstances, life imprisonment.” Id. Then again at the
sentencing hearing the trial court in Parker advised the defendant that “he could have been
sentenced to life imprisonment or 20 to 60 years’ imprisonment.” Id. ¶ 4. The trial court
sentenced the defendant to 35 years in prison. Id.
¶ 29 The Parker defendant subsequently filed a motion for leave to withdraw his guilty plea
“contending that he entered his guilty plea without sufficient understanding and contemplation of
the serious nature of the consequences of entering a plea, that he felt pressured to enter his guilty
plea by the advice that he received from his parents, and that his counsel briefly discussed the
plea offer with him in the hallway of the courthouse while he was shackled and under guard, thus
allowing him no privacy or sufficient time to discuss the offer;” but the defendant withdrew that
motion at the hearing thereon after being advised by the trial court that withdrawing his guilty
plea could result in a sentence of 20 to 80 years’ or life imprisonment after a trial. Id. ¶ 5.
“Almost nine years later *** the defendant filed a pro se petition for postconviction relief
[arguing, in pertinent par, that] *** he was coerced into entering a guilty plea by his counsel and
parents where his plea was based on a misrepresentation of the possible sentencing range.” Id. ¶
7. The appellate court affirmed the dismissal of the defendant’s initial postconviction petition at
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the second stage of postconviction proceedings on the grounds the initial petition was not timely
filed. Id. ¶ 8.
¶ 30 Then, 14 years after the trial court denied the defendant’s motion to reconsider the
sentence, the defendant filed a motion for leave to file a successive postconviction petition
arguing in part that his sentence, “without consideration of his youth and its attendant
characteristics, amounted to a de facto life sentence in violation of the eighth amendment *** as
forth in *** Miller.” Id. ¶ 9. The trial court denied the defendant’s motion for leave to file a
successive postconviction petition. Id.
“With regard to the Miller claim, the court noted that Miller stood for the
proposition that a mandatory life sentence for a juvenile, where a trial court had
no discretion to consider mitigating factors, violated the eighth amendment. The
court found that Miller was inapplicable because the defendant did not receive a
mandatory life sentence. The court further concluded that the defendant’s claim
that his 35-year sentence amounted to a de facto life sentence was frivolous
because Illinois courts had upheld life sentences for juveniles as constitutional
where the trial court had discretion to consider mitigating factors. [Citation.] In
addition, the court noted that the defendant’s age was considered as a mitigating
factor at his sentencing.” Id.
The defendant appealed the denial of his motion for leave to file a successive postconviction
petition. Id.
¶ 31 On appeal the defendant, similarly to defendant here, filed a motion for leave to cite
additional authority. In Parker, however, the defendant sought and was granted leave to cite
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Buffer as additional authority, which the appellate court found “dispositive to an issue the
defendant raised on appeal.”. Id. ¶ 10. In Parker,
“the defendant concede[d] that Buffer is adverse authority for his argument
that his 35-year prison sentence constituted a de facto life sentence. However, he
contends that Buffer supports his related argument[] that he should be allowed to
challenge his guilty plea through a successive postconviction petition because he
would not have pled guilty if he had understood the implications of the eighth
amendment, [and] that he should be entitled to a new sentencing hearing where
the trial court failed to consider his youth and its attendant characteristics when
imposing the sentence.” Id. ¶ 16.
The defendant further argued that
“[h]e asserted that he met the cause and prejudice test to file a successive
postconviction petition because Reyes and Buffer had not been decided when he
filed his initial postconviction petition and the application of Buffer changed the
applicable sentencing range and eliminated his justifications for entering a guilty
plea—i.e., to avoid a natural-life sentence and for the State’s recommendation to
cap the sentence at 50 years—as neither sentence was constitutionally available
absent evidence of incorrigibility.” (Emphasis added.) Id.
¶ 32 The Parker court found the defendant in that case had demonstrated cause because
Reyes and Buffer had not been decided when he filed his initial postconviction petition and that
the defendant had demonstrated prejudice because “his guilty plea was influenced by the State’s
sentencing recommendation and the repeated admonishments that he could receive a life
sentence.” Id. ¶ 18. As to the latter, the defendant in Parker argued, in part, that “he would not
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have pled guilty *** in exchange for a sentencing cap of 50 years if the guidelines set forth in
Buffer were established at the time that he entered his guilty plea.” Id. The defendant further
argued that “the State’s offered sentencing cap of 50 years provided little to no incentive for him
to plead guilty, as a 50-year sentence would constitute a de facto life sentence under Buffer.” Id.
The Parker court found both arguments persuasive and reversed the trial court’s judgment
denying the defendant’s motion for leave to file a successive postconviction petition. Id.
