People v. Wills

2024 IL App (5th) 220638-U

• Court: Appellate Court of Illinois
• Decided: July 1, 2024
• Docket: 5-22-0638
• Status: Unpublished

Opinion

2024 IL App (5th) 220638-U NOTICE NOTICE Decision filed 07/01/24. The This order was filed under text of this decision may be NO. 5-22-0638 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Champaign County. ) v. ) No. 12-CF-136 ) DORIAN D. WILLS, ) Honorable ) Roger B. Webber, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Justices Cates and Moore concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s denial of defendant’s amended postconviction petition following a third-stage evidentiary hearing, where defendant failed to make a substantial showing that, but for plea counsel’s deficient performance, he would have received a lesser sentence after he entered into a partially negotiated guilty plea.

¶2 Defendant, Dorian D. Wills, appeals the Champaign County circuit court’s order denying

his petition filed under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020))

following a third-stage evidentiary hearing. On appeal, defendant argues that the circuit court erred

by denying his petition at the third stage, where the evidence established that his plea counsel

failed to consult with him after he requested to file an appeal and he had nonfrivolous grounds to

file a motion to withdraw his guilty plea because he was denied effective assistance of counsel at

the postplea sentencing hearing. We affirm.

1 ¶3 I. Background

¶4 On October 22, 2012, defendant, represented by private counsel (plea counsel), pled guilty

to the offense of aggravated kidnapping (720 ILCS 5/10-2(a)(3) (West 2010)), a Class X felony

(id. § 10-2(b)), in exchange for the State’s dismissal of a robbery charge and recommendation of

a 20-year sentencing cap. 1 Defendant acknowledged his understanding that, in exchange for his

guilty plea, one charge would be dismissed, and the sentence would range “somewhere between 6

years and 20 years as opposed 6 years and 30.”

¶5 The State offered the following factual basis for the plea:

“[O]n October 21 of 2011, [the victim] was walking in the campus area in Champaign-

Urbana when he reports that four to five men forced him into a minivan and beat him

repeatedly. The victim lost consciousness. His clothing was taken. He suffered facial

broken bones. He suffered multiple abrasions about his entire body and was hospitalized

for some time.

These defendants were tied to this as the co-defendant Anthony Davis took the

victim’s phone during the kidnapping and sold it to Eric Davis, who would testify and who

identified Anthony Davis in a lineup.

Anthony Davis gave a full statement, as did Emily Crowder and Kenson Reed, who

were present inside of the van and who would also testify that this defendant[,] as well as

Anthony Davis and Ralph Gray[,] all took part in beating this victim in different locations

in Champaign County. That’s all.”

1 The State previously filed a notice of intent to seek an extended-term sentence of up to 60 years in prison, alleging that the offense was accompanied by exceptionally brutal or heinous behavior. 2 ¶6 On December 10, 2012, the circuit court held a sentencing hearing. The court stated that it

reviewed and considered the presentencing investigation (PSI) report and victim impact statement.

The PSI report indicated that defendant was 18 years old at the time the report was prepared and

17 years old at the time of the offense at issue. Defendant had a prior juvenile record, which

included the following: a 2008 battery that resulted in 24 months’ probation, a 2009 aggravated

battery that resulted in his commitment to the Illinois Department of Juvenile Justice, and a 2010

battery with bodily harm. Defendant was also ordered to pay fines and costs associated with a 2011

assault charge. Defendant advised that he became a member of the “Black P Stone” street gang at

age seven but recently left the gang. Defendant had one child, but he did not pay child support and

was not ordered to do so. Defendant had a good relationship with his mother, former stepfather,

and four siblings. Defendant left high school after the ninth grade due to his incarceration in the

Illinois Department of Juvenile Justice but earned his general educational development (GED)

diploma in November 2011. Defendant never held a job, but he expressed a desire to pursue

training in residential wiring, plumbing, and carpentry. The court previously ordered defendant to

complete anger management classes but there was no record of him completing the classes.

¶7 According to the PSI report, defendant reported that he drank alcohol, specifically hard

liquor, daily. He began drinking at age six but started drinking regularly at age nine. However, it

was noted that defendant previously reported that he began drinking alcohol at age 13. Defendant

claimed that he committed the kidnapping while under the influence of alcohol. Defendant also

used cannabis daily and cocaine twice weekly. Defendant never participated in any form of

substance abuse treatment. Defendant advised that, during his incarceration, he began studying the

Bible, which helped him “learn to deal with things and do things differently.” Defendant also began

attending Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings.

3 ¶8 Plea counsel submitted into evidence a “Meeting Attendance Sheet” which documented

defendant’s attendance at an AA class from June 5, 2012, to December 4, 2012. Plea counsel also

submitted a character letter regarding defendant, which was prepared by a fellow inmate. The letter

indicated that defendant was a good person, who found God in jail. The inmate asked that the

circuit court have mercy on defendant and “judge him by his heart.” Plea counsel indicated that

defendant gave him the documents the day of the hearing.

¶9 The victim impact statement, prepared by the victim, indicated that the victim had spent

the past year “recovering from the single most horrific event that has ever occurred in [his] life.”

