People v. Stewart

Filed 3/28/08 NO. 4-06-0828

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
BRIAN S. STEWART, ) No. 06CF476
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

In April 2006, defendant, Brian S. Stewart, pleaded

guilty to aggravated discharge of a firearm (720 ILCS 5/24-

1.2(a)(1) (West 2006)). Pursuant to a negotiated plea, defendant

was sentenced to six years in prison. In July 2006, defendant

then filed a pro se postconviction petition alleging that before

he pleaded, guilty-plea counsel erroneously informed him regard-

ing applicable portions of the truth-in-sentencing law (730 ILCS

5/3-6-3(a)(2)(iii), (a)(2)(iv) (West 2006)); trial counsel stated

that defendant was eligible to acquire day-for-day good-conduct

credit and might only have to serve 50% of his sentence while

defendant was statutorily required to serve at least 85% of his

sentence. The trial court appointed postconviction counsel, who

submitted an amended petition. The State filed a motion to

dismiss. After hearing on the petition and the State's motion,

the court denied the petition. Defendant appeals. We reverse
and remand.

I. BACKGROUND

On March 21, 2006, defendant was charged with aggra-

vated discharge of a firearm for knowingly discharging a firearm

into a building when he reasonably should have known that the

building was occupied. Defendant was also charged with reckless

discharge of a firearm (720 ILCS 5/24-1.5 (West 2006)) for

endangering the safety of Ryan Head and Britta Parker by dis-

charging a firearm and striking their residence with several

bullets.

On April 20, 2006, defendant pleaded guilty to aggra-

vated discharge of a firearm in exchange for a sentence of six

years in prison and dismissal of the reckless-discharge-of-a-

firearm charge.

On July 13, 2006, defendant filed a pro se

postconviction petition alleging that when he pleaded guilty he

thought he would be given day-for-day credit and might only have

to serve 50% of his sentence. After the 30-day period allowed

for filing to withdraw his plea, the Department of Corrections

(DOC) informed defendant that he must serve at least 85% of his

sentence. Attached to defendant's petition was a letter from his

attorney addressed to defendant wherein the attorney stated he

was not aware that defendant would have to serve 85% of his

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sentence. The letter stated that the attorney understood at the

time of the plea that day-for-day applied because the trial court

did not find any great bodily harm occurred. Counsel was not

aware that the statute had been amended and an automatic 85% rule

applied to all aggravated-discharge-of-a-firearm offenses even

absent a great-bodily-harm finding.

Based on the petition, the trial court appointed

defendant new counsel to represent him during the postconviction

proceedings. On August 10, 2006, counsel filed an amended

postconviction petition alleging defendant was not admonished

that he was to serve 85% and the court did not find that the

victim suffered great bodily harm. The petition did not

explicitly include a statement concerning the ineffectiveness of

defendant's guilty-plea counsel for improperly advising defendant

that he would serve 50% of his sentence. Postconviction counsel

did not file a Rule 651(c) (134 Ill. 2d R. 651(c)) certificate.

On September 21, 2006, the State filed a motion to

dismiss the petition claiming that the petition did not contain

the gist of a constitutional claim as the truth-in-sentencing law

was a collateral consequence of the guilty plea, beyond the

control of the trial court, and not a direct consequence of the

guilty plea.

Also on September 21, 2006, the trial court held a

hearing on the postconviction petition and the State's motion to

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dismiss it. At the hearing, defendant's counsel argued that (1)

defendant and his guilty-plea attorney were under a mistaken

belief that he only had to serve 50% of his sentence and (2)

defendant accepted the plea under that mistaken belief. The

trial court acknowledged the letter from defendant's guilty-plea

counsel. The court then pointed to the section in the Unified

Code of Corrections that states that a conviction for aggravated

discharge of a firearm resulted in a sentence of 85% if the court

entered a finding of great bodily harm to the victim and the next

section that stated that a conviction for aggravated discharge of

a firearm always results in a sentence of 85% (730 ILCS 5/3-6-

3(a)(2)(iii), (a)(2)(iv) (West 2006)). The court stated that

"when admonishing a defendant to the potential penalties, it is

not required that the defendant be told that it's 85 percent ***

the court need only admonish the defendant as to the potential

penalties." The court acknowledged that the statute was

confusing but found it was up to DOC to determine which section

to apply. The court denied defendant's petition. This appeal

followed.

