NOTICE 2024 IL App (5th) 220310-U NOTICE Decision filed 09/11/24. The This order was filed under text of this decision may be NO. 5-22-0310 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Union County. ) v. ) No. 20-CF-158 ) DMITRIY SERGEYEVIC SELEZNEV, ) Honorable ) Tyler R. Edmonds, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.
ORDER
¶1 Held: The trial court’s sentencing was not excessive, postplea counsel complied with Rule 604(d), and defendant failed to show his postplea counsel provided ineffective assistance.
¶2 Following a guilty plea, defendant, Dmitriy S. Seleznev, was convicted of one count of
criminal sexual assault and one count of traveling to meet a minor. He was subsequently sentenced
to 13 years on the criminal sexual assault charge and 5 years on the traveling to meet a minor
charge with the sentences running consecutively. Defendant appeals the trial court’s denial of his
motion to reduce his sentence. He further argues that his postplea counsel failed to comply with
Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) and his trial counsel was ineffective. For
the following reasons, we affirm.
1 ¶3 I. BACKGROUND
¶4 On September 25, 2020, defendant was charged, by information, with five counts of child
pornography in violation of section 11-20.1(a)(4) of the Criminal Code of 2012 (Code) (720 ILCS
5/11-20.1(a)(4) (West 2020)), two counts of indecent solicitation of a child in violation of section
11-6(a) of the Code (id. § 11-6(a)), two counts of traveling to meet a minor in violation of section
11-26(a) of the Code (id. § 11-26(a)), and two counts of grooming in violation of section 11-25(a)
of the Code (id. § 11-25(a)). A warrant for defendant’s arrest was issued. Defendant was arrested
in the State of Washington, and following extradition, his first appearance was held on February
26, 2021. On March 11, 2021, defendant retained counsel, Christian Baril.
¶5 Defendant’s preliminary hearing was held on April 5, 2021. Agent Steven Melcher from
the Illinois State Police testified that he was involved with the investigation after a complaint was
made by a 15-year-old female and her mother to the Jonesboro Police Department. Agent Melcher
stated the minor was contacted via social media that the male subject would be traveling to Union
County to meet the minor. Agent Melcher stated defendant was the male subject and that defendant
contacted multiple juvenile females, sent nude images of himself to the females, requested nude
images from the females, and traveled to and requested sexual conduct with those females. During
his investigation, Agent Melcher discovered defendant had 37 Snapchat accounts, 25 Instagram
accounts, and 1 Facebook account. One of the victims admitted sending defendant a nude image
of herself. During a second Child Advocacy Center (CAC) interview, the victim admitted that
defendant pulled down his pants to expose his penis and they engaged in sex in defendant’s vehicle.
He also moved his hand underneath her clothing and touched her bare breast. He later tried to have
sex with the victim again, but she began crying so they did not have sex. Agent Melcher also stated
there were threatening text messages and pictures sent to the victim, including a handgun in
2 defendant’s possession and a knife. The victim was reminded of the gun when they were having
sex. The agent stated there were three potential female victims: A.B.C., C.A., and N.L. The court
found probable cause. Defense counsel waived a formal reading of the charges and entered pleas
of not guilty for each count.
¶6 On April 28, 2021, an amended information was filed. Therein, defendant was charged
with two counts of criminal sexual assault in violation of section 11-1.20(a)(2) of the Code (id.
§ 11-1.20(a)(2)), two counts of aggravated criminal sexual abuse in violation of section 11-1.60(d)
of the Code (id. § 11-1.60(d)), two counts of indecent solicitation of a child in violation of section
11-6(a) of the Code (id. § 11-6(a)), two counts of traveling to meet a minor in violation of section
11-26(a) of the Code (id. § 11-26(a)), and two counts of grooming in violation of section 11-25(a)
of the Code (id. § 11-25(a)). On April 30, 2021, defense counsel moved to sever defendant’s
charges to separate the counts as to each victim. The same day, a second amended information was
filed in which defendant was charged with the same counts as set forth in the April 28, 2021,
amended information.
¶7 On May 20, 2021, the trial court granted defendant’s motion to sever. Counts I, II, III, IV,
V, VII, and IX, involving alleged victim, A.B.C., would be case No. 20-CF-158-A. Counts VI,
VIII, and X, involving alleged victim, C.A., would be case No. 20-CF-158-B.
