2021 IL App (1st) 200070-U No. 1-20-0070
FIRST DIVISION September 7, 2021
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 08 CR 20825 ) CEDRICK RAMSEY, ) The Honorable ) Carl B. Boyd, Defendant-Appellant. ) Judge Presiding. ____________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court. Justices Cobbs and Lavin concurred in the judgment.
ORDER
¶1 Held: We reverse the second-stage dismissal of defendant’s postconviction petition, only with respect to his claim that his trial counsel’s ineffectiveness led him to waive his right to jury trial. However, we affirm the dismissal with respect to defendant’s separate claim that trial counsel was ineffective in failing to communicate the applicable sentencing range or the State’s plea offer, as defendant does not make the requisite showing of prejudice.
¶2 Defendant appeals from the second-stage dismissal of his postconviction petition filed under the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)), arguing that he is
entitled to a third-stage evidentiary hearing with respect to two of the petition’s claims of
ineffective assistance of trial counsel. First, he challenges the dismissal of his claim that trial 1-20-0070
counsel’s ineffectiveness led him to waive his right to jury trial. Second, he challenges the
dismissal of his claim that trial counsel was ineffective in failing to communicate the applicable
sentencing range or that the State had made a plea offer. We conclude that defendant made a
substantial showing of a constitutional violation, with respect to the claim of ineffective
assistance related to his jury waiver, warranting a third-stage evidentiary hearing for that claim.
However, we affirm the dismissal of the ineffective assistance claim premised on counsel’s
failure to communicate the sentencing range or the State’s plea offer, as defendant fails to make
the requisite showing of prejudice
¶3 BACKGROUND
¶4 Defendant was charged with eleven counts of aggravated criminal sexual assault, as well as
counts of kidnapping, aggravated kidnapping, and unlawful restraint in connection with acts
committed against F.S. at defendant’s home on May 31, 2008.
¶5 Before trial, the court denied defendant’s motion to suppress evidence of items recovered from
and photographed in his home following his arrest. Separately, the court granted the State’s
motion in limine to admit other crimes relating to defendant’s sexual assault of two other women
in 2000.
¶6 During a pretrial hearing on June 17, 2013, the State’s Attorney referenced a plea offer, which
was acknowledged by defense counsel: 1
“[STATE’S ATTORNEY:] Judge, there’s one other matter. Many moons ago,
when this case first came in, there was an offer extended to the defendant. It is a
1 In pretrial proceedings and at trial, defendant was represented by private counsel, attorney John Collins.
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natural life case, however, there was an offer extended to him. I am holding that
offer open only until July 22nd. After that day that offer will be revoked.
THE COURT: Okay. Do you all understand that?
[DEFENSE COUNSEL:] Yes.”
This is the only pretrial reference to the plea offer contained in the record on appeal.
¶7 After additional continuances, the matter was set for jury trial to commence on May 27, 2014.
On that date, defendant and his counsel expressed his wish to waive his right to trial by jury, and
he was admonished by the trial court:
“THE COURT: Well, this case was set for a jury trial today, and at this time, Mr.
Collins, what’s the wish of your client?
[DEFENSE COUNSEL:] Judge, after speaking with my client advising him he
has an absolute right to a jury trial, it is our decision to waive jury, Judge, and
submit this to the Court for a hearing on the merits.
THE COURT: All right. Mr. Ramsey, you have the right to a jury trial. Now, a
jury trial would be where you, your lawyer, and the State’s Attorney could select
12 people from the community. Those 12 people then would be the ones who
would hear all the evidence in your case. After they hear all the evidence [in] your
case, they would then be the ones who would make a decision which we call a
verdict as to whether you’re guilty or not guilty.
Do you understand what a jury trial is, sir?
[DEFENDANT:] Yes, I do, sir.
THE COURT: And is it your desire to waive your right to a jury trial and instead
have me hear the evidence, sir - -
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[DEFENDANT:] I trust you, sir.
THE COURT: - - and have me make the decision in this case in what we call a
bench trial?
[DEFENDANT:] Yes, sir.
THE COURT: I’ve got [a] form here, Cedric, which is called a Written Jury
Waiver Form. This Form tells me that you do not want a jury trial. Now, did you
have occasion to look that [sic] this Form, examine it, talk to your attorney about
it and then put your signature at the bottom of it?
[THE DEFENDANT:] Yes, I did.
THE COURT: And do you understand what it’s all about, sir?
[THE DEFENDANT:] Yes, sir.
THE COURT: All right. For the record, the Court does find that Mr. Ramsey has
indicated that he understands his rights to a jury trial and is wil[l]fully waiving his
right to a jury trial, and the Court will accept his jury trial waiver.”
¶8 The State proceeded to trial on two counts of aggravated criminal sexual assault and one count of
aggravated kidnapping.
¶9 The evidence at the bench trial is summarized below but is more thoroughly recounted in our
opinion on direct appeal, People v. Ramsey, 2017 IL App (1st) 160977. At trial, F.S. testified that
she met defendant through a “chat line” and agreed to meet defendant for sex in exchange for
payment. At defendant’s home, he threatened her with a knifepoint and forced her to have oral
and vaginal sex. At one point, he tied her to a bench with her hands behind her back. While he
was out of the room, F.S. freed her hands, punched out a window, and called for help. Defendant
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returned and punched her several times. Alfonzo Wells, defendant’s neighbor, testified that he
called police after he saw F.S. break a window and ask for help.
¶ 10 Another victim, S.S., testified that in February 2000 she met defendant on a chat line. When they
met, he placed a “pointy” object by her side and forced her into a car, where he sexually
assaulted her and tied her hands with duct tape.
