2021 IL App (3d) 180010
Opinion filed January 29, 2021 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the Ninth Judicial Circuit, ) Knox County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-18-0010 v. ) Circuit No. 12-CF-24 ) STERLING M. NICHOLSON, ) The Honorable ) Paul L. Mangieri Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________
PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion. Justices O’BRIEN and WRIGHT concurred in the judgment and opinion. ____________________________________________________________________________
OPINION
¶1 The State charged petitioner Sterling M. Nicholson with three counts of attempted first
degree murder (720 ILCS 5/8-4, 9-1(a)(1)-(3) (West 2012)), one count of aggravated domestic
battery (id. § 12-3.3(a)), and one count of aggravated battery (id. § 12-3.05(a)(1)). A jury
acquitted Nicholson on all counts of attempted first degree murder but found him guilty of
aggravated domestic battery and aggravated battery. The trial court entered convictions on each
of those counts and sentenced him to 25 years’ imprisonment for aggravated domestic battery
and 10 years’ imprisonment for aggravated battery, to be served consecutively. On direct appeal, we affirmed Nicholson’s conviction for aggravated domestic battery and vacated his conviction
for aggravated battery.
¶2 Nicholson now appeals the third-stage dismissal of his postconviction petition. He alleges
that his trial counsel was ineffective in failing to inform him that he was eligible for Class X
sentencing for his aggravated domestic battery conviction. For the following reasons, we reverse
the trial court’s decision and remand the matter with instructions for resentencing.
¶3 BACKGROUND
¶4 In this appeal, Nicholson challenges only the trial court’s decision following the third-
stage evidentiary hearing on his petition for postconviction relief. Therefore, we incorporate by
reference our prior decision, where we described the evidence in detail. People v. Nicholson,
2015 IL App (3d) 130463-U, ¶¶ 9-21. We repeat those facts necessary to resolve the claim of
ineffective assistance of counsel. At trial, the State’s evidence established that Nicholson “beat
up” his then-girlfriend Mary Cannon, intentionally causing her great bodily harm. Although
Cannon could not remember the events leading to her injuries when she testified, four State
witnesses testified that Cannon identified Nicholson as her assailant immediately after suffering
the injuries. In his own defense, Nicholson testified that a friend, Ollie Howell, struck Cannon in
the mouth, following which Cannon and Howell had a violent altercation. Howell testified that
he saw Nicholson strike Cannon after an argument over Cannon’s previous boyfriend.
¶5 The jury found Nicholson not guilty of the three counts of attempted murder and guilty of
aggravated domestic battery and aggravated battery. At the sentencing hearing, the trial court
found that Nicholson was older than 21 years old and had seven prior felony convictions—six
separate convictions for Class 2 felonies and one conviction for a Class 1 felony—over a period
of roughly 20 years from 1993. Considering his age and criminal history, the court sentenced
2 Nicholson to 20 years’ imprisonment as a Class X offender under the general recidivism
provisions of the Unified Code of Corrections (730 ILCS 5/5-4.5-95 (2012)). During his
sentencing, Nicholson interrupted the court and stated:
“But my—my—my question would be of if I was informed of all this prior to
when the State offered me the six years for the three counts of attempted
murder, one aggravated domestic, and one aggravated battery, I would have
considered the—I would have considered that plea more earnestly.”
¶6 Nicholson filed a motion to reconsider his sentence. In the motion, Nicholson’s trial
counsel acknowledged that he failed to advise Nicholson of his Class X sentencing eligibility.
Trial counsel admitted that he was unaware of Nicholson’s eligibility. The trial court denied the
motion.
¶7 On direct appeal, Nicholson raised no issues related to trial counsel’s failure to inform
him of the Class X sentencing. Instead, he challenged the trial court’s ruling on two evidentiary
matters and his conviction for aggravated battery. We affirmed his conviction for aggravated
domestic battery but vacated his conviction for aggravated battery as violating the principles of
one-act, one-crime.
¶8 Subsequently, Nicholson filed a pro se petition for postconviction relief that advanced to
the second stage. In his amended petition, Nicholson raised six claims, including a claim of
ineffective assistance of trial counsel. In that claim, he argued that trial counsel informed him of
a plea offer from the State. The offer was for six years’ imprisonment for the aggravated
domestic battery. In exchange, the State would dismiss the charges of attempted murder and
aggravated battery. Nicholson alleged that trial counsel told him the State could not prove
attempted murder and the most he would face on the aggravated battery—the next serious
3 offense, according to counsel—was 14 years’ imprisonment if he was convicted. Nicholson
claimed that because of trial counsel’s advice, he rejected the State’s offer. He argued that trial
counsel was ineffective because counsel should have known that he was facing Class X
sentencing on the aggravated domestic battery.
