2020 IL App (1st) 162506-U
FIFTH DIVISION Order filed: February 14, 2020
No. 1-16-2506
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 08 CR 4659 ) PAUL MANNING, ) Honorable ) Colleen Ann Hyland, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE HOFFMAN delivered the judgment of the court. Justices Rochford and Delort concurred in the judgment.
ORDER
¶1 Held: We reverse that part of the circuit court’s order granting the State’s motion to dismiss the defendant’s postconviction petition at the second stage where the defendant made a substantial showing that his counsel was ineffective during plea negotiations and remand for a third-stage evidentiary hearing.
¶2 The defendant, Paul Manning, appeals from an order of the circuit court of Cook County
that granted the State’s motion to dismiss his petition for relief pursuant to the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) at the second stage of proceedings. On No. 1-16-2506
appeal, he argues that he made a substantial showing that his counsel was ineffective during plea
negotiations and during sentencing. For the reasons that follow, we reverse and remand for a third-
stage evidentiary hearing.
¶3 The defendant was charged with attempted first degree murder, aggravated battery with a
firearm, and six counts of aggravated kidnapping, stemming from an incident involving his former
girlfriend, Sandra Weeks. Relevant to this appeal, the attempted first degree murder charge alleged
that the defendant “shot [Weeks] about the body with a firearm, which constituted a substantial
step towards the commission of first degree murder” (720 ILCS 5/8-4; 5/9-1 (West 2008)) and the
relevant aggravated kidnapping count alleged that he kidnapped Weeks and, during the
commission of the offense, “he personally discharged a firearm that proximately caused great
bodily harm” to her (720 ILCS 5/10-2(a)(8) (2008)).
¶4 On April 29, 2009, defense counsel indicated to the circuit court that the State had made a
plea offer to the defendant and he was “not interested in the offer.” The State’s offer was 45 years’
imprisonment in exchange for the defendant pleading guilty to one count of attempted first degree
murder. Defense counsel further told the circuit court that he did not “expect a resolution on this.”
The circuit court asked defense counsel if he had “gone over with [the defendant] all of the
potential penalties that he faces,” noting that the charged offenses “are not only mandatorily
consecutive to each other, but also include add on penalties for a gun.” Defense counsel responded
that the defendant was “aware of the sentencing enhancements on this case.” The circuit court then
addressed the defendant and made the following admonishments:
“You’re charged with the offenses of attempt first degree murder, as well as aggravated
kidnapping. They are both Class X felonies, and they are not probationable. Further, you
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are charged with committing those offenses while being armed with a firearm. The
underlying charges of attempt first degree murder and aggravated kidnapping are
punishable from 6 to 30 years in the Illinois Department of Corrections, with an additional
15 years for each offense. If there is a finding of great bodily harm, then your sentences
would have to be served consecutively. *** The minimum possible sentence for both of
those offenses is 21 years in the Illinois Department of Corrections, and if they were to be
served consecutively, then the minimum sentence would be 42 years.”
The circuit court asked the defendant if he understood, and he responded that he did.
¶5 On January 15, 2010, defense counsel indicated that the defendant “was desirous of a
conference,” whereupon the circuit court admonished the defendant, and a 402 conference was
held. Following the conference, the circuit court recommended a sentence of 40 years’
imprisonment in exchange for the defendant pleading guilty to one count of attempted first degree
murder. On April 16, 2010, the defendant rejected the circuit court’s offer.
¶6 On June 22, 2010, both sides answered ready for trial. The State entered a nolle prosequi
on all but one of the counts of aggravated kidnapping and amended the attempted first degree
murder charge to state that the defendant “personally discharged a firearm and shot [Weeks] which
proximately caused great bodily harm.” The state also requested that the defendant be admonished
as follows:
“[T]he charge we would be proceeding on, Judge, is the Class X attempt murder,
which carries a sentence range of 6 to 30 years, plus 25 to natural life extension given the
fact that he shot the victim with a handgun, bringing his minimum sentencing range on that
attempt murder to 31 years to a maximum range of natural life at 85 percent.
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That charge would run consecutive to the aggravated kidnapping, which is also a
Class X felony, which carries a 6 to 30 year sentence range, plus 25 years [sic] natural life
extension for the use of a handgun, which gives a minimum sentencing range on that count
of 31 years to natural life.
