NOTICE 2022 IL App (4th) 210315-U FILED This Order was filed under July 12, 2022 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-21-0315 limited circumstances allowed 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Coles County JOHN WATTS, ) No. 14CF424 Defendant-Appellant. ) ) Honorable ) Mitchell Kevin Shick, ) Judge Presiding. ______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court. Presiding Justice Knecht and Justice Turner concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in summarily dismissing defendant’s pro se postconviction petition.
¶2 Defendant, John Watts, appeals the trial court’s first-stage dismissal of his pro se
postconviction petition. He argues the court erred in finding that claims raised in his petition were
barred by the doctrine of res judicata and contends his petition presented the gist of constitutional
claims that he received ineffective assistance from both his postplea and appellate counsel. We
affirm.
¶3 I. BACKGROUND
¶4 A. Charges and Plea Proceedings
¶5 In September 2014, the State charged defendant with armed violence, predicated
on attempted robbery (720 ILCS 5/33A-2(c) (West 2012)) (count I); aggravated battery with a firearm (id. § 5/12-3.05(e)(1)) (count II); and unlawful possession of a firearm by a felon (id.
§ 5/24-1.1(a)) (count III). The charges were based on claims that defendant “shot Aaron Moutray
in the hip with a .22 caliber semi-automatic hand[ ]gun” while attempting “to rob *** Moutray of
cannabis.” The same month, the trial court appointed Anthony Ortega to represent defendant. The
court also conducted a preliminary hearing, during which it admonished defendant that he faced a
sentencing range of 25 to 40 years in prison on count I, 6 to 30 years on count II, and 2 to 10 years
on count III.
¶6 In March 2015, defendant pleaded guilty to counts II and III pursuant to a fully
negotiated plea agreement with the State. In exchange for defendant’s guilty pleas to counts II and
III, the State agreed defendant would receive concurrent sentences of 12 and 3 years in prison,
respectively. It also agreed to the dismissal of count I. For its factual basis, the State relied on the
arresting officer’s 48-hour affidavit. According to the affidavit, Moutray reported that he was
attempting to sell cannabis to defendant outside of his residence when he noticed a second
individual “approaching him from the side of the residence.” Believing he was about to be robbed,
Moutray “pulled a knife out of his pocket, and asked what was going on.” Defendant then “pulled
a hand[ ]gun out and began shooting it at [Moutray].” Moutray reported his father and girlfriend
were present at the time of the incident and were also “in the line of fire.” Ultimately, Moutray
“was shot one time in the left hip area.” Following the incident, defendant was arrested and
questioned by the police. He provided substantially the same version of events as Moutray and
acknowledged that he intended to steal cannabis from Moutray. Defendant further reported “that
although [Moutray] did pull out a knife, [defendant] did over[ ]react by shooting at [Moutray], and
knew what he did was wrong and against the law.” The record reflects the trial court accepted
defendant’s guilty pleas and sentenced him in accordance with the parties’ agreement.
-2- ¶7 B. Postplea Proceedings
¶8 In April 2015, less than 30 days after his guilty pleas and sentencing, defendant
pro se filed a postplea motion, alleging his guilty pleas resulted from “[i]nsufficient counseling”
and that he acted in self-defense. The trial court appointed counsel to represent defendant, and both
defendant and his counsel filed supplemental motions to withdraw his guilty pleas and vacate his
sentences. In September 2015, the court denied defendant’s motions and he appealed. On appeal,
this court allowed the parties’ motion for summary remand. People v. Watts, No. 4-15-0746
(March 10, 2016) (nonprecedential order remanding for strict compliance with Illinois Supreme
Court Rule 604(d)).
¶9 Following additional postplea proceedings, appeals, and remands in the case that
are not relevant to the issues on appeal, the trial court appointed attorney Stephanie Corum to
represent defendant. In December 2018, Corum filed an amended motion to withdraw guilty plea
on defendant’s behalf, alleging as follows:
“1. Defendant asserts that his guilty plea was coerced because it was
obtained by *** Ortega not providing [defendant] with effective assistance of
counsel:
(a) *** Ortega refused to file a self[-]defense claim.
(b) *** Ortega refused to consult an expert regarding the trajectory
of the gunshot that would have supported a self[-]defense claim.