The victim, an Australian citizen and professor, traveled to Urbana-Champaign, Illinois, for work

meetings. While walking back to his hotel room on October 21, 2011, the victim was “attacked

and kidnapped by a group of unknown individuals simply because [he] was in the wrong place at

the wrong time.” Thereafter, several individuals severely beat the victim in different locations. The

victim recalled the individuals “repeatedly bashing [him], punching [him], kicking [him], and

hitting [him] with other objects over and over again.” The victim also recalled that “[t]hey were

laughing and jumping around and appeared to be having a good time.” The victim explained:

“At one point in time when I knew I was in serious danger and I believed I would

not live through the night, I decided to plead with them. I begged them to stop hurting me

and I begged for my life. I also pleaded with them by telling them I am a father and I have

young children. This only made them laugh harder and it seemed to spur them on even

more with the attack continuing again afterwards. On several occasions they came up close

to my face to say how they were going ‘to f*** me up’ before they attacked me again and

again. At one point in time, I have a memory of one of them saying how they were going

to kill me.”

4 The victim lost consciousness during the beating and later awoke in a ditch in the middle of a corn

field. The individuals had taken all his possessions, his shoes, and most of his clothing. Due to the

freezing temperatures, the victim was unable to feel or control his feet and his body was shaking

uncontrollably. The victim spent the night wrapped in a tarp in a nearby barn. He was able to flag

down a car the following morning.

¶ 10 The victim received medical treatment for several weeks in Champaign and Chicago before

he was cleared to fly home to Australia. The victim continued to receive intensive treatment and

therapy for many months afterwards. As a result of the attack, the victim suffered the following: a

broken nose; a broken right eye socket; a broken vertebrae in his thoracic spine; multiple internal

brain hemorrhages; large lacerations and cuts to his head, face, and body; a locked jaw; frost bite

to both feet and resulting neuralgia; nine broken teeth; ligament and tendon damage to his left

wrist; a torn right bicep tendon; bruising and swelling to multiple parts of his body; eye

hemorrhages; and several other soft-tissue injuries. The victim was also diagnosed with

posttraumatic stress disorder (PTSD) and suffered from multiple psychological issues, including

anhedonia, withdrawal, disturbed sleep with violent nightmares, loss of sense of humor, decreased

appetite, and decreased libido. The victim later learned that some of his psychological issues were

a result of the brain damage he suffered during the attack. The victim felt as though he was “lucky”

to have survived the attack.

¶ 11 The State argued that that circuit court should sentence defendant to 20 years in prison.

The State noted that defendant had a criminal history of similar offenses dating back to 2008. The

State noted that it recommended a sentencing cap of 20 years to account for defendant’s age and

his admission of involvement in the kidnapping. The State argued that defendant did not pay child

support, had no source of income, and failed to go to previously ordered anger management

5 classes. The State also noted that defendant attempted to use his substance abuse as mitigation

evidence but gave inconsistent information about his use of drugs and alcohol. The State

additionally highlighted the trauma the victim suffered from the attack.

¶ 12 Defense counsel responded as follows:

“It doesn’t take much evidence or argument to get to the 20 years in this case. The

victim impact statement was one of the most horrendous things I have ever read.

In analyzing how I respond to that as his attorney, I looked for what could be

mitigation. I think there are three things.

First, as [the State] mentioned, he is young. He has the potential for rehabilitation.

The second thing is he was quick to admit his guilt, both to the police and gave

them a full confession.

And then he did plead guilty. He didn’t make this man come in here and recount

this to a room full of strangers.

And last, it’s a small point but something to mention, it’s expensive to fly from

Australia to here and the county was saved that expense.

So, I mean, if we are grasping at straws, I want you to have them all. Thank you.”

¶ 13 Next, defendant made a statement in allocution. Defendant acknowledged that he had

“done something wrong and probably something wrong all [his] life.” Defendant stated that he had

never thought about what he wanted to do with his life, aside from wanting “to be cool and hang

out with all the older guys.” Defendant stated that he began reading the Bible in jail and that he

“learned to see a lot of things for what they really [were] and to see [himself] for what [he] really

was,” and that he had to make a change. Defendant noted that he pled guilty and knew he had to

suffer consequences for his actions. Defendant apologized to the victim and the victim’s family,

6 as well as his own family. Defendant indicated that he wanted to change and make a positive

impact in the community.

¶ 14 The circuit court stated that it considered the evidence presented, as well as the statutory

factors in mitigation and aggravation. Regarding mitigation, the court stated that defendant was

only 19 years old, that he pled guilty, and that he was “an intelligent young man.” As such, the

court found that defendant did “have rehabilitative potential.” Regarding aggravation, the court

noted that defendant had prior juvenile adjudications for battery. The court found that defendant

had “proven himself to be a dangerous young man.” The court found that the crime was

“horrendous” and noted that it had “to fashion a sentence that [would] not only deter [defendant]

but other young men similarly situated from committing this type of an offense.” The court noted

that the statutory maximum for the offense was 30 years but that the State had indicated “they were

going to knock 10 years off that sentence, again, because the defendant pled guilty, he cooperated

with the police, basically made a determination that certain mitigating factors existed.”

¶ 15 The circuit court sentenced defendant to 20 years in prison with credit for time served. The

court admonished defendant that he had 30 days to file a written motion requesting to vacate the

judgment and for leave to withdraw his guilty plea.

¶ 16 On April 12, 2013, the circuit clerk received a letter from defendant. Defendant requested

a copy of the docket sheet or records showing the date plea counsel filed his “Motion for Reduction

of Sentence and/or Notice of Appeal.” Defendant later discovered that plea counsel had not filed

any postplea motions.