***
Judge, we would just ask that the Defendant be admonished that that sentencing
range, if convicted, is a minimum of 62 years to a maximum of natural life as he is currently
charged ***.
Judge, there was a conference in this case. There has been a prior offer as well made
to the Defendant of 45 years Illinois Department of Corrections.
We would have only been proceeding on one count which would save him some
time off of his sentence. The Court in a 402 conference had offered 40 years Illinois
Department of Corrections on the one count, well below the minimum range that he is
currently facing if convicted.”
The circuit court asked the defendant if he “understood that,” and he responded that he did. The
case proceeded to jury selection later that day, and the trial commenced on the following morning.
¶7 Having set forth the facts adduced at the defendant’s trial on his direct appeal (People v.
Manning, 2012 IL App (1st) 102860-U, ¶¶ 3-7), we summarize the evidence presented only to the
extent necessary to resolve the issues on appeal. At trial, Weeks testified that she parked her car in
front of her apartment after work. The defendant, her ex-boyfriend, appeared with a gun and tapped
the car window. She refused to open the door and he proceeded to break the window. She dialed
9-1-1 and the defendant shot her several times through the windshield. Weeks sustained wounds
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to both arms, her chest, and her hip. The defendant then entered Weeks’ car, with her wounded
inside, and drove away. Weeks asked the defendant to take her to the hospital and he told her that
he would only do so if she attributed her wounds to another shooter. Weeks lost consciousness and
awoke to see that her car was parked in front of the home of the defendant’s aunt, but he was gone.
The defendant returned to the car five minutes later and drove her to the hospital. The defendant
did not present evidence in his defense. Following arguments, the jury returned a verdict finding
the defendant guilty on all three counts.
¶8 At the sentencing hearing, the State offered evidence in aggravation regarding two
incidents where Weeks called the police to report that the defendant was outside of her home and
refused to leave. One of those incidents occurred two days before the defendant shot Weeks. The
State noted that the defendant has “proven he is violent” and described him as a “stalker.” The
State also recounted his criminal history. The State asked for a sentence at the high end of the
sentencing range of 37 to 85 years’ imprisonment. In mitigation, defense counsel argued that the
defendant’s prior criminal history included only “drug cases” and did not show “violent
tendencies.” Defense counsel asked for a sentence in the low end of the statutory range, noting that
the defendant was 42 years old and would be in his 70s when released after serving a minimum
sentence.
¶9 The circuit court merged the defendant’s conviction for aggravated battery with a firearm
with the attempted murder conviction. It then stated that it considered “the factors” it heard in
aggravation and mitigation and the presentence investigation (PSI) report before sentencing the
defendant to 30 years’ imprisonment for attempted first degree murder, plus 25 years for personally
discharging a firearm during the offense that caused great bodily harm. On the aggravated
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kidnaping charge, the court sentenced the defendant to 30 years’ imprisonment, plus 25 years for
personally discharging a firearm that caused great bodily harm. The circuit court noted that the
jury found that Weeks suffered great bodily injury and, therefore the defendant was required to
serve his sentences consecutively for an aggregate sentence of 110 years’ imprisonment.
¶ 10 The defendant filed a motion to reconsider his sentence, which the circuit court granted in
part. Specifically, the circuit court determined that it erred by sentencing the defendant to a 25-
year firearm enhancement for the aggravated kidnaping count because he personally discharged
the firearm prior to committing the offense. The circuit court vacated that enhancement and
sentenced the defendant to a total of 85 years’ imprisonment.
¶ 11 On appeal, the defendant raised the following arguments: (1) the State failed to prove
beyond a reasonable doubt that he intended to kill Weeks; (2) the State failed to prove beyond a
reasonable doubt that he intended to secretly confine Weeks; (3) his conviction for aggravated
kidnapping should be reduced to kidnapping because he did not discharge a firearm during the
kidnapping; and (4) his trial counsel was ineffective for failing to present a closing argument.
People v. Manning, 2012 IL App (1st) 102860-U. We affirmed the defendant’s convictions and
sentences. Id.
