NOTICE 2023 IL App (4th) 210577-U This Order was filed under FILED Supreme Court Rule 23 and is May 2, 2023 NO. 4-21-0577 Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County COURTNEY MISCELLE KINARD, ) No. 20CF285 Defendant-Appellant. ) ) Honorable ) William G. Workman, ) Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Justices Cavanagh and Steigmann concurred in the judgment.
ORDER
¶1 Held: Defendant’s counsel labored under an actual conflict of interest when arguing his own ineffective assistance during postplea proceedings in connection with his act of misinforming defendant about the consequences of her guilty plea. The appellate court vacated the order denying defendant’s motion to withdraw her guilty plea and remanded for the appointment of conflict-free counsel and further postplea proceedings.
¶2 In January 2021, defendant, Courtney Miscelle Kinard, entered a fully negotiated
guilty plea to criminal trespass to a residence (720 ILCS 5/19-4(a)(2) (West 2020)) in exchange
for the dismissal of other charges, 24 months of second chance probation, and community
service. Defendant moved to withdraw the plea, contending she did not understand that surrender
of her firearm owner’s identification (FOID) card and thus her ability to legally possess a firearm
was a consequence of the plea. The trial court denied the motion based on defendant’s
acknowledgment during the plea proceedings that “a conviction” could have an impact on her ability to retain or obtain a firearm and because defendant did not show there was new evidence
or that she was innocent.
¶3 On appeal, defendant contends the trial court erred because the record establishes
her trial counsel rendered ineffective assistance by affirmatively misinforming her of the
consequences of the plea when counsel told her “a conviction” would not enter at the time of the
plea and she would be able to keep her FOID card. Thus, defendant maintains her counsel
inaccurately led her to believe she would be able to retain her FOID card and legally possess a
firearm while serving probation. In the alternative, she argues counsel was ineffective during the
postplea proceedings when he acted under an actual conflict of interest by failing to sufficiently
argue he provided ineffective assistance in connection with the guilty plea, thus denying her of
her constitutional right to conflict-free counsel.
¶4 For the reasons that follow, we agree counsel labored under an actual conflict of
interest when he argued the postplea motion, which also led the trial court to apply an inaccurate
rule of law in denying the motion to withdraw. Accordingly, we vacate the court’s denial of
defendant’s motion to withdraw her guilty plea and remand for the appointment of conflict-free
counsel and further postplea proceedings.
¶5 I. BACKGROUND
¶6 In April 2020, the State charged defendant with a Class 4 felony, criminal trespass
to a residence, alleging she knowingly and without authority entered the residence of the victim,
Brian Greer, when she knew or had reason to know that one or more persons were present. The
State also charged defendant with a Class A misdemeanor, battery (id. § 12-3(a)(1)), alleging she
caused bodily harm to Greer by striking him with shovel, and a Class A misdemeanor, criminal
damage to property (id. § 21-1(a)(1)), alleging she damaged a vase and drywall. On January 6,
-2- 2021, defendant entered a fully negotiated guilty plea to the trespass charge in exchange for
dismissal of the other charges and 24 months of “second chance probation.”
¶7 At the plea hearing, the trial court informed defendant she was pleading guilty to
a Class 4 felony punishable by 1 to 3 years of incarceration, with the possibility of up to 30
months of probation or conditional discharge. Defendant expressed concern about the offense
being a felony and asked whether it would show on her record during a background check.
Counsel stated if she successfully completed second chance probation, it would never be on her
record, and a brief recess was taken for counsel to discuss the matter with defendant. When
proceedings resumed, defendant stated she still wanted to proceed and had no questions about
the charge.
¶8 The trial court fully admonished defendant of her rights and determined the
voluntary nature of the plea, including ascertaining that no one promised her anything other than
the promises made in the plea agreement. The court then told defendant:
“[A]s a result of a conviction, any future conviction could have an increased
penalty and there could be a higher possibility of a consecutive sentence. As a
result of a conviction, there could be a registration requirement that restricts
where you may work, live or be present. As a result of a conviction, there could
be an impact upon your ability to retain or obtain housing in the public or private
market, to retain or obtain employment, or to retain or obtain a firearm, an
occupational license or a driver’s license.”
The court asked defendant if she had “[a]ny questions about any of those,” and she responded,
“No.”
-3- ¶9 In providing the factual basis for the plea, the State offered that Lashantae
Gibson, defendant’s cousin and codefendant, was previously in a dating relationship with Greer,
and they shared an infant child. On March 31, 2020, Gibson was angry due to a custody issue
involving the child, and she and defendant forced entry into Greer’s residence without
permission. Defendant stipulated to the sufficiency of the factual basis and waived preparation of
a presentence investigation.
¶ 10 The trial court accepted the plea and sentenced defendant in accordance with the
plea agreement. The court advised defendant of her appeal rights, including the requirement that,
to appeal, she must first provide a written motion to withdraw the plea, and that “any claim of
error not cited in that written motion would be deemed to be waived or given up later on appeal.”