¶ 11 Defendant testified that he agreed to pay F.S. for oral and vaginal sex involving bondage. He
testified that they had consensual sex but that they later argued over payment and whether he
could drive her home. He admitted that he hit F.S. several times and that he told police that he
had been fighting with his girlfriend.
¶ 12 Defendant was found guilty of two counts of aggravated criminal sexual assault and aggravated
kidnapping.
¶ 13 Whereas John Collins represented defendant at trial, a different attorney, Sam Adam Jr.,
represented defendant in post-trial motions. In December 2014, Adam filed a “Post-Trial Motion
for Information Regarding Time, Location, Counsel Spoken To, and the Actual Offer Tendered
in the Instant Case.” In that motion, counsel noted the State’s Attorney’s reference to a plea offer
at the June 17, 2013 hearing but stated that there was “no evidence in the Defendant’s possession
that he was ever informed of that offer.” In the motion, defendant sought “to have this Court
inform present counsel of the date, location, counsel spoken to, and the actual offered [sic] made
by the State.” The record does not reflect whether such information was provided.
¶ 14 On June 10, 2015, defendant (through attorney Adam) filed a motion for a new trial. Among
other claims, defendant alleged in the motion that trial counsel’s performance was deficient in
various respects, including because he “[a]dvised the Defendant to waived [sic] a jury trial on the
day jury selection was scheduled and when the matter was set for jury trial for a month, and
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therefore prevented the Defendant of [sic] having his case heard before twelve people of
different viewpoints and life experiences.” The motion for new trial was denied on December 2,
2015.
¶ 15 At sentencing, the court merged the aggravated kidnapping offense into the two aggravated
criminal sexual assault convictions and imposed two consecutive natural life sentences on those
convictions. Defendant’s motion to reconsider sentence was denied.
¶ 16 On direct appeal, defendant argued that the trial court erred in denying his motion to suppress
evidence from his residence, erred in permitting the admission of other crimes evidence, and that
his trial counsel was ineffective in a number of respects. 2 Ramsey, 2017 IL App (1st) 160977, ¶
34. This court affirmed defendant’s convictions and sentence on August 22, 2017.
¶ 17 On October 23, 2018, defendant, through new counsel Thomas C. Brandstrader, filed a petition
for postconviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2018)), alleging that his constitutional right to effective assistance of trial counsel had
been violated in various ways. Relevant to this appeal, he alleged that trial counsel had “advised
the petitioner to waive a jury trial on the day jury selection was scheduled and prevented the
petitioner of [sic] having his case heard before twelve people of different viewpoints and life
experiences.” Elsewhere in the petition, he alleged his trial counsel was ineffective for “failing to
communicate to [defendant] the sentencing range applicable to the offenses” of which he was
charged and for “failing to communicate to [defendant] that an offer to plead guilty had been
made by the State to the petitioner prior to trial.” Defendant averred that, although the State
informed the court that the offer “would only be held open for a limited amount of time,” there
was “nothing in the record that said offer was conveyed to [defendant] by his attorney or that
2 On direct appeal, defendant was represented by attorney Christopher S. Carroll. -6- 1-20-0070
[defendant] had rejected said offer.” Defendant alleged that, as a result of counsel’s failure to
communicate the applicable sentencing range and the State’s plea offer, he was “prevented from
being reasonably informed as to the risks inherent in trial versus a negotiated disposition.”
¶ 18 On October 25, 2018, defendant’s counsel supplemented the petition with a notarized affidavit
signed by defendant. Relevant to this appeal, defendant asserted: “It was never my intent to
waive a jury and [I] was ambushed the day of trial when my lawyer claimed he was not ready to
pick a jury and I would have to proceed with a bench trial as the court would not grant a
continuance.” Defendant additionally averred: “I was never informed by any attorney that an
offer had been tendered by the State’s Attorney’s office prior to the trial date. If I had been so
apprised I may have waived my right to trial and pled guilty pursuant to the offer.” Defendant
further stated that his trial counsel “never discussed or told me the sentencing range applicable to
the crimes for which I was charged.”
¶ 19 The petition was docketed for second-stage proceedings under the Act. 3 In March 2019, the State
filed a motion to dismiss the petition. Defendant filed a response in May 2019.
¶ 20 On December 13, 2019, the court heard argument and denied the petition. The court commented
that “many of the issues raised by the defendant in the [petition] are barred under the doctrine of
res judicata as they could have and should have been raised on direct appeal.” The court also
found that defendant had not shown how he was “prejudiced by any of these alleged deficiencies
of trial counsel” noting that “Strickland requires actual prejudice be shown not speculation or
conjecture.”
¶ 21 ANALYSIS
3 It is unclear from the record whether the trial court made an explicit finding that the petition was not frivolous or patently without merit, and thus should not be summarily dismissed. See People v. Hodges, 234 Ill. 2d 1, 11 (2009). However, the record includes criminal disposition sheet from December 24, 2018, stating “St[ate] to file Mot 2 dismiss.” -7- 1-20-0070
¶ 22 On appeal, defendant asserts that the trial court erred in granting the State’s motion to dismiss
and that he is entitled to a third-stage evidentiary hearing with respect to two of the petition’s
claims of ineffective assistance of trial counsel. First, he claims that counsel’s ineffective
assistance caused him to waive his right to a jury trial. He relies on the portion of his affidavit
relating that he was “ambushed on the day of trial” when his trial counsel “claimed he was not
ready to pick a jury and [defendant] would have to proceed with a bench trial as the court would
not grant a continuance.” He thus asserts that “his waiver of jury trial was not voluntary but the
result of ineffective assistance of counsel who was not prepared for trial.” Secondly, he urges
that the trial court erred in dismissing his claim on “the issue of effective assistance of counsel in
plea negotiations”, insofar as counsel failed to communicate either the sentencing range
applicable to the offenses of which he was charged, or to communicate that the State had
tendered an offer to plead guilty before trial. Defendant thus requests that we reverse the
dismissal and remand for an evidentiary hearing with respect to these claims.
