People v. La Pointe

2015 IL App (2d) 130451, 40 N.E.3d 72

• Court: Appellate Court of Illinois
• Decided: March 27, 2015
• Docket: 2-13-0451
• Status: Unpublished

Opinion

2015 IL App (2d) 130451 No. 2-13-0451 Opinion filed March 27, 2015 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 78-CF-317 ) PHILLIP E. La POINTE, ) Honorable ) Robert G. Kleeman, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.

OPINION

¶1 Defendant, Phillip E. La Pointe, appeals a judgment that denied his successive petition

for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012))

against his life sentence for first-degree murder (Ill. Rev. Stat. 1977, ch. 38, ¶ 9-1(a)(1)). On

appeal, defendant contends that he proved that Edwin Simpson, the assistant public defender

who represented him when he pleaded guilty and was sentenced, was ineffective. We affirm.

¶2 On March 7, 1978, defendant, who was 18 years old, shot and killed Peter Moreno, Jr., a

taxicab driver. The State charged defendant with (1) first-degree murder based on the intent to

kill (first-degree murder) (Ill. Rev. Stat. 1977, ch. 38, ¶ 9-1(a)(1)); (2) felony murder (Ill. Rev. 2015 IL App (2d) 130451

Stat. 1977, ch. 38, ¶ 9-1(a)(3)); and armed robbery (Ill. Rev. Stat. 1977, ch. 38, ¶ 18-2(a)).

Defendant initially pleaded not guilty.

¶3 On June 16, 1978, the trial court, Judge Edwin L. Douglas presiding, held a hearing.

Simpson stated that, by agreement, defendant wished to withdraw his plea and plead guilty to

first-degree murder only, with no agreement on sentencing. In response to Judge Douglas’s

questions, defendant stated that he understood the charge and wished to plead guilty to it.

¶4 Assistant State’s Attorney Thomas Knight then provided the following factual basis. On

the morning of March 7, 1978, defendant visited David Cichelli at the gas station where Cichelli

worked and told him that he was going to rob and kill a cab driver. Defendant showed Cichelli a

loaded .22-caliber revolver. Shortly afterward, defendant left, walked two blocks, and called for

a cab. Moreno arrived, picked up defendant, and drove to the area of York Commons.

Defendant shot Moreno twice in the head with the revolver. He then drove the cab, with

Moreno’s body inside, a short distance and left it there. Defendant took some money from

Moreno, returned to the gas station, and told Cichelli, “ ‘Well. I did it. I killed him.’ ” He added

that he had killed Moreno because Moreno could identify him.

¶5 The factual basis continued as follows. Later that day, the police found the cab with

Moreno lying dead inside. On March 8, 1978, defendant was arrested and taken to the police

station. He admitted that he had called the cab; that he was in the cab when he heard two shots

fired; and that only he and Moreno had been in the cab then. Defendant said that the gun was

now in his home. The police obtained and executed a search warrant and found the gun. When

defendant shot Moreno, he was not under the influence of drugs or any mental incapacity that

negated the intent required for first-degree murder.

¶6 The following colloquy then ensued:

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“THE COURT: ***

Mr. Lapointe [sic], what you have heard the State’s Attorney indicate just now, is

that substantially the—is that basically correct?

DEFENDANT LAPOINTE: Most of it, yes, sir.

THE COURT: Most of it?

DEFENDANT LAPOINTE: Yeah.

THE COURT: What do you mean by ‘most of it’?

MR. SIMPSON: Your Honor, for the purpose of this record, Mr. Lapointe [sic],

and I as his attorney, will stipulate that were the matter to go to trial, that is the evidence

that the State would prove or show if the case were to go to trial.”

¶7 Judge Douglas further admonished defendant. After defendant reiterated that his plea

was voluntary, the following colloquy occurred:

“THE COURT: Let the record show that the Court further advises you that upon

your plea of guilty to the crime of murder, the Court must impose a sentence within the

possibilities as follow[s]: At the very least the Court must impose a sentence of a specific

number of years of imprisonment, and that number cannot be less than 20. That specific

number of years can be as high as 40 years.

Some examples would be 25 years, 28 years, 37 years or 40 years. Do you

understand this possible sentence?

DEFENDANT LAPOINTE: Yes, I do.

THE COURT: Or the Court may impose a sentence of a specific number of years

of imprisonment of not less than 40 nor more than 80 years if you were 17 years or older

on the date the crime was committed and either you have previously been convicted

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within the last ten years of a felony of an equal or greater class than that to which you are

tendering your plea of guilty.

In your case, that could only be a previous murder conviction or if the Court finds

that the crime you committed was accompanied by exceptionally brutal or heinous

behavior indicative of wanton cruelty.

Do you understand this possibility?

THE COURT: It is also possible for the Court to impose a sentence of

imprisonment for the rest of your natural life without parole if the Court finds either that

the murder you committed was accompanied by exceptionally brutal or heinous behavior

indicative of wanton cruelty or you were 18 years or older at the time of the crime and the

person you murdered was killed during the course of an armed robbery and was actually

killed by you and not some other party to the crime or simply as a consequence of that

crime, and you killed that person intentionally or with the knowledge that the acts which

caused the death, created a strong probability of death or great bodily harm.

Do you understand this possible sentence?

DEFENDANT LAPOINTE: Yes, I do.”

¶8 Judge Douglas further admonished defendant that he could be sentenced to death if, at the

State’s request, the court held a hearing in aggravation and mitigation and a jury unanimously

found (or, if defendant waived a jury, the judge found) beyond a reasonable doubt that (1)

defendant committed the murder during an armed robbery; and (2) no mitigating factors existed

that were sufficient to preclude the death penalty. If the jury (or judge) so found, the court would

be required to sentence defendant to death. Defendant said that he understood.

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¶9 Next, the judge admonished defendant that, if he were sentenced to prison for less than

life, he would, upon his release, have to serve three years of mandatory supervised relief (MSR);

if he violated any conditions of his MSR, he could be reincarcerated. Defendant said that he

understood. He also stated that he had no questions concerning the possible sentences and that

he still wished to plead guilty to first-degree murder. The judge then found that defendant had

voluntarily pleaded guilty and that there was a factual basis for the plea.

¶ 10 Simpson briefly questioned defendant. In response, defendant stated that the State had

given Simpson information that Simpson had then discussed with defendant; that Simpson’s

investigator had obtained other information, which Simpson had also shared with defendant; and

that Simpson had not threatened or coerced him into pleading guilty.

¶ 11 We must now note that, effective February 1, 1978, Public Act 80-1099, § 3, amended

section 3-6-3 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1977, ch. 38, ¶ 1003-6-3)

to provide as follows (additions are italicized, and deletions are noted by strikeouts, as in the

original act):

Ҥ 3-6-3. Rules and Regulations for Early Release Diminution of Sentence.) [sic]

(a)(1) The Department of Corrections shall prescribe rules and regulations for the early

release diminution of sentences on account of good conduct or meritorious service of

persons committed to the Department which shall be subject to review by the Prisoner

Review Board.

(2) Such rules and regulations shall provide that the prisoner shall receive one

day of good conduct credit for each day of service in prison for all classes of felonies

other than where a sentence of ‘natural life’ has been imposed. Each day of good

conduct credit shall reduce by one day the inmate’s period of incarceration set by the

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court. The maximum sentence shall not be diminished, except with the approval of the

Director of the Department of Corrections.