Defendant stated she had no questions about her appeal rights or any other aspect of the plea
hearing.
¶ 11 The record contains a signed plea agreement and jury waiver, dated January 6,
2021, stating defendant agreed to plead guilty in exchange for second chance probation and the
dismissal of the other charges. A line pertaining to “[a]dditional conditions” was silent
concerning any matters pertaining to possession of firearms or a FOID card. Also on that date,
defendant signed an application for waiver of criminal court assessments. The record shows
those documents were signed before the court accepted the plea. Also appearing in the record is
an “Order For Probation” signed by defendant. That order stated in part that defendant was
sentenced to 24 months of probation upon the condition that, during that period, defendant shall
“[n]ot possess a firearm or other dangerous weapon.” The order further stated, “[i]n all felony
and/or domestic battery convictions, the defendant shall surrender his/her [FOID] card to the
-4- Probation Officer as directed.” The record does not show when that document was signed in
relation to the trial court’s acceptance of the plea.
¶ 12 On January 21, 2021, defendant’s trial counsel filed a motion to withdraw the
plea, stating only “[d]efendant did not understand the consequences of her plea.” On February
10, 2021, the trial court held a hearing on the motion.
¶ 13 At the hearing, counsel told the trial court there were aspects of the probation
terms that defendant did not understand. Defendant testified that, shortly after pleading guilty,
she went “up to [p]robation to do an intake.” Afterwards, she “came by the [p]ublic [d]efender’s
[o]ffice almost immediately” and informed them she wished to withdraw her plea. When asked
what it was about the terms and conditions of probation she did not understand, defendant stated:
“I didn’t know that I was going to have to give my DNA and it has to be
sent to the State. I still don’t understand why. I asked them why. All they told me
was because it has to be entered into their database. And if I finish probation, then
they will take it or send it back to me. I don’t believe that.
Then, before I said I was going to agree to probation, I asked the Public
Defender about my FOID card.”
Counsel asked defendant if she recalled the admonitions given at the plea hearing, during which
she was told a conviction for the offense could affect her ability to own a firearm. Defendant
replied, “[r]ight. And I was under the—like under the influence that since I am not convicted,
that that wouldn’t, like, affect my FOID card.” The following colloquy then occurred:
“Q. And what, if anything, did you learn from Probation?
-5- A. As soon as I got up to Probation, they said I had to hand over my FOID
card right away. And I was not aware of that. And that is what I asked before I
agreed to my probation term.
Q. And I believe in our discussions I confirmed to you my understanding
that a conviction could affect your FOID card. And I affirmed for you that if
successfully completed, Second Chance Probation would not result in a
conviction?
A. Right. And then I would have to give it up if I didn’t complete the
probation.
Q. Were there any other specific terms or conditions of probation that you
weren’t aware of?
A. Yes. I wasn’t aware that the probation officer was going to periodically
come to my home where me and my kids are. I did not want my kids to all see or
be aware of anything like that. I wasn’t aware of that. I wasn’t aware that I have
to get permission to go in and out [of] the state whenever I feel like I need to
travel. Then, I wasn’t aware of—what else was it on there. That, and what else.
Those were, like, the pretty main ones for me.
But it was under the terms like I was just going to have to give them three
clean drug tests, and I was going to have to go check in, and I was going to have
to pay. That was my understanding of what probation was going to be until I got
up there and they, you know, like they explained everything that I would have to
agree to. And I wasn’t comfortable with it.”
-6- Counsel then asked defendant “specifically, had you been aware that entering into that agreement
would have resulted in the immediate loss of your ability to legally possess a firearm in Illinois,
would that have changed your decision under the agreement?” Defendant replied, “Yes. That,
and leaving out of the state for permission, the DNA sample being sent to the police. All of that,
I wouldn’t have agreed to the terms of probation; I would have just went to trial.”
¶ 14 On cross-examination, the State showed defendant a copy of the probation order
and asked if it had defendant’s signature at the bottom. Defendant confirmed it was her
signature. The State asked no other questions.
¶ 15 Defense counsel verified defendant came to his office immediately after visiting
probation to tell him she wished to withdraw her plea. Counsel stated, “there wasn’t any delay or
gamesmanship here. She clearly didn’t understand.” Counsel further told the trial court:
“With respect to some of the conditions of probation, the one in particular
that I think is most troubling that she—we did address directly prior to the plea
was her concern with respect to her ability to possess a FOID card. The—she did
ask me about that specifically, and I advised her and I believe, using parallel
language to the admonishments given by the Court, that a conviction for this
offense could potentially result in—inhibit directly, something that would
interfere with her ability to legally possess a firearm. However, I also explained
that by the mechanism of Second Chance Probation, a conviction was not entering
immediately as a result of a plea, and were she to complete the program
successfully, no conviction would enter. Essentially, assuring her my
understanding that at this point, by entering that agreement, there would not be an
immediate effect on her ability—on her FOID card. And so apparently from what
-7- she was told, that is not the case. It is certainly, and the other conditions she
mentioned are also of concern. But that one in particular is something that I can—
I can recall concerned her going in. And she was, based on the fact that she
entered into that agreement with the understanding gotten from her attorney and
then from what she heard the admonishments, that this was not going to have this
effect, I think that had the effect of making that waiver not fully known.”