II. ANALYSIS

Defendant argues that his petition should be remanded

to the trial court for a third-stage evidentiary hearing under

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through

122-8 (West 2006)). According to defendant, he was denied his

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right to a reasonable level of assistance during postconviction

proceedings because his appointed counsel filed only a cursory,

unsupported amended petition and failed to file a Rule 651(c)

certificate. Also, defendant was entitled to an evidentiary

hearing because the application of the truth-in-sentencing

provision was a direct consequence of his guilty plea and the

trial court should have admonished him concerning that provision

before accepting his plea. Even if the application of the

provision was a collateral consequence, guilty-plea counsel's

erroneous advice made counsel ineffective and rendered

defendant's plea involuntary. The State maintains that the court

properly dismissed the petition because defendant did not

demonstrate a constitutional violation to warrant an evidentiary

hearing.

We agree that the trial court need not admonish

defendant concerning a collateral consequence of his guilty plea.

For the following reasons though, we hold that when defense

counsel affirmatively misrepresents to the defendant the

collateral consequences of his guilty plea and the defendant

pleads guilty based on the affirmative misrepresentations, the

defendant alleges a constitutional violation that warrants an

evidentiary hearing under the Act.

Under the Act (725 ILCS 5/122-1 through 122-8 (West

2006)), the trial court follows a three-stage process to

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determine whether a defendant suffered a substantial violation of

constitutional rights at trial, and if so, what remedy is

appropriate. See People v. Edwards, 197 Ill. 2d 239, 243-44, 757

N.E.2d 442, 445 (2001). In the first stage, the trial court

determines, without input from the State, whether a petition is

frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2)

(2006 West). If the petition states the gist of a claim, the

court advances it to the second stage where counsel may be

appointed for the petitioner, appointed counsel may file an

amended petition, and the State may file responsive pleadings.

725 ILCS 5/122-2.1(a)(2), 122-4, 122-5 (West 2006); see also

Edwards, 197 Ill. 2d at 245-46, 757 N.E.2d at 446. In the second

stage, the court determines whether defendant's petition and

documentation "make a substantial showing of a constitutional

violation." Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446. If

defendant has made a substantial showing of a constitutional

violation, the petition advances to the third stage, at which

point the court holds an evidentiary hearing. Edwards, 197 Ill.

2d at 246, 757 N.E.2d at 446, citing 725 ILCS 5/122-6 (West

1998).

In this case, defendant's petition was dismissed during

the second stage without an evidentiary hearing. We review such

dismissals de novo. People v. Coleman, 183 Ill. 2d 366, 388-89,

701 N.E.2d 1063, 1075 (1998). "The question raised in an appeal

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from an order dismissing a post[]conviction petition is whether

the allegations in the petition, liberally construed and taken as

true, are sufficient to invoke relief under the Act." Coleman,

183 Ill. 2d at 388, 701 N.E.2d at 1075. A petitioner is not

entitled to an evidentiary hearing unless he has made a

substantial showing, based on the record and supporting

affidavits, that his constitutional rights were violated. People

v. Erickson, 183 Ill. 2d 213, 222, 700 N.E.2d 1027, 1032 (1998).

Defendant claims his postconviction counsel was

ineffective for failing to clearly assert that his guilty-plea

counsel was ineffective when he gave defendant erroneous legal

advice. Defendant then claims that despite postconviction

counsel's ineffectiveness, the trial court should have advanced

his petition to the third stage, an evidentiary hearing, to

determine the exact nature of the legal advice given and the

impact of that advice on defendant's decision to plead guilty.

The underlying contention in both of these claims is that

defendant's guilty plea was involuntary because his guilty-plea

counsel was ineffective when he misinformed defendant as to the

application of the truth-in-sentencing law; namely, whether he

was eligible for day-for-day good-conduct credit or required to

serve at least 85% of his sentence.

The State maintains that the misinformation did not

render guilty-plea counsel ineffective or the plea involuntary

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because the advice concerned a collateral consequence of

defendant's sentence. Illinois courts have recognized that the

impact of counsel's advice regarding a guilty plea may depend on

whether the advice involved a direct consequence of the guilty

plea or a collateral consequence. See People v. Frison, 365 Ill.

App. 3d 932, 934, 851 N.E.2d 890, 892-93 (2006). "Direct

consequences are those that are definite, immediate, and largely

automatic in their effect upon a defendant's punishment."

Frison, 365 Ill. App. 3d at 934, 851 N.E.2d at 893; see also

People v. Blackburn, 46 Ill. App. 3d 213, 215, 360 N.E.2d 1159,

1160 (1977) (the mandatory parole term that attaches to a

defendant's sentence is a direct consequence of a plea of

guilty). Collateral consequences are things beyond the court's

control and do not relate to the length of the sentence imposed.