(3) Such rules and regulations shall also provide that the Director may award up

to 90 days additional good conduct credit for meritorious service in specific instances as

the Director deems proper.

(b) Whenever a person is or has been committed under separate convictions, with

separate sentences, such sentences shall be construed under Section 5-8-4 [of the Code

(Ill. Rev. Stat. 1977, ch. 38, ¶ 1005-8-4)] in granting and forfeiting of good time.

(c) The Department shall prescribe rules and regulations for revoking good

conduct credit time, or suspending or reducing the rate of accumulation thereof for

specific rule violations, during imprisonment or release on parole or mandatory release

under supervision. Such rules and regulations shall provide that:

(1) good conduct credits previously earned shall accumulate on a monthly basis.

(2) no inmate may be penalized more than one year of good conduct credit for

any one infraction.

When the Department seeks to revoke, suspend or reduce the rate of accumulation

of any good conduct credits for an alleged infraction of its rules, it shall bring charges

therefor against the prisoner sought to be so deprived of good conduct credits before the

Prisoner Review Board *** if the amount of credit at issue exceeds 30 days or when

during any 12[-]month period, the cumulative amount of credit revoked exceeds 30 days.

However, the Board shall not be empowered to review the Department’s decision with

respect to the loss of 30 days of good conduct credit within any calendar year for any

prisoner or to increase any penalty beyond the length requested by the Department.

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(3) The Director of the Department of Corrections, in appropriate cases, may

restore up to 30 days good conduct credits which have been revoked, suspended or

reduced. Any restoration of good conduct credits in excess of 30 days shall be subject to

review by the Prisoner Review Board. However, the Board may not restore good conduct

credit in excess of the amount requested by the Director.

(4) Nothing contained in this Section shall prohibit the Prisoner Review Board

from ordering *** that a prisoner serve up to one year of the sentence imposed by the

court which was not served due to the accumulation of good conduct credit.” Pub. Act

80-1099, § 3 (eff. Feb. 1, 1978).

¶ 12 The judge did not admonish defendant that he would be eligible for good-conduct credit

against a sentence of less than natural life. At the guilty-plea hearing, the subject of good-

conduct credit was never raised on the record.

¶ 13 The court ordered a presentence investigation report (PSIR). On August 31, 1978, the

court held a sentencing hearing. We note the following.

¶ 14 Cichelli testified consistently with the factual basis about his encounters with defendant;

he added that defendant said that he had shot Moreno for the money but that it was not worth it.

Elmhurst police sergeant James Altman testified that, when he examined the abandoned taxicab,

he saw that Moreno’s pockets had been turned inside-out and there was no money or

identification on him. Sergeant Ralph O’Connell, who had supervised the evidence work in the

investigation, testified that Moreno had been shot twice, in the head and the neck, from behind at

close range. Deputy sheriff David Leeberg testified that he had been assigned to the Du Page

County jail as a supervisor. Late in March and early in April 1978, he saw defendant roughly 10

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times wearing a T-shirt with the inscription “ ‘Elmhurst Executioner.’ ” Two other deputy

sheriffs who worked at the jail testified that they saw defendant wearing the same T-shirt.

¶ 15 Joseph Ray, a 16-year-old student, testified that, two or three weeks before defendant was

arrested, he asked Ray to help him rob the cash register at a drugstore restaurant. Before then,

they had burglarized a home. According to the PSIR, defendant was on probation for burglary

when he murdered Moreno. Ray also testified that defendant had telephoned him from jail and

asked him to get him some “hash,” but that Ray refused.

¶ 16 In mitigation, defendant’s mother and stepfather testified that defendant had a serious

drug problem. A minister testified that he had tried to work with defendant on his drug problem,

but he believed that defendant was dangerous to himself and society and needed psychiatric care.

¶ 17 In argument, Knight requested that defendant be sentenced to life. Knight claimed two

bases for a life term. First, defendant’s crime was accompanied by exceptionally brutal or

heinous conduct, indicative of wanton cruelty (see Ill. Rev. Stat., 1978 Supp., ch. 38, ¶ 1005-8-

1(a)(1)): it was premeditated and unprovoked, and defendant boasted about it afterward. Second,

defendant committed the murder in the course of committing armed robbery (see Ill. Rev. Stat.,

1978 Supp., ch. 38, ¶¶ 1005-8-1(a)(1), 9-1(b)(6)). Simpson argued that defendant’s youth and

rehabilitative potential made a life term excessive. The cause was continued for sentencing.

¶ 18 On September 18, 1978, Judge Douglas pronounced sentence, explaining his decision as

follows. Shortly before defendant murdered Moreno, he told Cichelli what he was going to do;

shortly afterward, he told Cichelli that he had done it. Defendant’s conduct showed

“premeditation and a calculated deliberateness.” No statutory factors in mitigation (see Ill. Rev.

Stat., 1978 Supp., ch. 38, ¶ 1005-5-3.1) applied. Turning to the aggravating factors listed in the

first-degree murder statute, the existence of one or more of which would have authorized a death

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sentence (see Ill. Rev. Stat., 1978 Supp., ch. 38, ¶ 9-1(b)), Judge Douglas found inapplicable the

first five. He turned to the sixth factor, which read:

“6. [T]he murdered individual was killed in the course of another felony if:

(a) the murdered individual was actually killed by the defendant and not by

another party to the crime or simply as a consequence of the crime; and

(b) the defendant killed the murdered individual intentionally or with the

knowledge that the acts which caused the death created a strong probability of death or

great bodily harm to the murdered individual or another; and

(c) the other felony was one of the following: armed robbery, robbery, rape,

deviate sexual assault, aggravated kidnapping, forcible detention, arson, burglary, or the

taking of indecent liberties with a child[.]” Ill. Rev. Stat., 1978 Supp., ch. 38, ¶ 9-1(b)(6).

¶ 19 Of this factor, Judge Douglas stated as follows:

“ ‘The murdered individual was killed in the course of another felony,’ which was

not [sic] true here.

‘The murdered individual was actually killed by the defendant and not by another

party to the crime or simply as a consequence of the crime,’ which is not [sic] true here.

‘The defendant killed the murdered individual intentionally or with the knowledge

that the acts which caused the death created a strong possibility [sic] of death or great

bodily harm to the murdered individual or another,’ and that was true here.

And the felony, of course, was armed robbery.”

¶ 20 The judge again stated that no mitigating factors applied. He continued as follows:

“So, the Court, in taking into consideration the heinous nature of this crime, its

brutality, its cold, calculating, cold-blooded act which is indicative of the wanton cruelty,

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there was indication it was premeditated and post meditated [sic], *** it shall be the

judgement [sic] of this court that the defendant *** shall serve a life sentence, without

parole.”

