2021 IL App (1st) 180815-U
FIFTH DIVISION March 31, 2021
No. 1-18-0815
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 JUDICIAL DISTRICT
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of Cook ) County Respondent-Appellee, ) ) v. ) No. 14 CR 5013 ) AUGUESTE BURTON, ) ) Honorable Angela Munari Petrone, Petitioner-Appellant. ) Judge, presiding. )
PRESIDING JUSTICE DELORT delivered the judgment of the court. Justices Cunningham and Rochford concurred in the judgment.
ORDER
¶1 Held: We affirm in part and reverse in part the circuit court’s dismissal of petitioner’s postconviction petition at the second stage of proceedings. Petitioner failed to make a substantial showing that he received ineffective assistance of counsel at trial, but he did make a substantial showing that he received ineffective assistance of plea counsel.
¶2 Following a jury trial, petitioner Augueste 1 Burton was convicted of attempt murder of a
peace officer, attempt murder while armed with a firearm, and aggravated discharge of a firearm.
1 In our order on direct appeal, we spelled petitioner’s given name “Auguste.” People v. Burton, 2012 IL App (1st) 103007-U. Although that spelling also appears occasionally throughout the record before us, the record includes several instances of petitioner’s signature, in which he spells his name “Augueste”. We adopt that spelling. 1-18-0815
Petitioner was sentenced to concurrent prison terms of 52 years, 35 years, and 20 years for the
respective convictions. On direct appeal, this court affirmed petitioner’s attempt murder
convictions and sentences, but vacated the aggravated discharge conviction. People v. Burton,
2012 IL App (1st) 103007-U, ¶ 70. Petitioner then filed a postconviction petition alleging that his
trial counsel had rendered ineffective assistance. The circuit court dismissed the petition at the
second stage of proceedings. We affirm in part, reverse in part, and remand with instructions.
¶3 BACKGROUND
¶4 The facts of petitioner’s trial are fully set forth in this court’s decision on direct appeal.
Id. ¶¶ 4-19. We recite only those facts that are relevant to this appeal.
¶5 During her opening statement, petitioner’s counsel told the jury:
“There was no physical evidence that Augueste Burton ever touched that gun.
You’re not going to hear about fingerprints. And, in fact, what you are going to
hear is that after Augueste Burton was arrested that evening, Chicago police
officers administered a gunshot residue testing kit to his hands to see if Mr.
Burton had gunshot residue on his hands. *** [T]hat kit was then sent to the
Illinois State Police Crime Lab for testing. Mr. Burton had no gunshot residue on
his hands that night, which would indicate that he did not fire a firearm.”
¶6 The State’s first witness was Officer Alfonza Wysinger of the Chicago Police
Department. Wysinger testified that, at about 8 p.m. on the evening in question, he was with his
brother on the front porch of his grandmother’s house. He was dressed in street clothes, and
because it was the height of summer, it was still light out at that hour. He observed two Black
men walk past the house and around the corner. He then saw one of the men, whom he identified
in court as petitioner, walking back the way he had come. Wysinger then saw petitioner stop in
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the middle of an intersection, raise a revolver, and fire several rounds at an unknown target.
Wysinger then heard a barrage of return gunfire, although he could not see where the shots were
coming from. Petitioner then turned, crouched down, and ran away.
¶7 Wysinger chased petitioner on foot while repeatedly shouting, “[p]olice, stop, drop the
weapon, police[,] stop, drop the weapon.” At one point, petitioner paused, turned in the direction
of Wysinger, pointed his gun at him, and fired a single shot. Wysinger returned fire with his
service weapon but missed. The chase continued and petitioner once again fired the gun at
Wysinger, this time from about 15 to 20 feet away. At one point, petitioner and Wysinger both
tripped and fell to the ground. Wysinger eventually caught up to petitioner, tackled him, and held
him until uniformed police arrived. Wysinger observed that petitioner no longer had the gun
when he was apprehended.
¶8 Four additional eyewitnesses testified that they saw portions of the chase and identified
petitioner in open court. Of those witnesses, three testified to seeing petitioner fire a gun at
Wysinger. Two of the witnesses saw petitioner throw down the gun during the chase, and both
testified that they then stood by the discarded gun until it could be collected by the police.