¶ 23 The Act “provides a method by which persons under criminal sentence in this state can assert
that their convictions were the result of a substantial denial of their rights under the United States
Constitution or the Illinois Constitution or both. [Citations.]” People v. Tate, 2012 IL 112214, ¶
8. In a noncapital case, a postconviction proceeding contains three stages. Id. ¶ 9. At the first
stage, the circuit court independently reviews the petition to determine whether it is frivolous or
is patently without merit. Id. If the petition is not summarily dismissed, it “advances to the
second stage, where counsel may be appointed to an indigent defendant [citation] and where the
State, as respondent, enters the litigation. [Citation.]” Id. ¶ 10. At the second stage, “the circuit
court must determine whether the petition and any accompanying documentation make a
substantial showing of a constitutional violation.” (Internal quotation marks omitted.) Id. If no
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such showing is made, the petition is dismissed. Id. “If, however, a substantial showing of a
constitutional violation is set forth, the petition is advanced to the third stage, where the circuit
court conducts an evidentiary hearing. [Citations.]” Id.
¶ 24 “At the pleading stage of postconviction proceedings, all well-pleaded allegations in the petition
and supporting affidavits that are not positively rebutted by the trial record are to be taken as
true. [Citations.] In deciding the legal sufficiency of a postconviction petition, the court is
precluded from making factual and credibility determinations. [Citations.]” People v. Robinson,
2020 IL 123849, ¶ 49; People v. Sanders, 2016 IL 118123, ¶ 42 (“All well-pleaded factual
allegations not positively rebutted by the trial record must be taken as true for purposes of the
State’s motion to dismiss. [Citations.]”). Where, as here, a petition is dismissed at the second
stage without an evidentiary hearing, our standard of review is de novo. Sanders, 2016 IL
118123, ¶ 31. “The question raised in an appeal from an order dismissing a postconviction
petition at the second stage is whether the allegations in the petition, liberally construed in favor
of the petitioner and taken as true, are sufficient to invoke relief under the Act.” Id.
¶ 25 In this appeal, defendant’s claims are premised on violation of his constitutional right to effective
assistance of trial counsel. Such claims are governed by the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). “To prevail on a claim of ineffective assistance of counsel, a
defendant must demonstrate that counsel’s performance was deficient and that the deficient
performance prejudiced the defendant.” People v. Veach, 2017 IL 120649, ¶ 30 (quoting People
v. Domagala, 2013 IL 113688, ¶ 36). “Specifically, a defendant must show that counsel’s
performance 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.” (Internal quotation marks omitted.) Id. “The defendant must show
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‘actual prejudice’ based on the evidence and record, ‘not mere speculation as to prejudice.’ ”
People v. Brown, 2015 IL App (1st) 122940, ¶ 47 (quoting People v. Bew, 228 Ill. 2d 122, 135)
(2008)). A defendant must satisfy both prongs of the Strickland standard, and a failure to satisfy
either prong “precludes a finding of ineffectiveness.” Veach, 2017 IL 120649, ¶ 30 (quoting
People v. Simpson, 2015 IL 116512, ¶ 35).
¶ 26 We will first discuss defendant’s claim that trial counsel’s ineffective assistance caused him to
waive his jury trial right. Before we address the merits, however, we note the State’s threshold
argument that the claim was forfeited because it “could have been raised, and disposed of, in
[defendant’s] motion for new trial.” The State recognizes that “counsel cannot be expected to
assert counsel’s own ineffectiveness” but points out that defendant’s motion for a new trial was
prepared by an attorney other than his trial counsel. The State thus argues that the claim of
ineffective assistance with respect to his jury waiver is forfeited, to the extent it was not raised in
a posttrial motion. However, the lone authorities cited by the State in support of its forfeiture
argument involved claims of ineffective assistance asserted on direct appeal, rather than in a
postconviction petition. See People v. Fretch, 2017 IL App (2d) 151107, ¶ 136 (where posttrial
motion was filed by new counsel rather than trial counsel, the portion of defendant’s claim of
ineffectiveness of trial counsel that was not raised in posttrial motion was “procedurally barred”
on direct appeal); People v. Salgado, 366 Ill. App. 3d 596, 607 (2006) (“while defendant’s
posttrial motion contained allegations of ineffective assistance of counsel, these specific matters
were not raised in that motion, which was filed by counsel different from his trial counsel and
could have been raised; therefore, they are waived for consideration on appeal.” (citing People v.
Enoch, 122 Ill. 2d 176, 186-86 (1988))). Thus, the authorities relied on by the State are
procedurally inapposite to this appeal.