¶ 21 Judge Douglas’s statement invoked section 5-8-1(a)(1) of the Code (Ill. Rev. Stat., 1978

Supp., ch. 38, ¶ 1005-8-1(a)(1)), which was added by the public act that also created the day-for-

day credit system in section 3-6-3(a). Pub. Act 80-1099, § 3 (eff. Feb. 1, 1978). Section 5-8-

1(a)(1) read:

“[I]f the court finds that the murder was accompanied by exceptionally brutal or heinous

behavior indicative of wanton cruelty or that any of the aggravating factors listed in

subsection (b) of Section 9-1 of the Criminal Code of 1961 [(Ill. Rev. Stat. 1978 Supp.,

ch. 38, ¶ 9-1(b))] are present, the court may sentence the defendant to a term of natural

life imprisonment[.]” Ill. Rev. Stat., 1978 Supp., ch. 38, ¶ 1005-8-1(a)(1).

¶ 22 The judge admonished defendant of his appeal rights, stating in part, “Prior to taking an

appeal, you must file, within 30 days, a written motion to have the judgment entered against you

vacated and to withdraw your plea of guilty.” He continued, “The motion must state the grounds

for vacating the judgment,” and “[a]ny issue or claim of error not raised in your motion shall be

deemed waived on appeal.”

¶ 23 Immediately after the judge finished the admonishments, Simpson stated, “Your Honor, I

would ask that yourdirect [sic] the Clerk of the Court to prepare a notice of appeal” on

defendant’s behalf. No notice of appeal was filed that day. On September 25, 1978, however,

the public defender, Frank Wesolowski, Jr., signed and filed a notice of appeal. As of then, no

postjudgment motion had been filed on defendant’s behalf.

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¶ 24 On October 4, 1978, Simpson filed a motion to reconsider defendant’s sentence. It

argued in general terms that the sentence was excessive. On October 10, 1978, the trial court

struck the motion. On October 17, 1978, Simpson filed an amended motion to reconsider the

sentence. On October 30, 1978, the trial court ruled that it had no jurisdiction to hear the

amended motion, given the pending appeal. On November 1, 1978, Robert Heise, the appellate

division chief of the Du Page County public defender’s office, signed and filed a notice of

appeal.

¶ 25 This court heard defendant’s direct appeal. He argued that his life sentence was

excessive. Before deciding the issue, we noted that defendant had failed to move to withdraw his

plea and vacate the judgment, as then required by Illinois Supreme Court Rule 604(d) (eff. Jan.

1, 1970). Based on this omission, the State argued that defendant had forfeited his argument on

appeal. People v. LaPointe, 85 Ill. App. 3d 215, 219 (1980), rev’d, 88 Ill. 2d 482 (1981). This

court disregarded the forfeiture, reasoning that Simpson’s decision to file the notice of appeal

without having filed the required motion amounted to ineffective assistance, especially as

Simpson had heard the judge admonish defendant that he could not preserve any issues on appeal

unless he timely moved to withdraw his plea and vacate the judgment. Id.

¶ 26 Turning to the merits, we held that the trial court had erred in applying the factors in

aggravation and mitigation. Id. at 221-23. In part, we held that the court had incorrectly found

that defendant’s conduct had been exceptionally brutal or heinous, given his poor mental health

and his drug abuse. Id. Thus, we reduced his prison sentence from life to 60 years. Id. at 224.

¶ 27 The supreme court reversed this court and affirmed the trial court, holding that the trial

court had properly considered all of the pertinent sentencing factors. People v. La Pointe, 88 Ill.

2d 482, 493 (1981). Further, the trial court had properly found that defendant’s conduct had

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been exceptionally brutal or heinous: defendant, who had had a history of criminal activity,

“acted with premeditated, cold-blooded deliberation” and committed a crime for which he could

have been sentenced to death. Id. at 501. Moreover, he displayed a callous and unremorseful

attitude by wearing the “ ‘Elmhurst Executioner’ ” T-shirt in jail. Id.

¶ 28 After exhausting his direct appeals, defendant filed numerous postconviction actions in

both Illinois and federal courts. We recount the ones filed specifically under the Act to the

extent necessary to explain our decision here.

¶ 29 On May 1, 2002, defendant filed his first petition under the Act, asserting numerous

claims. Three are pertinent here. The first was that Simpson had rendered ineffective assistance

on the matter of good-conduct credit. This claim alleged as follows. Simpson presented

defendant with an offer from the State under which, in exchange for his plea of guilty to first-

degree murder, it would drop the other two charges and recommend a 40-year prison term.

However, Simpson never informed defendant of the recent amendment to the Code that allowed

day-for-day good-conduct credit. Defendant rejected the proposed bargain, telling Simpson, “ ‘I

couldn’t accept that because I’ll be 58 when I get out,’ ” thus showing that he was unaware of the

good-conduct-credit provision. Simpson should have known about the provision and should

have told defendant about it; had he done so, defendant would have accepted the State’s offer

and would have completed his sentence already.

¶ 30 The second claim pertinent here was that Simpson had been ineffective because, at the

guilty-plea hearing, he failed to explain to defendant the “brutal or heinous” sentencing

provision, other than assuring him that it did not apply to him. The third claim was that appellate

counsel had been ineffective for failing to argue that Simpson had rendered ineffective assistance

by failing to file the required postjudgment motion.

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¶ 31 Attached to defendant’s petition was a copy of a letter, dated September 23, 1978, that

defendant had written to Simpson from prison. The letter read:

“As you probably know I was transfered [sic] down here to Joliet right after the

sentencing. What happened in our sentencing hearing? When we talked back in I think

June at the plea hearing you specifically told me ‘because the state couldn’t or didn’t

have any evidence or facts of brutal or heinous that the judge couldn’t go outside the 20-

40 range.’ So what in the heck happened and why am I hear [sic] with a life sentence?

To another issue[,] when I got here a captain tuttle [sic] checked me in and said

something about how I won’t be getting any good time, I asked around about what is

good time. I found out you get days for everyday [sic] your [sic] here which means you

only serve half your sentence. Why didn’t you tell me about that? When you told me the

state had offered a 40[-]year sentence I thought I’d be 58 when I got out, if you had told

me about this good time stuff I would of [sic] taken that deal. Can we still get it? The

judge said something about taking back my guilty plea within 30 days, lets [sic] do that.

You can let him know how you didn’t tell me about this good time stuff and that I’ll take

that deal, please let me know what happens next.”

¶ 32 The trial court summarily dismissed the petition. This court affirmed. People v.

LaPointe, No. 2-02-0702 (2003) (unpublished order under Supreme Court Rule 23).

¶ 33 On January 10, 2008, defendant moved pro se for leave to file a successive petition under

the Act. See 725 ILCS 5/122-1(f) (West 2008). As pertinent here, the motion contended that

defendant’s September 23, 1978, letter to Simpson evinced that defendant had not wanted to

appeal directly from the judgment without filing the required motion—yet Simpson had done

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just that, without consulting him. Defendant contended that Simpson’s blunder had denied him

the opportunity to challenge the judgment—and thus his life sentence.

¶ 34 The trial court denied defendant leave to file the proposed successive petition. We

affirmed. People v. LaPointe, No. 2-08-0236 (2010) (unpublished order under Supreme Court

Rule 23). On appeal, the supreme court directed us to vacate our judgment and to remand the

cause to the trial court to allow defendant to file a successive petition limited to “the issue of

whether trial counsel was ineffective in failing to file a motion to withdraw defendant’s guilty

plea on the grounds stated in defendant’s alleged September 28, 1978[,] letter to counsel.”

People v. LaPointe, No. 111395 (Jan. 26, 2011).