¶8 On June 3, 2021, defendant moved to continue the jury trial, and the State provided notice
of its election to proceed first with the counts in A.B.C.’s case. The court granted the motion and
set the case for a final pretrial on September 10, 2021.
¶9 On September 10, 2021, defense counsel advised the court of a plea agreement involving
both victims. Defendant would plead guilty to counts I (criminal sexual assault) and VIII (traveling
to meet a minor) and the remaining counts would be dismissed. No sentencing cap was included
3 in the plea agreement. A written copy of the plea agreement was provided to the court. Following
inquiry and admonishments by the court, as well as the fact presentation by the State to which no
dispute was raised by defense counsel, the plea agreement was accepted. Notably, the court’s
inquiry included whether defendant was satisfied with his counsel’s representation and defendant
answered affirmatively. The court’s admonishments included that defendant would face 4 to 15
years’ imprisonment for the criminal sexual assault charge, 2 to 5 years’ imprisonment for the
traveling to meet a minor charge, and the sentences were mandated to run consecutively. Defendant
stated he understood. A sentencing hearing was set for November 12, 2021.
¶ 10 On October 28, 2021, a sex offender clinical evaluation was filed. On November 1, 2021,
the presentence investigation report (PSI) was filed revealing no prior criminal offenses.
¶ 11 At the sentencing hearing, defense counsel objected to the admission of the sex offender
evaluation report. The court sustained defendant’s objection and stated it would “set that aside and
I’ll ask the clerk to shred that for me.” Both parties had no objections or amendments to the PSI.
¶ 12 Defense counsel read letters from defendant’s four siblings, parents, and other relatives
and neighbors. The letters expressed their appreciation and love of defendant’s helpfulness, caring
behavior, and disposition. In-person witness testimony was provided by defendant’s older sister,
Alina Seleznev. Alina testified that their parents had seven children. She also provided the family’s
history related to their move from the U.S.S.R. in 1993. She further testified that when she got
divorced, defendant stepped up as a father figure to her daughter. She also addressed defendant’s
employment history and lack of any prior criminal activity.
¶ 13 The court addressed the potential sentencing ranges for the charges. Both parties agreed
with the ranges as presented by the court. The State provided its argument regarding factors in
aggravation and requested the maximum sentence for both charges for a total of 20 years.
4 Thereafter, a victim advocate read a statement by one victim’s sister. The mother of one of the
victims read a statement and a statement from one of the victims was read to the court.
¶ 14 The defense argued for the minimum total of four years for count I and probation for count
II due to this being defendant’s first offense, his admission of the crimes, and his sorrow and
empathy for the family. Thereafter, defendant provided a statement apologizing for the pain and
embarrassment caused to the victims, their families, and his own family.
¶ 15 The court commended defendant for pleading guilty. It explained that sparing the victims
the difficulty of a trial was “a very significant thing.” The court acknowledged defendant had a
“clean criminal record” and family that loved and cared for him. However, the court noted that
“these are very serious crimes, and even under the best of circumstances, these crimes are
damaging to people, relationships, to the victims and their family, and to [defendant’s] own
family.”
¶ 16 The court found the victim impact statements “quite powerful,” and the damage from
defendant’s action was significant and immeasurable. The court expressed “great concern” about
the way he developed his relationships, finding it was “inexcusable” that he actively sought them
out before traveling hundreds of miles to meet with them. The court stated that deterrence was also
a factor to be considered. The court again noted “the fact that [defendant] traveled hundreds of
miles to commit these offenses with these children” was “inexcusable.” Thereafter, the court
sentenced defendant to 13 years for count I to be served at 85% and 5 years on count II to be served
at 50%. The court encouraged defendant to participate in sex offender treatment while
incarcerated, noting there were “clearly” positive aspects to his character.
¶ 17 The parties returned to court on November 29, 2021, because the court realized that
although defendant signed a written acknowledgement of his appeal rights, the court did not
5 verbally advise him of his appeal rights following the sentencing. The court stated that Rule 605(c)
would apply because this was “a partially negotiated plea.” The court admonished, inter alia, that
prior to taking an appeal, defendant was required to file “within 30 days of the date on which [his]
sentence [was] imposed, a written motion asking to have the judgment vacated and for leave to
withdraw the plea of guilty.” See Ill. S. Ct. R. 605(c)(2) (eff. Oct. 1, 2001). Thereafter, the court
provided defendant 30 days from November 29, 2021, to file any appeal.