(c) *** Ortega failed to show Defendant his video[ ]taped statement
and only would relate to Defendant what the taped statement said.
(d) *** Ortega failed to consult with witnesses that Defendant
g[a]ve in an effort to support his claim of self[-]defense.
-3- 2. Defendant asserts that his guilty plea was coerced or involuntary because
the charge of armed violence was used to persuade Defendant to accept [a] plea to
a lesser charge; however, the charge of armed violence was not a viable charge
against Defendant.”
¶ 10 In April 2019, the trial court conducted a hearing on defendant’s amended motion.
Defendant testified and described his interactions with Ortega prior to his plea proceedings. He
stated he believed he had a valid self-defense claim to the charged offenses and denied reporting
to the police that he intended to rob the victim. Regarding plea negotiations, defendant maintained
that more than one plea offer was presented to him. The first offer he received from the State would
have required him to plead guilty to armed violence as alleged in count I. Ultimately, however,
defendant pleaded guilty to counts II and III, and count I was dismissed. Upon questioning by
Corum, defendant further testified as follows:
“Q. Did you plead guilty because the armed violence count was going to be
dismissed?
A. No.
Q. Why did you plead guilty then to Count II and Count III?
A. I plead[ed] guilty because I felt I ain’t had no other choice.
Q. What do you mean by, ‘you had no other choice’?
A. Because *** counsel told me that either I take this deal or I go to trial on
all charges. And I was—I was still claiming not to be guilty of any of the charges.
Q. So why did you not go to trial?
A. It was just, I was misled into pleading guilty.
Q. When you say you were misled, how were you misled, sir?
-4- A. By not having effective assistance of counsel. Counsel *** did nothing
for me, basically. Nothing that I—I asked about expert witnesses. I asked about him
interviewing the witnesses. He did nothing, nothing of the such. He said he couldn’t
do an expert witness, the State wouldn’t allow it.”
¶ 11 Defendant asserted he asked Ortega to raise a self-defense claim on his behalf.
When asked whether he did not proceed to a jury trial because he was mistaken about his rights
under the law, defendant responded that it was “mainly” because Ortega advised against a trial due
to his prior convictions.
¶ 12 According to defendant, he contacted Ortega shortly following his guilty pleas
because he wanted to withdraw his pleas and “pursue [his] self-defense plan,” and because he
learned new information about the victim’s injury. Specifically, defendant learned the victim had
a gunshot wound to the left hip. He believed the location of the injury would have supported his
self-defense claim because, according to defendant, the victim was approaching defendant with a
knife at the time defendant shot him.
¶ 13 Defendant also testified that after he pleaded guilty, he learned “the armed violence
charge was not properly charged” and should not have been used in plea negotiations. When asked
a second time whether he pleaded guilty in exchange for the dismissal of the armed violence count,
defendant responded “[y]es.” On cross-examination, the State asked defendant to clarify his
testimony regarding whether he pleaded guilty to get the armed violence charged dismissed, noting
defendant had given two different answers to the question on direct examination. Defendant
responded as follows:
“A. I’m not sure that I said that I—I plead[ed] guilty so the armed robbery
charge—well, actually, I did, because I was misled as to *** the evidence of what
-5- *** Ortega had advised me of prior to the plea.
Q. About what?
A. Meaning that the State had evidence that the victim was shot with his
back turned.”
¶ 14 At the hearing, the State called Ortega as a witness. Ortega recalled meeting with
defendant “a handful of times” prior to his plea. He asserted he went through the discovery in the
case with defendant and informed him of the evidence against him. Ortega testified it was his
opinion that defendant did not have a viable self-defense claim and he agreed that opinion “was
part of [his] trial strategy.” On cross-examination, Ortega elaborated on why he did not believe
defendant’s self-defense claim was viable, stating as follows:
“Well, I—I—from my vague recollection of the facts of the case, I know there was
an allegation that he might have brought someone else there with the sole purpose
of ripping off a guy that he was there to buy, I think to buy drugs from. So, I’m sure
[defendant] and I had discussions about who was the initial aggressor.”