¶ 12 On April 24, 2013, the defendant filed a pro se postconviction petition, arguing the
following: (1) the circuit court abused its discretion in sentencing him to 55 years’ imprisonment
for attempted murder because it failed to consider mitigating factors and found severe bodily
injury; (2) his counsel was ineffective for failing to call his mother to testify in mitigation; (3) his
counsel was ineffective for filing an inadequate motion for new trial; (4) his counsel was
ineffective for failing to file a motion in limine; (5) his counsel was ineffective for failing to
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investigate police reports and witness statements; (6) the Assistant State’s Attorney falsely argued
that he was a “violent person” in aggravation at his sentencing hearing; (7) the attempted first
degree murder sentencing statute is unconstitutional; and (8) he was not proven guilty of attempted
murder beyond a reasonable doubt.
¶ 13 The defendant subsequently hired postconviction counsel and filed a supplemental
postconviction petition on October 24, 2014. Therein, the defendant argued, inter alia, that his
counsel was ineffective for failing to ensure that he knowingly rejected the plea offer and for failing
to present mitigation witnesses at his sentencing hearing. Attached to the supplemental petition
were affidavits from the defendant and members of his family. In his affidavit, the defendant stated
the following:
“My attorney never talked to me about a sentencing range for the charges I faced.
He did keep trying to get me to plead guilty, but it didn’t seem like a good deal to take the
sentence the State offered when I thought I could get a lot less time. The only thing I knew
about that was what the judge told me. If I knew the minimum sentence I could have gotten
if I want [sic] to trial was 62 years or 47 years in prison, I would have taken the offer of 40
years given by the judge.”
Regarding his sentencing hearing, he further averred that his counsel “did not ask [him] about
witnesses that could testify at his sentencing hearing. But[,] I had already told him about my kids
***. I had a very close relationship with my children, too, but he didn’t ask me about being their
dad or what kind of dad I was to them.” The defendant also attached affidavits from his two adult
children and his sister, stating that they were willing to testify that the defendant was a good father
and that his counsel never spoke to them about testifying.
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¶ 14 On February 27, 2015, the circuit court advanced the defendant’s petition to the second
stage. The State subsequently filed a motion to dismiss the defendant’s postconviction petition.
¶ 15 On July 15, 2016, the circuit court granted the State’s motion to dismiss, finding that the
ineffective assistance claims were forfeited because the defendant did not raise them on direct
appeal. The circuit court further found that, with regard to the defendant’s ineffective assistance
of counsel during plea negotiations claim, the defendant failed to make a substantial showing of a
constitutional violation because he did not indicate he wished to re-open plea negotiations when
he was properly admonished the day of trial. This appeal followed.
¶ 16 On appeal, the defendant argues that he made a substantial showing that his counsel was
ineffective in the following two ways: (1) for failing to inform him during plea negotiations of the
sentencing ranges he faced if he went to trial; and (2) failing to investigate and present mitigation
witnesses during sentencing.
¶ 17 The Act provides a procedural mechanism through which a petitioner may assert a
substantial denial of his constitutional rights in the proceedings which resulted in his conviction.
725 ILCS 5/122-1 (West 2012). At the first stage of a postconviction proceeding, the circuit court
independently reviews the defendant’s petition, taking the allegations as true, and determines if it
is frivolous or patently without merit. People v. Hodges, 234 Ill. 2d 1, 10 (2009). If the
postconviction petition is not summarily dismissed, as here, it advances to the second stage, where
the State may file a motion to dismiss the petition and the postconviction court must determine
whether the petition and any accompanying documents make a substantial showing of a
constitutional violation. Id. at 10-11 n. 3. At the second stage of proceedings, the postconviction
court takes “all well-pleaded facts that are not positively rebutted by the trial record” as true.
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People v. Pendleton, 223 Ill. 2d 458, 473 (2006). If the petition fails to make a substantial showing
of a constitutional violation, it is dismissed; if such a showing is made, the postconviction petition
advances to the third stage where the court conducts an evidentiary hearing. 725 ILCS 5/122-6
(West 2012).
¶ 18 The “ ‘substantial showing’ of a constitutional violation that must be made at the second
stage [citation] is a measure of the legal sufficiency of the petition’s well-pled allegations of a
constitutional violation, which if proven at an evidentiary hearing, would entitle petitioner to
relief.” (Emphasis in original.) People v. Domagala, 2013 IL 113688, ¶ 35. Although the defendant
“bears the burden of making a substantial showing of a constitutional violation” (id.), a second-
stage inquiry into “whether a post-conviction petition contains sufficient allegations of
constitutional deprivations does not require the trial court to engage in any fact-finding or
credibility determinations” (People v. Childress, 191 Ill. 2d 168, 174 (2000)). Our review is de
novo. People v. Johnson, 2017 IL 120310, ¶ 14.