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¶ 27 Notably, the State does not argue forfeiture on the ground that the ineffective assistance claim
concerning jury waiver could have been brought on direct appeal. Thus, the State forfeited any
such claim of forfeiture. See People v. Jones, 2018 IL App (1st) 151307, ¶ 47 (“The State may
forfeit a claim of forfeiture by failing to raise it.” (citing People v. Bridgeforth, 2017 IL App
(1st) 143637, ¶ 46)). In any event, we note that we would not have found this specific claim of
ineffective assistance forfeited, pursuant to our supreme court’s decision in People v. Veach,
2017 IL 120649. Veach explained that although “a defendant must generally raise a
constitutional claim alleging ineffective assistance of counsel on direct review or risk forfeiting
the claim[,]” “[p]rocedural default does not, however, preclude a defendant from raising an issue
on collateral review that depended upon facts not found in the record. [Citation.]” Id. ¶ 47; see
also People v. Smith, 326 Ill. App. 3d 831, 839 (2001) (“If a claim of ineffective assistance of
counsel is based on matters outside the record, then it could not have been raised on appeal and,
consequently, is not waived in a post-conviction petition. [Citation.]”). The claims of ineffective
assistance of counsel at issue in this appeal rely upon portions of defendant’s affidavit reflecting
statements to him by trial counsel, which are not contained in the trial record.4
¶ 28 As we conclude that defendant’s first claim of ineffective assistance was not forfeited, we
proceed to address whether it was properly dismissed. That is, we consider whether defendant’s
petition and supporting affidavit made a substantial showing of ineffective assistance of counsel,
insofar as he alleges that counsel’s statements led him to waive his right to trial by jury.
4 We recognize that the allegations of the petition essentially mirrored one of the claims in the motion for new trial, insofar as the petition alleged that trial counsel “[a]dvised the petitioner to waive a jury trial on the day jury selection was scheduled and prevented the petitioner from having his case heard before twelve people of different viewpoints and life experiences.” Significantly, however, defendant’s affidavit adds new allegations that, on the day of trial, his lawyer “claimed he was not ready to pick a jury” and told defendant that he “would have to proceed with a bench trial as the court would not grant a continuance.” Defendant’s affidavit was not before the trial court on the motion for new trial, nor was it in the appellate record on direct review. Thus, at the time of motion for new trial or on direct, the record was “incomplete or inadequate for resolving the claim.” Veach, 2017 IL 120649, ¶ 46. -11- 1-20-0070
¶ 29 Consistent with the two-prong Strickland standard for ineffectiveness, where a defendant claims
that his trial counsel’s ineffective assistance caused him to waive his right to a jury trial, the
defendant must show (1) his counsel’s advice on whether to waive the right to a jury fell below
an objective standard of reasonableness and (2) there is a reasonable likelihood that defendant
would not have waived his jury trial right in the absence of the alleged deficient advice. People
v. Simon, 2014 IL App (1st) 130567, ¶ 73. We keep in mind that defendant’s averments
regarding communications with counsel must be taken as true, if not “positively rebutted by the
trial record.” Sanders, 2016 IL 118123, ¶ 42.
¶ 30 In this case, defendant alleges in his supporting affidavit that he did not intend to waive his jury
trial right but did so only because, on the day of trial, his trial counsel “claimed he was not ready
to pick a jury” and told him that he “would have to proceed with a bench trial as the court would
not grant a continuance.” The State does not dispute that such advice, if it was in fact given,
would constitute deficient performance by counsel. Nor does the State dispute that defendant
alleges prejudice, i.e., a reasonable likelihood that he would have invoked his right to a jury trial,
but for counsel’s purported statements. Instead, the State makes two other arguments to urge that
dismissal of this claim was proper. First, the State asserts that defendant’s allegations are
conclusory and insufficient because he “failed to provide any corroborating evidence as required
by the Act, such as an affidavit from his trial counsel,” or any explanation as to why such
corroborative evidence was not attached. Second, the State contends that defendant’s allegations
are rebutted by the record. We find the State’s contentions unavailing.
¶ 31 To the extent the State argues that defendant failed to provide corroborating evidence, we
recognize that the Act provides that a postconviction petition must “clearly set forth the respects
in which petitioner’s constitutional rights were violated” and “shall have attached thereto
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affidavits, records, or other evidence supporting its allegations or shall state why the same are
not attached.” 725 ILCS 5/122-2 (West 2018). However, our supreme court has specifically
declined to hold that a defendant must attach an affidavit of his former counsel to support a
postconviction claim that the same attorney’s advice was ineffective, since “the difficulty of
obtaining such an affidavit is self-apparent.” People v. Hall, 217 Ill. 2d 324, 333-34 (2005)
(where defendant’s postconviction petition alleged that his former counsel’s erroneous advice
rendered his guilty plea involuntary, he was not required to submit affidavit from the attorney, in
addition to his own affidavit, to comply with the Act). Hall instructs that the “[f]ailure to attach
independent corroborating documentation or explain its absence may * * * be excused where the
petition contains facts sufficient to infer that the only affidavit the defendant could have
furnished, other than his own sworn statement, was that of his attorney. [Citations.]” Id. at 333.
Accordingly, the lack of an affidavit from trial counsel does not preclude us from treating the
allegations in defendant’s petition and affidavit as true. See People v. Barghouti, 2013 IL App
(1st) 112373, ¶ 16 (in reviewing summary dismissal of postconviction claim of ineffective
assistance in plea bargaining, citing Hall to conclude that lack of an affidavit from trial counsel
“does not permit us to ignore the allegations of [defendant’s] postconviction petition” and
supporting affidavit that trial counsel failed to inform defendant of potential sentencing range).