¶ 16 Defense counsel also disagreed with the probation office and the trial court that a
conviction entered upon the plea, telling the court he believed the matter was “a deferred
judgment, in which no conviction is entered at the time of the plea.” The court asked, “[h]ave
you talked to your client? Do you think that this is going to go away if I allow her to withdraw
her plea agreement?” Counsel responded, “she discussed immediately after entering the plea that
this was a condition that was a nonstarter for her. Based on our limited discussions since then, it
is her intention if this doesn’t change, to take the matter to trial.” Counsel stated he thought there
was potentially room for some additional negotiation, and the court replied, if it allowed
defendant to withdraw the plea, the matter was going to trial. Counsel stated, “[t]hat is her
request at this time.” The court continued the matter to look at the transcript of the plea hearing.
¶ 17 On February 17, 2021, the trial court denied the motion to withdraw the plea. The
court stated:
“Well, the court did in fact admonish the defendant as to the consequences of her
plea. She acknowledged those at the time of the plea. And even though she was
given second chance probation, the consequences that she complains of still apply
even though she’s given second chance probation. The final judgment is not
entered until after the completion of the second chance probation. If she
-8- successfully completes second chance probation there will not be a judgement
entered. But at this time there has already been a finding of guilt pursuant to that
plea. And those admonishments that were given at the time of the plea indicated
to the defendant the consequences.”
¶ 18 Defendant appealed. Trial counsel did not file a certificate as required by Illinois
Supreme Court Rule 604(d) (eff. July 1, 2017). On May 26, 2021, the Office of the State
Appellate Defender filed an agreed motion for summary remand for compliance with Rule
604(d). This court granted the motion and remanded for the filing of a Rule 604(d) certificate,
the opportunity to file a new postplea motion if counsel concluded one was necessary, a new
judgment, new notice of appeal, and strict compliance with Rule 604(d).
¶ 19 On remand, trial counsel filed a facially valid Rule 604(d) certificate. At the
hearing on the matter, counsel declined to amend the motion to withdraw the plea or file a new
motion and proceeded on the original motion. Counsel repeated his argument that defendant
expressed concern whether a conviction would affect her ability to have a FOID card and said he
told her the matter was not a conviction on the record and instead was a deferred judgment.
Counsel stated he told defendant “she would not be required by probation upon the entry into
second chance probation, to surrender her FOID card, as long as a conviction did not enter on her
record.” Counsel stated, “I believed, and this may have turned out to be erroneously, that she
would be allowed to keep her FOID card and possess a weapon pursuant to FOID registry.”
Counsel again confirmed that:
“Immediately upon entering the plea and going up to probation, during the
intake process she was informed by probation that she would need to surrender
her FOID card, and she, right away, came back to our office and said, you said
-9- this wasn’t going to happen. This was a significant issue for me, and I—had I
known this I would not have entered into the agreement.”
Counsel further told the court, “I do believe that her waiver was given conditional upon the
advice, however poor it may have been for myself, that this would likely not affect her FOID
status. It turns out it did.” Counsel argued the plea was not knowing and voluntary, given the fact
that defendant was in good faith following counsel’s advice that a conviction would be deferred,
and the court’s admonitions addressed the matter in terms of the inability to possess a firearm
only when “a conviction” was entered.
¶ 20 The State argued that, even if counsel’s representation was deficient, defendant
was required to show the result would have been different, “[m]eaning that she would have had
to show some sort of claim of innocence, or a plausible defense,” which she did not do. When
counsel was asked if he had “[a]ny rebuttal to that,” he stated, “[n]o.” The trial court held the
impact on defendant’s FOID card and ability to possess a firearm was collateral to the plea and
stated defendant was advised of the potential consequences of pleading guilty. The court also
stated, “[t]here is actually no indication that there is any new evidence or claim of innocence in
this matter.” Thus, the court again denied the motion.
¶ 21 This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 Defendant contends the trial court erred in denying her motion to withdraw the
plea based on ineffective assistance of counsel during the plea proceedings. She argues counsel
affirmatively misrepresented the effect of second chance probation on her ability keep her FOID
card and legally possess a firearm by telling her a conviction would not enter unless she failed to
complete probation. She further argues the court’s admonitions did not cure the misapprehension
- 10 - because the court did not explain at the time of the plea that, contrary to counsel’s
representations, a conviction entered immediately upon entry of the plea. Defendant also argues
her counsel rendered ineffective assistance by inadequately representing her in the postplea
proceedings while under an actual conflict of interest and by failing to make necessary
amendments to the motion to withdraw the plea in compliance with Rule 604(d).
