Illinois Official Reports
Appellate Court
People v. Kitchell, 2015 IL App (5th) 120548
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption FREDERICK G. KITCHELL, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-12-0548
Filed June 29, 2015
Decision Under Appeal from the Circuit Court of Lawrence County, No. 10-CF-108;
Review the Hon. Robert M. Hopkins, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, Ellen J. Curry, and Robert S. Burke, all of State
Appeal Appellate Defender’s Office, of Mt. Vernon, for appellant.
Christopher M. Quick, State’s Attorney, of Lawrenceville (Patrick
Delfino, Stephen E. Norris, and Whitney E. Atkins, all of State’s
Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Presiding Justice Cates and Justice Chapman concurred in the
judgment and opinion.
OPINION
¶1 Defendant, Frederick G. Kitchell, appeals from an order of the circuit court of Lawrence
County granting the State’s motion to dismiss his postconviction petition in which he alleged
ineffective assistance of guilty plea counsel. The issue on appeal is whether the circuit court
erred in granting the State’s motion to dismiss the postconviction petition alleging ineffective
assistance of guilty plea counsel where plea counsel’s advice was incorrect concerning
available sentencing credit. In this appeal, the State has filed a motion to cite additional
authority. This court grants the State’s motion. We reverse and remand.
¶2 BACKGROUND
¶3 Defendant was charged by information with home invasion (720 ILCS 5/12-11(a)(2) (West
2008)), but ultimately pleaded guilty to attempted home invasion (720 ILCS 5/12-11(a)(2),
8-4(a) (West 2008)) and was sentenced to 10 years in the Illinois Department of Corrections
(Department) and 2 years’ mandatory supervised release as part of a fully negotiated plea.
During negotiations, defendant’s attorney advised him he would be eligible to receive
good-conduct credit while serving time in the Department if he participated in various
educational, vocational, and drug rehabilitation classes. Defendant participated in such classes,
but did not receive any good-time credit because he was ineligible for such credit pursuant to
section 3-6-3 of the Unified Code of Corrections, “Rules and Regulations for Early Release”
(730 ILCS 5/3-6-3 (West 2008)), and section 107.520 of Title 20 of the Illinois Administrative
Code, “Eligibility for Program Sentence Credit” (20 Ill. Adm. Code 107.520, amended at 20
Ill. Reg. 5745 (eff. May 5, 1996)).
¶4 On February 9, 2012, defendant filed a pro se petition for relief from judgment in which he
argued that he agreed to a negotiated plea agreement because he was promised he could receive
earned good-conduct credit, but he had since learned he was not eligible for such credit and,
therefore, he “did not receive his benefit of the bargain.” The circuit court appointed counsel to
represent defendant. Appointed counsel withdrew the pro se petition and filed instead a
postconviction petition, alleging defendant was denied effective assistance of plea counsel due
to the erroneous advice plea counsel gave defendant regarding good-time credit, asserting that
plea “counsel provided ineffective assistance of counsel when he incorrectly informed
[defendant] that he would be eligible for good[-]conduct credit for participation in various
[Department] programs, and furthermore, the inaccurate advice of his counsel made his plea
involuntary.” Attached to the petition was defendant’s affidavit in which he averred that he
participated in various educational and vocational classes while in the Department, but failed
to receive any good-conduct credit for such participation, and he “would not have entered into
the plea agreement in this case if he would not have been erroneously informed by his defense
counsel that he was eligible to receive good[-]conduct credit for participation” in such
programs. The State filed a motion to dismiss. The circuit court granted the State’s motion to
dismiss. Defendant now appeals.
¶5 ANALYSIS
¶6 The issue on appeal is whether the circuit court erred in granting the State’s motion to
dismiss defendant’s postconviction petition alleging ineffective assistance of plea counsel
where plea counsel’s advice was incorrect concerning available sentencing credit. Defendant
-2-
contends he would not have entered into his guilty plea if he had not been erroneously
informed by plea counsel that he was eligible to receive good-conduct credit. He insists the
erroneous advice of plea counsel amounted to ineffective assistance of counsel and the circuit
court erred in granting the State’s motion to dismiss the postconviction petition alleging
ineffective assistance of guilty plea counsel. We agree.
¶7 The Post-Conviction Hearing Act (Act) provides a method by which a person under
criminal sentence may assert that his or her conviction resulted from a substantial denial of his
or her rights. 725 ILCS 5/122-1(a)(1) (West 2012); People v. Tate, 2012 IL 112214, ¶ 8, 980
N.E.2d 1100. A postconviction proceeding is commenced by the filing of a petition. 725 ILCS
5/122-1(b) (West 2012). Each proceeding has three distinct stages. People v. Edwards, 197 Ill.
2d 239, 244, 757 N.E.2d 442, 445 (2001). The instant appeal is from a second stage dismissal
of a postconviction petition. At the second stage, the circuit court must determine whether the
petition and any accompanying documents make a substantial showing of a constitutional
violation. Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446. If the petition fails to make a
substantial showing of a constitutional violation, it is dismissed, but if such a showing is made,
the petition advances to the third stage, where the court conducts an evidentiary hearing. 725
ILCS 5/122-6 (West 2012); Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446. The dismissal of a
postconviction proceeding at the second stage is reviewed de novo. People v. Coleman, 183 Ill.
2d 366, 389, 701 N.E.2d 1063, 1075 (1998).
¶8 A challenge to a guilty plea based upon allegations of ineffective assistance of counsel is
subject to the two-pronged test established in Strickland v. Washington, 466 U.S. 668 (1984).