¶ 33 In this case, defendant argues “the same result reached by the court in Parker is mandates
in this case.” Defendant argues the same threat of a sentence in excess of 40 years was present in
this case—regardless of whether the trial court admonished him he could receive life
imprisonment or 60 years’ imprisonment—and that he too would not have pleaded guilty had he
known of the Buffer guidelines at the time of his plea. On the merits of defendant’s claim, we
agree defendant has stated the gist of a constitutional claim that his plea was involuntary.
“The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 (West
2014)) provides a remedy to criminal defendants who have had substantial
violations of their constitutional rights during their criminal trials. [Citation.] A
postconviction proceeding is not an appeal per se, but a collateral attack upon a
final judgment. [Citation.] A pro se petitioner is entitled to an evidentiary
hearing on his postconviction petition only when he presents the ‘gist’ of a
meritorious constitutional claim ([citation]) and the record or accompanying
affidavits support the allegations in the petition ([citation]). The ‘gist’ standard
represents a ‘low threshold,’ and during the summary dismissal stage the
allegations in the petition must be taken as true and liberally construed.
[Citation.] A petition may be summarily dismissed as frivolous or patently
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without merit only if it has no arguable basis in either law or fact. [Citation.]
Whether the allegations in the petition are sufficient to avert summary dismissal is
a legal inquiry, subject to de novo review. [Citation.]” People v. Ramirez-Lucas,
2017 IL App (2d) 150156, ¶ 40.
¶ 34 “A misapprehension as to sentencing alternatives may render a guilty plea involuntary if
the defendant is actually unaware of the possible sentences. People v. Woods, 134 Ill. App. 3d
294, 300 (1985).
“Generally, due process requires that in order for a defendant to
knowingly and voluntarily plead guilty, a defendant must be advised of the direct
consequences of a guilty plea. [Citation.] As we have previously explained, a
direct consequence of a guilty plea is one which has a definite, immediate and
largely automatic effect on the range of a defendant’s sentence. [Citation.] A
trial court’s obligation to ensure that a defendant understands the direct
consequences of his plea traditionally encompasses those consequences that affect
the defendant’s sentence and other punishment that the circuit court may impose.
[Citation.]” People v. Hughes, 2012 IL 112817, ¶ 35.
¶ 35 We agree with the Parker court to the extent we find in this case defendant stated the gist
of a claim his plea was influenced by the State’s sentencing recommendation, which would
constitute a de facto life sentence under Buffer” without first complying with the requirements of
the eighth amendment as stated in the Miller line of cases. Parker, 2019 IL App (5th) 150192, ¶
18. The State argues the trial court’s admonishment that defendant faced up to 60 years’
imprisonment “did not improperly induce his plea of guilty.” The State offers no factual support
for its contention. Regardless, “[a] defendant bears the burden of demonstrating any alleged
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misunderstanding which would render the guilty plea involuntary.” Woods, 134 Ill. App. 3d at
300. And, “a defendant at the first stage need only present a limited amount of detail in the
petition. [Citations.] *** [W]e have required only that a pro se defendant allege enough facts to
make out a claim that is arguably constitutional for purposes of invoking the Act.” (Emphasis
added.) People v. Hodges, 234 Ill. 2d 1, 9 (2009). In this case, we find defendant has stated an
arguable claim he would not have pleaded guilty had he “understood the implications of the
eighth amendment” (Parker, 2019 IL App (5th) 150192, ¶ 16) in sentencing him, and the State
does not dispute that the trial court did not admonish defendant of those requirements (because
they had not yet been established—although our supreme court has held they apply
retroactively).
¶ 36 The State’s argument that the sentence “was well within constitutional guidelines” misses
the mark. “In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Supreme Court
addressed the issue of a defendant’s need to understand the consequences of his entering a guilty
plea. In Boykin, the Court held that it is a violation of due process for the court to accept a guilty
plea without an affirmative showing that the defendant voluntarily and intelligently entered his
plea of guilty.” People v. St. Pierre, 146 Ill. 2d 494, 506 (1992). “If a defendant’s guilty plea is
not voluntary and knowing, it has been obtained in violation of due process and, therefore, is
void.” (Internal quotation marks and citation omitted.) People v. Castano, 392 Ill. App. 3d 956,
958 (2009). The issue here is the defendant’s knowledge of the consequences of the guilty plea
in making the decision whether or not to enter it, not whether the sentence itself is constitutional.
Specifically, the consequence at issue, which may have led defendant to plead, is a 60-year
prison sentence without first considering defendant’s youth, which would be unconstitutional.
Similarly, then, the State’s arguments that Buffer is unrelated to the trial court’s informing
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defendant that he was subject to a potential 20 to 60-year sentence for first degree murder and
that the sentence does not violate Buffer because defendant “cannot show that he received a life
sentence ***, natural or de facto, where his aggregate sentence was less than 40 years’
imprisonment” and also fail.