¶ 24 A. Denial of the Motion to Withdraw the Plea
¶ 25 Defendant first contends the trial court erred when it denied the motion to
withdraw her plea because her counsel rendered ineffective assistance by affirmatively
misrepresenting to her the consequences of her plea. She argues counsel’s advice was deficient
and the record shows prejudice because she would not have entered the plea but for counsel’s
misrepresentation about the status of her ability to retain her FOID card and legally possess a
firearm.
¶ 26 “A defendant does not have an automatic right to withdraw her guilty plea, as ‘[a]
plea of guilty is a grave act that is not reversible at the defendant’s whim.’ ” People v. Burge,
2021 IL 125642, ¶ 37, 195 N.E.3d 1135 (quoting People v. Reed, 2020 IL 124940, ¶ 47, 182
N.E.3d 64). “Rather, a defendant must establish a manifest injustice under the facts involved.”
Id. “A guilty plea may be withdrawn where it was entered through a misapprehension of the facts
or law or where there is doubt as to the guilt of the accused and justice would be better served by
conducting a trial.” Id. “In order to vacate a plea based on a misapprehension of law or fact, the
defendant must establish, under an objective standard, that her mistaken beliefs or impressions
were reasonably justified under the circumstances as they existed at the time of the plea.” Id.
“We review the trial court’s decision to grant or deny a motion to withdraw a guilty plea for an
abuse of discretion” Id.
- 11 - ¶ 27 Generally, “ ‘[d]ue process does not require that the defendant be informed of the
collateral consequences of a guilty plea.’ ” Id. ¶ 38 (quoting People v. Delvillar, 235 Ill. 2d 507,
520-21, 922 N.E.2d 330, 338 (2009)). “A collateral consequence is one that does not relate to the
length or nature of the sentence imposed on the basis of the plea.” Id. “ ‘Examples of collateral
consequences have included loss of employment, loss of voting rights, license suspension, and
dishonorable discharge from the military.’ ” Id. (quoting People v. Hughes, 2012 IL 112817,
¶ 36, 983 N.E.2d 439); see also Johnson v. Department of State Police, 2020 IL 124213, ¶ 47,
161 N.E.3d 161 (noting loss of a FOID card was a collateral consequence of the defendant’s
conviction, which was entered following a guilty plea). Here, the parties do not dispute that loss
of a FOID card or a prohibition against possessing a firearm is a collateral consequence of the
plea.
¶ 28 Because loss of a FOID card and the resulting inability to possess a firearm is a
collateral consequence of the plea, any failure to admonish defendant in that regard does not
affect the voluntariness of her plea. See Burge, 2021 IL 125642, ¶ 38. However, affirmative
misrepresentations or misleading advice by counsel as to the collateral consequences of a guilty
plea may require reversal. See People v. Correa, 108 Ill. 2d 541, 551, 485 N.E.2d 307, 311
(1985). Even when the trial court gave proper admonitions, the effect of erroneous and
misleading advice of counsel may render a plea involuntary. See id. at 552-53. Such a
determination depends on whether the defendant had the effective assistance of counsel. Id. at
549.
¶ 29 A criminal defendant is entitled to the effective assistance of trial counsel at all
critical stages of the criminal proceedings, including guilty plea proceedings. Hughes, 2012 IL
112817, ¶ 44. Under the test articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984),
- 12 - to establish ineffective assistance of counsel, a defendant must establish that his or her counsel’s
performance fell below an objective standard of reasonableness, resulting in prejudice.
¶ 30 In ineffective-assistance of counsel challenges arising from the guilty-plea
process, the first prong of the Strickland standard remains the same. People v. Brown, 2017 IL
121681, ¶ 26, 102 N.E.3d 205. However, for purposes of the second prong, the 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.’ ” Id. (quoting Hill v. Lockhart, 474
U.S. 52, 59 (1985)). When applying the second prong, “ ‘[a] conclusory allegation that a
defendant would not have pleaded guilty and would have demanded a trial is insufficient to
establish prejudice’ for purposes of an ineffectiveness claim.” Id. (quoting People v. Valdez,
2016 IL 119860, ¶ 29, 67 N.E.3d 233).
¶ 31 Previously, in People v. Rissley, 206 Ill. 2d 403, 459, 795 N.E.2d 174, 205 (2003),
our supreme court held that, in the context of a guilty plea, a defendant’s bare assertion that, but
for plea counsel’s bad advice, he or she would have not pleaded guilty, unaccompanied by either
a claim of innocence or the statement of any plausible defense that could have been raised had
the defendant opted for a trial, failed to show prejudice. Our supreme court also held the same in
People v. Hall, 217 Ill. 2d 324, 335-36, 841 N.E.2d 913, 920 (2005). However, following the
decision of the United States Supreme Court in Lee v. United States, __ U.S. ___, 137 S. Ct.
1958 (2017), our supreme court specifically held the previous standard derived from Rissley and
Hall requiring a showing of actual innocence or a plausible defense was no longer applicable to
cases involving trial counsel’s error in advising a defendant of the consequences of a guilty plea.