¶ 17 On May 17, 2013, defendant filed a pro se motion for leave to file a late notice of appeal

“relating to Ineffective Assistance of [plea] counsel.” Defendant alleged that plea counsel was

ineffective for failing to file a motion to reduce sentence or a notice of appeal after defendant

7 requested that counsel do so on December 10, 2012. In an affidavit attached to the motion,

defendant attested that plea counsel stated, “It would be a waste of time.”

¶ 18 On May 29, 2013, the circuit court directed the circuit clerk to file defendant’s notice of

appeal but noted that defendant was required to file a motion to withdraw his guilty plea prior to

filing an appeal. The court noted that defendant never asked plea counsel to file a motion to

withdraw his guilty plea. The court appointed the Office of the State Appellate Defender (OSAD)

to represent defendant on appeal.

¶ 19 On June 27, 2013, OSAD filed a motion to dismiss the appeal based on defendant’s failure

to withdraw his guilty plea within 30 days of sentencing. Defendant subsequently filed a motion

to voluntarily dismiss his appeal, which the Fourth District granted on July 12, 2013.2

¶ 20 On July 26, 2013, defendant filed a pro se postconviction petition, along with his own

supporting affidavit. Defendant alleged that plea counsel was ineffective for failing to file a motion

to reduce the sentence and/or a notice of appeal after defendant requested that counsel do so.

Defendant’s petition and attached affidavit indicated that plea counsel responded to defendant by

saying “it would be a waste of time and money to [file a] motion for reduction of sentence and

appeal.” Defendant alleged that the deprivation of his right to appeal prejudiced him.

¶ 21 On August 2, 2013, the circuit court summarily dismissed defendant’s postconviction

petition at the first stage. On appeal, the Fourth District reversed and remanded the matter, finding

that defendant presented the “gist” of a claim of ineffective assistance of counsel. See People v.

Wills, 2015 IL App (4th) 130730-U, ¶ 42.

2 We note that the plea proceedings took place under the jurisdiction of the Fourth District. After the Fourth District issued several decisions on appeal, Champaign County was redistricted from the Fourth District to the Fifth District. Ill. S. Ct., M.R. 30858 (eff. Dec. 8, 2021). 8 ¶ 22 In July 2015, defendant’s appointed postconviction counsel filed an amended

postconviction petition. The amended petition alleged that plea counsel provided ineffective

assistance by disregarding defendant’s request to file a postplea motion, that the circuit court failed

to provide adequate postplea admonishments pursuant to Illinois Supreme Court Rule 605(c) (eff.

Oct. 1, 2001), and that plea counsel essentially conceded that the 20-year sentencing cap was

appropriate at the sentencing hearing. The State subsequently filed a motion to dismiss defendant’s

amended petition, which the court granted.

¶ 23 On appeal, the Fourth District reversed and remanded the matter because defendant “was

not permitted a reasonable opportunity to respond to the motion.” People v. Wills, 2016 IL App

(4th) 150758-U, ¶ 21. The Fourth District remanded with directions to allow defendant to respond

to the motion and made “no findings on the merits of either the motion to dismiss or the

postconviction petition.” Id.

¶ 24 On March 10, 2017, defendant’s newly appointed postconviction counsel filed an answer

to the State’s motion to dismiss the amended postconviction petition. Counsel alleged that the

claims raised in defendant’s previously filed petition showed a substantial violation of his

constitutional rights. Counsel added that the plea agreement was involuntary because defendant

did not know the consequences of entering into the plea agreement and that defendant “believed

that he could file a motion to reduce [his] sentence even though there was a sentencing cap.”

Counsel asserted that plea counsel was ineffective for failing to advise defendant that the

sentencing cap would require him to file a motion to withdraw his guilty plea as opposed to a

motion to reduce his sentence. Counsel requested that the circuit court deny the State’s motion and

hold an evidentiary hearing.

9 ¶ 25 On May 12, 2017, the circuit court granted the State’s motion to dismiss the amended

postconviction petition. The court found that the admonishments at the sentencing hearing

substantially complied with Rule 605(c), defendant was admonished of the requirement that he file

a motion to withdraw his guilty plea to preserve his right to appeal, trial counsel was not ineffective

where he successfully negotiated a sentencing cap, and defendant’s argument that he would have

received a lower sentence had trial counsel argued more zealously was a mere conclusion. The

court also found disingenuous defendant’s claim that his guilty plea was involuntary.

¶ 26 On appeal, the Fourth District reversed and remanded the cause for further proceedings

based on postconviction counsel’s failure to comply with the requirements of Illinois Supreme

Court Rule 651(c) (eff. Feb. 6, 2013).3 People v. Wills, 2018 IL App (4th) 170385-U, ¶¶ 21, 22.

Accordingly, the Fourth District did not reach defendant’s other contentions on appeal. Id. ¶ 22.

¶ 27 On November 8, 2018, newly appointed postconviction counsel filed a second amended

postconviction petition. Counsel alleged that defendant’s plea was involuntary and unknowing

where defendant agreed to plead guilty because he understood there would be a sentencing hearing

where plea counsel would argue for the minimum sentence. Counsel asserted that plea counsel did

no investigation prior to the sentencing hearing. Counsel further asserted that plea counsel

presented no mitigation evidence and suggested no mitigation was available at the sentencing

hearing. Counsel argued that for these reasons defendant did not receive the benefit of the bargain

and he was denied his right to a fair sentencing hearing.

