NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 180746-U
Order filed August 10, 2020 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-18-0746 v. ) Circuit No. 15-CF-698 ) DEMARIOUS CLARK, ) Honorable ) John P. Vespa, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court. Presiding Justice Lytton concurred in the judgment. Justice Wright dissented. ____________________________________________________________________________
ORDER
¶1 Held: Defense counsel provided ineffective assistance in failing to raise an issue in the motion to withdraw defendant’s guilty plea. Specifically, counsel failed to argue that defendant pled guilty based on his misapprehension that he would be able to withdraw his plea if he was not admitted to the impact incarceration program and that this misapprehension was reasonably justified by counsel’s assurances.
¶2 Defendant, Demarious Clark, appeals the Peoria County circuit court’s denial of his
motion to withdraw his guilty plea. Defendant argues that he should be permitted to withdraw his
plea because he pled guilty based on plea counsel’s assurance that he could withdraw his plea if he was not admitted into the impact incarceration program. In the event that we find this issue
forfeited, defendant argues that defense counsel provided ineffective assistance in failing to raise
it. Alternatively, defendant argues that the matter should be remanded for new postplea
proceedings and the appointment of new counsel because his plea counsel provided ineffective
assistance during the proceedings on his motion to withdraw his guilty plea for failing to present
certain evidence and for failing to withdraw. We reverse and remand with directions.
¶3 I. BACKGROUND
¶4 Defendant was charged with aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2)
(West 2014)) and unlawful possession of a firearm (id. § 24-3.1(a)(2)).
¶5 Following a Rule 402 conference, defendant entered a fully negotiated guilty plea. Prior
to accepting the plea, the court admonished defendant that it had received a proposed order
stating that the State was dismissing the charge of unlawful possession of a firearm, and
defendant was pleading guilty to aggravated discharge of a firearm and receiving a sentence of
eight years’ imprisonment. Pursuant to the agreement, the court also agreed to recommend
defendant for impact incarceration. The court admonished defendant as follows:
“Impact Incarceration commonly referred to as BootCamp is recommended by
me, and that is it.
[Defendant], I said, ‘Recommended by me.’ I cannot order the Department
of Corrections [(DOC)] to do things. They are the decision maker on that. I—the
Judge is recommending it. I’m recommending it, and then it’s up to them whether
you get it ***.”
Defendant stated that this was his understanding of the agreement.
2 ¶6 The court discussed with defendant a written plea form, a supplemental sentencing
financial form, and a consent to impact incarceration form. The court asked defendant if anyone
had promised him anything other than the terms of the plea agreement to get him to sign the
forms, and defendant said no.
¶7 As a factual basis for the plea, the prosecutor stated that the police department received a
report that shots had been fired. When they arrived at the scene, they spoke with an eyewitness
who stated that a group of four black men and one black woman fired three shots and ran away.
The officers then spoke to the two victims of the shooting, Alexis Mixon and Rikia Greaten.
Mixon reported that she saw a group of three black men and two black women. One of the men
in the group discharged a firearm in the direction of her vehicle. Mixon drove away. Mixon and
Greaten described the shooter as black, approximately five feet and six inches tall, weighing
approximately 160 pounds, and wearing a black hooded sweatshirt and jeans. Eventually,
officers learned from Greaten that she had seen the shooter in the area before and knew his
nickname. Mixon used that information to find a photograph of the shooter on Facebook. Mixon
believed that the photograph was posted approximately three years prior to the shooting. An
officer recognized the individual in the photograph to be defendant from previous encounters.
Mixon and Greaten eventually selected defendant as the shooter from photographic lineups.
¶8 The court accepted defendant’s plea.
¶9 Defendant filed a motion to withdraw his guilty plea. The motion stated:
“The plea is being challenged on the following grounds:
1) The plea was not voluntarily and intelligently made. Defendant only
entered a guilty plea after he was repeatedly assured of his eligibility for
bootcamp.
3 2) Upon being processed in the [DOC], Defendant learned that he is not
eligible for bootcamp, because of the 85% sentence he must serve.
3) Had Defendant known that he is not eligible for bootcamp. Defendant
would have proceeded to trial.”