¶ 15 The trial court denied defendant’s amended motion to withdraw his plea. In setting
forth its decision, the court found defendant failed to show “that a decision to reject his plea bargain
would have been rational under the circumstances.” It noted that even if the armed violence
charge—a class X felony with a sentencing range of 25 to 40 years—was not viable, defendant
still faced a sentencing range of 6 to 30 years in connection with count II, charging him with
aggravated battery with a firearm. The court noted defendant’s criminal history included prior
felony convictions and prior terms of imprisonment in the Illinois Department of Corrections
(DOC). Also, defendant was on mandatory supervised release at the time of the underlying
offenses. The court stated that “had [defendant] rolled the dice and gone to trial and had been
-6- convicted, *** it [was] unlikely that he would have received a sentence anywhere near 12 years.”
It concluded that “even if we throw that armed violence charge out the window, I still don’t think
that [not pleading guilty and going to trial] would have been a rational decision based upon the
evidence in this case.”
¶ 16 C. Direct Appeal
¶ 17 Defendant appealed the trial court’s denial of his amended motion. On appeal, he
argued he was entitled to withdraw his guilty pleas because Ortega provided ineffective assistance
and the trial court improperly admonished him regarding the possible sentencing ranges he faced.
People v. Watts, 2020 IL App (4th) 190279-U, ¶ 22. As to his ineffective-assistance claim, he
specifically asserted (1) “it was objectively unreasonable for [Ortega] to not recognize that count
I of the charging instrument—armed violence predicated on attempted robbery—was invalid, as
the armed violence statute makes clear that that offense cannot be predicated on attempted
robbery” and (2) he suffered prejudice “because, but for [Ortega’s] deficient performance, he
would have pleaded not guilty and insisted on going to trial.” Id. ¶ 25.
¶ 18 Regarding defendant’s ineffective-assistance claim, this court agreed with the State
that the claim was forfeited because it had not been raised in the December 2018 amended postplea
motion filed on defendant’s behalf by Corum. Id. ¶ 26. However, we elected to address defendant’s
argument, noting that forfeiture is a limitation on the parties and not the court, and that a
defendant’s forfeiture may be overlooked when necessary to reach a just result. Id. Ultimately, we
concluded that defendant failed to demonstrate that Ortega provided ineffective assistance because
he failed to establish prejudice. Id. ¶ 28. We stated as follows:
“Here, even assuming defendant can establish that [Ortega’s] performance was
deficient in not recognizing that one of the counts charged by the State was invalid,
-7- defendant’s ineffective-assistance claim still fails, as he is unable to establish
prejudice. Defendant attempts to establish prejudice merely by stating that he ‘has
stated in five separate motions that he would not have pled guilty absent [plea
counsel’s] deficient representation.’ Defendant provides no further elaboration on
this conclusory allegation, nor does he suggest the existence of a plausible defense
to the charges properly filed against him. Although we note that defendant made
several broad allegations pertaining to a possible self-defense claim in his initial
pro se motion, he does not address those allegations on appeal, let alone explain
how they in fact help to demonstrate that he had a plausible defense.” Id.
¶ 19 As noted, defendant’s second contention on appeal concerned the trial court’s
sentencing admonishments. Specifically, defendant argued the court improperly admonished him
that he faced a sentencing range of 25 to 40 years in prison if convicted on count I. Id. ¶ 30. We
held defendant forfeited this claim by failing to raise it in his amended postplea motion. Id. ¶¶ 30-
31.
¶ 20 D. Postconviction Proceedings
¶ 21 In April 2021, defendant filed a pro se postconviction petition. Relevant to this
appeal, he alleged ineffective assistance of both his postplea and appellate counsel. Underlying his
claims was the assertion that Ortega, his guilty plea counsel, was ineffective for failing to challenge
his armed violence charge in count I on the basis that it was not a viable charge. According to
defendant, his guilty pleas were coerced and involuntary because the nonviable charge was used
during plea negotiations “to force [him] to either go to trial on all the charges he faced or plead
guilty to [a] lesser charge that [he] made [a] claim of self-defense to.”