¶ 35 On remand, defendant filed a pro se petition. The trial court allowed the petition to

progress to the next stage and appointed counsel for defendant (see 725 ILCS 5/122-2.1(b) (West

2010)). On May 1, 2012, defendant, by counsel, filed an amended petition that summarized the

history of the case and attached (1) a copy of an affidavit, dated October 30, 1998, that Simpson

had completed in an unsuccessful federal action that defendant had filed; (2) defendant’s

affidavit; and (3) a copy of defendant’s September 28, 1978, letter to Simpson.

¶ 36 The amended petition alleged that Simpson had rendered ineffective assistance in three

respects. First, Simpson incorrectly told defendant that the “ ‘facts’ ” of the case were not

exceptionally brutal or heinous. As a result, defendant did not believe that the judge could

sentence him to more than 40 years and, therefore, he rejected the State’s offer. Second,

Simpson failed to inform defendant that a “direct consequenc[e]” of accepting the offer would be

that, under the recently amended section 3-6-3(a) of the Code, day-for-day good-conduct credit

would “automatically attach[ ],” so as to reduce defendant’s actual time in prison to 20 years.

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¶ 37 Third, immediately after the judge pronounced the sentence, and without consulting

defendant, Simpson told the judge that he wanted a notice of appeal filed. The notice of appeal

was filed without Simpson having filed the necessary Rule 604(d) motion. Defendant timely

wrote to Simpson (the September 23, 1978, letter), asking him to move to withdraw defendant’s

guilty plea, but Simpson never did so; instead, without consulting defendant, he filed improper

motions to reconsider the sentence, and he failed to move per Illinois Supreme Court Rule 309

(eff. Jan. 1, 1967) to withdraw the notice of appeal. As a result, the trial court refused to hear the

motions, citing a lack of jurisdiction.

¶ 38 In his 1998 affidavit, Simpson stated as follows. Late in May or early in June 1978, the

State proposed an agreement under which defendant would plead guilty to first-degree murder

and the State would dismiss the felony-murder and armed-robbery charges and recommend a

sentence of 40 years’ imprisonment. Defendant rejected the offer and later elected to plead

guilty to first-degree murder, with no agreement on the sentence. Only during the closing

arguments at the sentencing hearing did Simpson learn that the State was seeking a sentence of

life without parole.

¶ 39 In his affidavit, defendant stated as follows. Late in May or early in June 1978, Simpson

presented the plea offer. He also told defendant that “the judge wouldn’t be able to go over the

40 years as the facts were not exceptionally brutal and [sic] heinous indicative of wanton

cruelty.” Simpson advised defendant to accept the deal. Simpson also told defendant’s parents

about the offer; they consulted an attorney who recommended that defendant accept it.

However, defendant declined the offer, because “(A) If 40 years was the most the judge could

give [defendant], why accept the maximum? (B) At 18 [defendant] would be 58 years old when

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[he] got out. [Defendant] could not imagine doing 40 straight years.” At no time did Simpson

tell defendant that “day for day good time was available which would cut the sentence in half.”

¶ 40 Defendant’s affidavit continued as follows. In his admonishments, Judge Douglas

mentioned possible prison sentences longer than 40 years, but he spoke of these hypothetically,

and Simpson had just told defendant that a sentence of more than 40 years was impossible.

When Judge Douglas asked defendant what he meant by saying that “ ‘most of’ ” the factual

basis was true, Simpson pulled defendant aside before he could answer and told him that the

judge could not give him more than 40 years, because nothing in the factual basis supported a

finding of exceptionally brutal or heinous conduct. After he was sentenced, defendant was

hurried out of the courtroom and had no opportunity to talk to Simpson. Only in prison did he

learn of the good-conduct-credit provision in the Code. Defendant wrote Simpson on September

23, 1978, but he never heard back about his request to withdraw his plea. Defendant would have

accepted the State’s offer if either (1) Simpson had explained to him that he could receive more

than 40 years; or (2) Simpson had “explained the concept of good time.”

¶ 41 Defendant’s petition argued that Simpson had rendered ineffective assistance for the

following reasons. Simpson performed deficiently in failing to file the required postjudgment

motion. Moreover, even after he filed the notice of appeal, Simpson could have moved per Rule

309 to withdraw it and thus enable the trial court to hear a proper motion. There was no

justification for Simpson’s failure to preserve any challenge to the judgment. Simpson also

performed deficiently in (1) incorrectly advising defendant that the factual basis for the plea

precluded a sentence of more than 40 years; and (2) failing to advise defendant that, if he

accepted the 40-year offer, he would be eligible for day-for-day good-conduct credit. Had

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Simpson informed defendant properly, defendant would have accepted the State’s offer instead

of proceeding as he did and ending up with a life sentence.

¶ 42 Defendant filed a second amended petition that added a discussion of the recent Supreme

Court case of Missouri v. Frye, 566 U.S. __, 132 S. Ct. 1399 (2012), relating to ineffective-

assistance claims based on guilty-plea negotiations. The second amended petition also included

an affidavit from defendant’s mother. In the affidavit, she stated that, before defendant decided

to plead guilty, Simpson told her about the State’s plea offer but never mentioned the concept of

day-for-day good-conduct credit against the proposed 40-year sentence. She also stated that

defendant told her that he rejected the offer because he did not want to spend 40 years in prison.

¶ 43 The State moved to dismiss the second amended petition. The State contended first that

defendant could not establish that Simpson was ineffective for failing to advise him that he

would be eligible for day-for-day good-conduct credit if he accepted the State’s offer. The State

cited People v. Frison, 365 Ill. App. 3d 932 (2006), which held that, because possible day-for-

day good-conduct credit is a collateral consequence of a guilty plea, not a direct one, counsel’s

failure to disclose it to a defendant will not support a claim of ineffectiveness.

¶ 44 The State contended second that defendant had not sufficiently documented his claims of

error. First, he had not alleged any facts to prove that Simpson did not inform him of the

possible good-conduct credit. Second, he had not alleged any specific facts to prove that

Simpson ever received the letter dated September 23, 1978, or that he had otherwise been placed

on notice that defendant wished to move to withdraw the guilty plea.

¶ 45 The State also contended that Frye and People v. Curry, 178 Ill. 2d 509 (1997), were

distinguishable. Frye held only that the defendant’s attorney had been ineffective for completely

failing to communicate a plea offer, not merely omitting a detail of an offer involving a collateral

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consequence. Curry was distinguishable because there the defendant’s attorney failed to advise

him that, if he rejected an offer to plead guilty to one charge, with the other two charges

dismissed, and instead went to trial on all three charges, he would face mandatory consecutive

sentences. The State reasoned that mandatory consecutive sentences are a direct consequence of

a plea, but that possible good-conduct credit is merely a collateral consequence.

¶ 46 After hearing arguments on the State’s motion to dismiss, the trial court granted the

motion in part. It dismissed defendant’s claim of ineffectiveness insofar as it was based on

Simpson’s alleged failure to inform defendant about the day-for-day good-conduct credit that

was possible against the proposed 40-year sentence. The court did not dismiss the claim based

on Simpson’s allegedly ineffective handling of a possible extended-term sentence. The judge

explained as follows. Courts had repeatedly held that good-conduct credit is a collateral

consequence of a guilty plea. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court

rejected the direct/collateral test in the context of deportation, explaining that the proper measure

is “ ‘prevailing professional norms.’ ” Id. at 366 (quoting Strickland v. Washington, 466 U.S.