¶ 19 Both the United States and Illinois constitutions guarantee a criminal defendant the right
to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; People
v. Hale, 2013 IL 113140, ¶ 15. To support a claim of ineffective assistance of counsel at the second
stage of postconviction proceedings, a defendant must make a substantial showing that (1)
counsel’s performance fell below an objective standard of reasonableness, and (2) there is a
reasonable probability that, but for counsel’s errors, the result would have been different. People
v. Hall, 217 Ill. 2d 324, 334-35 (2005) (citing Strickland v. Washington, 466 U.S. 668 (1984));
People v. Groszek, 2016 IL App (3d) 140455, ¶ 13. Failure to establish either prong of the
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Strickland test precludes a finding of ineffective assistance of counsel. See People v. Henderson,
2013 IL 114040, ¶ 11.
¶ 20 The defendant raises two arguments alleging that his counsel was ineffective. We turn first
to the defendant’s contention that his counsel was ineffective for failing to investigate and call
several mitigating witnesses during his sentencing hearing. To succeed on a claim of ineffective
assistance of counsel during sentencing, a defendant must show that counsel’s performance fell
below minimal professional standards and that a reasonable probability exists that the defendant’s
sentence was affected. People v. Sharp, 2015 IL App (1st) 130438, ¶ 122.
¶ 21 In the instant case, the defendant contends that his counsel provided ineffective assistance
during his sentencing hearing by failing to present in mitigation three character witnesses—his
sister and his two adult children. Specifically, the defendant averred that his counsel “did not ask
[him] about witnesses that could testify at his sentencing hearing. But[,] I had already told him
about my kids ***. I had a very close relationship with my children, too, but he didn’t ask me
about being their dad or what kind of dad I was to them.” The defendant’s two adult children
averred that the defendant was a good father and that they were willing to testify to that fact,
however, defense counsel did not contact either of them. The defendant’s sister averred that
defense counsel never contacted her, but she was willing to testify that the defendant was a good
father who supported his children both financially and emotionally.
¶ 22 To begin, we note that the defendant does not contend that he ever informed his counsel of
his sister and her willingness to testify. Counsel cannot be deemed ineffective for failing to
investigate witnesses that he did not know existed. As we have previously stated, “Effective
counsel is not required to be clairvoyant.” People v. Vasser, 331 Ill. App. 3d 675, 685 (2002).
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¶ 23 That said, even assuming any deficiency in counsel’s performance, the defendant still must
demonstrate prejudice to sustain the claim. Simon, 2014 IL App (1st) 130567, ¶ 71. In the context
of a sentencing hearing, prejudice must be assessed based on the totality of the evidence, including
both potential evidence in mitigation and the evidence in aggravation. Id. ¶ 72.
¶ 24 To that end, even taking as true the defendant’s allegation regarding counsel’s knowledge
of three of the character witnesses, we find that the defendant cannot demonstrate prejudice as a
result of the failure to call those witnesses. The record demonstrates that there was considerable
evidence in aggravation, including the defendant’s criminal history and two incidents where
Weeks called the police to remove the defendant from outside of her home, the last of which
occurred two days before he shot her. The defense counsel in mitigation refuted the State’s
characterization of the defendant as a violent “stalker” by emphasizing that his criminal history
was made up almost entirely of non-violent drug offenses. Counsel advocated for a minimum
sentence, noting that, given the defendant’s age, he would be in his seventies when released if
given a minimum sentence. Furthermore, the testimony from the three proposed witnesses was
arguably cumulative, as the defendant’s PSI report noted that he “is the father of two children with
whom he has a good relationship.” Given the totality of the mitigating and aggravating evidence
before the court, we cannot say that the testimony of the three proposed character witnesses
regarding the quality of the defendant’s parenting would have arguably altered the outcome of the
sentencing proceeding. Thus, defendant has failed to make a substantial showing that his counsel
was ineffective for failing to call three witnesses at sentencing.
¶ 25 The defendant next argues that he made a substantial showing that his counsel was
ineffective during plea negotiations for failing to inform him of the range of sentences he faced.