¶ 10 A hearing was held on the motion to withdraw the guilty plea. The same attorney who
represented defendant in the guilty plea proceedings represented him on his motion to withdraw
his plea. Defense counsel advised the court that she had repeatedly promised defendant that he
was eligible for impact incarceration. She reviewed the impact incarceration statute with
defendant, and it appeared based on the statute that defendant was eligible. However, after
defendant entered the DOC, the DOC advised him that he was not eligible for impact
incarceration because a firearm was involved in the offense. Defense counsel also spoke with an
individual at the DOC who told her that a person convicted of a violent offense was not eligible
for impact incarceration. Defense counsel did not know that the DOC had this policy at the time
of the plea. She stated that the only reason defendant agreed to the plea agreement was because
she assured him that he was eligible for impact incarceration.
¶ 11 The court stated that it would be sympathetic to defendant’s position if it received
something in writing from the DOC stating that it would have been impossible for defendant to
receive impact incarceration. The court continued the matter to allow defendant to gather more
evidence concerning the DOC’s policy.
¶ 12 At the next hearing, defense counsel stated that she had spoken to a person at the DOC
who told her that if a weapon was used in the commission of the offense, a defendant would not
receive impact incarceration. The individual from the DOC said that this was not a written
policy, and he refused to provide a letter or affidavit stating that this was an unwritten policy.
4 ¶ 13 Defense counsel stated that during the plea negotiations, the State indicated that impact
incarceration was part of the plea bargain. Defense counsel relayed this information to defendant.
Defendant said he did not want to take the plea deal because he did not believe he was eligible
for impact incarceration. Defense counsel went through the relevant statute with defendant, and
she determined that defendant was eligible pursuant to the statute. Defense counsel spoke with
Assistant State’s Attorney Jeremy Beard about defendant’s insistence that he was not eligible.
Beard told defense counsel that if defendant did not receive impact incarceration, they could
come back to court and have the plea withdrawn. When defense counsel filed the motion to
withdraw defendant’s plea, she spoke to Beard. Beard “said he did not recall stating that he
would be willing to inform the Court that this is the conversation [he and defense counsel] had.”
Beard no longer worked for the state’s attorney’s office and had moved to another state.
¶ 14 Defense counsel argued that defendant should be allowed to withdraw his plea because
he was not eligible for impact incarceration pursuant to the unwritten policy of the DOC and
because Beard had promised that the “damage would be undone” if defendant did not receive
impact incarceration. Defense counsel also argued that defendant received ineffective assistance
of counsel if she should have known of the DOC’s unwritten policy and that Beard would not
relay their conversation to the court.
¶ 15 The court denied the motion to withdraw the guilty plea.
¶ 16 Defendant appealed. We remanded the matter for new postplea proceedings because
defense counsel failed to file a certificate of compliance with Illinois Supreme Court Rule 604(d)
(eff. May 8, 2016).
¶ 17 On remand, defense counsel filed a Rule 604(d) certificate and a motion to withdraw
guilty plea that was identical to the one that she had filed in the initial proceedings.
5 ¶ 18 A hearing was held on the motion to withdraw the guilty plea. Defendant testified that he
did not want to enter the plea agreement because he did not believe he was eligible for impact
incarceration. Other inmates at the county jail who had participated in the impact incarceration
program had told defendant that he would not be eligible. Defense counsel told defendant that he
was eligible, and they went over the statute together. After that, defendant was somewhat
convinced that he was eligible for impact incarceration. Defense counsel told defendant that she
had talked to Beard, and defendant would be able to “come back to court” and “take the plea
back” if he was not admitted into the impact incarceration program. The following exchange
occurred between defendant and defense counsel:
“Q. Did he—were you assured that if you didn’t get boot camp you could
take back your plea?
A. Yes.
Q. And you believe that you were informed—informed of that plan by
your lawyer and the Assistant State’s Attorney?
Q. Okay. So when did you find out—and was that the only reason you
pled guilty?
Q. Were you willing to go to trial that day?
A. Yes.”
Defendant stated that he never talked to Beard directly; he only learned about defense counsel’s
conversation with Beard by talking to defense counsel.
6 ¶ 19 Defendant testified that when he arrived at the DOC, he was told that he was not eligible
for impact incarceration due to his prior offenses and the fact that he was required to serve 85%
of his sentence. He did not receive anything in writing regarding his eligibility.