¶ 32 Here, defendant’s petition and supporting affidavit allege specific statements by his trial counsel,
in the context of off-the-record legal advice, that caused defendant to decline to invoke his right
to a jury trial. Defendant is not required to submit an affidavit from his trial counsel supporting
his allegations of that attorney’s ineffectiveness, since the difficulty of obtaining such an
affidavit is apparent. Hall, 217 Ill. 2d at 333-34. Nor is he required to explain the failure to
include such an affidavit, since its absence “can easily be inferred” from the allegations of
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defendant’s petition and affidavit. Id. Thus, we reject the State’s suggestion that the Act required
defendant to provide an affidavit from trial counsel or to explain his efforts to obtain one.
¶ 33 We turn to the State’s argument that the record positively rebuts defendant’s allegations of
ineffective assistance with respect to his jury waiver. The State points out that, when the trial
court admonished him, defendant told the judge that he wanted a jury trial. Defendant also
verbally confirmed that he had executed a written jury waiver. Nonetheless, we do not find that
the court’s admonishments or defendant’s responses thereto affirmatively rebut the substance of
defendant’s allegations, which concern off-the-record statements by counsel that allegedly
persuaded him to tell the court that he desired a jury trial.
¶ 34 We find that the allegations regarding jury waiver in this case resemble those at issue in People
v. Smith, 326 Ill. App. 3d 831 (2001), an appeal from a summary dismissal of a postconviction
petition. In that case, the defendant alleged that his attorney “caused [him] to involuntarily
relinquish his right to a jury trial by telling defendant that the judge owed him a favor and it
would be better to have a bench trial because the judge would have information not available to a
jury.” Id. at 838. Although, as in this case, the defendant had been admonished by the court and
had signed a jury waiver, the Smith court concluded that the allegations were not rebutted by the
record:
“The trial court’s admonitions, together with defendant’s signature on the jury
waiver do not rebut the specific allegations in the petition. At no time during the
admonition[s] did the trial judge ask the defendant whether he had been promised
anything in exchange for giving up his right to a jury trial. Trial counsel’s alleged
representation that the judge would have information not available to the jury is
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legally inaccurate, as the law is clear that a judge is presumed not to consider
inadmissible matters.” Id. at 848-49.
Accordingly, the Smith court concluded that the allegations regarding how trial counsel
persuaded him to elect a bench trial were “not rebutted by the record,” were not frivolous or
patently without merit, and should advance to second-stage proceedings. Id. at 849.
¶ 35 We acknowledge that Smith came before us on summary dismissal, whereas this appeal concerns
a second-stage dismissal upon the State’s motion. Nonetheless, at either stage, the defendant’s
allegations are taken as true. Sanders, 2016 IL 118123, ¶ 31 (in an appeal from second-stage
dismissal, there “are not factual issues” and the question is “whether the allegations in the
petition, liberally construed in favor of the petition and taken as true, are sufficient to invoke
relief under the Act”); People v. Hodges, 234 Ill. 2d 1, 10 (2009) (“At the first stage, the circuit
court must * * * review the petition, taking the allegations as true,” and determine whether it is
frivolous or patently without merit).
¶ 36 As in Smith, we do not find that the admonitions or the defendant’s verbal and written jury
waiver rebut the allegations at issue regarding why he waived that right. Specifically, although
the trial court admonished defendant about his right to trial by jury and defendant indicated his
understanding, the transcript of that colloquy does not positively rebut the alleged statements by
trial counsel’s that purportedly dissuaded defendant from invoking his jury trial right. In
particular, the admonitions do not positively rebut defendant’s allegation that his trial counsel
told him he was “not ready to pick a jury” on the day that trial was set to begin. Assuming the
truth of counsel’s alleged statement that he was unprepared for a jury trial, it would not be
surprising that defendant opted for a bench trial, even after the trial judge explained his right to
trial by jury. Similarly, the admonitions do not positively rebut defendant’s allegation that his
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trial counsel advised him that the trial court “would not grant a continuance” if he expressed his
desire to proceed with a jury trial. At no point in the admonitions was the possibility of a
continuance mentioned or referred to. Thus, we reject the State’s argument that the record
positively rebuts the allegations underlying this ineffective assistance claim.
¶ 37 In reaching this conclusion, we are not persuaded by the State’s reliance on our supreme court’s
decision in People v. Knapp, 2020 IL 124992, which we find distinguishable. The Knapp
defendant appealed from the summary dismissal of a postconviction petition, in which the
defendant alleged that he did not voluntarily relinquish his right to testify. Id. ¶ 1. The record in
Knapp showed that the trial court admonished defendant that he had a right to testify, and that it
was a decision “that you and you alone have the right to make but you should make the decision
only after discussing it with your attorney.” Id. ¶ 26. Defendant answered affirmatively when the
trial court asked defendant if he had discussed his decision with his counsel, and whether his
choice was not to testify. Id. His counsel also told the court: “I have discussed it at great length
with him and it’s his decision and I respect it.” Id.
¶ 38 In support of his postconviction petition, the Knapp defendant submitted an affidavit in which he
averred that his answers to the court resulted from his attorney’s representations to him that he
could not testify unless there was corroborative evidence to support his testimony. Id. ¶ 34. He
“denied that he was ever told by counsel or the court that he had an ‘absolute right to testify and
the decision was mine alone to make.’ ” Id. He also averred that his attorney failed to disclose
evidence “tending to support [defendant’s] intended testimony.” Id. Defendant alleged that, had
he known of such evidence or that his right to testify did not depend on such corroborative
evidence, he never would have waived his right to testify. Id.