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¶ 26 Although a defendant has no constitutional right to plea bargain, if the State chooses to
bargain, the defendant has the right to the effective assistance of counsel in negotiations with the
State. People v. Curry, 178 Ill. 2d 509, 517 (1997). Moreover, the right to the effective assistance
of counsel extends to the defendant’s decision to reject a plea offer, even if the defendant
subsequently receives a fair trial. Curry, 178 Ill. 2d at 517. Whether to accept or reject a plea offer
is a decision only the defendant can make. People v. Blommaert, 237 Ill. App. 3d 811, 816 (1992).
For this decision to be knowing and voluntary, defense counsel must fully inform himself of the
facts and the law relevant to the State’s offer and candidly advise his client as to the direct
consequences of accepting or rejecting the offer. Blommaert, 237 Ill. App. 3d at 817. Part of this
obligation is satisfied when defense counsel accurately informs his client of the maximum and
minimum sentences that can be imposed for the offenses charged by the State. Blommaert, 237 Ill.
App. 3d at 817.
¶ 27 The defendant argues that his counsel was ineffective during plea negotiations for failing
to discuss with him the sentencing range for the charges he faced. According to the defendant, had
he been so informed, he would have accepted the circuit court’s offer of a 40-year prison term.
The defendant further argues that the record supports his contention insofar as it reflects that his
counsel did not correct the circuit court when it erroneously admonished him that he was facing a
minimum of 42 years’ imprisonment. The defendant also argues that the disparity between the plea
offer he rejected and the actual sentence he received establishes that he suffered prejudice as a
result of counsel’s ineffectiveness.
¶ 28 The State responds that the record positively rebuts the defendant’s claims. Specifically,
the State argues that the defendant did not rely on the circuit court’s erroneous admonishments
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when deciding to reject the State’s plea offer because the record reflects that the defendant’s
counsel informed the court that he rejected the State’s offer prior to the erroneous admonishments.
The State further argues that the record establishes that the defendant’s counsel told the circuit
court he discussed with the defendant his possible sentence, including the firearm enhancements,
prior to the defendant rejecting the State’s offer. Lastly, the State contends that the defendant’s
failure to express surprise when he was correctly admonished regarding his sentencing range on
the day of trial positively rebuts his claim.
¶ 29 The defendant counters that his counsel’s statement to the circuit court that he “discussed
the sentencing enhancements on this case” with the defendant does not positively rebut his well-
pleaded fact, but, rather, reflects a disputed fact that is best resolved through an evidentiary
hearing. We agree with the defendant.
¶ 30 After reviewing the record, we conclude that it does not positively rebut the defendant’s
contention that his counsel “never talked to [him] about a sentencing range for the charges that
[he] faced.” Rather, the record reveals that defense counsel assured the circuit court that “we have
spoken of the enhancements, Judge. He is aware of the sentencing enhancements on this case.”
This statement indicates only that defense counsel informed the defendant of possible sentencing
enhancements, it does not indicate that defense counsel informed the defendant of the possible
sentencing ranges, such as minimum and maximum penalties. Nor does defense counsel’s
statement indicate whether he informed the defendant that he was facing 15 or 25-year
enhancements. This distinction is significant as the record reflects that the circuit court then
proceeded to erroneously admonish the defendant that he was facing a minimum of 42 years’
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imprisonment due to 15-year sentencing enhancements when the defendant’s minimum sentence
was 62 years’ imprisonment due to 25-year sentencing enhancements.
¶ 31 Moreover, the defendant’s rejection of the State’s plea offer of 45 years’ imprisonment
before the erroneous admonishments does not positively rebut the defendant’s claim because the
defendant alleged that, if he had known the sentencing range that he was facing, he would have
accepted the circuit court’s offer, not the State’s earlier offer. At no time prior to the defendant’s
rejection of the circuit court’s offer does the record reflect that the defendant was informed of the
correct sentencing range for the charged offenses. In fact, the record establishes that the defendant
was not informed that the minimum sentence he could receive is 62 years’ imprisonment until the
day of his trial. Consequently, the defendant’s rejection of the State’s offer does not positively
rebut his claim that he would have accepted the court’s offer if he had been properly informed.