¶ 18 On December 8, 2021, defense counsel filed a motion to withdraw guilty plea, and on
December 10, 2021, filed a motion to reconsider sentence. The motion to withdraw guilty plea
indicated it was being filed so that defendant could properly challenge his sentence pursuant to
Illinois Supreme Court 604(d) (eff. July 1, 2017) and People v. Linder, 186 Ill. 2d 67, 69-74 (1999)
(holding that where a defendant pleads guilty in exchange for the dismissal of other charges and a
sentencing-cap recommendation, he is required to file a motion to withdraw guilty plea because
“[b]y agreeing to plead guilty in exchange for a recommended sentencing cap, a defendant is, in
effect, agreeing not to challenge any sentence imposed below that cap on the grounds that it is
excessive”). The motion to reconsider sentence asserted the trial court placed too much weight on
the fact that defendant’s conduct caused or threatened serious harm, improperly considered that he
traveled hundreds of miles to commit the offenses, and failed to give due consideration to his lack
of criminal history and unlikeliness to reoffend.
¶ 19 In March 2022, counsel advised the trial court that he intended to speak with defendant
within a week and would amend the motions if necessary. In May 2022, counsel filed a Rule 604(d)
certificate, and the cause proceeded to a hearing on defendant’s postplea motions. At the outset of
the hearing, the parties advised the court that defendant’s motion to withdraw guilty plea had been
filed as a matter of procedure so that he could challenge his sentence. Stating that it understood,
6 the trial court denied the motion to withdraw, and the parties proceeded to argue their positions
with respect to defendant’s motion to reconsider sentence.
¶ 20 Defendant first objected to the five-year sentence imposed on count VIII, arguing that by
considering that he traveled hundreds of miles to commit the offense of traveling to meet a minor,
the court improperly considered a factor inherent in the offense. With respect to count I, defendant
argued that because emotional harm was implicit in the offense of criminal sexual assault and no
physical harm was alleged, the trial court placed excessive weight on the fact that his conduct
caused or threatened serious harm.
¶ 21 With respect to both counts, defendant asked the court to reconsider the mitigating factors
that he had no prior criminal history and that his character and attitude indicated he was unlikely
to reoffend. Defendant again emphasized that he had apologized, expressed remorse, and spared
the victims the experience of a “painful” trial by taking responsibility for his actions. Defendant
asked the court to reduce the sentences imposed on both counts.
¶ 22 In response, the State argued that the trial court clearly considered and weighed all the
relevant factors in aggravation and mitigation and defendant was essentially seeking to “constrict”
the court’s ability to consider the factors in aggravation. The State emphasized that defendant
committed serious offenses against child victims and that the court previously, and correctly, noted
the harm and trauma he had caused.
¶ 23 The State maintained that it was not improper for the trial court to consider that defendant
traveled to commit the offenses. The State suggested that defendant’s travels reflected his
“willingness and motivation,” and that in any event, it was only one factor that the court
considered. Noting that numerous charges were dismissed pursuant to the parties’ plea
negotiations, the State argued that defendant “took full advantage of his ability to mitigate his risks
7 by taking a[n] [open] plea” that allowed the court to determine the appropriateness of the resulting
sentence. The State objected to any reduction of the sentences imposed.
¶ 24 After finding that counsel made “some good points” regarding the fashioning of
defendant’s sentence, the trial court addressed each argument raised in defendant’s motion to
reconsider. With respect to its consideration of defendant’s “travel in the case,” the court stated
that it had reviewed the transcript of the sentencing hearing and that when discussing the matter,
it “wasn’t as clear as [it] should have been.” The court explained that when discussing the fact that
defendant had traveled “a great distance to commit these offenses,” it was expressing its concerns
as to the “deliberate” and “predatory nature” of defendant’s conduct. The court noted that
defendant “didn’t know these victims” and that “[t]hese were not crimes of opportunity.” The court
indicated that it was troubled by the “planning that was involved” and the fact that defendant
“sought out these victims online,” “cultivated” relationships with them, and then “traveled a
distance to meet them in a place where no one would know him.”