Brown, 2017 IL 121681, ¶ 46. Instead, when a defendant’s ineffective assistance claim alleges
counsel’s deficient performance caused the defendant to accept a plea, the defendant must
- 13 - convince the court that a decision to reject the plea bargain would have been rational under the
circumstances. Id. ¶ 48.
¶ 32 In showing that a decision to reject the plea bargain would have been rational, “a
defendant is not required to assert actual innocence or a plausible defense, in order to prevail on
a claim of ineffective assistance of plea counsel.” People v. Jones, 2021 IL App (1st) 182392,
¶ 69, 195 N.E.3d 705 (citing Brown, 2017 IL 121681, ¶¶ 34-36). Instead, we consider the
specific circumstances of the defendant’s case. Brown, 2017 IL 121681, ¶ 41. However, while a
defendant is “ ‘not required’ ” to show actual innocence or a plausible defense, that does not
render consideration of claims of innocence or possible defenses irrelevant. Jones, 2021 IL App
(1st) 182392, ¶ 69. When considering prejudice and the consequences of pleading guilty, a court
may still consider the likelihood of conviction and the likely consequences of a defendant’s
decision to reject the offered plea. Id. (citing Brown, 2017 IL 121681, ¶¶ 35-36).
¶ 33 Addressing defendant’s argument on appeal, we first note counsel misrepresented
the law to defendant. Section 5-6-3.4(a) of the Unified Code of Corrections (Code) (730 ILCS
5/5-6-3.4(a) (West 2020)) provides the trial court may, without entering judgment, sentence the
defendant to second chance probation. When the court does so, it shall defer further proceedings
in the case until the conclusion of a period of not more than 24 months of probation. Id. § 5-6-
3.4(b). The Code specifically provides conditions for the term of probation, including that the
defendant shall refrain from possessing a firearm. Id. § 5-6-3.4(c)(2). Upon fulfillment of the
conditions of probation, the court “shall discharge the [defendant] and dismiss the proceedings.”
Id. § 5-6-3.4(f). However, “[a] disposition of probation is considered to be a conviction for
purposes of imposing the conditions of probation and for appeal.” Id. § 5-6-3.4(g). A discharge
- 14 - and dismissal after fulfillment of the conditions of probation is not a conviction for purposes of
disqualifications or disabilities imposed by law upon conviction of a crime. Id.
¶ 34 Here, the first prong of the Strickland standard is easily established. Applying the
Code, counsel affirmatively misrepresented the law when he told defendant a conviction would
not enter at the time of the plea and that the plea would not affect defendant’s ability to keep her
FOID card and legally possess a firearm while she served probation. The Code is clear that
defendant could not possess a firearm as a condition of her second chance probation. Moreover,
counsel’s inaccurate advice was not cured by the trial court’s admonishment that “a conviction”
could have an adverse effect on defendant’s ability to possess a firearm because counsel led
defendant to believe “a conviction” would not enter at the time she pleaded guilty. Although
defendant signed an “order” with conditions of probation stating she could not possess a firearm,
the record does not show it was signed before the court accepted the plea, and its designation as
an “order” indicates it was postplea document. Further, the order also referred to possession of
the FOID card in relation to a “conviction.” Thus, counsel’s representation was deficient and not
cured by the trial court’s admonishments or documents signed by defendant. The more difficult
question, however, is whether defendant suffered prejudice from counsel’s misrepresentation,
such that a decision to reject the plea bargain would have been rational under the circumstances.
¶ 35 Defendant made clear her ability to possess a firearm and the status of her FOID
card was important to her. The record also supports defendant’s assertion she would have chosen
to go to trial had she not been misinformed. However, the record is also generally silent about
her reasons why the matter was important to her, which is necessary in order for us to determine
whether her rejection of the plea agreement and the corresponding risk of conviction would be
rational under the circumstances. We note the trial court did not address the issue applying the
- 15 - correct legal standard, in part because counsel failed to argue the matter using the correct
standard. However, we also note that, without taking the plea deal, defendant still would have
been eligible for probation or conditional discharge if convicted. See 730 ILCS 5/5-4.5-45(d), 5-
4.5-55(d) (West 2020). But she also faced a potential period of incarceration. Id. §§ 5-4.5-45(a),
5-4.5-55(a). She further would have been deprived of her FOID card and ability to possess a
weapon during any sentence of probation or conditional discharge and faced permanent
deprivation of both upon a conviction of the Class 4 felony. See 430 ILCS 65/8(c) (West 2020)
(providing for revocation of a FOID card after conviction of a felony). Thus, the only way
defendant could assure she retained her FOID card and ability to legally possess a firearm would
be through an acquittal. In that regard, the factual basis for the plea in the record is sparse. On the
face of the record, it would appear defendant would likely be found guilty, resulting in the
possible permanent loss of her FOID card, along with facing the risk of incarceration, which
leads us to question whether rejection of the plea agreement would be rational under the
circumstances.