3 On appeal, defendant argued that “(1) the trial court erred by dismissing his amended postconviction petition because he made a substantial showing that plea counsel provided ineffective assistance and/or that his plea was involuntary; and (2) postconviction counsel’s representation was ineffective because he failed to comply with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) where postconviction counsel did not review the record, and neither cited the record nor the proper legal standard in his answer to the State’s motion to dismiss the amended postconviction petition.” People v. Wills, 2018 IL App (4th) 170385-U, ¶ 2. 10 ¶ 28 In addition, postconviction counsel asserted that plea counsel was ineffective for failing to

file an appeal or consult with defendant regarding an appeal. Counsel alleged that defendant

expressed a desire to challenge his sentence, but he did not comprehend the admonitions at his

sentencing hearing and trusted that plea counsel would file the appropriate motions. Counsel

asserted that plea counsel failed to discuss the evidence or trial strategy with defendant and failed

to clarify the sentencing range. Counsel further asserted that plea counsel failed to adequately

communicate with defendant.

¶ 29 Postconviction counsel attached several affidavits in support of the amended petition.

Defendant attested in an affidavit that he expressed a desire to withdraw his guilty plea and that

plea counsel did not properly communicate with or advise him after he expressed a desire to file a

motion to reduce his sentence. Defendant’s mother, Knichola Stone, and grandmother, Gloria

Stone, attested in affidavits that they would have testified or written letters in support of defendant

for sentencing, but they were not asked to do so by plea counsel. Defendant also attached affidavits

from his high school teacher, Charles Weinberg, and a juvenile detention officer, Lucas Gualt, in

which they attested that defendant was a good person.

¶ 30 The State filed a motion to dismiss the amended petition, alleging that defendant’s plea

was knowing and voluntary because he had been properly admonished and understood the terms

of the plea. The State asserted that plea counsel presented the AA attendance sheet and a character

letter at sentencing, while emphasizing three points of mitigation. The State noted that much of

the mitigation evidence was contained in the PSI or was brought out in defendant’s statement in

allocution. Lastly, the State asserted that defendant failed to show how plea counsel’s ineffective

assistance led defendant to accept the plea offer or that he would not have pleaded guilty but for

plea counsel’s deficient performance.

11 ¶ 31 Postconviction counsel filed a motion in response to the State’s motion to dismiss. Counsel

repeated the same arguments that were contained in the petition and stressed that plea counsel was

required to consult with defendant regarding a possible appeal.

¶ 32 On September 5, 2019, the circuit court held a third-stage evidentiary hearing.

Postconviction counsel clarified that procedurally, if defendant was successful in showing a

constitutional violation, defendant would be allowed to file a motion to withdraw his guilty plea.

Postconviction counsel explained that defendant was not asking, at that time, for his guilty plea to

be withdrawn.

¶ 33 Defendant testified that his family hired plea counsel, James Dedman, to represent him in

March 2012. Plea counsel reviewed the case and discovery materials with defendant “a little bit.”

Defendant had difficulty communicating with plea counsel due to his incarceration. Plea counsel

informed defendant of a plea offer of 17 years to be served at 85%, which defendant rejected. Plea

counsel also informed defendant of a plea offer for a sentencing range capped at 20 years, which

defendant accepted. Defendant understood that plea counsel would advocate for him to get the

minimum six years at the sentencing hearing. Plea counsel did not advise defendant that he could

present witnesses and evidence at the sentencing hearing. Defendant would have given plea

counsel the names of family members and others who would have testified on his behalf.

¶ 34 Defendant testified that he advised plea counsel of his desire to file an appeal and a motion

to reduce his sentence. Plea counsel told defendant that “it would have been a waste of time and

money.” Plea counsel did not tell defendant it would have been procedurally improper or that he

would have had to file a motion to withdraw his guilty plea. When asked about the circuit court’s

admonishments regarding his right to appeal and the necessity of filing a motion to withdraw his

guilty plea, defendant explained that he was upset and surprised after the court sentenced him to

12 20 years. Defendant specifically told plea counsel that he wanted to appeal the case. Defendant did

not speak to plea counsel after sentencing. Defendant later contacted the county clerk regarding

the progress of his appeal. Defendant attempted to appeal for the last seven years.

¶ 35 On cross-examination, defendant acknowledged he and plea counsel discussed the

evidence, including the fact that there were statements against him. Defendant indicated that he

did not want to spend 17 years in prison and wanted closer to the minimum. Defendant never

listened to or reviewed his confession with plea counsel. Plea counsel attempted to show defendant

“something” on his computer once, but the computer would not work. Defendant denied that he

discussed trial strategy with plea counsel. Defendant did not worry about the victim making the

trip from Australia to testify against him.

¶ 36 On redirect, defendant testified that he learned he could call witnesses at the sentencing

hearing after he spoke with another attorney. Plea counsel never informed defendant that he could

call witnesses at the sentencing hearing or provide proof regarding his difficult childhood.

Defendant also understood that the plea meant the robbery charge would be dismissed and the

robbery would “run together” with the kidnapping sentence.

¶ 37 Weinberg testified at the hearing. Weinberg had a good relationship with defendant and

was surprised to learn he had been charged with this crime. Weinberg knew defendant to be

impulsive, but not in a violent way. Weinberg believed that younger individuals were more

susceptible to peer pressure.