¶ 20 The State submitted an affidavit from Beard stating that Beard had never told defense
counsel that defendant could withdraw his guilty plea if he was not accepted into the impact
incarceration program. The prosecutor, defense counsel, and the court discussed the fact that the
State could not actually allow a defendant to withdraw a plea. Rather, the State could choose not
to object to a motion to withdraw a plea. The ultimate determination was up to the court.
¶ 21 Defense counsel argued that the court should allow defendant to withdraw his plea
because it was induced by a promise that the State had not kept. Defense counsel said that Beard
said “he would help out and undo the damage if [defendant] did not get boot camp, and he did
not.” Defense counsel stated:
“I had talked to the Assistant State’s Attorney Jeremy Beard, and he said
[defendant]’s eligible. If it doesn’t—if he doesn’t get it, come back, and I’ll let the
Judge know that—that I said—you know, if you come back, let me know it didn’t
work, I will go in and put in a good word so that the—your client can withdraw
the plea, and that’s what he said in so many words.”
¶ 22 Defense counsel further stated:
“You know, for a defense attorney to—to painstakingly decide whether he
is eligible for boot camp, and then to be reassured by the State, you know, if
something goes wrong, he will come back and talk to the Court. You know, we’re
officers of the court and everyone—you know, I should be able to represent my
client based on his word, and if I—if I’m not, you know, my client suffers. ***
7 ***
*** [T]here was a discussion. I said, you know, I know that the Appellate
Court won’t do anything if the DOC won’t follow through with what was
promised, and [the State] said, no, don’t worry about that, don’t worry about that.
And so I made extreme efforts to make sure that I was telling my client, yes, this
will—you will get boot camp, and if you don’t, the State’s Attorney will—can
come back here and tell the Judge what—what the promise was.”
¶ 23 Defense counsel acknowledged that this promise was not included in the written plea
agreement and that she did not mention it at the plea hearing. Defense counsel stated that she did
not believe that it was necessary to put this on the record because she took Beard at his word and
believed that he would follow through on the promise. She said that she would not have told
defendant about the promise if she did not believe Beard.
¶ 24 The court denied the motion. The court stated that it did not know what was said in the
conversation between plea counsel and Beard. The court noted that the State’s alleged promise
not to object to a motion to withdraw the guilty plea was not part of the plea agreement as it was
stated at the plea hearing. The court also noted that defendant stated at the plea hearing that he
had not been promised anything other than the terms of the agreement.
¶ 25 II. ANALYSIS
¶ 26 Defendant argues that the circuit court erred in denying his motion to withdraw his guilty
plea because he pled guilty based on plea counsel’s assurance that he would be able to withdraw
his guilty plea if he was not accepted into the impact incarceration program. “[T]he general rule
is that it is within the sound discretion of the trial court to determine whether a guilty plea may
8 be withdrawn, and, on appeal, this decision will not be disturbed unless the decision is an abuse
of that discretion.” People v. Davis, 145 Ill. 2d 240, 244 (1991).
¶ 27 We first address our ability to review this issue. The State contends that defendant has
forfeited this issue by failing to include it in the motion to withdraw his guilty plea. Defendant
argues that the issue was generally raised in the motion because the motion argued that
defendant’s plea was not knowing and voluntary. We find that the issue was not raised in the
motion to withdraw guilty plea. Reading the motion as a whole, it is clear that the only issue
raised was that defendant’s plea was not knowing and voluntary because he was assured that he
was eligible for impact incarceration when he was not.
¶ 28 Defendant contends that we should review his claim because he asserted the same
essential claim in the circuit court. We disagree. In the circuit court, defense counsel argued that
defendant should be able to withdraw his guilty plea because it was induced by a promise the
State failed to keep—namely, that the State would not object to withdrawal of the plea if
defendant did not receive impact incarceration. The issue defendant raised in the circuit court
called upon the court to determine whether the State actually made such a promise to defendant.
Accordingly, the State’s response to defendant’s argument was to introduce evidence that no
such promise was made by the State. Neither the State nor the circuit court was given an
opportunity to consider the argument that defendant now raises on appeal—that is, that
withdrawal of defendant’s plea is warranted based on defense counsel’s assurances regarding
Beard’s promise even if Beard did not actually make the promise. Accordingly, the issue is
forfeited.