¶ 22 In his pro se petition, defendant asserted Corum was ineffective for failing to raise
-8- Ortega’s ineffectiveness during postplea proceedings. He maintained he made Corum aware of
Ortega’s ineffectiveness prior to the filing of the December 2018 amended motion to withdraw
guilty plea that Corum filed on his behalf, but she failed to present that claim to the trial court
either in the amended motion or during the hearing that was conducted on the motion. To support
his claim that Corum was ineffective, defendant attached various documents to his petition,
including (1) a copy of count I of the charging instrument; (2) a letter from Ortega to defendant
that presented a plea offer from the State, pursuant to which defendant would plead guilty to armed
violence as charged in count I in exchange for a 32-year prison sentence; and (3) a copy of section
33A-2 of the Criminal Code of 2012 (720 ILCS 5/33A-2 (West 2012)), setting forth the offense of
armed violence.
¶ 23 Defendant also asserted his appellate counsel was ineffective for failing raise on
direct appeal Corum’s ineffectiveness in not arguing Ortega’s ineffectiveness. He argued appellate
counsel failed to raise Corum’s ineffectiveness in his appellant’s brief and, instead, challenged
only Ortega’s ineffectiveness. Defendant alleged appellate counsel’s actions “caused his issues to
be forfeited on appeal” rather than meaningfully addressed. He further asserted that his appellate
counsel was ineffective for failing to argue that he was coerced into pleading guilty because of
Ortega’s ineffectiveness and “the armed violence charge that was not a viable charge” being “used
to persuade [him] to accept [a] plea to a lesser charge.” To support his ineffective assistance of
appellate counsel claims, defendant attached the affidavit of his appellate counsel from his direct
appeal, Sarah Inskeep. In her affidavit, Inskeep acknowledged raising issues on direct appeal that
were not raised by Corum in the December 2018 amended motion. She averred her actions were
not strategic; she had been a “new attorney” when she represented defendant; and she “was not
aware at the time that by misframing the issues, [she] would cause [the] issues to be forfeited on
-9- appeal.”
¶ 24 In May 2021, the trial court made a docket entry, stating it had reviewed
defendant’s pro se postconviction petition. The court determined this court, on direct appeal in
Watts, 2020 IL App (4th) 190279-U, addressed and rejected defendant’s “claims of ineffective
assistance of both trial and appellate counsel,” which were based upon the failure to challenge the
viability of defendant’s armed violence charge. Accordingly, it found those claims barred by the
doctrine of res judicata and it dismissed defendant’s petition.
¶ 25 This appeal followed.
¶ 26 II. ANALYSIS
¶ 27 On appeal, defendant argues the trial court erred by summarily dismissing his
pro se postconviction petition. He contends the court erroneously found his postconviction claims
barred by the doctrine of res judicata. Further, he maintains that he asserted two claims in his
petition that raised the gist of constitutional claims.
¶ 28 First, defendant argues that both Corum and his appellate counsel were ineffective
for failing to properly present the issue of Ortega’s ineffectiveness in failing to challenge the
viability of the armed violence charge. Specifically, he contends (1) Corum was ineffective for
failing to argue during postplea proceedings that Ortega was ineffective for not challenging the
viability of his armed violence charge and (2) his appellate counsel was ineffective on direct appeal
for failing to challenge Corum’s ineffectiveness on that basis. Second, defendant also argues his
appellate counsel was ineffective for failing to argue on direct appeal that his guilty plea was not
knowing due to his mistaken understanding of the consequences of his plea. Relative to this claim,
defendant asserts his plea was involuntary and coerced “based upon the use of the unviable armed
violence charge to get [him] to plead guilty to lesser charges.”
- 10 - ¶ 29 Under the Post-Conviction Hearing Act (Act), there is “a three-stage process for an
imprisoned person to raise a constitutional challenge to a conviction or sentence.” People v. Hatter,
2021 IL 125981, ¶ 22, 183 N.E.3d 136 (citing 725 ILCS 5/122-1 et seq. (West 2016)). “At the first
stage, the circuit court has 90 days to review a petition and may summarily dismiss it if the court
finds it is frivolous and patently without merit.” People v. Pendleton, 223 Ill. 2d 458, 472, 861
N.E.2d 999, 1007 (2006). A postconviction petition is frivolous or patently without merit “only if
the petition has no arguable basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 11-12,
912 N.E.2d 1204, 1209 (2009). “A petition which lacks an arguable basis either in law or in fact
is one which is based on an indisputably meritless legal theory or a fanciful factual allegation.” Id.
at 16. “An example of an indisputably meritless legal theory is one which is completely
contradicted by the record.” Id. “Fanciful factual allegations include those which are fantastic or
delusional.” Id. at 17.