¶ 38 Knichola Stone and Gloria Stone both testified at the hearing. Both women testified that

defendant was helpful to the family. Both women were present for every hearing, including

sentencing, but were never asked to be a witness or provide letters in support of defendant. Both

women were willing to testify or write a letter in support of defendant. Knichola testified that

13 defendant had earned his GED and was an artist drawing for a tattoo artist at the time of the offense.

Knichola did not like all of defendant’s friends and claimed that defendant was a “follower” with

his group of friends. Gloria testified that defendant got in trouble when he was with his friends but

not when he was by himself.

¶ 39 The State called plea counsel, James Dedman, to testify at the hearing. Plea counsel

confirmed that he was retained by defendant’s mother in March 2012. Plea counsel reviewed the

police reports and discovery with defendant on multiple occasions. Plea counsel opined that if the

victim “came back from Australia, it would be a very bad day for [defendant].” Plea counsel noted

there was a lot of evidence against defendant, including his own confession. When asked if he

gave defendant an opinion about the plea offers tendered by the State, plea counsel responded,

“I’m sure I did. I don’t remember what they were now.” Plea counsel could not recall if he told

defendant that the 20-year cap was a good deal.

¶ 40 Plea counsel testified that his trial strategy was largely based on his belief that the victim

would not travel back to the United States for trial. Plea counsel discussed this strategy with

defendant. Defendant asked plea counsel questions and counsel answered the questions to the best

of his ability. Plea counsel and defendant also discussed defendant’s confession. When asked if

the confession motivated defendant’s decision to plead guilty, plea counsel responded, “Yes, I

think that’s when he decided he should plead guilty.” Plea counsel recalled that he brought his

computer to the jail to play defendant’s confession. Plea counsel could not recall if there was a

problem with the computer but claimed that he spent time reviewing the confession with defendant.

Defendant decided to plead guilty after reviewing the confession.

¶ 41 Plea counsel testified that he advised defendant “that the [PSI] was the most important

thing” after the plea. Plea counsel directed defendant to fully cooperate with the Court Services

14 Department. Plea counsel believed that the sentencing judge would put the most weight into the

PSI report. Plea counsel acknowledged that he did not look for witnesses but claimed he advised

defendant to get “some letters” because the sentencing judge preferred letters. Plea counsel

claimed that he was very familiar with the sentencing judge, which led him to believe that the PSI

report and letters would be the most important evidence. Plea counsel denied telling defendant that

he could not call witnesses or present evidence at the hearing. Plea counsel believed that the PSI

report adequately outlined defendant’s life. Plea counsel also advised defendant in advance that he

could make a statement in allocution at the hearing. Plea counsel made a short argument at the

hearing because the sentencing judge preferred short arguments.

¶ 42 Plea counsel testified that he was seated next to defendant after the sentencing judge

sentenced defendant to 20 years. Plea counsel did not recall a specific conversation with defendant

after sentencing. When asked if defendant told plea counsel that he wanted plea counsel to file a

motion to reduce the sentence, plea counsel responded, “I would have talked to him about it. I

believe—the correct motion would have been a motion to withdraw his guilty plea, and I would

have certainly explored with him what grounds he thought he had to do that.” Plea counsel did not

recall defendant requesting that plea counsel file such motion and defendant never sent plea

counsel a letter asking counsel to file such motion.

¶ 43 On cross-examination, plea counsel reiterated his belief that the PSI report was the most

important evidence at the sentencing hearing. Plea counsel opined that the PSI report was more

important than presenting testimony from family and friends, explaining that the “court [was] more

likely to believe what’s in the [PSI] report than a letter or a communication from friends or family.”

Plea counsel spoke with defendant’s family members prior to sentencing but did not recall

requesting any family member to write a letter on defendant’s behalf.

15 ¶ 44 The circuit court then asked if plea counsel remembered defendant making a request to file

an appeal, and plea counsel responded, “I would say it’s—it—it tends to be that it did not happen,

as opposed—because I had—I would have done something if I had heard that.” Plea counsel stated,

“If, as I’m saying, if he’d said something like that, I would have done something. Since I didn’t

do anything, my conclusion is that he didn’t say it.”

¶ 45 Following plea counsel’s testimony, postconviction counsel argued that plea counsel was

ineffective for failing to consult with defendant regarding an appeal after defendant requested to

file an appeal and for failing to advocate for defendant at the sentencing hearing. Postconviction

counsel stated that there was “beautiful mitigation evidence,” including evidence showing that

defendant was a 17-year-old who grew up without a strong male influence and was “crying out for

a strong male role model.” Postconviction counsel also noted the evidence showing that defendant

had a loving, supportive family, but that he suffered from substance abuse and peer pressure at the

time of the offense. Postconviction counsel discounted plea counsel’s reference to the mitigating

evidence as “grasping at straws.” Postconviction counsel concluded with the following statements:

“[Plea counsel] didn’t just walk into that hearing and throw [defendant] under the bus. He

backed it up over him to make sure he was dead. I get it. It can be hard to stand next to

someone that everybody else in the courtroom thinks is a bad person, but if you[’re] a

defense attorney and you can’t do that, get a different job.”

¶ 46 The State argued that defendant was properly admonished and that defendant merely had

buyer’s remorse. The State asserted that all the necessary information was contained in the PSI

report. The State further asserted that defendant failed to show that he was prejudiced and would

have gone to trial instead of pleading guilty.