668, 688 (1984)). By this standard, it was unprofessional for Simpson to present defendant with

the State’s offer of a 40-year sentence but fail to tell him about the good-conduct credit.

Moreover, defendant had alleged that he would have accepted the offer had he known of the

credit. However, the judge noted, in People v. Hughes, 2011 IL App (2d) 090992, aff’d, 2012 IL

112817, this court concluded that, outside the deportation context, Padilla had not upset the

direct/collateral distinction. Thus, as any good-conduct credit is a collateral consequence of a

guilty plea, Simpson was not ineffective for failing to tell defendant about it.

¶ 47 The judge explained that he declined to dismiss defendant’s claim that Simpson was

ineffective for assuring him that, because the factual basis could not support a “brutal or

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heinous” finding, Judge Douglas could not impose an extended-term sentence. The judge

reasoned that, although Judge Douglas did admonish defendant about the possibility of an

extended-term sentence, defendant’s allegation that Simpson privately assured him that this was

really not possible would be sufficient to show that Simpson had been ineffective. It was at least

possible that Simpson had not merely given bad advice but had misstated the law.

¶ 48 The cause proceeded to an evidentiary hearing (see 725 ILCS 5/122-6 (West 2012)). We

summarize the evidence.

¶ 49 Defendant called Simpson. On direct examination, he testified as follows. After the

preliminary hearing, he started representing defendant. Assistant State’s Attorney Michael

Higgins conveyed an offer under which defendant would plead guilty to first-degree murder and

the State would recommend a 40-year prison sentence. Day-for-day good-conduct credit would

have applied under the new statute. Simpson conveyed the offer to defendant. They discussed

the offer and, at some point, also discussed possible extended-term sentences.

¶ 50 Asked whether he had told defendant that day-for-day credit would apply, Simpson

testified, “I can’t tell you I can remember that.” He added that he “would presume that [he]

probably told [defendant] that there would be some kind of day-for-day credit.” Simpson also

testified that defendant’s parents had hired Robert Greenwalt, a private attorney; Simpson

“presume[d]” that Greenwalt had told them and defendant that day-for-day credit would apply.

Simpson advised defendant to accept the offer. Defendant told Simpson that he did not wish to

accept it.

¶ 51 Asked what he had advised defendant about the “brutal or heinous” factor, Simpson

testified, “My recollection is, I told Mr. LaPointe [sic], in my opinion, what he did was not—did

not qualify as brutal and [sic] heinous.” Asked whether, before defendant entered his open plea,

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he had ever advised defendant that a life sentence was possible, Simpson testified, “I can’t say

that I really did advise him that he could get a natural life sentence.” Before the sentencing

hearing, Simpson had not realized that the State would be seeking a life sentence; nobody from

the State had discussed this possibility with him. Simpson recalled that Judge Douglas

eventually used the factual basis that the State had introduced at the guilty-plea hearing as a basis

for defendant’s life sentence. Judge Douglas relied on a “brutal or heinous” finding to impose

the life term.

¶ 52 Simpson conceded that, on his initiative, a notice of appeal was filed before he had

consulted with defendant about any issues that he might have for a postjudgment motion.

Simpson admitted receiving defendant’s September 23, 1978, letter. After he received it, he did

not communicate with defendant but filed a motion to reconsider the sentence and an amended

motion to reconsider the sentence. He did not file any motion to withdraw defendant’s guilty

plea even though defendant’s letter asked whether he could take back his plea. Later, Simpson

learned that Judge Douglas had refused to hear the motions, because the notice of appeal had

divested the trial court of jurisdiction. Simpson never attempted to vacate or dismiss the notice

of appeal.

¶ 53 Simpson testified on cross-examination that, after he started representing defendant,

defendant’s family hired Greenwalt. Simpson did not know what Greenwalt had told defendant

and his family. Judge Douglas’s admonishments at the guilty-plea hearing included a list of the

possible penalties, including that the death penalty would be available upon proof that defendant

murdered Moreno during an armed robbery.

¶ 54 Simpson acknowledged that, in the September 23, 1978, letter, defendant asked how he

could have received life imprisonment after Simpson had assured him that the murder was not

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exceptionally brutal or heinous. Simpson testified, “That was my opinion, sir. Still is my

opinion.” In 1978, the day-for-day-credit provision was new, and “[w]e had not a lot of

knowledge about the day-for-day good time.” Attorneys at the time “understood [that] much of

day-for-day good time was within the discretion of a warden at a penitentiary.”

¶ 55 On redirect examination, defendant’s attorney asked Simpson whether, before defendant

pleaded guilty, he advised defendant that “[he] did not believe the evidence or the facts would

permit a Judge to find [the crime] exceptionally brutal and heinous.” Simpson answered,

“Correct.” He was sure that defendant had relied on his advice. Asked whether he had ever

advised defendant that he would be entitled to day-for-day credit against the proposed 40-year

sentence, Simpson testified, “I don’t recall”; it was possible that he had not.

¶ 56 On re-cross-examination, the State asked Simpson, “You advised [defendant] to take a

40-year offer when you believed that was pretty much close to the maximum?” Simpson said

yes. On surredirect examination, Simpson explained why he did not consider defendant’s

murder of Moreno to have been exceptionally brutal or heinous as the Code defines that concept.

He stated, “In my opinion, if a person is shot quickly twice in the back of the head and they are

dead as a result of that, this is a very short time without suffering greatly.” He added, “That’s

why I told [defendant] I did not consider it a brutal and heinous crime.” On surrecross-

examination, the State again asked Simpson whether he had advised defendant of the “whole

range of possibilities” for sentencing if he pleaded guilty. Simpson answered, “I think I

explained to him, in my opinion, it was not a brutal and heinous crime.” He added that Judge

Douglas did admonish defendant that a “brutal or heinous” finding could lead to a life sentence.

¶ 57 Defendant then testified on direct examination as follows. After Simpson started

representing him, they went over the possible sentences. The examination continued:

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“Q. Do you recall what those possible penalties were that Mr. Simpson informed

you of?

A. Yes. He told me, upon a finding of guilty, that I would be subject to a 20- to

40-year sentence. He went to the extended term section, and he said that because I didn’t

have a same or greater class felony, I would not be eligible for that. And that my crime

was not brutal and heinous. So, I couldn’t be given an extended term based on that.

Q. At any time did Mr. Simpson inform you about the possibility of being—being

subject to a possible life sentence?

A. He said the only possibility of a life sentence was if the State [sic] found me

guilty of the murder committed in the course of an armed robbery.

Q. And you recall any discussions Mr. Simpson had regarding the term

[‘]exceptionally brutal or heinous[’]?

A. He did not say that was a possibility because my case wasn’t.

Q. Specifically, what did he tell you about—do you recall what he told you about

brutal and heinous in terms of facts related to your case?

A. He didn’t say what was or what wasn’t brutal and heinous. He said my facts

weren’t brutal and heinous.”