¶9 Forensic Investigator Jill Kolssak testified that she recovered several spent cartridge
casings and bullet fragments from the crime scene. She also recovered the revolver that the
witnesses had seen petitioner throw on the ground. Each of the six chambers of the revolver
contained a spent casing. Kolssak also inventoried Wysinger’s semi-automatic handgun and
magazine at the scene.
¶ 10 Kolssak sent the recovered evidence to the Illinois State Police Crime Lab for testing.
After processing the crime scene, Kolssak and her partner inventoried petitioner’s clothes and
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performed a gun shot residue (GSR) test on his hands. Crucially for our present purpose, Kolssak
did not testify about the results of the GSR test.
¶ 11 Forensic Scientist Melissa Nally testified that she inspected the recovered revolver as
well as Wysinger’s semi-automatic service weapon. She determined that the spent casings found
in the revolver were fired by the revolver and that two recovered bullet fragments from the scene
had been fired from the revolver. Nally also determined that three recovered casings were fired
by Wysinger’s gun. Nine other cartridge casings found at the scene were fired from an
unrecovered gun and one was fired from a different, unrecovered gun.
¶ 12 Detective James Gilger testified that he responded to the crime scene. He testified that he
did not request fingerprint analysis on the recovered revolver because it was already established
that petitioner had dropped it. Gilger explained that evidence is usually sent for fingerprinting
when the offender is unknown or has fled the scene. He also testified that a GSR test was
performed on petitioner about 3½ hours after the shooting, but he did not testify as to the results
of that test.
¶ 13 The State then rested. Outside of the presence of the jury, defense counsel requested that
the case be continued until the following Monday, at which time she would call a GSR expert.
The State informed the court that “cross-examination [of the expert] is going to be based on the
fact that there’s numerous ways” that the residue could have been wiped off petitioner’s hands.
On the next court date, defense counsel informed the court that petitioner intended to rest without
putting on any evidence. The court asked, “Why didn’t we do that Friday?” Defense counsel
responded, “There are reasons.”
¶ 14 In her closing argument, defense counsel argued, “gunshot residue results were never
introduced by the prosecution into evidence. Don’t you think that if Augueste tested positive for
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gunshot residue the prosecution would have introduced those gunshot residue results?” She went
on to say, “don’t you think that it’s circumstantial evidence that you heard that Mr. Burton was
administered the gunshot test but you never heard the results of that test? *** Augueste never
shot at [Wysinger], he never fired that gun. There is no science to back up what they’re saying.”
¶ 15 The jury found petitioner guilty of two counts of attempt murder and one count of
aggravated discharge of a firearm. In allocution, petitioner professed his innocence and asserted
that he had been denied a fair trial because, among other things, the jury never saw the GSR
evidence. The court sentenced him to concurrent terms of 52 years, 35 years, and 20 years. In
declining to enter a sentence closer to the statutory minimum, the court stated that a minimum
sentence “would make light of the charges the [petitioner] was convicted of.”
¶ 16 On direct appeal, petitioner argued that: (1) the State failed to prove beyond a reasonable
doubt that he knew or should have known that Wysinger was a police officer; (2) trial counsel
rendered ineffective assistance by failing to request a jury instruction on imperfect self-defense;
(3) the trial court erred by failing to conduct a Krankel inquiry; (4) petitioner’s sentence was
excessive, and 5) his multiple convictions violated the one-act, one-crime doctrine. This court
vacated the conviction for aggravated discharge of a firearm, but otherwise affirmed. Burton,
2012 IL App (1st) 103007-U, ¶ 70.
¶ 17 In 2014, petitioner filed a pro se petition under the Post-Conviction Hearing Act (the Act)
(725 ILCS 5/122-1 et seq. (West 2012)). The petition argued, among other things, that
petitioner’s trial counsel had rendered ineffective assistance by failing to introduce evidence that
the GSR test came back negative. Petitioner attached two Illinois State Police Laboratory
Reports, each of which concluded that the test results “indicate that the subject may not have
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discharged a firearm.” The reports continued, “If the subject did discharge a firearm, then the
particles were removed by activity, were not deposited, or were not detected by the procedure.”
¶ 18 The Cook County Public Defender’s Office was appointed to represent petitioner on
August 26, 2014. In February, 2015, petitioner filed a pro se motion to supplement his petition.