¶ 25 Repeatedly emphasizing that “[t]his was a difficult case” and that imposing a reasoned and
individualized sentence was not “an easy decision to make,” the trial court noted that it had
considered defendant’s lack of criminal history, as well as the evidence demonstrating that there
were positive aspects to his character. The court explained, however, that it had to weigh that
evidence against the victim impact statements, which the court noted “were quite powerful and
weigh[ed] significantly in the decision that the [c]ourt made.” Stating that it had appropriately
considered and weighed all the relevant factors, the trial court subsequently denied defendant’s
motion to reconsider sentence. The court wished defendant “nothing but the best” and again
encouraged him to seek “the treatment that [he] need[ed] in the Department of Corrections so this
type of conduct [would] not happen in the future.” Defendant timely appealed.
8 ¶ 26 II. ANALYSIS
¶ 27 On appeal, defendant argues that the trial court’s sentence was excessive because he was a
first-time offender, and the State urged reliance on improper factors in aggravation. He further
argues that postplea counsel failed to comply with Rule 604(d) and provided ineffective
representation at sentencing. The State argues to the contrary and requests affirmation of the trial
court’s sentencing order.
¶ 28 A. Excessive Sentence
¶ 29 “It is well settled that the trial court has broad discretionary powers in imposing a sentence
[citation], and the trial court’s sentencing decision is entitled to great deference [citation].” People
v. Stacey, 193 Ill. 2d 203, 209 (2000). This is so because the trial court that “observed the defendant
and the proceedings[ ] has a far better opportunity to consider these factors than the reviewing
court, which must rely on the ‘cold’ record.” People v. Fern, 189 Ill. 2d 48, 53 (1999). “The trial
court must base its sentencing determination on the particular circumstances of each case,
considering such factors as the defendant’s credibility, demeanor, general moral character,
mentality, social environment, habits, and age.” Id. “A sentence within the statutory limits will not
be deemed excessive unless it is greatly at variance with the spirit and the purpose of the law or
manifestly disproportionate to the nature of the offense.” Id. at 54.
¶ 30 Defendant first contends that his sentence was the result of an improper double
enhancement. He argues the court considered the victims’ age, the sexual nature of defendant’s
acts, the distance traveled by defendant, and the ease of the commission of the crime—all of which
are factors inherent in his offenses.
¶ 31 From the outset, we note that defendant’s double enhancement argument regarding
consideration of the victim’s age, the sexual nature of the conduct, and the ease of the commission
9 of the crime, was not presented before the trial court. Where a defendant fails to object to a
sentencing error in the trial court and raise it in a postsentencing motion, the error is forfeited.
People v. Stewart, 2022 IL 126116, ¶ 11. Defendant’s motion for reconsideration here contended
that the trial court inappropriately placed too great of reliance on the aggravating factor that
defendant’s criminal conduct caused or threatened serious harm. He alleged that neither count I
nor count VIII alleged any physical threat or violence to either victim and “the mental and
emotional harm caused to the victims is inherent in these types of offenses and have already been
taken into account by the legislature.” 1 His motion to reconsider also contended the court’s
consideration that defendant traveled hundreds of miles to commit the offenses was improper
because it was an element of count VIII. However, no argument related to the sexual nature of the
conduct, the victims’ ages, or the ease of the commission of the crime was presented. Further, no
argument was presented on appeal as to why this court should consider the forfeited argument. See
People v. Herron, 215 Ill. 2d 167, 177 (2005). Accordingly, these contentions are forfeited, and
we address the only preserved double enhancement argument asserted on appeal, i.e., whether the
court improperly considered the distance traveled by defendant.
¶ 32 Although a court has broad discretion in sentencing, it may not engage in double
enhancement. See People v. Phelps, 211 Ill. 2d 1, 11-12 (2004). Double enhancement occurs when
“a single factor is used both as an element of an offense and as a basis for imposing a harsher
sentence than might otherwise have been imposed.” (Internal quotation marks omitted.) People v.
Siguenza-Brito, 235 Ill. 2d 213, 232 (2009).