¶ 58 Defendant testified that Simpson advised him to take the State’s offer. Defendant

declined, because “if 40 was the most I could get, excluding the armed robbery, I wasn’t going to

accept the maximum.” Asked whether Simpson told him whether he would serve all 40 years or

“part of the 40,” defendant responded, “He never mentioned anything concerning partly or all of

it or anything like that. It was just I was under the impression I would have to serve all of it. I

didn’t know anything about percentages or anything like that. He did not advise me about the

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percentages of it.” Defendant eventually accepted an agreement under which the State dropped

the felony-murder and armed-robbery charges and he pleaded guilty to first-degree murder, with

no agreement on the sentence.

¶ 59 Defendant recounted that he told Judge Douglas that he agreed with “ ‘[m]ost of’ ” the

factual basis. The judge asked him what he meant. Simpson pulled him aside and told him that

“there was nothing exceptionally brutal and heinous in the factual basis. The Judge would be

constrained to a 20 to 40, and [defendant] should keep [his] answer simple.” Judge Douglas

admonished defendant that a life sentence was possible, but defendant “didn’t really believe it

because of what Mr. Simpson had told [him].”

¶ 60 Defendant stated that he entered the plea that he did because Simpson had advised him

that he could not receive more than 40 years. He rejected the earlier plea offer for the same

reason. Before the sentencing hearing, defendant and Simpson had had “no clue” that the State

would ask the judge to sentence him to life.

¶ 61 Defendant testified that, when Simpson asked Judge Douglas to direct the circuit court

clerk to file a notice of appeal, he had not consulted defendant about this matter. After defendant

was sentenced, he did not communicate verbally with Simpson. He wrote him five days later,

asking him to move to withdraw the guilty plea, but Simpson never did so. Simpson did file

motions to reconsider the sentence but did not include any of the issues raised in defendant’s

letter.

¶ 62 Defendant testified on cross-examination as follows. Judge Douglas did admonish him

about the possible sentences of death and life imprisonment, and defendant told the judge that he

understood. Defendant persisted in his guilty plea because he was “still under the impression

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from Simpson that those weren’t real possibilities.” Greenwalt never talked to defendant about

the offer and never advised him on whether to accept it.

¶ 63 On redirect examination, defendant stated that, when Simpson pulled him aside at the

guilty-plea hearing, he assured him that “[t]he Judge would be constrained to 20 to 40 because

the State had not alleged anything exceptionally brutal and heinous.” Based on that assurance,

defendant persisted in his plea, believing that “20 to 40 was the maximum. No matter what the

Judge was admonishing me about, that was [defendant’s] belief.” At no time before or after he

pleaded guilty did Simpson tell him that he was subject to a life sentence.

¶ 64 Defendant rested. The State presented no evidence. After arguments, the trial judge

initially clarified that the issue of day-for-day good-conduct credit had been settled at the second

stage of the proceedings; as a matter of law, Simpson’s omissions about a collateral consequence

of a guilty plea could not constitute ineffectiveness. Thus, the only issue was Simpson’s alleged

ineffectiveness on the “brutal or heinous” issue. Although Simpson’s failure to file the required

motion to withdraw the guilty plea was inexcusable, it was not a separate ground for relief at this

point: the successive petition that defendant filed on remand from this court was, in essence, the

motion to withdraw the plea that Simpson should have filed originally.

¶ 65 The judge turned to Simpson’s handling of the “brutal or heinous” factor. To prove

ineffective assistance, defendant had to establish that counsel’s performance was objectively

unreasonable and that defendant was prejudiced as a result. Strickland, 466 U.S. at 687-88;

Curry, 178 Ill. 2d at 518-19. The judge distinguished between an attorney’s erroneous opinion

or prediction, on the one hand, and his mistake of law, on the other. He concluded that

Simpson’s statement to defendant—“these facts aren’t brutal and heinous, this is how I view

it”—fell into the first category. It was “a factual piece of advice.” The judge credited Simpson’s

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testimony “that he told the defendant. In my opinion it’s not brutal and heinous.” Simpson

could not have presented an offer for a 40-year prison sentence while also telling defendant flatly

that he could not get more than 40 years. Simpson had reasonably, although erroneously,

characterized “two shots in the back of the head” as falling short of exceptionally brutal or

heinous. That Judge Douglas later found differently did not prove that Simpson’s advice had

been objectively unreasonable.

¶ 66 The trial court denied defendant’s petition. He timely appealed.

¶ 67 On appeal, defendant contends that the trial court erred in denying his petition, because

he proved that Simpson had rendered ineffective assistance in two respects: (1) failing to advise

defendant that, if he accepted the State’s plea offer, he would be eligible for day-for-day good-

conduct credit against the proposed 40-year sentence; and (2) erroneously advising defendant

that the absence of any evidence that his offense was accompanied by exceptionally brutal or

heinous conduct meant that he could not be sentenced to more than 40 years for first-degree

murder. Defendant also asserts that Simpson was ineffective for failing to file the required

postjudgment motion, by which defendant could have raised these issues without needing a

postconviction proceeding. We do not consider this argument separately, as in itself it would not

establish a ground for relief. We assume that Simpson’s failure to file the required motion fell

below an objective standard of reasonable performance, but we note that defendant does not

contend that this lapse in itself caused prejudice so as to support a claim of ineffectiveness.

¶ 68 Defendant argues that he suffered prejudice from either one of Simpson’s two allegedly

unprofessional lapses. Specifically, he maintains that, absent either Simpson’s omission of

advice about good-conduct credit or his erroneous assurance that an extended term could not be

imposed, defendant would have accepted the State’s initial offer and avoided the life sentence

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that he is now serving. For the following reasons, we disagree with defendant on the

performance prong of each claim, and we affirm without considering prejudice.

¶ 69 The trial court dismissed one of defendant’s claims (day-for-day good-conduct credit) at

the second stage, based on the State’s motion to dismiss. Our review of this ruling is de novo,

and we ask whether, taking the factual allegations of the claim as true, it makes a substantial

showing of a constitutional violation. See People v. Pendleton, 223 Ill. 2d 458, 473 (2006). The

trial court denied defendant’s other claim (extended-term sentence) after an evidentiary hearing,

so we defer to the trial court’s factual findings and may reverse only if the judgment is

manifestly erroneous. See People v. Morgan, 212 Ill. 2d 148, 155 (2004).

¶ 70 We set out the basic principles applicable to both claims. To show that trial counsel was

ineffective, a defendant must prove that counsel’s performance was objectively unreasonable and

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694; Hughes, 2012 IL 112817,

¶ 44. Counsel’s performance must not be viewed in hindsight. People v. Fuller, 205 Ill. 2d 308,

331 (2002). A defendant must overcome the strong presumption that counsel’s conduct falls

within the wide range of reasonable assistance. Strickland, 466 U.S. at 689; People v. Perez,

2012 IL App (2d) 100865, ¶ 65.

¶ 71 The constitutional right to the effective assistance of counsel extends to the negotiation

and consideration of plea offers that lapse or are rejected. Frye, 566 U.S. at ___, 132 S. Ct. at

1409; People v. Hale, 2013 IL 113140, ¶¶ 19-20. To show prejudice in this type of situation, a

defendant must demonstrate a reasonable probability that (1) he would have accepted the earlier

plea offer had he received the effective assistance of counsel; and (2) the plea would have been

entered without the prosecution canceling it or the trial court refusing to accept it, if they had the

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authority to exercise that discretion under state law. Frye, 566 U.S. at ___, 132 S. Ct. at 1409;

Hale, 2013 IL 113140, ¶¶ 19-20. More generally, the defendant must show a reasonable

probability that the end result of the criminal process would have been more favorable by reason

of a plea to a lesser charge or a sentence of less prison time. Frye, 566 U.S. at ___, 132 S. Ct. at

1409.