¶ 30 Further, the doctrines of res judicata and forfeiture bar a defendant from raising
claims in an initial postconviction proceeding “that were or could have been adjudicated on direct
appeal.” People v. Blair, 215 Ill. 2d 427, 443-44, 831 N.E.2d 604, 614-15 (2005). A postconviction
petition may be summarily dismissed based upon either doctrine. Id. at 445. “The doctrine of
res judicata bars consideration of issues that were previously raised and decided on direct appeal.”
Id. at 443. “For res judicata to apply, there must have been a final judgment on the merits of the
case.” In re Leona W., 228 Ill. 2d 439, 455, 888 N.E.2d 72, 81 (2008). Alternatively, forfeiture
bars a defendant from raising claims in a postconviction proceeding “that could have been raised
[on direct appeal] but were not.” Blair, 215 Ill. 2d at 443-44.
¶ 31 Additionally, ineffective-assistance-of-counsel claims are governed by the
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Hodges, 234 Ill. 2d at 17.
- 11 - Under that standard, “a defendant must show both that counsel’s performance ‘fell below an
objective standard of reasonableness’ and that the deficient performance prejudiced the defense.”
Id. (quoting Strickland, 466 U.S. at 687-88). “At the first stage of postconviction proceedings
under the Act, a petition alleging ineffective assistance may not be summarily dismissed if (i) it is
arguable that counsel’s performance fell below an objective standard of reasonableness and (ii) it
is arguable that the defendant was prejudiced.” Id.
¶ 32 A trial court’s first-stage dismissal of a postconviction petition is subject to de novo
review. People v. Swamynathan, 236 Ill. 2d 103, 113, 923 N.E.2d 276, 282 (2010).
¶ 33 A. Ineffective Assistance of Postplea and Appellate Counsel Based on Plea Counsel’s Ineffectiveness
¶ 34 As stated, defendant first argues his pro se postconviction petition presented the
gist of constitutional claims based on the ineffective assistance of both his postplea and appellate
counsel for failing to properly challenge Ortega’s ineffectiveness. In particular, he asserts that
(1) Corum was ineffective during postplea proceedings for failing to argue that Ortega was
ineffective for not challenging the viability of his armed violence charge and (2) appellate counsel
was ineffective on direct appeal for failing to raise Corum’s ineffectiveness for not arguing
Ortega’s ineffectiveness.
¶ 35 1. Doctrine of Res Judicata
¶ 36 Initially, we find no error in the trial court’s determination that these claims were
barred by the doctrine of res judicata. Again, that doctrine bars the consideration of issues in a
postconviction proceeding that were previously raised and decided on direct appeal. Blair, 215 Ill.
2d at 443.
¶ 37 In this case, both of the above claims, asserting ineffective assistance of postplea
and appellate counsel, were based on the underlying assertion that Ortega, defendant’s plea
- 12 - counsel, was ineffective for failing to challenge the viability of defendant’s armed violence charge.
On direct appeal, appellate counsel raised that precise claim on defendant’s behalf, asserting (1) “it
was objectively unreasonable for [Ortega] to not recognize that count I of the charging
instrument—armed violence predicated on attempted robbery—was invalid, as the armed violence
statute makes clear that that offense cannot be predicated on attempted robbery” and (2) defendant
was “prejudiced because, but for [Ortega’s] deficient performance, he would have pleaded not
guilty and insisted on going to trial.” Watts, 2020 IL App (4th) 190279-U, ¶ 25. Additionally,
although we initially agreed that the issue was forfeited because it was not raised during postplea
proceedings by Corum, we nevertheless elected to address the argument “to reach a just result.”
Id. ¶ 26. In other words, we overlooked defendant’s forfeiture of the issue and reached the merits
of his claim. Ultimately, we rejected defendant’s contention that Ortega was ineffective on the
basis that defendant was “unable to establish prejudice.” Id. ¶ 28.