In the motion, petitioner claimed that, before trial, his attorney told him that the State had offered
a 20-year sentence if petitioner would plead guilty to a single charge of attempt murder. He
alleged that he was prepared to accept that deal, but his attorney “convinced him not to accept
the plea [be]cause the prosecutor would be unable to prove its [sic] case *** [be]cause the
petitioner tested negative for gun shot residue on both hands.” Petitioner’s postconviction
counsel later filed petitioner’s affidavit in support of his motion to supplement his petitioner.
¶ 19 On July 1, 2016, the State filed a motion to dismiss the petition, and on March 16, 2018,
the circuit court granted the State’s motion. This appeal followed.
¶ 20 ANALYSIS
¶ 21 Petitioner argues that the circuit court erred in dismissing his postconviction petition at
the second stage of proceedings. He requests that we reverse the circuit court’s dismissal of his
postconviction petition and remand the case for an evidentiary hearing.
¶ 22 Forfeiture
¶ 23 Before we reach the merits of this appeal, we must address the State’s contention that
each of petitioner’s claims of ineffective assistance has been forfeited. Postconviction
proceedings are limited “ ‘to constitutional matters which have not been, and could not have
been, previously adjudicated.’ ” People v. Scott, 194 Ill. 2d 268, 273-74 (2000) (quoting People
v. Winsett, 153 Ill. 2d 335, 346 (1992)). Accordingly, issues that could have been raised on direct
appeal, but were not, are considered forfeited and, therefore, barred from consideration in a
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postconviction proceeding. People v. Blair, 215 Ill.2d 427, 443-44 (2005). The forfeiture rule
applies only where it was possible to raise an issue on direct appeal; thus, a postconviction claim
that depends on matters outside the record is not ordinarily forfeited, because matters outside the
record may not be raised on direct appeal. See People v. Jones, 364 Ill. App. 3d 1, 5 (2005).
¶ 24 The State argues that petitioner’s contentions regarding the GSR test results are forfeited
because the test results were known to trial counsel and therefore could have been raised in
petitioner’s direct appeal. Petitioner correctly points out, however, that the test results were never
made part of the trial record precisely because of the alleged ineffective assistance. As a result,
the GSR issues could not have been raised on direct appeal and those contentions are not
forfeited.
¶ 25 The State also argues that petitioner’s contentions regarding plea bargaining are forfeited.
The State points out that the motion to supplement in the record bears no file stamp.
Consequently, the State contends that the motion was not actually filed and its contents,
therefore, are beyond the scope of this court’s review. See People v. Jones, 213 Ill. 2d 498, 507
(2004) (“issues not contained in a dismissed postconviction petition cannot be raised for the first
time on appeal”). Moreover, the State argues, neither the circuit court itself nor the argument
section of the motion to dismiss specifically addressed the plea-bargaining issue. The State
contends that these omissions support the theory that the motion to supplement was never filed.
¶ 26 Petitioner points out that even if the motion to supplement was not properly filed initially,
postconviction counsel incorporated it as an exhibit in a later filing of record, along with
petitioner’s affidavit related to the claims raised. Moreover, the State’s motion to dismiss
specifically requests that the court “dismiss the instant petition for post-conviction relief and
supplemental petition for post-conviction relief.” (Emphasis added.) The fact that the circuit
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court did not specifically address the supplement is of no moment because the court did not
specifically address any issues in its ruling and did not enter a written order. We find that the
issues raised in the motion to supplement were properly before the circuit court, and therefore
fall within the scope of our review. See id.
¶ 27 Standard of Review
¶ 28 The Act allows a petitioner to challenge a conviction or sentence for violations of federal
or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). Postconviction
proceedings contain three stages. People v. Tate, 2012 IL 112214, ¶ 9. At the first stage, the
circuit court independently reviews the petition, taking the allegations as true, and determines
whether the petition is frivolous or patently without merit. Id. A petition may be summarily
dismissed as frivolous or patently without merit only if the petition has no arguable basis either
in law or in fact. Id. If the court does not summarily dismiss the petition, it advances to the
second stage, where counsel may be appointed to an indigent petitioner, and where the State may
respond to the petition. Id. ¶ 10. At this stage, the court determines whether the petition and any
accompanying documentation make a substantial showing of a constitutional violation. Id. If no
such showing is made, the petition is dismissed. Otherwise, the petition is advanced to the third
stage for an evidentiary hearing. Id.