¶ 72 We turn to the first claim of ineffective assistance. Defendant contends that the trial

court erred in holding, as a matter of law, that Simpson could not have been ineffective for

failing to inform him that, if he accepted the State’s plea offer, he would, under the newly

adopted section 3-6-3(a) of the Code, be entitled to day-for-day good-conduct credit against the

40-year prison term. Defendant argues that the trial court erred in holding that the claim failed as

a matter of law because good-conduct credit is a collateral consequence of a guilty plea.

Defendant acknowledges that we so held in Frison, but he contends that Frison’s reliance on the

direct/collateral distinction is now invalid because Padilla established a more open-ended test

based on the significance of the allegedly collateral matter in light of professional standards.

¶ 73 We affirm the trial court’s judgment on the good-conduct-credit claim. Despite Padilla,

the collateral-consequence doctrine applies to defendant’s claim.

¶ 74 Before Padilla, Illinois courts adhered to a strict distinction between “direct” and

“collateral” consequences of a guilty plea and held that the effective assistance of counsel

requires a defendant’s attorney to inform him of the former but not of the latter. See Hughes,

2012 IL 112817, ¶ 45; People v. Huante, 143 Ill. 2d 61, 71-72 (1991). Our courts defined direct

consequences as those that are definite, immediate, and largely automatic in their effect upon a

defendant’s punishment. People v. Williams, 188 Ill. 2d 365, 372 (1999). Collateral

consequences are those that are not related to the length or nature of the sentence imposed on the

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basis of the plea. Id. Collateral consequences generally result from actions taken by agencies

that the trial court does not control. Id.

¶ 75 In Frison, a pre-Padilla case, this court held that the availability of day-for-day good-

conduct credit under section 3-6-3(a) of the Code is a collateral consequence of a guilty plea and

that a defendant’s attorney thus is not ineffective merely for failing to inform his client about it.

Frison, 365 Ill. App. 3d at 936. We explained that a defendant does not automatically receive

any such credit, which is contingent on his behavior after he is sentenced. Id. at 935. Moreover,

we note here that section 3-6-3(a) leaves the decision whether to award or deny a defendant

good-conduct credit primarily to the Department of Corrections, and not the trial court.

¶ 76 Defendant contends that, after Padilla and our supreme court’s decision in Hughes,

Frison’s rigid adherence to the direct/collateral test is no longer tenable. For reasons that we

explain, even if defendant is right, it does not help him here.

¶ 77 In Padilla, the Supreme Court addressed whether trial counsel can be constitutionally

ineffective for failing to advise a defendant that pleading guilty carries the risk of deportation.

At the time, Illinois courts (among many others) had long held that, because deportation is a

collateral consequence of a guilty plea, trial counsel is not ineffective merely for failing to advise

his client about it. See Padilla, 559 U.S. at 365 n.9; Huante, 143 Ill. 2d at 71. 1 In Padilla, the

Court noted that it had “never applied a distinction between direct and collateral consequences to

define the scope of constitutionally ‘reasonable professional assistance’ ” required under the

1 There is an important qualification, though it is not directly relevant here. Although

trial counsel is not ineffective for failing to raise a collateral consequence, counsel can still be

ineffective for affirmatively misleading the defendant about a collateral consequence. People v.

Correa, 108 Ill. 2d 541, 551-52 (1985); People v. Young, 355 Ill. App. 3d 317, 323 (2005).

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sixth amendment. Padilla, 559 U.S. at 365 (quoting Strickland, 466 U.S. at 689). The Court

rejected the application of the distinction in the context of deportation, which is “uniquely

difficult to classify as either a direct or a collateral consequence.” Id. at 366. Thus, the

defendant’s claim was not barred. The Court analyzed whether trial counsel’s performance was

objectively unreasonable (see Strickland, 466 U.S. at 688) under “ ‘prevailing professional

norms’ ” (Padilla, 559 U.S. at 366 (quoting Strickland, 466 U.S. at 688)), concluded that it was,

and remanded for a hearing on whether the defendant could satisfy Strickland’s prejudice prong.

Id. at 374-75.

¶ 78 In Hughes, our supreme court considered whether Padilla called for rejecting the

direct/collateral distinction in an area other than deportation. The defendant, who had pleaded

guilty to aggravated criminal sexual abuse, contended that his trial counsel had been ineffective

for failing to warn him of the possibility that the State would petition to commit him as a

sexually violent person. Hughes, 2012 IL 112817, ¶ 1. Recognizing that Padilla had rejected

the rigid application of the direct/collateral distinction in the deportation context, the supreme

court did the same for commitment as a sexually violent person, emphasizing that, as with

deportation, the “collateral” consequence might be “more severe than the criminal penalty

imposed by the court.” Id. ¶ 52. Thus, the court held, a defendant’s attorney has “a minimal

duty to advise a defendant who pleads guilty to a triggering offense subject to [commitment as a

sexually violent person] that he will be evaluated for and may risk involuntary commitment after

completing his prison term.” Id. ¶ 60.

¶ 79 Deportation and commitment as a sexually violent person are qualitatively different from

the availability (or not) of good-conduct credit. Deportation and commitment are independent

harms that accrue in addition to the sentence that the trial court has imposed; good-conduct credit

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affects only how much of the sentence imposed the defendant actually serves. Extending Padilla

and Hughes to good-conduct credit is anything but a foregone conclusion. Nonetheless, as this

case tends to demonstrate, the availability of the credit, although a collateral matter, can be a

substantial consideration for a defendant who is offered a plea bargain involving a substantial

prison term. Whether the direct/collateral distinction that bound this court in Frison still should

obtain after Padilla and Hughes is a fair question.

¶ 80 Only one Illinois opinion after Padilla addresses this question. The opinion provides an

unequivocal answer to the question, but without addressing the possible impact of Padilla and

Hughes. However, the omission is not crucial, given the later holdings of the Supreme Court.

¶ 81 In People v. Powers, 2011 IL App (2d) 090292, a jury convicted the defendant of

aggravated criminal sexual assault, and he was sentenced to 25 years’ imprisonment. On direct

appeal, the judgment was affirmed. The defendant then filed a postconviction petition, which

alleged that his trial counsel had been ineffective for incorrectly advising him that, under a plea

offer that the defendant later rejected, he would have to serve 85% of a proposed 14-year prison

term. Id. ¶ 6. According to the defendant, he would have been required to serve only 50% of his

term, and he would have accepted the offer had he known that he could receive day-for-day

good-conduct credit. Id. ¶ 7. The trial court dismissed the postconviction petition.

¶ 82 This court affirmed. We reasoned in part that Frison controlled, because “the failure to

inform a defendant of a consequence of a guilty plea” can support a claim of ineffectiveness only

if the consequence is a direct one of pleading guilty. Id. ¶ 9. Our opinion did not discuss

whether Padilla or Hughes might modify the application of the direct/collateral test to the issue

of good-conduct credit. This omission was not explained in the opinion itself, and it ignored

existing Illinois authority. See People v. Gutierrez, 2011 IL App (1st) 093499, ¶ 42 (Padilla

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should be applied retroactively). 2 However, the omission was later validated. In Chaidez v.