¶ 33 Here, defendant was convicted of criminal sexual assault, which requires the State to prove
defendant committed “an act of sexual penetration and: *** (2) [knew] that the victim [was] unable
1 Defendant did not raise this argument on appeal. 10 to understand the nature of the act or [was] unable to give knowing consent.” 720 ILCS 5/11-
1.20(a)(2) (West 2020). He was also convicted of traveling to meet a minor, which requires the
State to prove defendant traveled
“any distance either within this State, to this State, or from this State by any means, ***
for the purpose of engaging in any sex offense as defined in Section 2 of the Sex Offender
Registration Act, or to otherwise engage in other unlawful sexual conduct with a child or
with another person believed by the person to be a child after using a computer on-line
service, Internet service, local bulletin board service, or any other device capable of
electronic data storage or transmission to seduce, solicit, lure, or entice, or to attempt to
seduce, solicit, lure, or entice, a child or a child’s guardian, or another person believed by
the person to be a child or a child’s guardian, for such purpose.” Id. § 11-26(a).
¶ 34 Defendant contends the court engaged in double enhancement by heavily relying on his
traveling to meet the victims in his sentencing. However, traveling was only a factor in one of the
counts to which defendant pled guilty. As noted above, the first count alleged criminal sexual
assault, which does not require any proof regarding the distance traveled by defendant. Any
reliance, by either the State or the trial court, on defendant’s traveling hundreds of miles to meet
with the underage victim, cannot be double enhancement with respect to this conviction.
¶ 35 Defendant’s conviction for traveling to meet a minor does require proof of travel of “any
distance either within this State, to this State, or from this State.” Id. Here, it is notable that the
element of the offense requires “any distance” traveled. Id. While the trial judge cannot consider
factors implicit in the offense, it may consider “the nature and circumstances of the offense,
including the nature and extent of each element of the offense committed by the defendant.” People
v. Rennie, 2014 IL App (3d) 130014, ¶ 29; People v. Saldivar, 113 Ill. 2d 256, 268-69 (1986).
11 Given the statute does not require a specific length of distance traveled, we find the length of
distance traveled can properly speak to the nature of the offense.
¶ 36 Indeed, the trial court clarified at the reconsideration hearing that its reliance on the
distance was based on its concerns as to the “deliberate” and “predatory nature” of defendant’s
conduct. More specifically, the court noted that defendant “didn’t know these victims” and that
“[t]hese were not crimes of opportunity.” The court indicated that it was troubled by the “planning
that was involved” and the fact that defendant “sought out these victims online,” “cultivated”
relationships with them, and then “traveled a distance to meet them in a place where no one would
know him.” Taken in such context, we find the court’s consideration of the distance traveled by
defendant, from Washington State to Union County, Illinois, was the court accounting for the
nature of this particular offense. Accordingly, we cannot find the trial court improperly relied on
defendant’s travel in rendering its sentence as to defendant’s travel to meet a minor conviction
either.
¶ 37 Defendant also contends that the trial court’s sentence was excessive because the court
sentenced him to 18 years’ imprisonment, which is only 2 years below the maximum, despite
noting the significance of the mitigating factors. According to defendant, this evinces that the court
believed it should impose the maximum sentence absent any mitigating factors, when the court
should have started at the minimum sentence. We disagree.
¶ 38 In fashioning “a sentence that reflects both the seriousness of the offense and the objective
of restoring the defendant to useful citizenship,” the sentencing court must balance and consider
both the aggravating and mitigating factors. People v. Jones-Beard, 2019 IL App (1st) 162005,
¶ 20. “The seriousness of the crime is the most important factor in determining an appropriate
sentence, not the presence of mitigating factors such as the lack of a prior record, and the statute
12 does not mandate that the absence of aggravating factors requires the minimum sentence be
imposed.” People v. Quintana, 332 Ill. App. 3d 96, 109 (2002). The court here specifically noted
the aggravating factors of the seriousness of the crimes, the impact of the crimes on the victims as
evinced by the victim impact statements, the deliberate and planned out nature of the offense, and
the need for deterrence. Thus, while the court was duty-bound to account for the mitigating factors,
it also was required to balance those mitigating factors against the aggravating factors in
determining its sentence. Given the competing considerations here, we cannot say the court’s 18-
year sentence was greatly at variance with the spirit and the purpose of the law or manifestly
disproportionate to the nature of the offense. To accept defendant’s argument would require this
court to reweigh the factors, which we cannot do. See Fern, 189 Ill. 2d at 53 (when “considering
the propriety of a sentence, the reviewing court must proceed with great caution and must not
substitute its judgment for that of the trial court merely because it would have weighed the factors
differently”). Accordingly, we find defendant’s sentence was not excessive.