¶9 The trial court advanced the petition to a third-stage evidentiary hearing, where
Nicholson and trial counsel testified. Nicholson testified that counsel said the State could not
prove the attempted murder. He wanted to take the State’s offer, but counsel dissuaded him.
Counsel said that it was unlikely that Nicholson would get a sentence greater than six years on
the aggravated domestic battery. Nicholson stated that he would have considered the sentence
more “earnestly” if he had known he was still facing 25 years: “if I’d known that all these things
were possible, I most definitely would’ve taken the six years, point-blank.”
¶ 10 Trial counsel testified that he was unaware of the statutory enhancement at the time and
failed to advise Nicholson on the possibility of an extended sentence. But counsel stated that he
did not “urge” Nicholson to reject the plea. He could not recall the details of his advice but
believed that he would have advised Nicholson on the relative strengths and weaknesses of the
State’s evidence for each count.
¶ 11 The trial court denied Nicholson relief, finding that trial counsel’s advice fell short of the
competence required by the first prong of the Strickland test but not finding the prejudice
demanded for the second prong. The court stated that while Nicholson “was receiving a 6-year
offer and a dismissal of the attempted murder charge, [he] rejected a 6-year sentence and
subjected himself to the possibility that he could receive up to 30 years if he was found guilty of
attempted murder.” The court concluded that, regardless of counsel’s advice, Nicholson decided
to reject a “6-year offer with the understanding that [he] could be facing up to 30 years.”
4 ¶ 12 Nicholson appeals that decision.
¶ 13 ANALYSIS
¶ 14 This case comes to us on appeal from a third-stage evidentiary hearing under the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). The Act provides a three-
stage process by which a petitioner may allege a substantial deprivation of a constitutional right.
People v. Pellegrini, 2019 IL App (3d) 170827, ¶ 51. At the third stage, the circuit courts hold
fact-finding evidentiary hearings where they may make credibility determinations. Id. After such
hearings, the courts’ fact-finding and credibility decisions will not be reversed unless they were
manifestly erroneous. Id. But, we apply a mixed standard of review to claims of ineffective
assistance of counsel. People v. Peterson, 2015 IL App (3d) 130157, ¶ 222. The court’s fact-
finding and credibility assessments in deciding whether or not counsel was ineffective will be
reviewed under the ordinary standard for the dismissal of a postconviction petition following the
third-stage evidentiary hearing. See id. “However, the ultimate question of whether counsel’s
actions support a claim of ineffective assistance is a question of law that is subject to de novo
review on appeal.” Id.; see also People v. Hale, 2013 IL 113140 ¶ 15 (applying a de novo
standard of review to a claim of ineffective assistance of counsel).
¶ 15 The Illinois Constitution, like the United States Constitution, guarantees all criminal
defendants the right to effective assistance of counsel. Hale, 2013 IL 113140 ¶ 15. This right
extends to the plea-bargaining process, including situations where a defendant rejects a guilty
plea offer and subsequently receives a fair trial. Id. ¶ 16. Claims of ineffective assistance of
counsel are reviewed under the two-prong test established in Strickland v. Washington, 466 U.S.
668 (1984). Hale, 2013 IL 113140 , ¶ 15. To prevail on such a claim, a defendant must show that
counsel’s performance was both deficient and prejudicial. People v. Curry, 178 Ill. 2d 509, 519
5 (1997) “More precisely, a defendant must show that his attorney’s assistance was objectively
unreasonable under prevailing professional norms, and that there is a ‘reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” Id. (quoting Strickland, 466 U.S. at 694).
¶ 16 Nicholson contends that trial counsel’s performance was unreasonable because counsel
failed to inform him that he was subject to Class X sentencing under section 5-4.5-95(b). The
trial court agreed and found that trial counsel’s failure was unreasonable and, thus, deficient
performance. We agree with the court’s finding of deficient performance. Section 5-4.5-95(b)
states in relevant part:
“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class
2 felony, after having twice been convicted in any state or federal court of an
offense that contains the same elements as an offense now *** classified in
Illinois as a Class 2 or greater Class felony and those charges are separately
brought and tried and arise out of different series of acts, that defendant shall
be sentenced as a Class X offender.” 730 ILCS 5/5-4.5-95(b) (West 2012).