16 ¶ 47 On August 29, 2022, 4 the circuit court issued a written order denying defendant’s

postconviction petition. Regarding defendant’s claim that his plea was involuntary and unknowing,

the court found that plea counsel presented a short argument that pointed out three mitigating

factors. The court also found that plea counsel presented a letter. The court further found that the

detailed PSI report provided essentially the same information that the witnesses would have

provided. The court found that plea counsel acted reasonably because he believed the short

argument and letters were preferred by the sentencing judge. The court concluded that defendant’s

claim did not “demonstrate an involuntary and unknowing plea so much as disappointment with

counsel’s efforts at and even more so with the result of the sentencing hearing.” The court further

found that defendant’s claim that he did not fully understand the sentencing range was contradicted

by the record.

¶ 48 Regarding defendant’s claim that plea counsel failed to fully explain the evidence and

discuss trial strategy, the circuit court noted that both defendant and plea counsel testified at the

hearing that they discussed the evidence, including defendant’s confession. The court found that

defendant decided to plead guilty after he discussed the confession with plea counsel. Noting that

defendant did not claim that plea counsel advised him to plead guilty, the court found his claim

that he would not have pled guilty had he known he could not seek reconsideration of his sentence

or file an appeal lacked credibility. The court found that defendant received the benefit of his

bargain, where there was a complete confession and no doubt of his guilt. The court found that

defendant pled guilty to eliminate the risk of a possible 30-year sentence and that his acceptance

4 It appears from the record that the delay in rendering a decision resulted, in part, from the COVID- 19 pandemic. 17 of the 20-year sentencing cap instead of the 17-year offer was to take the chance to get a lower

sentence.

¶ 49 Regarding defendant’s claim of ineffective assistance at sentencing, the circuit court found

it was reasonable trial strategy for plea counsel to keep arguments short and concise. The court

found that counsel did make an argument in mitigation and that the sentencing judge did find that

defendant had rehabilitative potential. Accordingly, the court found that plea counsel’s actions at

sentencing were not the result of unsound strategy and there was no prejudice.

¶ 50 Regarding plea counsel’s failure to consult with defendant regarding an appeal, the circuit

court found it “undisputed that counsel did not consult with [defendant] nor file any pleadings to

preserve [defendant’s] right to seek to withdraw his plea or appeal.” The court noted that there was

some dispute as to whether defendant made such request but found that defendant “did in fact

request a motion to reduce sentence or appeal.” The court noted that “[t]he appellate court in Wills

I held that the timing of that request essentially means that counsel was requested to file a Motion

to Withdraw Guilty Plea, or that he was required to file an appropriate pleading to preserve that

right.” The court, relying on People v. Edwards, 197 Ill. 2d 239 (2001), concluded that defendant

was required to make a substantial showing that he could prevail on a motion to withdraw his

guilty plea. However, the court found that defendant’s claim that he would not have entered into

the plea agreement if he had known he could not seek reconsideration of his sentence was not

credible. The court also found that plea counsel’s decisions at sentencing were not the result of

unsound trial strategy, and that defendant was not prejudiced by counsel’s performance.

¶ 51 Regarding defendant’s claim that plea counsel failed to adequately communicate with him,

the circuit court found it was reasonable to negotiate a plea agreement where defendant gave a

confession. The court found that the transcript showed defendant was admonished. The court again

18 found defendant’s claim that he would not have agreed to the plea agreement if he had known he

could not appeal lacked credibility. For these reasons, the court denied defendant’s postconviction

petition.

¶ 52 Defendant filed a timely notice of appeal.

¶ 53 II. Analysis

¶ 54 On appeal, defendant argues that the circuit court erred by denying his petition at the third

stage of the proceedings, where the evidence established that plea counsel provided ineffective

assistance. Specifically, defendant maintains the evidence established that plea counsel failed to

consult with him after he requested to file an appeal and that he had nonfrivolous grounds to file a

motion to withdraw his guilty plea because he was denied effective assistance of counsel at the

postplea sentencing hearing. The State contends that the court properly denied the petition. We

agree with the State.

¶ 55 The Post-Conviction Hearing Act (Act) provides defendants with a procedural mechanism

to raise claims of violations of their constitutional rights. People v. Robinson, 2020 IL 123849,

¶ 42. “The Act sets forth three stages of review.” People v. Domagala, 2013 IL 113688, ¶ 32. At

the first stage, “the circuit court may dismiss postconviction petitions that are ‘frivolous or ***

patently without merit.’ ” Id. (quoting 725 ILCS 5/122-2.1(a)(2) (West 2010)). If the petition

advances to the second stage, “counsel may be appointed to an indigent defendant and the State

may file a motion to dismiss or an answer to the petition.” Id. ¶ 33 (citing 725 ILCS 5/122-4, 122-

5 (West 2010)). At the second stage, “the circuit court must determine whether the petition and

any accompanying documentation make a ‘substantial showing of a constitutional violation.’ ” Id.

(quoting Edwards, 197 Ill. 2d at 246). “If the petitioner makes the requisite substantial showing

that his constitutional rights were violated, he is entitled to a third stage evidentiary hearing.” Id.

19 ¶ 34 (citing Edwards, 197 Ill. 2d at 246). At both the second and the third stages, “the defendant

bears the burden of making a substantial showing of a constitutional violation.” People v.