¶ 39 B. Rule 604(d) Compliance
¶ 40 Defendant also argues that his counsel failed to comply with Rule 604(d) and provided
ineffective assistance of counsel. Whether postplea counsel complied with the obligations under
Rule 604(d) is reviewed de novo. People v. Gorss, 2022 IL 126464, ¶ 10.
¶ 41 “Rule 604(d) governs the procedure to be followed when a defendant wishes to appeal from
a judgment entered upon a guilty plea.” In re H.L., 2015 IL 118529, ¶ 7. Postplea counsel is
required to strictly comply with Rule 604(d). People v. Shirley, 181 Ill. 2d 359, 362 (1998). The
rule’s purpose “ ‘is to ensure that before a criminal appeal can be taken from a guilty plea, the trial
judge who accepted the plea and imposed sentence be given the opportunity to hear the allegations
of improprieties that took place outside the official proceedings and dehors the record, but
13 nevertheless were unwittingly given sanction in the courtroom.’ ” In re H.L., 2015 IL 118529, ¶ 9
(quoting People v. Wilk, 124 Ill. 2d 93, 104 (1988)).
¶ 42 Rule 604(d) requires postplea counsel to file a certificate with the trial stating
“the attorney has consulted with the defendant either by phone, mail, electronic means or
in person to ascertain defendant’s contentions of error in the sentence and the entry of the
plea of guilty, has examined the trial court file and both the report of proceedings of the
plea of guilty and the report of proceedings in the sentencing hearing, and has made any
amendments to the [postplea] motion necessary for adequate presentation of any defects in
those proceedings.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017).
The purpose of the certificate is to ensure “ ‘counsel has reviewed the defendant’s claim and
considered all relevant bases for the motion to withdraw the guilty plea or to reconsider the
sentence.’ ” In re H.L., 2015 IL 118529, ¶ 10 (quoting Shirley, 181 Ill. 2d at 361).
¶ 43 Here, it is undisputed that defendant’s postplea counsel filed the Rule 604(d) certificate.
However, even where counsel files a facially valid certificate, “we may consult the record to
determine whether she actually fulfilled her obligations under Rule 604(d).” People v. Bridges,
2017 IL App (2d) 150718, ¶ 8. Defendant claims the validity of the certificate is undermined by
counsel’s failure to educate the court on whether defendant’s guilty plea was “open” and not
“negotiated.” He claims that counsel’s actions placed the underlying guilty plea, that dismissed
multiple other charges, at risk.
¶ 44 Because the State dismissed certain charges in exchange for defendant to plead guilty,
defendant’s plea was partially negotiated. See People v. Diaz, 192 Ill. 2d 211, 220-21 (2000).
However, because the plea agreement was silent as to the sentence which defendant would receive,
defendant is correct that he was not required to file a motion to withdraw his plea in order to
14 challenge his sentence. Id. at 225; see People v. Lumzy, 191 Ill. 2d 182, 187 (2000) (holding that
where the State agrees to dismiss certain charges against a defendant in exchange for his plea of
guilty, but no agreement exists as to the sentence, the defendant is not required to file a motion to
withdraw guilty plea before challenging his sentence). Defense counsel should have known the
law on this matter, but we do not find counsel’s failure to argue this in court violated Rule 604(d).
¶ 45 As noted above, under Rule 604(d), counsel was required to ascertain defendant’s
contentions of error, examine the record, and make any amendments to the postplea motion
“necessary for adequate presentation of any defects in those proceedings.” Ill. S. Ct. R. 604(d) (eff.
July 1, 2017). Here, the contentions of error regarded only the sentence. Defendant’s motion to
withdraw noted that it was filed only to challenge defendant’s sentence. At the hearing on the
motion, counsel confirmed that he only filed the motion to withdraw to ensure necessary
presentation of defendant’s sentencing claims. As such, defense counsel’s actions protected
defendant’s ultimate goal, i.e., reconsideration of his sentence. Despite counsel acting under the
incorrect directive of the trial court, defendant achieved his goal, and the trial court reconsidered
his sentence. Where there is no claim that the counsel’s actions affected the trial court’s
reconsideration of defendant’s sentence, we fail to see how postplea counsel’s actions rebuts the
presumption that he complied with the Rule 604(d) requirements to ascertain defendant’s
contentions, review the record, and amend the motions to adequately present the contentions of
error. We therefore decline to find postplea counsel failed to comply with Rule 604(d).