¶ 17 Given Nicholson’s age and criminal history, Section 5-4.5-95(b) elevated his aggravated
domestic battery Class 2 conviction to Class X sentencing. In Nicholson’s motion for
reconsideration of sentence, counsel admitted that he was unaware that section 5-4.5-95(b)
applied to the conviction. At the third-stage hearing, counsel also admitted that he had not
informed Nicholson of his Class X sentencing eligibility. “A criminal defendant has the
constitutional right to be reasonably informed with respect to the direct consequences of
accepting or rejecting a plea offer.” (Emphasis in original.) Curry, 178 Ill. 2d at 528. Part of this
obligation is satisfied when defense counsel accurately informs his client of the maximum and
6 minimum sentences that can be imposed for the offenses charged by the State. See People v.
Blommaert, 237 Ill. App. 3d 811, 817 (1992). Consequently, trial counsel’s performance was
deficient when he failed to inform Nicholson’s that he was eligible for Class X sentencing under
section 5-4.5-95(b). See Curry, 178 Ill. 2d at 528.
¶ 18 The State does not dispute this conclusion, arguing instead that the claim of
ineffectiveness is forfeited because it was not raised on direct appeal. We disagree. “A
postconviction claim that depends on matters outside the record *** is not ordinarily forfeited
because such matters may not be raised on direct appeal.” People v. Brown, 2014 IL App (1st)
122549, ¶ 41 (citing People v. English, 2013 IL 112890, ¶ 22). Nicholson’s claim depends on the
specific terms of the State’s plea offer—the details of said offer entered the record only after
Nicholson filed his petition and affidavit. Therefore, we find the argument is not forfeited.
¶ 19 Having found counsel’s performance was deficient, we now turn to the second prong of
the Strickland test: whether counsel’s performance was prejudicial to Nicholson. To establish the
second prong, a “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 this case, where the claim is for a rejected guilty plea offer,
Nicholson must show that (1) but for his counsel’s deficient advice, he would have accepted the
plea offer, (2) the plea would have been entered without the prosecution cancelling it, (3) the trial
court would have accepted the bargain, assuming that it had discretion under state law to accept
or reject it, and (4) “ ‘the end result of the criminal process would have been more favorable by
reason of a plea.’ ” Hale, 2013 IL 113140, ¶ 19 (quoting Missouri v. Frye, 566 U.S. 134, 147
(2012)).
7 ¶ 20 Here, there is no question that a 6-year prison sentence, which was the minimum sentence
Nicholson could have received for aggravated domestic battery if convicted and sentenced as a
Class X offender, would have been more favorable than the 25 years that he ultimately received.
There is also no indication that the plea agreement would not have been accepted and entered by
the trial court, as six years was a lawful Class X term, and the judge’s knowledge of the details
of the offense at this point in the proceedings, prior to any trial, would have been necessarily
limited. Similarly, there is no indication that the State would have canceled the agreement.
¶ 21 The only significant factor at issue in establishing whether Strickland prejudice occurred
is whether there was a reasonable probability that Nicholson would have accepted the State’s
offer but for counsel’s erroneous advice. The court concluded that Nicholson would not have
accepted the plea offer, regardless of counsel’s advice, because Nicholson rejected the offer even
though he knew he could be facing 30 years on the attempted murder charges. Put differently, the
court assumed that the two charges were interchangeable to Nicholson because they had the
same sentence range. But, to Nicholson, they were not interchangeable because he reasonably
did not believe that he was facing 30 years on any of the pending charges.
¶ 22 Nicholson was not simply advised by his attorney that the State could not meet its burden
of proving the attempted murder but was also thoroughly informed of the evidentiary basis for
that opinion. This assessment proved true and valid when the jury found him not guilty on those
charges. With regard to the aggravated domestic battery, he was also erroneously told that
probation was a possibility and that he was facing a maximum of 14 years. Counsel’s optimistic,
fact-supported presentation of the likely outcome of the charges and the associated potential
sentences was the advice on which Nicholson would have reasonably relied in rejecting the plea
offer. See, e.g., Lee v. United States, 582 U.S.___, ___, 137 S. Ct. 1958, 1967 (2017) (“where we
8 are instead asking what an individual defendant would have done, the possibility of even a highly
improbable result may be pertinent to the extent it would have affected his decisionmaking”).