¶ 29 Here, the petition was dismissed at the second stage. “Dismissal is warranted at the
second stage where the defendant’s claims, liberally construed in light of the trial record, fail to
make a substantial showing of a constitutional violation.” People v. Turner, 2012 IL App (2d)
100819, ¶ 21. “[A]ll well-pleaded facts that are not positively rebutted by the trial record are to
be taken as true,” and “the court is prohibited from engaging in any fact finding.” (Internal
quotation marks omitted.) People v. Snow, 2012 IL App (4th) 110415, ¶ 15. “[W]hen a
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petitioner’s claims are based upon matters outside the record, the [Act] does not intend such
claims to be adjudicated on the pleadings.” Id. We review the circuit court’s dismissal of a
postconviction petition at the second stage de novo. Pendleton, 223 Ill. 2d at 473 (2006).
¶ 30 Petitioner contends that he made a substantial showing that his trial counsel rendered
ineffective assistance by failing to introduce the results of the GSR test into evidence. He argues
that there is a reasonable probability that the outcome of the trial would have been different had
the jury seen that evidence. Petitioner also contends that he made a substantial showing that his
trial counsel rendered ineffective assistance by advising him not to accept the plea deal offered
by the State. He argues that he would have accepted the plea agreement if not for his attorney’s
unreasonable advice.
¶ 31 Claims of ineffective assistance of counsel are governed by the familiar standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the supreme court in People v.
Albanese, 104 Ill. 2d 504 (1984). People v. Petrenko, 237 Ill. 2d 490, 496 (2010). To establish
ineffective assistance, a petitioner must show both that (1) counsel’s performance was deficient
and (2) the deficient performance prejudiced the petitioner. Id. Deficient performance is
performance that is objectively unreasonable under prevailing professional norms, and prejudice
is found where there is a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 496-97; Strickland, 466 U.S. at 690,
694. The failure to establish either prong of the Strickland test is fatal to the claim. People v.
Clendenin, 238 Ill. 2d 302, 317-18 (2010) (citing Strickland, 466 U.S. at 697).
¶ 32 GSR Evidence
¶ 33 Petitioner argues that his counsel rendered ineffective assistance by not introducing the
results of the GSR tests into evidence, even though she had “promised” the jury that they would
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see GSR evidence in her opening statement. Moreover, he contends, she asked for a continuance
so that she could call a GSR expert, but then “inexplicably” rested without calling the expert. His
argument is essentially two-fold; (1) by promising the jury that it would hear GSR evidence, but
failing to deliver on that promise, the credibility of the defense was irreparably compromised,
and (2) the failure to present the exculpatory GSR evidence could not have been the result of
competent trial strategy.
¶ 34 Matters of trial strategy are generally immune from claims of ineffective assistance of
counsel. People v. West, 187 Ill. 2d 418, 432-33 (1999). In other words, the effective assistance
of counsel merely refers to “competent, not perfect,” representation. People v. Stewart, 104 Ill.
2d 463, 491-92 (1984). Thus, mistakes in trial strategy, tactics, or judgment will not “of
themselves” render a trial counsel’s representation constitutionally defective. Id. For these
reasons, we must be highly deferential to trial counsel as to trial strategy, and we must evaluate
counsel’s performance from his perspective at the time and not “through the lens of hindsight.”
Id. A defendant bears the burden of overcoming the strong presumption that his counsel’s
decision was the product of sound trial strategy. People v. Gacy, 125 Ill. 2d 117, 126 (1988).
¶ 35 Generally, whether to call a particular witness is a matter of trial strategy (People v.
Flores, 128 Ill. 2d 66, 85-86 (1989)), and strategic choices made after thorough investigation of
law and facts relevant to plausible options are “virtually unchallengeable” (Strickland, 466 U.S.
at 690). A defense attorney may choose not to call a witness who could be subject to severe
impeachment (People v. Smado, 322 Ill. App. 3d 329, 335 (2001)), or if he reasonably believes
that under the circumstances the individual’s testimony would likely have been harmful to the
defendant (Flores, 128 Ill. 2d at 106).Promising the jury that it will hear specific evidence, but
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then failing to introduce that evidence may be the basis for a claim of ineffective assistance.
People v. Briones, 352 Ill. App. 3d 913, 918 (2004).