¶ 36 However, we need not decide whether defendant’s choice to reject the plea
bargain would have been rational because, as we address below, we agree with defendant’s
argument that, when counsel argued his own ineffectiveness, he deprived defendant of her
constitutional right to conflict-free counsel.
¶ 37 B. Ineffective Assistance of Postplea Counsel and Conflict of Interest
¶ 38 Defendant argues counsel rendered ineffective assistance during the postplea
proceedings because, when he presented what was in effect a claim of his own ineffective
assistance, he failed to do so adequately, creating an actual conflict of interest.
- 16 - ¶ 39 “A defendant’s right to effective assistance of counsel includes a right to
representation that is free from conflicts of interest.” People v. Hampton, 2021 IL App (5th)
170341, ¶ 111, 195 N.E.3d 1260 (citing People v. Hernandez, 231 Ill. 2d 134, 142, 896 N.E.2d
297, 303 (2008)). “A conflict of interest can be either per se or actual.” Id. (citing People v.
Brown, 2017 IL App (3d) 140921, ¶ 30, 83 N.E.3d 31). “If a per se conflict exists, the defendant
is not required to demonstrate that counsel’s performance was adversely affected by the conflict.
‘In other words, a defendant is not required to show actual prejudice when a per se conflict
exists.’ ” Id. (quoting Hernandez, 231 Ill. 2d at 143). However, the majority of appellate court
districts have declined to find the existence of a per se conflict of interest when counsel is
required to argue his or her own ineffectiveness. See People v. Garcia, 2018 IL App (5th)
150363, ¶ 30, 116 N.E.3d 1082; People v. Zareski, 2017 IL App (1st) 150836, ¶¶ 36-38, 84
N.E.3d 527; People v. Sullivan, 2014 IL App (3d) 120312, ¶¶ 44-46, 6 N.E.3d 888; People v.
Perkins, 408 Ill. App. 3d 752, 762, 945 N.E.2d 1228, 1237 (2011). This court has also indicated
a similar view. See People v. Jones, 219 Ill. App. 3d 301, 304, 579 N.E.2d 1192, 1194 (1991)
(declining to interpret People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), as holding
there is a per se conflict of interest any time an attorney raises his or her own ineffectiveness).
Thus, we hold defendant must show an actual conflict of interest occurred. We review de novo
the question of whether the defendant’s counsel was laboring under a conflict of interest.
Hampton, 2021 IL App (5th) 170341, ¶ 111 (citing Garcia, 2018 IL App (5th) 150363, ¶ 26).
¶ 40 To establish an actual conflict of interest, a defendant must demonstrate the
conflict adversely affected his or her counsel’s performance. Id. A defendant need not prove
prejudice, but the “the defendant must point to a specific defect in counsel’s performance that is
attributable to the conflict.” Id.; People v. Morales, 209 Ill. 2d 340, 349, 808 N.E.2d 510, 515
- 17 - (2004). The following appellate court decisions both illustrate circumstances in which trial
counsel may be found to be acting under an actual conflict of interest.
¶ 41 In Brown, a jury convicted the defendant of domestic battery. Brown, 2017 IL
App (3d) 140921, ¶ 1. Following trial, the defendant filed a pro se letter stating he wanted to
appeal the jury’s verdict because one of his witnesses was not called to testify. Before
sentencing, defense counsel made an oral motion to set aside the jury’s verdict and, as part of the
basis for the motion, adopted part of the defendant’s letter with respect to failure to call a
witness. Id. ¶¶ 12-13. The trial court asked counsel whether she had any witnesses she wanted to
present with respect to the motion, and counsel told the court that she would proceed through
proffer instead. Counsel said the defendant had told her about two occurrence witnesses. Counsel
initially thought the two individuals were actually only one person, and she could not locate the
person because the defendant did not have an address. However, at trial, counsel learned the
defendant had described two occurrence witnesses, but by then the trial had already begun and it
was too late to add the additional witness. Id. ¶ 14. Counsel told the court the defendant believed
if either witness had been called, they would have been able to testify with respect to his
innocence. Counsel concluded,
“ ‘So we’d ask the [c]ourt to reconsider the verdict or to set aside the verdict of
the jurors on the basis that this was nothing short of just a miscommunication and
that it’s a miscommunication between him and me that led to him not being able
to call all the people that could be put on, the best case to determine whether he in
fact was guilty or innocent.’ ” Id.
¶ 42 The trial court denied the motion, stating that a miscommunication between
counsel and the defendant was not a proper basis for setting aside the jury’s verdict Id. ¶ 15. The
- 18 - court also concluded that, based on counsel’s summary of events, the defendant failed to provide
his counsel with enough information to contact the witnesses. Id. ¶ 15.