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¶ 39 Our supreme court affirmed the summary dismissal of the petition, concluding that the record
positively rebutted defendant’s allegations. The Knapp court reasoned: “[T]he record contains
nothing to suggest that [defendant] ever alerted the trial court of his desire to testify, that he had
any questions about his right to testify, or that he otherwise was unsure about waiving his right to
testify. [Citation.].” Id. ¶ 51. The court noted that “the alleged off-the-record conversations with
counsel * * * occurred before the circuit court’s admonishments,” and that after the
admonishments, defendant “confirmed on the record that the decision not to testify was his
alone.” Id. ¶ 54. Our supreme court concluded that “petitioner’s responses during the trial court’s
admonishments unequivocally rebut his allegations that his decision not to testify was
involuntary or based on allegedly erroneous advice from counsel.” Id. The court also found that
the record “contains not even the slightest suggestion that petitioner was hesitant or unsure of his
decision not to testify” but instead “demonstrates that the trial court confirmed that petitioner
consulted with counsel on his decision whether to testify, petitioner understood that the decision
whether to testify was his alone, and then petitioner chose not to testify.” Id. ¶ 58.
¶ 40 We find Knapp distinguishable from the situation presented in this case. In Knapp, defendant
alleged that he believed (due to counsel’s erroneous advice) that he did not have an absolute right
to testify, and that his right to testify was contingent on the existence of corroborating evidence.
Those allegations were directly rebutted by the trial court’s admonitions that defendant alone
could decide whether to testify, which defendant confirmed that he understood. Id. ¶ 54. On the
other hand, we find that the precise nature of the allegations in this case regarding the right to
jury trial are different in character from the allegations in Knapp regarding the right to testify.
That is, unlike Knapp, defendant in this case does not claim that he was misled by counsel as to
whether it was his decision to waive a jury trial. Defendant does not dispute that he knew it was
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his decision. Rather, he alleges that he decided not to proceed by jury trial, based on counsel’s
statement that counsel was unprepared to defend him in a jury trial and that the court would not
grant a continuance for a jury trial. Although the court admonished him about his right to a jury
trial, nothing in the admonitions touched on counsel’s preparedness to defend him before a jury.
Thus, the court’s admonitions could not refute counsel’s purported off-the-record statement to
defendant that he was not prepared for a jury trial. Similarly, nothing in the admonitions
mentioned the possibility of a continuance, and thus the record did not rebut defendant’s
additional alleged statement that his counsel told him a continuance would not be granted for a
jury trial. For these reasons, we do not find that Knapp controls in this case.
¶ 41 We also reject the State’s argument that defendant’s motion for a new trial “positively rebuts”
his affidavit’s allegations about trial counsel’s statements. The State emphasizes that defendant
was not represented by trial counsel in conjunction with that motion, and suggests that defendant
“had the opportunity to fully discuss any grievances” about his trial counsel with the attorney
who prepared the motion. The State points out that the motion for new trial alleged that trial
counsel “advised” him not to elect a jury trial but did not allege that trial counsel mentioned his
lack of preparedness or that the trial court would not grant a continuance. However, the State
cites no precedent suggesting that failure to include a particular allegation in a motion for a new
trial “rebuts” a specific allegation set forth in a postconviction proceeding. This is not surprising,
as we cannot see how the absence of an allegation in the trial record can be deemed to
“positively” rebut a postconviction allegation. Sanders, 2016 IL 118123, ¶ 42 (“All well-pleaded
factual allegations not positively rebutted by the trial record must be taken as true for purposes of
the State’s motion to dismiss.”).
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¶ 42 Similarly, we reject the State’s suggestion that the alleged statement by counsel regarding the
unavailability of a continuance is positively rebutted by the record, insofar as trial counsel had
asked for continuances of the trial date on four occasions, and the trial court never indicated “that
it was irritated” by the requests “or that counsel’s last request was the final continuance it would
grant.” The fact that the court granted prior continuances does not positively rebut defendant’s
allegation that, on the particular date when trial counsel told him he was “not ready to pick a
jury,” trial counsel also told him that the court would not grant a continuance. We thus reject the
State’s contentions that the record positively rebuts defendant’s claim of ineffective assistance
with respect to waiver of his right to jury trial.
¶ 43 We proceed to conclude that, liberally construing defendant’s allegations regarding his jury
waiver and taking them as true, Sanders, 2016 IL 118123, ¶ 31, defendant has made a substantial
showing of ineffective assistance under the two-prong Strickland standard. First, counsel’s
alleged statements to defendant indicating that counsel was not prepared for a jury trial and that
the court would not grant a continuance, “fell below an objective standard of reasonableness.”
Simon, 2014 IL App (1st) 130567, ¶ 73. We recognize that generally, “advice on waiving a jury
trial constitutes the type of strategy and tactics that cannot support a claim of ineffectiveness.”
(Internal quotation marks omitted.) Id. ¶ 74 (concluding that ineffective assistance claim could
not be premised upon “advising defendant to waive a jury trial because counsel knew that the
judge would base his decision on the law instead of on the fact the defendant was a gang
member, as a jury might do”). However, trial counsel’s alleged statements urging defendant to
waive a jury trial simply because counsel was “not ready to pick a jury” and that the court
“would not grant a continuance” cannot be construed as reasonable strategic advice.
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¶ 44 We also find that defendant sufficiently alleges prejudice under the Strickland standard. That is,
insofar as defendant’s affidavit avers that it was “never [his] intent to waive a jury” until he was
“ambushed” by trial counsel’s statements, he has alleged a reasonable likelihood that defendant
would not have waived his jury trial right in the absence of trial counsel’s deficient performance.
Simon, 2014 IL App (1st) 130567, ¶ 73.