¶ 38 Here, an ineffective-assistance-of-counsel claim based on Ortega’s failure to
challenge the viability of defendant’s armed violence charge was an essential part of defendant’s
postconviction claims of ineffective assistance of postplea and appellate counsel. Thus, because
the issue of Ortega’s ineffectiveness was raised and decided on direct appeal, the doctrine of
res judicata bars not only that claim but also defendant’s related ineffective-assistance claims.
¶ 39 Defendant argues that even if we find res judicata applies, there are occasions that
call for relaxing doctrines that might otherwise bar the presentation of a postconviction claim. See
People v. English, 2013 IL 112890, ¶ 22, 987 N.E.2d 371 (stating the doctrines of res judicata and
forfeiture can be relaxed when (1) fundamental fairness so requires, (2) the forfeiture stems from
the ineffective assistance of appellate counsel, or (3) facts relating to the issue do not appear on
the face of the original appellate record). However, for the reasons that follow, even if we were to
- 13 - relax the doctrine of res judicata in this case, we would find no arguable merit to defendant’s
ineffective-assistance claims.
¶ 40 2. Frivolous or Patently Without Merit
¶ 41 Again, “[a]t the first stage of postconviction proceedings under the Act, a petition
alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel’s
performance fell below an objective standard of reasonableness and (ii) it is arguable that the
defendant was prejudiced.” Hodges, 234 Ill. 2d at 17. As discussed, defendant’s claims that both
Corum and his appellate counsel were ineffective are based on assertions that they failed to
properly raise issues connected with Ortega’s ineffectiveness in failing to challenge the viability
of defendant’s armed violence charge. Accordingly, unless defendant can show that Ortega was
arguably ineffective on this asserted basis, he cannot establish that he was arguably prejudiced by
either Corum or appellate counsel’s failure to properly raise the issue. See People v. Childress,
191 Ill. 2d 168, 175, 730 N.E.2d 32, 36 (2000) (“Unless the underlying issue is meritorious,
petitioner suffered no prejudice from counsel's failure to raise it ***.”). In this instance, even
assuming Ortega’s performance was deficient as alleged by defendant, it is not arguable that
defendant suffered prejudice.
¶ 42 The Strickland standard for ineffective-assistance-of-counsel claims also applies to
a claim that a defendant’s trial counsel was ineffective during the guilty-plea process. People v.
Brown, 2017 IL 121681, ¶ 26, 102 N.E.3d 205. Under the second Strickland prong, “a guilty-plea
defendant must show that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks
omitted.) Id. Conclusory allegations are insufficient. Id. Rather, when the ineffective-assistance
claim relates to a defendant’s prospects at trial, the defendant must raise “a claim of innocence or
- 14 - a plausible defense to establish prejudice.” Id. ¶ 45. Also, “for a guilty-plea defendant to obtain
relief on a claim that he relied on his counsel’s erroneous advice about a consequence of his plea,
the defendant must convince the court that a decision to reject the plea bargain would have been
rational under the circumstances.” (Internal quotation marks omitted.) Id. ¶ 48.
¶ 43 On appeal, defendant alleges he was prejudiced by Ortega’s allegedly deficient
performance because had he been informed that the armed violence charge was not viable, he
would have elected to go to trial on his remaining charges. Defendant asserts “he had a valid self-
defense claim” to the charge of aggravated battery with a firearm. Further, he contends that he had
a “mistaken belief of the actual sentencing liability he faced if he went to trial.” Specifically, he
asserts on appeal that he “believed that he faced a statutory prison sentence of 25 to 40 years” for
the offense of armed violence.
¶ 44 In this instance, defendant’s ineffective-assistance claims relate not to his prospects
at trial but, instead, to his understanding of the consequences of his plea. He essentially asserts he
was misled into believing his plea deal was more beneficial to him than it actually was given that
his armed violence charge was never viable. Accordingly, defendant had to show “that a decision
to reject the plea bargain would have been rational under the circumstances.” (Internal quotation
marks omitted.) Id.
¶ 45 Here, in his pro se postconviction petition, defendant repeatedly asserts he was
“coerced” into pleading guilty. However, he failed to allege facts showing a decision to reject his
ultimate plea offer would have been rational. See People v. Tucek, 2019 IL App (2d) 160788, ¶ 17,
125 N.E.3d 402 (stating that to survive a summary dismissal a defendant must allege “facts to
show that the decision to reject the plea bargain would have been rational under the
circumstances”).