¶ 36 In his brief, petitioner overstates trial counsel’s “promise” and relies on distinguishable
cases. In Briones, trial counsel said in her opening statement, “[the defendant is] going to get up
here on this witness stand and he’s going to testify and he’s going to tell you the truth and he’s
going to subject himself to rigorous cross-examination by the State and he’s going to do that
because he’s going to tell you the truth.” Id. at 915. Ultimately, however, the defendant did not
testify, and this court held that trial counsel “set the defense up to be discredited by promising
the jury that the defendant would testify to the truth and, inexplicably, failing to call him.” Id. at
918.
¶ 37 Petitioner also relies on Harris v. Reed (894 F.2d 871 (7th Cir. 1990)) in support of this
theory. In that case, trial counsel told the jury in her opening statement that a previous suspect
“would figure quite prominently in the trial” and that “they would hear evidence supporting an
account of the shooting different from that offered by the prosecution.” Id. at 873. However, the
defense rested without presenting any evidence. Id. at 877. In holding that trial counsel’s
performance was deficient, the Harris court pointed out that “[w]hen counsel failed to produce
the witnesses to support [her] version [of events], the jury likely concluded that counsel could
not live up the claims made in the opening.” Id. at 879.
¶ 38 Briones and Harris are distinguishable from this case. In those cases, the attorneys made
very specific promises about evidence that the defenses would introduce and then left the juries
cold, with no explanation for not following through. In this case, however, trial counsel told the
jury, “Chicago police officers administered a gunshot residue testing kit to his hands to see if Mr.
Burton had gunshot residue on his hands. *** [T]hat kit was then sent to the Illinois State Police
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Crime Lab for testing. Mr. Burton had no gunshot residue on his hands that night, which would
indicate that he did not fire a firearm.” The evidence at trial did show that the GSR test was
administered and sent to the crime lab, and counsel clearly and compellingly argued to the jury
in closing that the test must have been negative, or the State would have presented the results.
This case simply does not present the “broken promise” scenario contemplated in Briones and
Harris.
¶ 39 Moreover, the decision not to present the GSR test results was the product of a
reasonable, if unsuccessful, trial strategy. As noted above, matters of trial strategy are generally
immune from claims of ineffective assistance of counsel. West, 187 Ill. 2d at 432-33. Petitioner
contends that there is no strategic reason not to have presented the negative GSR test results to
the jury. However, the State points out that the test results themselves include a disclaimer that
“[i]f the subject did discharge a firearm, then the particles were removed by activity, were not
deposited, or were not detected by the procedure.” Had trial counsel introduced the test results
through an expert, the expert would have been subject to cross-examination on this very issue. In
fact, shortly after trial counsel requested a continuance so that she could call a GSR expert, the
State informed the court that it was prepared to cross-examine the expert on the “numerous
ways” that the GSR could have been wiped from petitioner’s hands before the test was
administered. By not presenting an expert or the GSR test results, trial counsel was able to
clearly convey to the jury that the GSR test results were negative without allowing the State to
undermine the strength of the test results in cross-examination. Because trial counsel’s strategic
decision was not unreasonable, petitioner’s claim fails to satisfy the first prong of Strickland
analysis.
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¶ 40 Even if trial counsel’s decision not to present the GSR test results to the jury had been
objectively unreasonable under prevailing professional norms, petitioner cannot show that he
was prejudiced. As discussed above, trial counsel left the jury with an unqualified inference that
the GSR tests came back negative, so the actual reports would have added very little to
petitioner’s case. In fact, the impression on the jury may have been stronger without the test
results before it, because the State was denied the opportunity to undermine and qualify the
negative test results.
¶ 41 Moreover, the evidence presented by the State was overwhelming. Five eyewitnesses
testified that they saw some or all of the relevant events. Besides Wysinger himself, three
witnesses testified to seeing petitioner fire a gun at Wysinger. Two of those witnesses saw
petitioner throw down the gun, and both then stood by the discarded gun until it could be
collected by the police. Forensic evidence revealed that the gun that petitioner threw down held
six spent casings, and two bullet fragments from the scene were determined to have been fired
from that gun. In light of all this evidence, we cannot say that the introduction of the negative
GSR test results—rather than the clear and unqualified inference of their existence—could have
changed the result of the trial. Petitioner therefore has failed to show a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Petrenko, 237 Ill. 2d at 496-97.
¶ 42 Plea Bargaining
¶ 43 Petitioner also alleges that his attorney rendered ineffective assistance by convincing him
to turn down a possible 20-year sentence for a guilty plea. He claims that his counsel convinced
him that, considering the negative GSR test results, the State would be unable to prove its case.