¶ 45 In sum, taking his unrebutted allegations as true, defendant’s petition and supporting affidavit
made a substantial showing of ineffective assistance of counsel with respect to his jury waiver,
warranting a third-stage evidentiary hearing. We thus reverse the trial court’s dismissal of the
petition, with respect to this particular claim of ineffective assistance of counsel.
¶ 46 We turn to defendant’s second claim of error on appeal, in which he challenges the dismissal of
his ineffective assistance claim based on allegations that his trial counsel failed to inform him of
either the sentencing range for the charged offenses or the State’s plea offer. He asserts he was
prejudiced as he was not informed of the risks of going to trial, and thus “went to trial risking his
life in prison when an offer of something far less went unspoken by counsel.” 5 Defendant
maintains that an evidentiary hearing with “input from trial counsel” is warranted to determine if
his “constitutional right to plea” was violated.
¶ 47 At the outset, we briefly note that the State makes the same forfeiture argument that it raised with
respect to defendant’s claim of ineffective assistance pertaining to jury waiver, i.e., that the claim
is not preserved because it could have been raised in his motion for new trial. Again, however,
the State relies on case law discussing forfeiture in the context of a direct appeal, rather than an
appeal from the dismissal of a postconviction petition. People v. Fretch, 2017 IL App (2d)
151107, ¶ 136; People v. Salgado, 366 Ill. App. 3d 596, 607 (2006). For the same reasons we
5 Defendant’s briefing does not specify what the offer was, and the proposed terms of the offer mentioned at the June 17, 2013 hearing are not apparent from the record. -20- 1-20-0070
rejected the State’s forfeiture argument with respect to the previously-discussed ineffective
assistance of counsel argument regarding jury waiver, we do not find that defendant has forfeited
the instant ineffective assistance claim.
¶ 48 We proceed to assess whether defendant’s petition made a substantial showing of a constitutional
violation, insofar as it alleged that trial counsel failed to communicate his potential sentencing
range or the State’s plea offer. “The sixth amendment right to the effective assistance of counsel
applies to the plea-bargaining process” and “extends to the decision to reject a plea offer, even if
the defendant subsequently receives a fair trial.” People v. Hale, 2013 IL 113140, ¶¶ 15-16. This
right to counsel encompasses defendant’s right “ ‘to be reasonably informed with respect to the
direct consequences of accepting or rejecting a plea offer.’ ” (Emphasis in original.) Id., ¶ 16
(quoting People v. Curry, 178 Ill. 2d 509, 528 (1997)). “Counsel has a constitutional obligation
to inform the defendant of the minimum and maximum sentences that may be imposed and the
ramifications of accepting or rejecting a plea offer.” People v. Brown, 2015 IL App (1st) 122940,
¶ 74.
¶ 49 The two-prong Strickland test applies to claims of ineffective assistance in the context of advice
regarding a plea offer. Hale, 2013 IL 113140, ¶ 15. In Hale, our supreme court set forth very
specific requirements to satisfy the prejudice prong for this type of ineffectiveness claim. First,
“the defendant must establish that there is a reasonable probability that, absent his attorney’s
deficient advice, he would have accepted the plea offer. [Citation.]” Id. ¶ 18. “This showing of
prejudice must encompass more than a defendant’s own subjective, self-serving testimony.”
(Internal quotation marks 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.” Id. (quoting Curry, 178 Ill. 2d at 532). “The disparity
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between the sentence a defendant faced and a significantly shorter plea offer can be considered
supportive of a claim of prejudice.” Id.
¶ 50 Hale further instructs that, pursuant to United States Supreme Court precedent, in addition to a
reasonable probability that the defendant would have accepted the plea, prejudice in this context
also requires defendant to show a reasonable probability that the plea would have been entered
without the prosecution canceling it or the trial court refusing to accept it. Id., ¶¶ 19-20
(recognizing that these prejudice factors, set forth in Missouri v. Frye, 566 U.S at ----, 132 S. Ct.
1399 (2012) and Lafler v. Cooper, 566 U.S. ---, 132 S. Ct. at 1384 (2012), “must now be relied
upon in deciding if prejudice has been shown where a plea offer has lapsed or been rejected
because of counsel’s deficient performance.”). In short, to show prejudice based upon counsel’s
alleged error in failing to inform him of a plea offer or sentencing range, “a defendant must show
that he would have accepted the plea offer but for counsel’s erroneous advice, that the State
would not have rescinded the offer, and that the trial court would have accepted it.” Brown, 2015
IL App (1st) 122940, ¶ 66.
¶ 51 In this case, the State suggests there are multiple bases upon which we should affirm the second-
stage dismissal of the ineffective assistance claim premised on trial counsel’s failure to
communicate the sentencing range or the plea offer. As with the claim of ineffectiveness related
to defendant’s jury waiver, the State suggests that defendant’s assertions are conclusory and that
he “failed to provide corroborating evidence as required by the Act.” Separately, the State urges
that the record positively rebuts defendant’s allegations that he did not know of the plea offer or
his potential life sentence, given defendant’s presence at the June 2013 hearing where the
prosecutor mentioned that this was a “natural life case” and referenced the State’s plea offer.
Alternatively, the State argues that defendant fails to make a substantial showing that he was
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prejudiced by counsel’s alleged ineffectiveness. As discussed below, we agree that defendant has
not made the requisite showing of prejudice.
¶ 52 We recognize that, at this stage of postconviction proceedings, we are bound to accept as true all
well-pled facts not positively rebutted by the record. Sanders, 2016 IL 118123, ¶ 42. However,
even assuming the truth of defendant’s allegations that trial counsel did not inform him of the
sentencing range or the State’s plea offer, defendant does not make a substantial showing of
prejudice. He fails to satisfy any of the prejudice requirements for this type of claim: i.e., a
reasonable probability that he would have accepted the plea offer but for counsel’s erroneous
advice, that the State would not have rescinded the offer, and that the trial court would have
accepted it. Brown, 2015 IL App (1st) 122940, ¶ 66.