United States, 568 U.S. ___, ___, 133 S. Ct. 1103, 1113 (2013), the Court held that Padilla does

not apply retroactively on collateral review. See also People v. Greco, 2014 IL App (1st)

112582, ¶ 29.

¶ 83 Although defendant of course does not invoke Padilla’s narrow holding—that trial

counsel’s failure to inform a defendant about the deportation-related consequences of a guilty

plea can support a finding of ineffective assistance—he does request the retroactive application

of Padilla’s disapproval of the rule in Illinois that trial counsel’s failure to inform a defendant of

a collateral consequence of a guilty plea can never support a claim of ineffectiveness. Thus,

defendant asks us to apply a new rule of law to a case in which the direct-appeal process expired

decades ago. Indeed, as Padilla and Hughes do not actually speak to the specific issue here,

defendant requests that we create and apply a new rule of law to a case on collateral review.

¶ 84 We decline the invitation. We agree with the reasoning of Frison insofar as it follows the

traditional direct/collateral rule that our supreme court followed strictly until very recently. An

examination of the amended section 3-6-3(a) that took effect in 1978 shows that it did indeed

make day-for-day good-conduct credit contingent on events outside the control of the trial court

at the time of sentencing. Whether a defendant receives credit (and how much) is not settled at

2 Also, Powers appears to be unsound even under long-standing Illinois law. In Powers,

the defendant’s attorney did not merely fail to inform him of the good-conduct credit for which

he would be eligible if he accepted the State’s offer; he affirmatively misled him about how

much credit he could receive. Thus, unlike Frison (in which the trial attorney merely failed to

mention the credit matter), Powers appears to fit within Correa’s qualification to the

direct/collateral rule.

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the time of sentencing; when it does become settled later on, that occurs primarily through the

actions of agencies other than the trial court. Whatever vitality Frison retains in the post-Padilla

era is an issue for cases to which Padilla actually applies, and that category does not include

defendant’s successive postconviction petition. Defendant’s critique of Frison is beside the

point even if it is valid, a matter that we need not decide.

¶ 85 Because Simpson’s allegedly substandard performance in failing to inform defendant of

the day-for-day good-conduct credit available under the State’s plea offer cannot support a claim

of ineffective assistance, defendant’s first claim of ineffectiveness did not make a substantial

showing of ineffectiveness, and we affirm the trial court’s dismissal of it.

¶ 86 We turn to defendant’s second claim: that Simpson was ineffective for erroneously telling

him that he could not be sentenced to more than 40 years for first-degree murder, because the

facts did not allow a finding that his crime was accompanied by exceptionally brutal or heinous

conduct (see Ill. Rev. Stat., 1978 Supp., ch. 38, ¶ 1005-8-1(a)(1)). The trial court held that,

based on the evidence at the hearing, Simpson offered an erroneous assessment of the evidence,

for which he could not be found ineffective.

¶ 87 A defense attorney’s honest assessment of a defendant’s case cannot be the basis for a

finding of ineffectiveness. People v. Wilson, 295 Ill. App. 3d 228, 237 (1998); People v. Bien,

277 Ill. App. 3d 744, 751 (1996). Here, the trial judge credited Simpson’s account of his advice

to defendant. Simpson testified that he told defendant that “in [his] opinion, what [defendant]

did *** did not qualify as brutal and heinous”; that he advised defendant that (as defendant’s

attorney phrased it on redirect examination), he “did not believe that the evidence or the facts

would permit a Judge to find [the crime] exceptionally brutal and heinous”; that he told

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defendant that “[he] did not consider it a brutal and heinous crime”; and that he “explained to

[defendant], in [his] opinion, it was not a brutal and heinous crime.” (Emphases added.)

¶ 88 Defendant’s testimony tended to paint Simpson’s expression of his opinion as a dogmatic

one, free of doubt. Even defendant, however, did not provide any basis to find that Simpson

misunderstood the law or failed to take all the pertinent facts into account. Of course, insofar as

the two witnesses’ testimony conflicted, it was the judge’s prerogative to credit Simpson over

defendant and to draw reasonable inferences that did not favor defendant’s theory of the case.

¶ 89 The judge concluded that Simpson had not based his statements to defendant on any

mistakes of law but had provided “factual advice,” a prediction that turned out to be wrong. We

cannot say that this conclusion was manifestly erroneous.

¶ 90 That is not to say that Simpson’s assessment of the case was flawless; even without the

benefit of hindsight, it might have been unwise to speak as confidently as he did (or allegedly

did) about the application of the open-ended terminology of a brand-new statute to the facts of

defendant’s case, facts that surely cut both ways. But that complexity also supports the

conclusion that Simpson’s opinion was not so unreasonable as to overcome the strong

presumption that his performance was reasonable. After all, on defendant’s direct appeal, this

very court agreed with Simpson that the State had not proved the “brutal or heinous” factor.

Although the supreme court disagreed with us, the point is that Simpson’s opinion was neither

based on any error of law or fact nor an unreasonable “judgment call” based on the law and facts.

¶ 91 Defendant relies on Julian v. Bartley, 495 F.3d 487 (7th Cir. 2007), which he asserts is

analogous to this case. We find Julian distinguishable. There, the defendant was offered a

bargain under which he would plead guilty to two separately charged armed robberies and

receive concurrent 23-year prison terms. At the time, the defendant was on supervised release

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for a prior armed-robbery conviction. His attorney told him that, under Apprendi v. New Jersey,

530 U.S. 466 (2000), he could not receive more than 30 years total, because the prior conviction,

which was not mentioned in the indictments, could not be considered to enhance the sentence

unless it were submitted to a jury and proved beyond a reasonable doubt. The defendant rejected

the plea offer and went to trial. He was convicted of both counts and sentenced to concurrent 40-

year prison terms. Julian, 495 F.3d at 489-90.

¶ 92 The federal appellate court held that the defendant’s trial attorney had been ineffective

for advising him erroneously about the possible impact of Apprendi. The key was that the

attorney had grossly misread Apprendi. Although Apprendi did hold that any fact that increases

the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved

beyond a reasonable doubt, the Supreme Court’s opinion “specifically exempted from this

holding the fact of a prior conviction.” Id. at 490. This holding “is clear on first, second, or third

glance.” Id. at 497. Thus, the attorney’s advice “was clearly wrong and therefore objectively

unreasonable.” Id. at 495.

¶ 93 The situation here is not analogous to that in Julian (which, of course, does not bind this

court in any event). Here, Simpson did not make a gross mistake of law—or, indeed, any

mistake of law. He did not misread the statute (or the case law interpreting the statute, of which

there was none). Instead, he provided an opinion, if ultimately an overconfident one, that the

specific facts of defendant’s case did not demonstrate exceptionally brutal or heinous conduct

indicative of wanton cruelty. Julian does not persuade us that the trial court erred in denying

defendant’s surviving claim of ineffective assistance of trial counsel.

¶ 94 For the foregoing reasons, the judgment of the circuit court of Du Page County is

affirmed.

- 34 - 2015 IL App (2d) 130451

¶ 95 Affirmed.

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