¶ 37 Substantive arguments aside, the State argues defendant’s guilty plea “waives all
nonjurisdictional errors or irregularities, including constitutional ones.” In support of that
argument the State relies on People v. Townsell, 209 Ill. 2d 543, 545 (2004). However, in
Townsell our supreme court explained that “[i]n relation to a guilty plea *** ‘waiver’ refers to
the ‘ “voluntary relinquishment of a known right.” ‘ [Citation.]” Townsell, 209 Ill. 2d at 547
(citing Hill v. Cowan, 202 Ill. 2d 151, 158-59 (2002)) In Hill, our supreme court also wrote, in
the context of the rule upon which the State relies, that it used “the term waiver to signify the
‘voluntary relinquishment of a known right,’ not as a shorthand for ‘procedural default by failing
to bring an error to the attention of the trial court.’ “ Hill, 202 Ill. 2d at 158-59. Defendant’s
rights under the eighth amendment in this context were not known at the time he pleaded guilty;
therefore, he could not have voluntarily relinquished them. See also People v. Palmer, 336 Ill.
App. 3d 821, 826 (2003) (“when a defendant inadvertently fails to raise the issue of double
jeopardy when pleading guilty, the waiver is more akin to a procedural default than a voluntary
relinquishment of a known right. The distinction between the relinquishment of a known right
and a procedural default leads us to reject the analysis in Townsell.”)
¶ 38 In response to the State’s argument defendant failed to raise this particular argument at
the right time, defendant argues this court must give his petition a liberal construction which
would result in finding that the claim is contained within his argument in the postconviction
petition and that this court has jurisdiction to hear it. Defendant also argues this court should not
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consider the argument waived under Rule 341(h)(7) under People v. Kaczmarek, 207 Ill. 2d 288,
301-04 (2003). Defendant correctly argues that our supreme court has stated a “requirement that
a pro se petition be given a liberal construction. Where defendants are acting pro se, courts
should review their petitions “with a lenient eye, allowing borderline cases to proceed.” People
v. Hodges, 234 Ill. 2d 1, 21 (2009). “[A] pro se petition seeking postconviction relief under the
Act for a denial of constitutional rights may be summarily dismissed as frivolous or patently
without merit only if the petition has no arguable basis either in law or in fact.” (Emphasis
added.) Id. at 11-12. The State has failed to demonstrate that defendant’s claim lacks arguable
basis in law or fact. See Hodges, 234 Ill. 2dat 16 (A petition which lacks an arguable basis either
in law or in fact is one which is based on an indisputably meritless legal theory or a fanciful
factual allegation.”). Under the “liberal construction” standard, we find that defendant’s initial
claim that his plea was involuntary is sufficient to allow consideration of the argument that the
reason his plea was involuntary was due to improper admonishments as to the potential sentence
he faced as a juvenile and a bargain that offered “little to no incentive for him to plead guilty.”
¶ 39 We further find defendant has not forfeited the issue under Rule 341(h)(7). Kaczmarek
does provide an example, as it were, of our supreme court allowing argument that “change[s]
with evolving *** jurisprudence” (Kaczmarek, 207 Ill. 2d at 300), but it is not necessary to our
holding. “[W]e have previously noted that Rule 341(e)(7) ‘states an admonition to the parties,
not a limitation upon the jurisdiction of the reviewing court.’ [Citation.] Moreover, the
‘responsibility of a reviewing court for a just result and for the maintenance of a sound and
uniform body of precedent may sometimes override the considerations of waiver that stem from
the adversarial nature of our system.’ [Citation.]” People v. Pecor, 153 Ill. 2d 109, 116-17
(1992). Finally, we find sufficient grounds to excuse defendant’s waiver of this specific
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argument where Parker was not decided at the time of our original decision and in light of the
congruity between the facts of each case. See also People v. Clifton, 321 Ill. App. 3d 707, 728
(2000), vacated on other grounds, (relaxing Rule 341(h)(7) waiver rule where codefendant
received relief on same ground), People v. Bass, 2019 IL App (1st) 160640, ¶ 106.
¶ 40 Having determined that defendant’s postconviction states the gist of a constitutional
claim his plea was involuntary we no longer have reason to address the other issues raised in the
petition.
“Under the plain language of the Act, in cases such as this, the circuit
court must docket the entire petition, appoint counsel, if the petitioner is so
entitled, and continue the matter for further proceedings in accordance with
sections 122-4 through 122-6. The State is then given the opportunity to answer
or otherwise plead.” People v. Rivera, 198 Ill. 2d 364, 371 (2001).
¶ 41 Accordingly, the judgment of the circuit court of Cook County is reversed and the cause
is remanded for further proceedings.
¶ 42 CONCLUSION
¶ 43 The judgment of the circuit court is reversed and the cause remanded for further
proceedings.
¶ 44 Reversed and remanded.
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