¶ 29 Defendant alternatively argues that defense counsel provided ineffective assistance in
failing to present and preserve the issue. To succeed on a claim of ineffective assistance of
9 counsel, defendant is required to show that (1) his counsel performed deficiently, and (2) he was
prejudiced by counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v.
Albanese, 104 Ill. 2d 504, 526 (1984).
¶ 30 First, we consider whether counsel performed deficiently in failing to raise this claim. To
show that defense counsel performed deficiently, defendant must show that counsel’s
performance fell below an objective standard of reasonableness and that “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687-88.
¶ 31 Generally, the court should permit withdrawal of a guilty plea where the plea was entered
based on a misapprehension of the facts or the law; the plea was entered as a result of
misrepresentations by defense counsel, the State, or someone else in authority; there is doubt as
to the defendant’s guilt; the defendant has a defense worthy of consideration; or the ends of
justice would be better served by submitting the case to a jury. Davis, 145 Ill. 2d at 244. A
defendant’s subjective impressions alone are not sufficient grounds for vacating a guilty plea. Id.
Rather, there must be “substantial objective proof” showing that a defendant’s mistaken
impressions were reasonably justified. Id.
¶ 32 In the instant case, counsel performed deficiently in failing to argue that defendant
entered his plea due to a misapprehension of the facts based on defense counsel’s incorrect
assurance that defendant would be allowed to withdraw his plea if he did not receive impact
incarceration. This claim had a valid legal basis. See People v. Morreale, 412 Ill. 528, 531-32
(1952) (“Where it appears that the plea of guilty was entered on a misapprehension of the facts
or of the law, or in consequence of misrepresentations by counsel or the State’s Attorney or
someone else in authority *** the court should permit the withdrawal of the plea of guilty and
10 allow the accused to plead not guilty.”). Also, this claim would have been supported by
defendant’s testimony that he did not want to enter the plea agreement because he had doubts
concerning his eligibility for impact incarceration, but he agreed to do so after counsel advised
him that the State had agreed that he would be able to withdraw the plea if he did not receive
impact incarceration. The claim would have also been supported by defense counsel’s statements
to the court, which indicated that she had conveyed to defendant that the State had agreed that
defendant would be able to withdraw his guilty plea if he did not receive impact incarceration.
¶ 33 This would have been a much stronger argument for withdrawal of the guilty plea than
defense counsel’s argument that the plea was induced by the State’s unkept promise. The
argument that defense counsel raised in the circuit court required the court to find that the State
actually made a promise that it failed to keep. The State denied that any such promise was made,
creating a factual dispute. However, the court would not have been required to find that the State
actually made a promise in order to grant relief on the claim that defendant pled guilty based on
his counsel’s incorrect representations concerning such a promise.
¶ 34 We next consider whether defendant was prejudiced by counsel’s failure to raise this
issue. In order to show prejudice, defendant must show that but for counsel’s deficiencies, the
result of the proceedings would have been different. Strickland, 466 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
¶ 35 We find that there is a reasonable probability that the court would have granted
defendant’s motion to withdraw his guilty plea if counsel had argued that defendant’s plea was
based on his mistaken impression that he would be able to withdraw his guilty plea if he did not
receive impact incarceration and that this impression was reasonably justified by defense
counsel’s assurances. As discussed above, this argument had a valid legal basis, would have been
11 supported by defendant’s testimony and the representations of defense counsel, and it would not
have required the court to resolve the factual dispute as to whether the State actually made this
promise to defense counsel. Supra ¶¶ 32-33.
¶ 36 The State argues that defendant has not shown prejudice because he has failed to assert a
claim of actual innocence or a plausible trial defense or show that it was rational under the
circumstances to reject the plea offer. We acknowledge that our supreme court has held that in
order to establish the prejudice prong of an ineffective assistance of counsel claim, “a guilty-plea
defendant ‘must show that there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.’ ” People v. Brown,
2017 IL 121681, ¶ 26 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). This ordinarily requires
the defendant to assert a claim of actual innocence or articulate a plausible trial defense. People
v. Hall, 217 Ill. 2d 324, 335-36 (2005). However, where a guilty-plea defendant claims that he
relied on counsel’s erroneous advice about a consequence of his plea, the defendant is required to
show that the decision to reject the plea agreement would have been rational under the
circumstances. Brown, 2017 IL 121681, ¶ 48.