¶ 53 Regarding the first requirement, defendant’s petition does not include any allegation that
defendant would have accepted the State’s plea offer. At most, in his supporting affidavit, he
states that if he had been “apprised” of the State’s offer, he “may have waived my right to trial
and pled guilty pursuant to said offer.” The statement in his affidavit is insufficient, in light of
our supreme court’s instruction that this type of ineffective assistance claim requires “more than
a defendant’s own subjective, self-serving testimony.” (Internal quotation marks omitted.) Hale,
2013 IL 113140, ¶ 18; see also Brown, 2015 IL App (1st) 122940, ¶ 78 (in affirming second-
stage dismissal of claim that counsel failed to inform him of plea offer or the extended
sentencing range, noting “Brown’s claim that he would have pled guilty had he known that he
faced an extended sentence, standing alone, amounts to no more than subjective, self-serving
testimony insufficient to satisfy the Strickland requirement for prejudice” (Internal quotation
marks omitted.)); People v. Walker, 2018 IL App 160509, ¶ 36 (affirming summary dismissal of
claim that counsel failed to advise defendant of mandatory firearm enhancement before he
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rejected the State’s plea offer, since “even if we assume that defendant received a 27-year plea
offer, that this offer remained open until the start of trial, that his petition asserts that he would
have accepted this offer if he knew of the mandatory enhancement, and that his counsel failed to
inform him of it, there is still nothing alleged in the petition to show prejudice, except for
defendant’s own subjective, self-serving remarks”).
¶ 54 Under Hale, the equivocal statement in defendant’s affidavit that he “may have waived [his]
right to trial and pled guilty” amounts to self-serving testimony that is insufficient, standing
alone, to show a reasonable probability that he would have accepted the plea offer. Hale, 2013
IL 113140, ¶ 18. We also note that, since defendant offers nothing that indicates the terms of the
plea offer, we are not able to consider the disparity between the sentence and the plea offer as
potential support for this showing of prejudice. See id. (“The disparity between the sentence a
defendant faced and a significantly short plea offer can be considered supportive” of prejudice.)
Moreover, defendant’s petition offers nothing to satisfy the additional requirements for a
prejudice showing, i.e., a reasonable probability that the plea would have been entered without
the State withdrawing it or the trial court refusing to accept it. Id., ¶¶ 19-20.
¶ 55 We recognize, as a practical matter, that Hale’s requirement that a defendant must submit more
than his own “self-serving” testimony to show prejudice appears to put pressure on defendants to
obtain sworn statements from trial counsel about the advice they gave with respect to a plea. In
decisions prior to Hale, our supreme court recognized the difficulty of obtaining a statement
from trial counsel for the purpose of supporting a postconviction claim of that counsel’s
ineffectiveness. People v. Hall, 217 Ill. 2d 324, 333-34 (2005) (in reversing second-stage
dismissal of claim that trial counsel’s ineffectiveness led defendant to accept guilty plea,
explaining that defendant did not need to provide trial counsel’s affidavit); People v. Williams,
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47 Ill. 2d 1, 4 (1970) (reversing dismissal of postconviction petition in which defendant alleged
that he was induced to plead guilty by his attorney’s representations, despite lack of supporting
affidavits, where “the only affidavit that petitioner could possibly have furnished, other than his
own sworn statement, would have been that of his attorney who allegedly made the
misrepresentation to him” and “[t]he difficulty or impossibility of obtaining such an affidavit is
self-apparent.”).
¶ 56 Hall and Williams thus suggest that, at least with respect to a postconviction claim that counsel’s
ineffectiveness led defendant to accept a plea offer, a supporting affidavit from counsel is not
necessarily required. However, our supreme court’s subsequent decision in Hale explicitly
requires that, where the claim is that counsel’s deficient advice defendant not to accept a plea,
there must be something more than self-serving testimony to make the requisite showing of “a
reasonable probability that, absent his attorney’s deficient advice, he would have accepted the
plea offer.” 2013 IL 113140, ¶ 18. We are bound to follow that precedent.
¶ 57 We thus conclude that defendant has not made the requisite showing of prejudice under Hale. On
that basis, we affirm the dismissal of his petition with respect to his claim that counsel was
ineffective in failing to advise him of the applicable sentencing range or to communicate the
State’s plea offer. 6
¶ 58 CONCLUSION
¶ 59 In summary, we conclude that defendant’s postconviction petition made a substantial showing of
a constitutional violation, only insofar as he claims that ineffective assistance of counsel caused
him to waive his right to a jury trial. We thus reverse the trial court’s dismissal order with respect
6 As we affirm dismissal of that claim due to defendant’s failure to make a substantial showing of prejudice, we need not address the State’s alternative arguments that we should affirm because he “failed to provide any corroborating evidence as required by the Act” or that the record positively rebuts defendant’s allegations that he did not know of the sentencing range or the State’s plea offer. -25- 1-20-0070
to that particular claim and remand for a third-stage evidentiary hearing only with respect to that
claim. However, we affirm the trial court’s dismissal of defendant’s petition in all other respects,
including with regard to his claim that trial counsel was ineffective in failing to communicate the
sentencing range for the charged offense and the State’s plea offer.
¶ 60 Affirmed in part and reversed in part.
¶ 61 Cause remanded.
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