¶ 32 We also find the State’s argument that the defendant’s claim is positively rebutted by his
failure to express surprise or object when the court properly admonished him on the day of trial to
be unavailing. When a defendant’s claims are based upon matters outside the record, such as here,
our supreme court has emphasized that “it is not the intent of the [A]ct that [such] claims be
adjudicated on the pleadings.” People v. Coleman, 183 Ill. 2d 366, 382 (1998) (quoting People v.
Airmers, 34 Ill. 2d 222, 226 (1966)). Rather, the function of the pleadings in a proceeding under
the Act “is to determine whether the [defendant] is entitled to a hearing.” Airmers, 34 Ill. 2d at
226. “Therefore, the dismissal of a postconviction petition is warranted only when the petition’s
allegations of fact—liberally construed in favor of the petitioner and in light of the original trial
record—fail to make a substantial showing of imprisonment in violation of the state or federal
constitution.” Coleman, 183 Ill. 2d at 382. With these principles in mind, we conclude that the
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defendant’s failure to object on the record regarding the court’s inconsistent admonishments does
not positively rebut his claim and is an issue to be explored at an evidentiary hearing.
¶ 33 Thus, taking all well-pled allegations as true unless positively rebutted by the record, as we
must at the second-stage of postconviction proceedings, we conclude that the defendant has made
a substantial showing that his counsel was deficient for failing to properly inform the defendant of
the sentencing ranges he faced. Blommaert, 237 Ill. App. 3d at 817 (finding the defendant’s counsel
ineffective for incorrectly informing the defendant of the possible range of sentences).
¶ 34 Having determined that the defendant’s petition made a substantial showing that his
counsel’s performance was deficient, we also conclude that the defendant has made a substantial
showing that he suffered prejudice from that deficient representation. To establish prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In
other words, the defendant must establish that there is a reasonable probability that, absent his
attorney’s deficient advice, he would have accepted the plea offer. Id. at 531. This showing of
prejudice must encompass more than a defendant’s own “subjective, self-serving” testimony.
(Internal quotations omitted.) Id. Rather, there must be “independent, objective confirmation that
defendant’s rejection of the proffered plea was based upon counsel’s erroneous advice,” and not
on other considerations. Curry, 178 Ill. 2d at 532. The disparity between the sentence a defendant
faced and a significantly shorter plea offer can be considered supportive of a defendant’s claim of
prejudice. People v. Hale, 2013 IL 113140, ¶ 18 (citing Curry, 178 Ill. 2d at 533). In contrast, a
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defendant’s claim of prejudice is undermined if the record demonstrates that he “clearly and
expressly” professed his innocence and indicated a desire for trial. Hale, 2013 IL 113140 at ¶ 26.
¶ 35 Here, the defendant was sentenced to 85 years’ imprisonment and rejected a pretrial offer
of 40 years’ imprisonment from the circuit court after a Rule 402 conference. The significant
disparity between the pretrial offer and his sentence supports the defendant’s contention that, if he
had known the sentencing range he was facing, he would have accepted the plea bargain.
Additionally, the record does establish that the defendant was erroneously admonished by the
circuit court that he faced a minimum sentence of 42 years’ imprisonment in the months before he
rejected the circuit court’s offer of 40 years’ imprisonment. We also note that, unlike in Hale, the
defendant did not “clearly and expressly” profess his innocence, indicate a desire for trial, or
advance an innocence theory at trial. See Hale, 2013 IL 113140 at ¶ 26. In sum, we conclude the
defendant made a substantial showing that, but for his counsel’s ineffective performance, he would
have accepted the plea offer.
¶ 36 The State nevertheless argues that the defendant did indicate a desire for trial. In support,
the State points to comments made by the defendant during interviews with a doctor to determine
whether he was fit to stand trial. We decline to consider this evidence as statements made by a
defendant during the course of examination “shall not be admissible against the defendant unless
he raises the defense of insanity or the defense of drugged or intoxicated condition, in which case
they shall be admissible only on the issue of whether he was insane, drugged, or intoxicated.” 725
ILCS 5/104-14 (West 2008).
¶ 37 For the reasons stated, we reverse the circuit court’s order granting the State’s motion to
dismiss the defendant’s postconviction petition at the second stage and we remand the matter to
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the circuit court for a third-stage evidentiary hearing on his claim that his counsel provided
ineffective assistance for failing to inform him of the range of sentences he faced during plea
negotiations.
¶ 38 Reversed; cause remanded with directions.
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