¶ 43 On appeal, the defendant argued in part that his counsel proceeded under an actual
conflict of interest when she was required to argue her own ineffectiveness. Id. ¶ 28. The
appellate court agreed, concluding the defendant’s counsel had an actual conflict of interest
because the motion to set aside the verdict was premised on the single issue of counsel’s own
ineffectiveness in failing to call the defendant’s witnesses. Id. ¶ 32. The court noted that, to
prevail, defense counsel was obligated to show that her performance was constitutionally
deficient and that, but for her deficient performance, a reasonable likelihood existed that the
result of the trial would have been different. Id. However, counsel failed to make any effort to
show either prong of ineffective assistance and instead placed the blame on the defendant and a
miscommunication, a characterization that led to the denial of the motion. Id. ¶ 33. The court
also noted counsel did not present any evidence concerning the missing witnesses’ potential
testimony. Id. The court concluded counsel’s errors were attributable to the conflict of interest
inherent in arguing her own ineffectiveness. Thus, the appellate court vacated the trial court’s
denial of the defendant’s posttrial motion and remanded the matter for the appointment of
conflict-free counsel and a new posttrial motion. Id. ¶ 34.
¶ 44 In Garcia, a jury convicted the defendant of attempted burglary. Garcia, 2018 IL
App (5th) 150363, ¶ 1. Before trial, the circuit court granted a defense motion in limine, barring
the State from presenting other-crimes evidence during trial. Id. ¶ 8. However, at trial, the State
presented two videotaped confessions containing inadmissible and prejudicial evidence of other
crimes involving the defendant, and defense counsel failed to object, thus exposing the jury to
the prejudicial other-crimes evidence. Counsel raised the error in a posttrial motion,
- 19 - characterizing it as plain error instead of ineffective assistance of counsel. Id. ¶ 20. The trial
court denied the posttrial motion. Id. ¶ 24. On appeal, the defendant argued, in part, his trial
counsel had an actual conflict of interest during the posttrial hearing because counsel had to
argue that his own error resulted in an unfair trial. Id. ¶ 26.
¶ 45 The appellate court agreed and noted, like in Brown, the defendant’s posttrial
motion was based on a single issue—counsel’s failure to object to the inadmissible and
prejudicial portions of the interrogation videotapes, which included evidence of other crimes and
bad acts. Thus, for the posttrial motion to prevail, defense counsel was obligated to show under
Strickland that his performance was deficient and the deficient performance so prejudiced the
defendant that he was denied a fair trial. Id. ¶ 39. However, the defense counsel did not make any
effort to show either prong of the Strickland standard was satisfied. The court found the record
established the failure to do so was attributable to the conflict of interest inherent in counsel
having to argue his own ineffectiveness. Id. Instead of zealously arguing his own ineffectiveness,
counsel told the trial court that he had assumed the videos the State would show to the jury were
“ ‘probably redacted.’ ” Id. ¶ 40. When asked if he was going to put on any evidence, counsel
declined to do so, even though much of the pretrial discussion about the admission of the
videotapes occurred off the record. Instead of presenting evidence, counsel argued that the video
was prejudicial regardless of which party sought to introduce the evidence because its admission
was “ ‘plain error’ ” and stated he was not “ ‘casting blame on anyone.’ ” Id. ¶ 41. Thus, the
appellate court held defense counsel’s failure to present evidence was attributable to his
reluctance to prove his own ineffectiveness. Based on the record, the court could not find that the
defendant’s counsel vigorously and zealously asserted grounds for a new trial because of
counsel’s admitted mistake. Id. ¶ 42.
- 20 - ¶ 46 The Garcia court also rejected an argument that counsel was required to
specifically advance an argument couched in terms of ineffective assistance of counsel to create
an actual conflict of interest. In doing so the court stated, “[a] criminal defendant has a
constitutional right to the undivided loyalty of counsel, free of conflicting interests.” Id. ¶ 47.
The court further stressed,
“[w]hen a criminal defendant’s attorney is aware that he has committed an error
or made an omission during trial and that the error or omission arguably resulted
in the defendant receiving an unfair trial, the attorney has an obligation to bring
the error or omission to the trial court’s attention and zealously argue that the
mistake warrants a new trial.” Id.
The court recognized that, “[i]f counsel zealously and effectively argues for a new trial based on
his error or omission, the defendant has not been denied his constitutional right to conflict-free
counsel.” Id. (citing Perkins, 408 Ill. App. 3d at 762). But, “when counsel fails to adequately
assert an ineffective assistance of counsel claim on the defendant’s behalf and the record
indicates that counsel’s failure to do so was influenced by counsel’s reluctance to argue his own
ineffectiveness, the defendant has been denied his constitutional right to conflict-free counsel.”
Id. ¶ 48. Ultimately, the Garcia court concluded that, because counsel was reluctant to cast
blame on anyone and declined the trial court’s request to present evidence on the issue, resulting
in the denial of the posttrial motion, the record indicated an actual conflict of interest, and the
defendant was denied his constitutional right to conflict-free counsel. Id. ¶ 49.