¶ 46 C. Ineffective Assistance of Counsel
¶ 47 Finally, defendant contends that his postplea counsel provided ineffective assistance of
counsel. Illinois relies on the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984),
to govern claims of ineffective assistance of counsel. People v. Albanese, 104 Ill. 2d 504, 526-27
15 (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. Cathey, 2012 IL 111746, ¶ 23 (citing Strickland, 466 U.S. at 687). “More
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.’ ” Id.
(quoting Strickland, 466 U.S. at 694). “[A] defendant must establish both prongs of the Strickland
test, such that the failure to establish either precludes a finding of ineffective assistance of
counsel.” People v. Cherry, 2016 IL 118728, ¶ 31. We address each of defendant’s claims in turn.
¶ 48 Defendant first claims counsel provided ineffective assistance by allowing defendant to
sign a written plea agreement that included a provision that defendant acknowledge the
“Prosecutor has entered into no agreement concerning a specific sentence or reduction and/or
dismissal of charges upon” the guilty plea. As noted above, defendant’s plea was partially
negotiated, and the State dismissed other charges in exchange for the plea. As such, this provision
of the written plea of guilty was incorrect. However, no prejudice can be shown where the State
dismissed the charges and defendant received the benefit of his bargain.
¶ 49 We also find no prejudice regarding defendant’s claims of ineffective assistance of counsel
based on counsel’s failure to address the trial court’s improper attempt to extend the deadlines for
filing posttrial motions and counsel’s unnecessary filing a motion to withdraw the plea. A
defendant must show “actual prejudice, not simply speculation that defendant may have been
prejudiced.” (Internal quotation marks omitted.) People v. Johnson, 2021 IL 126291, ¶ 55. Despite
the trial court’s attempt to extend the deadlines after sentencing and trial counsel’s failure to advise
the court differently, all postplea pleadings were timely filed. Also, as noted above, postplea
16 counsel’s filing of a motion to withdraw did not prejudice defendant where the trial court did not
vacate defendant’s guilty plea and defendant’s request for a reduced sentence was presented and
addressed by the trial court. As such, these claims of ineffective assistance of counsel must fail for
lack of prejudice.
¶ 50 Defendant lastly contends counsel improperly agreed that defendant was potentially
subject to an extended-term sentence on his Class 1 criminal sexual assault count and Class 3
traveling to meet a minor count. He argues, citing People v. Bell, 196 Ill. 2d 343, 350 (2001), that
generally, an extended term may not be imposed on a lesser class felony (see 730 ILCS 5/5-8-2(a)
(West 2020)) although extended-term sentences may be imposed on separately charged, differing
class offenses that arise from unrelated courses of conduct. He claims that counsel’s conduct was
professionally unreasonable and left him either unadvised or misadvised regarding his open plea,
coloring the ensuing sentence imposed. We again find defendant cannot show prejudice.
¶ 51 This claim relates to counsel’s actions that led to defendant entering the guilty plea. To
show prejudice for a claim that counsel’s ineffectiveness led to a guilty plea, defendant must show
“there is a reasonable probability that, absent counsel’s errors, the defendant would have pleaded
not guilty and insisted on going to trial.” People v. Hall, 217 Ill. 2d 324, 335 (2005) (citing People
v. Rissley, 206 Ill. 2d 403, 457 (2003)).
¶ 52 Even if defendant here should not have been subjected to extended-term sentences, he still
entered his guilty plea despite believing he may be subjected to extended sentencing. More
importantly, extended-term sentences were neither sought nor imposed in this case. Therefore, any
misstatement of law in this regard was not prejudicial. People v. Riegle, 246 Ill. App. 3d 270, 275
(1993) (“[N]o prejudice results when a defendant is sentenced within the limits stated to him, even
though these statements were understated.”); People v. Cavins, 288 Ill. App. 3d 173, 179 (1997);
17 People v. Felton, 191 Ill. App. 3d 599, 602 (1989). Because defendant failed to show prejudice for
any of his claims, he failed to prove ineffective assistance of counsel.
¶ 53 III. CONCLUSION
¶ 54 For the foregoing reasons, we affirm the trial court’s judgment and sentence.
¶ 55 Affirmed.