- 15 - ¶ 46 Further, the record also fails to support a claim of prejudice. It shows defendant
pleaded guilty to aggravated battery with a firearm (count II), a Class X felony with a sentencing
range of 6 to 30 years in prison, and unlawful possession of a firearm by a felon (count III), a Class
3 felony with a sentencing range of 2 to 10 years in prison. As part of his plea agreement, defendant
received a total sentence of 12 years in prison, which was less than the median sentence he could
have received for his most serious offense. Moreover, the record reflects defendant’s criminal
record was significant, suggesting he would not have fared better if convicted and sentenced
following a trial. As described by the State at defendant’s guilty plea hearing, defendant’s criminal
convictions included (1) a 1996 conviction for possession of a controlled substance, (2) a 1999
conviction for possession of cocaine for which he served three years in DOC, (3) a 2001 conviction
for criminal drug conspiracy for which he served three years in DOC, (4) a 2003 conviction for a
“controlled substance matter,” (5) a 2007 conviction for “manufacture delivery of a controlled
substance” for which he served six years in DOC, and (6) a 2011 conviction for possession of
narcotics for which he served four years in DOC. Information in the record also indicates defendant
was on mandatory supervised release for his 2011 conviction when the underlying offenses
occurred.
¶ 47 Additionally, although defendant asserts he had a plausible defense to the charges
against him, i.e., a claim of self-defense, the record suggests there was strong evidence of his guilt
of both counts II and III. In particular, the record shows defendant admitted to the police that he
intended to rob the victim and there is no dispute that he possessed a gun and shot the victim. Also,
he admitted that he overreacted when the victim pulled out a knife, acknowledged that he
introduced the gun into the situation, and stated he “knew what he did was wrong and against the
law.” We further note that a claim of self-defense would not have been a plausible defense to count
- 16 - III, unlawful possession of a firearm by a felon.
¶ 48 Finally, defendant’s testimony at the hearing on his amended motion to withdraw
his guilty plea was contrary to his assertion on appeal that the dismissal of the armed violence
charge was the major impetus behind his pleas. Specifically, defendant gave conflicting testimony
on direct examination regarding whether he pleaded guilty to get the armed violence charge
dismissed—initially denying that the dismissal of that charge was the reason he pleaded guilty, but
later answering the same question in the affirmative. Additionally, when asked whether he decided
not to proceed to a jury trial because he was mistaken about his rights under the law, defendant
responded that it was “mainly” because Ortega advised against going to trial because of his prior
convictions. Finally, when the State asked him on cross-examination to clarify his conflicting
testimony regarding the armed violence charge, defendant suggested the reason he pleaded guilty
was because he was misled regarding the evidence, specifically, where the victim had been shot.
His testimony does not indicate his pleas were motivated by the dismissal of his armed violence
charge.
¶ 49 Here, not only did defendant fail to allege facts that showed he was arguably
prejudiced by Ortega’s failure to challenge the viability of his armed violence charge, the record
also does not support such a claim. Accordingly, res judicata aside, we agree with the State that
defendant’s allegations of ineffective assistance of postplea and appellate counsel, based on
Ortega’s ineffectiveness in failing to challenge the armed violence charge, were frivolous and
patently without merit.
¶ 50 B. Appellate Counsel’s Failure to Argue Defendant’s Guilty Plea Was Not Knowing or Voluntary
¶ 51 As set forth above, defendant also argues on appeal that his appellate counsel was
ineffective for failing to argue on direct appeal that his guilty plea was not knowing or voluntary
- 17 - due to his mistaken understanding of the consequences of his plea. Specifically, he contends he
“was not aware of the consequences of his plea as compared to pursuing trial.” Similar to his
previous claim, defendant asserts his plea was coerced “based upon the use of the unviable armed
violence charge to get [him] to plead guilty to lesser charges.” Defendant points out that this issue
was raised by Corum in her amended postplea motion. He contends the issue was preserved for
appeal but not raised or addressed.
¶ 52 Here, the record shows that during defendant’s postplea proceedings, Corum raised
the following issue in defendant’s amended motion to withdraw his guilty plea:
“Defendant asserts that his guilty plea was coerced or involuntary because the
charge of armed violence was used to persuade Defendant to accept plea to a lesser
charge; however, the charge of armed violence was not a viable charge against
Defendant.”