¶ 47 We find Brown and Garcia applicable. Although Brown and Garcia involved
actual conflicts of interest at trial, while here the conflict was during postplea proceedings, that
distinction is irrelevant, as defendant is entitled to conflict-free counsel throughout the
- 21 - proceedings, including at postplea proceedings, and defendant’s plea did not waive that right.
See People v. Friend, 341 Ill. App. 3d 139, 141, 793 N.E.2d 927, 929 (2003).
¶ 48 As in Brown and Garcia, counsel here filed a motion directly implicating
ineffective assistance based on his affirmative misrepresentation of the law to defendant.
However, while the matter was clearly an issue of ineffective assistance, counsel never
specifically labeled it as such and indicated reluctance to do so. For example, in the first motion,
when counsel filed the motion to withdraw the plea, he wrote only, “[d]efendant did not
understand the consequences of her plea.” At the first hearing, counsel presented the issue as one
based on defendant’s lack of understanding of the plea. Counsel then showed reluctance to
specifically acknowledge his failure to determine that the law provided “a conviction” would
enter upon the plea. Thus, his error affected defendant’s ability to legally possess a firearm or
retain her FOID card, despite the statutory provisions clearly providing otherwise. Instead,
counsel told the trial court his “understanding” was that, by entering the plea agreement, there
would not be an immediate effect on defendant’s FOID card, but he added, “apparently from
what she was told, that is not the case”; thus, he indicated that he placed blame on the probation
office. Counsel also stated his disagreement that that a conviction entered right away upon the
plea, telling the trial court he believed the matter was “a deferred judgment, in which no
conviction is entered at the time of the plea.” Yet, as previously noted, the statutory scheme
clearly provided otherwise. The court denied the motion to withdraw the plea without addressing
the claim under the rubric of ineffective assistance of counsel.
¶ 49 Then, when the matter was remanded for compliance with Rule 604(d), counsel
stood on the original motion. At the hearing, counsel again implicated an ineffective assistance
claim, stating, “I do believe that her waiver was given conditional upon the advice, however poor
- 22 - it may have been for myself, that this would likely not affect her FOID status. It turns out it did.”
However, counsel never fully argued the matter under the correct legal principles pertaining to
ineffective assistance. Instead, he was equivocal, stating, “I believed, and this may have turned
out to be erroneously, that she would be allowed to keep her FOID card and possess a weapon
pursuant to FOID registry.” Nor did he elicit testimony from defendant to fully support an
ineffective assistance claim, specifically whether it would be rational for defendant to reject the
plea agreement. The result is that counsel failed to properly present a claim correctly applying
the Strickland standards to the trial court. That failure was compounded when the State
incorrectly told the court that defendant must show a claim of innocence or a plausible defense,
which, as previously discussed, was no longer the applicable law. The court asked counsel if he
had any rebuttal and, instead of correcting the State, which would require application of the law
concerning ineffective assistance, counsel declined to rebut the State’s assertion. The result was
that the court applied incomplete and incorrect law when it denied the motion, stating defendant
had not shown new evidence or a claim of innocence.
¶ 50 Accordingly, like in Brown and Garcia, we conclude the record indicates
counsel’s performance during the postplea proceedings was attributable to counsel’s reluctance
to argue his own ineffectiveness. Garcia, 2018 IL App (5th) 150363, ¶ 42; Brown, 2017 IL App
(3d) 140921, ¶ 33. Attorneys are not obligated to raise issues they believe lack merit, including
the issue of their own ineffectiveness. However, once an attorney chooses to include that issue in
a posttrial motion, he or she is under an obligation to argue the issue “zealously and
competently” in proceedings on the motion. Id. ¶ 34. Here, counsel failed to fully argue the
matter, which directly led to the trial court applying the wrong legal standard. Thus, we
determine counsel was acting under an actual conflict of interest.
- 23 - ¶ 51 Because there was an actual conflict of interest, we are required to vacate the
order denying defendant’s motion to withdraw her plea and remand for the appointment of
conflict-free counsel, who may file a new motion and raise any issues they find have merit. See
Garcia, 2018 IL App (5th) 150363, ¶ 49. We emphasize that our ruling here is limited to holding
that defendant is entitled new postplea proceedings with new counsel; we make no finding, nor
prediction, as to the ultimate outcome of the proceedings or to the merits of her underlying claim.
See People v. Zirko, 2021 IL App (1st) 162956, ¶ 26, 196 N.E.3d 1131. Because we vacate and
remand for appointment of new counsel based on counsel’s actual conflict of interest, we do not
address defendant’s argument that counsel also provided ineffective assistance by failing to
amend the motion to withdraw the plea under Rule 604(d).
¶ 52 III. CONCLUSION
¶ 53 For the reasons stated, we vacate the trial court’s judgment denying defendant's
motion to withdraw her guilty plea and remand to the trial court for the appointment of conflict-
free counsel and further postplea proceedings consistent with this order.
¶ 54 Vacated and remanded with directions.
- 24 -