Pendleton, 223 Ill. 2d 458, 473 (2006). At a third-stage hearing, “the circuit court serves as the

fact finder, and, therefore, it is the court’s function to determine witness credibility, decide the

weight to be given testimony and evidence, and resolve any evidentiary conflicts.” Domagala,

2013 IL 113688, ¶ 34 (citing People v. English, 2013 IL 112890, ¶ 23). “At this stage, the circuit

court must determine whether the evidence introduced demonstrates that the petitioner is, in fact,

entitled to relief.” Id. “When a petition is advanced to a third-stage, evidentiary hearing, where

fact-finding and credibility determinations are involved, we will not reverse a circuit court’s

decision unless it is manifestly erroneous.” Pendleton, 223 Ill. 2d at 473. A “manifest error” is an

error that “is clearly evident, plain, and indisputable.” People v. Ruiz, 177 Ill. 2d 368, 384-85

(1997).

¶ 56 This court analyzes claims of ineffective assistance of counsel under the standard set forth

in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 186 Ill. 2d 83, 93 (1999). To

establish a claim of ineffective assistance under Strickland, a defendant must prove (1) that

counsel’s performance was deficient and (2) that counsel’s deficient performance resulted in

prejudice to the defendant. Id. A defendant satisfies the deficiency prong by demonstrating that

counsel made errors that were so serious and counsel’s performance was so deficient that counsel

was not functioning as “counsel” as guaranteed by the sixth amendment (U.S. Const., amend. VI).

Id. Defendant must overcome the strong presumption that the challenged action or inaction was

the product of sound trial strategy. Id. A defendant satisfies the prejudice prong by demonstrating

that a reasonable probability exists that, but for counsel’s deficient performance, the result of the

proceedings would have been different. Id. “This court may dispose of a claim on prejudice

20 grounds alone, without deciding whether counsel’s performance was deficient.” People v. Beasley,

2017 IL App (4th) 150291, ¶ 26 (citing People v. Munson, 171 Ill. 2d 158, 184 (1996)).

¶ 57 We initially note that the circuit court found that plea counsel failed to consult with

defendant or file an appeal after defendant requested that plea counsel do so. In other words, the

court found that plea counsel’s performance in this regard was deficient. See Roe v. Flores-Ortega,

528 U.S. 470, 477 (2000) (reiterating the long-standing holding “that a lawyer who disregards

specific instructions from the defendant to file a notice of appeal acts in a manner that is

professionally unreasonable”).

¶ 58 Defendant, relying on Flores-Ortega, argues that prejudice is presumed, where plea

counsel’s “deficiency deprived [defendant] of the appellate proceeding altogether.” Id. at 483. We

note that, unlike Flores-Ortega, the present case involves a guilty plea and, thus, the question is

whether defendant was prejudiced by plea counsel’s failure to move to withdraw defendant’s guilty

plea after defendant expressed a desire to file a motion to reconsider his sentence or an appeal. Our

supreme court addressed a similar situation in Edwards, 197 Ill. 2d 239.

¶ 59 In Edwards, our supreme court held that prejudice is presumed at the first stage of

postconviction proceedings, where a defendant alleges counsel failed to perfect an appeal by first

filing a motion to withdraw a guilty plea. Id. at 257. Our supreme court limited this holding to the

first stage of postconviction proceedings. Id. In doing so, our supreme court noted:

“To merit an evidentiary hearing on his claim that he told his trial counsel to file a motion

to withdraw his guilty plea and that counsel was constitutionally ineffective for failing to

do so, defendant will have to make a substantial showing to that effect. [Citation.] Such a

showing will necessarily entail some explanation of the grounds that could have been

presented in the motion to withdraw the plea. Since defendant will be at the second stage

21 of the post-conviction proceedings and will be represented by an attorney, rather than

proceeding pro se, this will not present an unreasonable burden.” Id. at 257-58.

¶ 60 As defendant recognizes, some Illinois courts have interpreted Edwards as requiring a

defendant at the second and third stages of postconviction proceedings to establish prejudice by

alleging in the postconviction petition the “grounds that could have been presented in a motion to

withdraw the guilty plea” and by showing “a reasonable probability the motion would be granted

on those grounds.” Beasley, 2017 IL App (4th) 150291, ¶ 30 (citing People v. Gomez, 409 Ill. App.

3d 335, 340 (2011)); People v. Cuevas, 2018 IL App (2d) 151100, ¶ 32 (reaffirming Gomez and

finding that “[t]he determination of prejudice is more than an outcome-determinative test”); People

v. Hughes, 329 Ill. App. 3d 322, 326 (2002) (holding that at the third stage of postconviction

proceedings the “defendant was required to present evidence of the grounds that could have been

raised in the motion to reconsider to establish ineffective assistance of counsel”).

¶ 61 The defendant in Gomez similarly argued that prejudice must be presumed where his trial

counsel failed to file a motion to withdraw the guilty plea after the defendant requested that counsel

do so. Gomez, 409 Ill. App. 3d at 339. The Second District rejected the defendant’s argument,

reasoning as follows:

“Because defendant’s petition survived summary dismissal, he had to establish at stage

two, pursuant to Edwards, on what justifiable basis he could have moved to withdraw his

guilty plea and that there was a reasonable probability that the motion would have been

granted allowing defendant to withdraw his plea of guilty.” Id. at 340.