This claim was not based upon Ortega’s alleged ineffectiveness and, although preserved by Corum,
it was not raised on direct appeal by defendant’s appellate counsel. As a result, the doctrine of
forfeiture barred defendant from raising it in his postconviction petition. Blair, 215 Ill. 2d at 443-
44.
¶ 53 Again, defendant argues this court may relax the forfeiture doctrine in certain
circumstances, including when the forfeiture stems from the ineffective assistance of appellate
counsel. See English, 2013 IL 112890, ¶ 22. However, as before, even if we were to overlook
defendant’s forfeiture of this issue, we would find no arguable merit to his claim.
¶ 54 As stated, unless the underlying issue is meritorious, a postconviction petitioner
suffers no prejudice from appellate counsel’s failure to raise it on direct appeal. Childress, 191 Ill.
2d at 175. Accordingly, the critical inquiry is whether defendant’s underlying claim of error
- 18 - “would have been successful if raised on direct appeal.” Id.
¶ 55 To be valid, a guilty plea must be voluntary and intelligent. People v. Guzman, 2015
IL 118749, ¶ 21, 43 N.E.3d 954. Once a guilty plea is entered and accepted, a defendant has no
absolute right to withdraw it, and “must show a manifest injustice under the facts involved.” People
v. Hughes, 2012 IL 112817, ¶ 32, 983 N.E.2d 439. “Withdrawal is appropriate where the plea was
entered through a misapprehension of the facts or of the law or where there is doubt as to the guilt
of the accused and justice would be better served through a trial.” Id.
¶ 56 “Generally, due process requires that in order for a defendant to knowingly and
voluntarily plead guilty, a defendant must be advised of the direct consequences of a guilty plea.”
Id. ¶ 35. “A trial court’s obligation to ensure that a defendant understands the direct consequences
of his plea traditionally encompasses those consequences that affect the defendant’s sentence and
other punishment that the circuit court may impose.” Id.
¶ 57 “[T]he decision to grant or deny a motion to withdraw a guilty plea rests in the
sound discretion of the circuit court and, as such, is reviewed for abuse of discretion.” Id. ¶ 32.
“An abuse of discretion will be found only where the court’s ruling is arbitrary, fanciful,
unreasonable, or no reasonable person would take the view adopted by the trial court.” People v.
Delvillar, 235 Ill. 2d 507, 519, 922 N.E.2d 330, 338 (2009).
¶ 58 Here, defendant contends he was misinformed regarding the viability of a charge
to which he did not plead guilty, and which was dismissed. He raises no claim that he was
misadvised or improperly admonished regarding the direct consequences of the two offenses to
which he did plead guilty—aggravated battery with a firearm and unlawful possession of a weapon
by a felon. This court has found no manifest injustice to a defendant under such circumstances.
See People v. Glover, 2017 IL App (4th) 160586, ¶ 36, 85 N.E.3d 815 (finding the “[d]efendant’s
- 19 - alleged misapprehension about the possible maximum sentence for two dismissed charges [did]
not render [the] defendant’s plea to [a separate offense] invalid”). Additionally, for the reasons
already discussed, defendant failed to allege, and the record does not reflect, that he was prejudiced
by his asserted mistaken understanding of the viability of the armed violence charge. See id.
(considering whether the defendant suffered prejudice when addressing his claim that he should
be allowed to withdraw his guilty plea because of his erroneous belief as to his sentencing liability
for two dismissed charges).
¶ 59 Under the circumstances presented, we find it is not arguable that the trial court
abused its discretion by denying defendant’s amended motion to withdraw his guilty plea based
on the claim that defendant’s pleas were not knowing or voluntary because of his mistaken
understanding of the viability of the armed violence charge. Consequently, it is also not arguable
that appellate counsel was ineffective for failing to raise the issue on direct appeal. Thus,
defendant’s forfeiture aside, we agree with the State that his postconviction claim was frivolous
and patently without merit. The court committed no error in summarily dismissing his pro se
postconviction petition.
¶ 60 III. CONCLUSION
¶ 61 For the reasons stated, we affirm the trial court’s judgment.
¶ 62 Affirmed.
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