¶ 37 We believe that the prejudice standard articulated above applies to claims that counsel
provided ineffective assistance in the plea negotiation process rather than claims that counsel
was ineffective for raising an issue in a motion to withdraw guilty plea, as in the instant case.
However, even if we were to accept the State’s position that this prejudice standard applies, we
believe defendant has shown that it would have been rational under the circumstances to reject
the plea offer. Defendant’s testimony and defense counsel’s representations to the court showed
that defendant agreed to the plea agreement despite his reservations concerning his eligibility for
impact incarceration because counsel assured him that he would be able to withdraw the plea if
12 he did not receive impact incarceration. Also, defendant asserts that he could have challenged the
State’s identification evidence had the case gone to trial. 1 According to the State’s factual basis,
no one at the scene immediately identified defendant as the shooter. Rather, defendant was
identified later when one of the victims found an old photograph of defendant on Facebook and
advised the police that he was the shooter.
¶ 38 Having found that defendant has shown that his counsel was ineffective for failing to
raise this issue in the motion to withdraw the guilty plea, we consider the appropriate remedy.
Defendant requests that we permit him to withdraw his guilty plea based on his underlying claim
that he pled guilty under the mistaken, though reasonably justified, impression that he would be
able to withdraw his guilty plea if he did not receive impact incarceration. However, this would
require us to find that the circuit court abused its discretion in denying defendant’s motion to
withdraw his guilty plea based on an issue that was even not before the court. Such a finding
would be inappropriate.
¶ 39 “The remedy for a valid claim of ineffective assistance of counsel should be tailored to
the injury from the constitutional violation and should not unnecessarily infringe on competing
interests.” People v. Patrick, 2011 IL 111666, ¶ 35. Here, the deprivation of the effective
assistance of counsel occurred during postplea proceedings. Accordingly, we believe that the
appropriate remedy in this case is to remand the matter for new postplea proceedings to afford
defendant the opportunity to raise his claim in the circuit court.
¶ 40 We do not reach the second issue defendant raises in this appeal—namely, that defense
counsel was ineffective for failing to present certain evidence and failing to withdraw. We note,
1 Defendant asserts this argument concerning the second issue he raises on appeal, but it applies with equal force to this issue.
13 however, that defendant argues, inter alia, that his counsel should have withdrawn as counsel so
that she could have testified as a witness on defendant’s behalf. Remand will give defendant an
opportunity to present his claim with the assistance of new counsel and to call his former counsel
as a witness if he so chooses.
¶ 41 Finally, the dissent asserts that defense counsel was not ineffective because the record did
not establish that any unwritten rules existed regarding the DOC’s criteria for impact
incarceration eligibility. We clarify that our finding of ineffectiveness was not based on
counsel’s failure to advise defendant of any unwritten policies of the DOC. Rather, we have
found that counsel was ineffective for failing to argue in the proceedings on the motion to
withdraw defendant’s guilty plea that the plea was based on defendant’s reasonably justified
misapprehension that he would be able to withdraw his plea if he did not receive impact
incarceration.
¶ 42 III. CONCLUSION
¶ 43 The judgment of the circuit court of Peoria County is reversed, and the matter is
remanded to the circuit court. The court is directed to appoint new counsel and to hold new
postplea proceedings to give defendant the opportunity to raise his claim that he pled guilty
based on his mistaken impression that he would be able to withdraw the plea if he did not receive
impact incarceration and that this impression was reasonably justified by his counsel’s
assurances.
¶ 44 Reversed and remanded with directions.
¶ 45 JUSTICE WRIGHT, dissenting:
¶ 46 I respectfully disagree that trial counsel was ineffective. This record does not
conclusively establish that defense counsel gave defendant any inaccurate advice or that any
14 unwritten rules exist or previously existed regarding DOC’s criteria for impact incarceration
eligibility. The possibility of the existence of informal policies or unwritten rules regarding the
impact incarceration criteria applied by DOC staff remains entirely speculative.
¶ 47 Here, the trial court carefully and clearly admonished defendant that while the court was
recommending impact incarceration, the court’s recommendation could be summarily rejected
by the authorities at DOC. The trial court made defendant fully aware that the trial court had no
control over whether DOC would reject defendant as a participant in the impact incarceration
program with or without proper justification. Respectfully, in my view, the fact that this risk
materialized, as explained by the court, does not render trial counsel’s representation ineffective.