Consider now altering this rosy picture by removing the possibility of probation and increasing
the maximum sentence for the aggravated domestic battery to 25 years. Nicholson would now
understand that, given his eligibility for Class X sentencing, the plea offer presented his best
possible outcome. We conclude that counsel’s erroneous advice—omitting Class X sentencing
and, instead, advising Nicholson that in a worst-case scenario he was facing a Class 2 sentence
that included the possibility of parole—was the deciding factor leading him to reject the State’s
six-year plea offer. Absent counsel’s advice, which subjectively affected his decision-making,
we find it objectively rational that Nicholson would have accepted the guilty plea offer—and
thus, was prejudiced by counsel’s advice.
¶ 23 The State argues that Nicholson could not objectively show that he would have accepted
plea deal. Citing Hale, the State speculates that Nicholson rejected the plea, hoping that the jury
would also acquit him of the aggravated domestic battery. But the Hale court found the
“defendant clearly and expressly, on many occasions, professed his innocence and indicated a
desire for trial,” starting from his bond reduction hearing and continuing onto his trial. (Emphasis
omitted.) Hale, 2013 IL 113140, ¶ 26. Similarly, the Hale court concluded that these assertions
of innocence with his trial tactics showed the defendant “arguably believed” he could prevail on
the charge for which the State made the offer. Id. ¶ 27. There is no similar evidence in this
record. Beyond his trial testimony, the record does not contain “many occasions” where
Nicholson asserted his innocence. Additionally, unlike the Hale court, we find Nicholson’s trial
testimony did “ ‘little, by itself, to answer the question of why he refused the plea offer in the
first place.’ ” See id. The record simply does not demonstrate that Nicholson was driven by his
9 hope at vindication rather than a desire for the lowest possible sentence his attorney could secure.
Had he known that he faced Class X sentencing, six years—the minimum possible sentence—
would look like a gift.
¶ 24 Having found Nicholson presented a successful claim of ineffective assistance of counsel,
we now turn to the question of his remedy. In Lafler v. Cooper, 566 U.S. 156, 171 (2012), the
United States Supreme Court ruled that “the court may exercise discretion in determining
whether the defendant should receive the term of imprisonment the government offered in the
plea, the sentence he received at trial, or something in between” following an evidentiary hearing
where a “defendant has shown a reasonable probability that but for counsel’s errors he would
have accepted the plea.” In so ruling, the court explained:
“In implementing a remedy ***, the trial court must weigh various
factors; and the boundaries of proper discretion need not be defined here.
Principles elaborated over time in decisions of state and federal courts, and in
statutes and rules, will serve to give more complete guidance as to the factors
that should bear upon the exercise of the judge’s discretion. At this point,
however, it suffices to note two considerations that are of relevance.
First, a court may take account of a defendant’s earlier expressed
willingness, or unwillingness, to accept responsibility for his or her actions.
Second, it is not necessary here to decide as a constitutional rule that a judge is
required to prescind (that is to say disregard) any information concerning the
crime that was discovered after the plea offer was made. The time continuum
makes it difficult to restore the defendant and the prosecution to the precise
positions they occupied prior to the rejection of the plea offer, but that baseline
10 can be consulted in finding a remedy that does not require the prosecution to
incur the expense of conducting a new trial.” Id. at 171-72.
¶ 25 Applying the Court’s reasoning in Lafler, we hold that the appropriate remedy is to
remand the case to the trial court for resentencing. The trial court has the discretion to impose a
sentence that is either (1) equal to the 6 years offered by the State or (2) greater than it but less
than the 25 years Nicholson initially received. If it chooses the latter, the court should consider
the length of time already served on his current sentence. Finally, in exercising its discretion, the
court may consider facts relevant to the aggravated domestic battery conviction offense that were
revealed after Nicholson’s trial and sentencing hearing.
¶ 26 CONCLUSION
¶ 27 The judgment of the circuit court of Knox County is reversed, and the matter is remanded
with instructions for resentencing.
¶ 28 Reversed and remanded.
11 No. 3-18-0010
Decision Under Review: Appeal from the Circuit Court of Knox County, No. 12-CF-24; the Hon. Paul L. Mangieri, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Deepa Punjabi, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys John T. Pepmeyer, State’s Attorney, of Galesburg (Patrick for Delfino, Thomas D. Arado, and Gary F. Gnidovec, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.