¶ 62 We find Gomez and Beasley well-reasoned and, thus, follow those cases here. Accordingly,

we conclude that, to establish prejudice at the third stage of postconviction proceedings, the

defendant must allege in the postconviction petition the justifiable grounds that could have been

22 presented in the motion to withdraw the guilty plea and then present evidence showing a reasonable

probability the motion would be granted on such grounds.

¶ 63 Although defendant maintains prejudice should have been presumed, defendant also

maintains that the evidence presented at the hearing established prejudice. Specifically, defendant

asserts that he could have withdrawn his guilty plea where plea counsel failed to advocate for him

at the sentencing hearing. Defendant maintains that plea counsel essentially conceded that a 20-

year sentence was appropriate, rather than presenting mitigation evidence in support of a lesser

¶ 64 “Again, under Strickland, a defendant must show (1) counsel’s performance was

objectively unreasonable and (2) the deficient performance resulted in prejudice.” Beasley, 2017

IL App (4th) 150291, ¶ 32. “The defendant must show that counsel’s performance fell below

minimal professional standards and that but for counsel’s incompetence there is a reasonable

probability that the resulting sentence would have been different.” People v. Howery, 178 Ill. 2d

1, 55 (1997) (citing People v. Orange, 168 Ill. 2d 138, 171 (1995); People v. Perez, 148 Ill. 2d

168, 186 (1992); People v. Franklin, 135 Ill. 2d 78, 116-17 (1990)). “Counsel has a duty to

investigate potential sources of mitigating evidence or must have a reason for not making such an

investigation”; however, “[t]he failure to offer mitigation evidence does not in and of itself

establish deficient performance.” Id. “Defense counsel’s decision not to present mitigating

evidence will not be deemed incompetent if it stems from a theory of defense which does not

require its use.” Id.

¶ 65 As an initial matter, we agree with defendant’s assertion that plea counsel’s performance

at the sentencing hearing was deficient, where plea counsel stated, “It doesn’t take much evidence

or argument to get to the 20 years in this case.” Plea counsel then stated, “The victim impact

23 statement was one of the most horrendous things I have ever read.” After briefly reviewing three

mitigating factors, counsel concluded by stating, “So, I mean, if we are grasping at straws, I want

you to have them all.” While plea counsel testified that he was familiar with the sentencing judge

and that he believed the sentencing judge preferred short arguments, we cannot agree that counsel’s

argument constituted reasonable trial strategy. In our view, defendant demonstrated that counsel’s

performance fell below the objective standard of reasonableness and the circuit court’s finding to

the contrary was against the manifest weight of the evidence.

¶ 66 Despite this, defendant failed to present evidence showing that, but for counsel’s deficient

performance, the resulting sentence would have been different. The record reveals that the circuit

court considered defendant’s age and found that he had rehabilitative potential. The court also

considered the fact that defendant confessed his involvement to police and pled guilty to the crime.

Moreover, the court considered defendant’s statement in allocution, finding that defendant was an

“intelligent” man. However, the court concluded that those mitigating factors were considered by

the State when it agreed to recommend a sentencing cap of 20 years—10 years less than the

maximum sentence for aggravated kidnapping. It also appears from the record that the sentencing

judge relied heavily on the PSI report and victim impact statement in imposing defendant’s 20-

year sentence.

¶ 67 While defendant complains that plea counsel failed to present additional mitigating

evidence at sentencing, 5 we note that much of the evidence defendant sought to introduce at

sentencing would have established facts contained in the PSI report. The PSI report included a

lengthy, and detailed, account of defendant’s criminal history, family background, and substance

5 Defendant argues for the first time on appeal that plea counsel could have raised an argument based on Miller v. Alabama, 567 U.S. 460 (2012). Because defendant did not raise this issue in his amended petition, the issue is forfeited. Pendleton, 223 Ill. 2d at 475. 24 abuse. The PSI report indicated that defendant had a history of juvenile adjudications for battery

offenses and that he had a good relationship with his family. The PSI also indicated that defendant

began substance abuse treatment in jail, and plea counsel presented a document showing

defendant’s attendance at treatment. Plea counsel testified that, based on his experience with the

sentencing judge, the PSI report would be the most important evidence. The record appears to

confirm plea counsel’s testimony in this regard.

¶ 68 Moreover, the victim impact statement outlined the horrendous nature of the kidnapping

and the impact it had on the victim. The victim recounted the individuals beating him for hours

and laughing when the victim pleaded for them to stop. After the victim lost consciousness, the

individuals stripped him of his clothing and belongings before dumping him in a ditch with serious

injuries. The victim outlined the extensive injuries and serious, and likely long-term, psychological

issues he sustained as a result of the attack. The circuit court, relying on the heinous nature of the

crime, noted that a harsh sentence was necessary to deter others from committing similar crimes.

In our view, the evidence failed to demonstrate that defendant would have received a lesser

sentence had counsel presented a more zealous argument or additional evidence in mitigation.

¶ 69 Therefore, we conclude that defendant failed to show that, but for counsel’s deficient

performance, the resulting sentence would have been different. Accordingly, we cannot say that

the circuit court’s determination that defendant suffered no prejudice as a result of plea counsel’s

performance at sentencing was against the manifest weight of the evidence. Consequently,

defendant failed to show there was a reasonable probability that the motion to withdraw his guilty

plea would be granted.

¶ 70 III. Conclusion

¶ 71 For the foregoing reasons, we affirm the order of the Champaign County circuit court.

25 ¶ 72 Affirmed.