Petitioner contends (1) that such advice was unreasonable, and (2) that he was prejudiced by the
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advice because he otherwise would have accepted the plea deal and received a much lighter
sentence than he ultimately received.
¶ 44 A defendant has a constitutional right to the effective assistance of counsel in plea
negotiations with the State. People v. Hale, 2013 IL 113140, ¶ 16. “This right to effective
assistance of counsel extends to the decision to reject a plea offer, even if the defendant
subsequently receives a fair trial.” Id. Whether to accept or reject a plea offer is a decision only
the defendant can make. People v. Blommaert, 237 Ill. App. 3d 811, 816 (1992). For this
decision to be knowing and voluntary, defense counsel must fully inform himself of the facts and
the law relevant to the State’s offer and candidly advise his client as to the direct consequences
of accepting or rejecting the offer. Id. at 817.
¶ 45 As discussed above, we apply the Strickland standard to such claims. See Hale, 2013 IL
113140, ¶ 15. To satisfy the second Strickland prong, a petitioner must not only “establish that
there is a reasonable probability that, absent his attorney’s deficient advice, he would have
accepted the plea offer,” he “must also demonstrate a reasonable probability that the plea would
have been entered without the prosecution canceling it or the trial court refusing to accept it” Id.,
¶¶ 18-19 (quoting Missouri v. Frye, 566 U.S. 134, 147 (2012)). That showing must rely on
“independent, objective confirmation that defendant’s rejection of the proffered plea was based
upon counsel’s erroneous advice,” rather than other considerations. Id., ¶ 18 (quoting People v.
Curry, 178 Ill. 2d 509, 532 (1997)).
¶ 46 It bears repeating that the circuit court was to take all well-pleaded facts not positively
rebutted by the record as true, and that claims related to matters outside the trial record should
generally not be resolved on the pleadings. Snow, 2012 IL App (4th) 110415, ¶ 15. A trial record
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is typically silent “as to what a defendant was told about rejecting or accepting a guilty-plea offer
from the State.” People v. Williams, 2016 IL App (4th) 140502, ¶ 33.
¶ 47 As to the first Strickland prong, petitioner alleged that plea counsel “convinced him not
to accept the plea [be]cause the prosecutor would be unable to prove its [sic] case *** [be]cause
the petitioner tested negative for gun shot residue on both hands.” In his supporting affidavit,
petitioner alleged that plea counsel “advise[d]” him that “the A.S.A. wouldn’t be able to prove its
case beyond a reasonable doubt due to the G.S.R. results.”
¶ 48 Initially, the State contends that petitioner’s description of his counsel’s statements as
“advice” is a tacit admission that counsel was merely offering a reasonable professional opinion.
Attorneys in both criminal and civil matters are constantly giving advice. Occasionally, that
advice is objectively unreasonable under prevailing professional norms. As such, we reject the
State’s contention that petitioner has pleaded himself out of court by using the word “advice.”
¶ 49 Relying primarily on People v. La Pointe, 2015 IL App (2d) 130451, the State argues that
plea counsel’s advice was merely an honest, though erroneous, assessment of the evidence. In La
Pointe, plea counsel advised the defendant that “[he] did not believe the evidence or the facts
would permit a Judge to find [the charged crime] exceptionally brutal and heinous.” Id., ¶ 55.
Based on this assessment, the defendant chose not to accept a plea agreement. Id., ¶ 36. After
trial, the defendant was given an extended sentence based on a finding that the evidence showed
“exceptionally brutal or heinous behavior indicative of wanton cruelty.” Id., ¶ 20. After a third-
stage hearing on the defendant’s subsequent postconviction petition, the trial court found that
plea counsel had given “a factual piece of advice” rather than making a mistake of law. Id., ¶ 65.
¶ 50 As defendant points out, La Pointe deals with the denial of a postconviction petition after
an evidentiary hearing. Id., ¶ 48. It was from a fully developed record, therefore, that the La
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Pointe court was able to determine that the defendant’s plea counsel had made an honest
assessment of the evidence rather than a mistake of law. Id., ¶ 89. Indeed, the La Pointe court
pointed out that it was the trial court’s prerogative to weigh the respective testimony of the
defendant and the attorney. Id. In this case, the trial record contains virtually no discussion of the
plea bargaining and certainly nothing to positively rebut petitioner’s allegation that his attorney
made the unqualified statement that the negative GSR test results precluded conviction. Whether
that statement was an honest assessment of the evidence or a mistake of law is a factual question
that cannot be resolved on the record before us. Petitioner’s unrebutted, well-pleaded allegation
therefore satisfies the first prong of Strickland.