People v. Hall, 217 Ill. 2d 324, 334-35, 841 N.E.2d 913, 920 (2005). In order to obtain relief
under Strickland, a petitioner must show both that (1) counsel’s performance fell below an
objective standard of reasonableness, and (2) there is a reasonable probability that, but for
counsel’s unprofessional errors, the result would have been different. Strickland, 466 U.S. at
687. Plea counsel performs inadequately where he or she fails to ensure that the defendant’s
plea was entered voluntarily and intelligently. Hall, 217 Ill. 2d at 335, 841 N.E.2d at 920.
¶9 In support of his ineffective assistance claim, defendant relies on People v. Young, 355 Ill.
App. 3d 317, 822 N.E.2d 920 (2005). Young is factually similar to the instant case because it
also involved a guilty plea which was procured through an affirmative misstatement of the
consequences of a guilty plea. The issue in that case was whether trial counsel was ineffective
when he incorrectly informed the defendant that he would serve less actual prison time by
pleading guilty to a Class 1 felony with a 12-year prison term than he would serve by pleading
guilty to a Class X felony with a 10-year prison term. Young, 355 Ill. App. 3d at 321, 822
N.E.2d at 923-24. The State moved to dismiss the petition, arguing that the claim was not
supported by the record, and the circuit court granted the motion. Young, 355 Ill. App. 3d at
320, 822 N.E.2d at 923. In reversing, our colleagues in the Second District distinguished a case
cited by the State, relied on our supreme court’s analysis in another case, and discussed in
detail the difference between an attorney’s passive failure to inform a defendant of the
collateral consequences of a guilty plea and an affirmative misrepresentation of the
consequences as follows:
“As defendant points out, [People v.] Maury[, 287 Ill. App. 3d 77, 678 N.E.2d 30
(1997),] completely fails to consider People v. Correa, 108 Ill. 2d 541[, 485 N.E.2d
307] (1985), which draws a crucial distinction between ‘the passive conduct of counsel
in failing to discuss with a defendant the collateral consequences of a guilty plea’ and
-3-
‘unequivocal, erroneous, misleading representations’ that counsel makes in response to
a defendant’s specific inquiries. Correa, 108 Ill. 2d at 551-52[, 485 N.E.2d at 311].
Correa involved the latter situation. While the court refused to decide whether the
defendant’s counsel would have been ineffective had he ‘simply failed to advise the
defendant of the collateral consequence’ (Correa, 108 Ill. 2d at 550[, 485 N.E.2d at
311]), it held that counsel’s ‘unequivocal, erroneous, misleading representations’ about
the collateral consequences of the plea amounted to ineffective assistance that rendered
the defendant’s plea involuntary. Correa, 108 Ill. 2d at 552[, 485 N.E.2d at 311]. ***
***
Defendant’s allegation that he pleaded guilty based on [plea counsel’s] erroneous
advice is legally sufficient under the Act. Of course, whether defendant can actually
prove his contention must be resolved at an evidentiary hearing.” Young, 355 Ill. App.
3d at 323-24, 822 N.E.2d at 925-26.
¶ 10 Young concluded the defendant was entitled to a hearing on his claim that his trial counsel
was ineffective and his plea was not voluntary and, therefore, reversed the trial court’s
judgment and remanded the case for an evidentiary hearing. Young, 355 Ill. App. 3d at 325,
822 N.E.2d at 926-27.
¶ 11 Nevertheless, in the instant case, the State asserts that because defendant indicated to the
circuit court that there were no “promises” made by his attorney that persuaded him to accept
the plea agreement, his argument on appeal must fail. However, we find that neither the fact
that defendant stated on the record that no promises were made nor the fact that his attorney
recited the plea agreement terms and failed to mention Department program credit is material.
The question of good-time credit for program participation is directly related and a direct
consequence of the charge to which defendant pled guilty. Here, there is no controversy that
plea counsel’s advice that defendant would be eligible for credit was erroneous.
¶ 12 The recent case of People v. Clark, 2011 IL App (2d) 100188, 957 N.E.2d 162, is
instructive on the showing required to establish ineffectiveness of trial counsel. In Clark, the
defendant alleged in a postconviction petition that he was denied the effective assistance of
counsel during his guilty plea hearing when his attorney told him there were no witnesses
available to support his defense of insanity. In support of his claim, the defendant attached the
affidavit of the victim, who averred that the defendant was schizophrenic and had not been
taking his medications at the time of the offense, that he heard voices telling him to stab her,
and that she knew he did not mean to harm her. The reviewing court found that the defendant
made a substantial showing that counsel was ineffective for failing to investigate the witness
and that he was prejudiced because counsel told him that there were no witnesses available to
support his defense. Clark, 2011 IL App (2d) 100188, ¶¶ 28-29, 957 N.E.2d 162. Similar to
Young, Clark also contained an allegation of an unequivocally false misrepresentation, not
mere passive conduct, sufficient to warrant a finding of ineffective assistance of counsel
should the defendant be able to prove his allegations.
¶ 13 In the instant case, defendant attached to his petition an affidavit in which he specifically
averred that he would not have pleaded guilty but for the erroneous advice of plea counsel that
defendant was eligible to receive good-conduct credit for participation in certain Department
programs. As our colleagues in the Fourth District stated, “Defendant’s contention that counsel
gave him wrong advice and he relied on that advice is sufficient under the Act to entitle him to
an evidentiary hearing ***.” People v. Stewart, 381 Ill. App. 3d 200, 206, 887 N.E.2d 461, 467
-4-
(2008). Whether defendant can prove his contention will be determined at the evidentiary
hearing.
¶ 14 For the foregoing reasons, we reverse the circuit court’s judgment and remand for an
evidentiary hearing.
¶ 15 Reversed and remanded.
-5-