¶ 51 As to the second prong, petitioner alleges that, but for his attorney’s advice, he would
have accepted the plea deal. Moreover, had he accepted the plea agreement, he would have
received a prison sentence well under half the duration of the sentence that he ultimately
received.
¶ 52 The State argues that the record positively rebuts petitioner’s claim that he would have
accepted the offered plea but for his attorney’s advice. The State points to pre-trial statements by
the circuit court that petitioner “wanted to go to trial.” and to petitioner’s own statements in
allocution, in which he professed his innocence. The State also contends that the record
positively rebuts petitioner’s claim that the court would probably have accepted his plea. In
sentencing, the court stated that a minimum sentence “would make light of the charges the
[petitioner] was convicted of.”
¶ 53 Petitioner argues that his professions of innocence are not dispositive because, as our
supreme court has observed, various considerations may induce an innocent defendant to enter a
guilty plea. See People v. Reed, 2020 IL 124940, ¶ 33 (discussing the cost-benefit analysis that
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may lead innocent defendants to plead guilty). He also argues that the court’s statements at
sentencing were made after the court had seen the presentation of the State’s evidence, and
therefore do not bear on whether the court would have accepted a plea before trial. Additionally,
he points out that his concurrent 52-year and 35-year prison sentences are dramatically disparate
from the offered 20-year sentence, a fact which may support his claim. See Hale, 2013 IL
113140, ¶ 18.
¶ 54 Petitioner’s most compelling argument is that the authorities cited by the State are all
procedurally dissimilar from this case. In Hale, for example, our supreme court’s ruling came
after a Krankel hearing in which both the defendant and his counsel testified. Id., ¶ 28. In La
Pointe, on which the State also relies, this court’s decision came after a third-stage evidentiary
hearing. La Pointe, 2015 IL App (2d) 130451, ¶ 48.
¶ 55 A more analogous case is People v. Williams. In that case, the trial court dismissed a
postconviction petition at the second stage, finding that the petitioner had failed to demonstrate
that his plea counsel’s advice was unreasonable or how the allegedly unreasonable advice
prejudiced him. Williams, 2016 IL App (4th) 140502, ¶ 8. After recounting the history of our
supreme court’s jurisprudence on allegations of ineffective assistance of plea counsel, (see id.
¶¶ 18-34,) the Williams court reversed the dismissal of the petition and remanded for an
evidentiary hearing. Id. ¶ 44. “[P]ostconviction challenges based on a claim that the defendant
was denied his constitutional right to the effective assistance of counsel during guilty-plea
negotiations with the State are almost always based on matters that occur de hors the record,”
observed the Williams court. Id. Without a developed record, and “[w]hen [petitioner’s] well-
pleaded facts allege a substantial constitutional violation—as in this case—the court must
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advance the postconviction petition to the third stage of postconviction proceedings for an
evidentiary hearing.” Id.
¶ 56 As was the case in Williams, petitioner here alleged that he received unreasonable advice
which led him to reject a proposed plea bargain. Likewise, the records in both this case and
Williams lack any indications—one way or the other—about the court’s disposition to accept the
offer, the State’s inclination to rescind the offer, or counsel’s advice to plaintiff about the offer.
All that we have before us is petitioner’s well-pleaded allegations that counsel unreasonably
advised him that “the prosecutor would be unable to prove its [sic] case,” and that, but for his
counsel’s ineffective assistance, he would have accepted a plea deal for well under half the total
prison time than he ultimately received. Those allegations are not positively rebutted by the
record. Because the circuit court was required to accept those allegations as true, it was error to
dismiss the petition without an evidentiary hearing. See id.
¶ 57 CONCLUSION
¶ 58 We affirm the dismissal of petitioner’s claim with respect to trial counsel’s decision not
to introduce GSR evidence. We reverse the dismissal of petitioner’s claim of ineffective
assistance of plea counsel and remand with directions that, pursuant to section 122-6 of the Act
(725 ILCS 5/122-6 (West 2018)), the court conduct a third-stage evidentiary hearing on that
claim only.
¶ 59 Affirmed in part, reversed in part, remanded with instructions.