Frison, 365 Ill. App. 3d at 934, 851 N.E.2d at 893; see also

People v. Williams, 188 Ill. 2d 365, 372, 721 N.E.2d 539, 544

(1999) (including as collateral consequences the following:

"'"loss of public or private employment, effect on immigration

status, voting rights, possible auto license suspension, possible

dishonorable discharge from the military, or anything else"'

(Emphasis added.) [Citation.]"); In re Detention of Lindsay, 333

Ill. App. 3d 474, 477, 776 N.E.2d 304, 306 (2002) (the

possibility of commitment under the Sexually Violent Persons

Commitment Act is a collateral consequence).

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 As defendant's claim relates to DOC's discretion in

awarding defendant good-conduct credit, the advice concerned a

collateral consequence of defendant's sentence. The

misinformation did not affect the sentence imposed and DOC

ultimately has discretion as to whether defendant will be awarded

any credit. See Frison, 365 Ill. App. 3d at 934, 851 N.E.2d at

893 (ruling counsel's advice regarding good-conduct credit under

the truth-in-sentencing law is a collateral consequence as the

truth-in-sentencing law may affect the sentence defendant

ultimately serves but does not affect the sentence imposed by the

trial court and the law's application is not definite, immediate,

or automatic).

Defendant argues, though, that even if the advice

concerning the truth-in-sentencing law is considered a collateral

consequence of his sentence, he should be allowed to withdraw his

plea because his attorney did more than passively refuse to

instruct him. Defendant claims his attorney actively misinformed

him that he was eligible for more good-conduct credit than that

for which he was statutorily eligible. Believing he might only

have to serve three years, defendant claimed he decided to plead

guilty. Defendant argues his claim should be advanced to the

third stage to present evidence that he only pleaded guilty

because of his attorney's explicit wrong advice and he would not

have pleaded guilty had it not been for this bad information.

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 The Illinois Supreme Court, in People v. Correa, 108

Ill. 2d 541, 485 N.E.2d 307 (1985), held that defense counsel's

incorrect advice on a collateral consequence of defendant's plea

fell below the constitutionally required range of competence and

rendered defendant's guilty plea involuntary. Six years later

the Illinois Supreme Court in People v. Huante, 143 Ill. 2d 61,

571 N.E.2d 736 (1991), held that counsel's failure to advise

defendant of a collateral consequence of defendant's guilty plea

did not fall below the constitutionally required range of

competence and did not render defendant's guilty plea

involuntary. In Huante, the court acknowledged Correa and

acknowledged that Huante raised a different question, "whether

'the passive conduct of counsel in failing to discuss with a

defendant the collateral consequences of a guilty plea'

constituted ineffective assistance of counsel." Huante, 143 Ill.

2d at 68, 571 N.E.2d at 739-40, quoting Correa, 108 Ill. 2d at

551, 485 N.E.2d at 311. The court in Huante explicitly overruled

some appellate court decisions that held defense counsel's

failure to advise the defendant regarding collateral consequences

amounted to ineffective assistance of counsel and rendered the

guilty plea involuntary. Huante, 143 Ill. 2d at 74, 571 N.E.2d

at 742. The court did not, however, state that it overruled

Correa or any other case wherein defense counsel actively

misinformed the defendant.

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 In 1997, the Illinois First District Appellate Court

held in People v. Maury, 287 Ill. App. 3d 77, 678 N.E.2d 30

(1997), that defense counsel was not ineffective for allegedly

giving defendant erroneous advice regarding early release. The

Maury court cited Huante when it determined that the defense

counsel's advice concerned a collateral consequence of the

defendant's guilty plea. Maury, 287 Ill. App. 3d at 82, 678

N.E.2d at 33. The court also noted that unlike the defense

counsel in Huante, who failed to advise an accused of a

collateral consequence, the defense counsel in its case gave the

accused erroneous advice. Maury, 287 Ill. App. 3d at 83, 678

N.E.2d at 34. The court determined that the distinction between

failing to advise and actively giving wrong advice was irrelevant

because either way the advice concerned a collateral consequence

of the plea. Maury, 287 Ill. App. 3d at 83, 678 N.E.2d at 34.

The court did not discuss Correa.

In 2005, the Second District of the Illinois Appellate

Court in People v. Young, 355 Ill. App. 3d 317, 822 N.E.2d 920

(2005), pointed out the Maury court's failure to consider Correa,

"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 'unequivocal, erroneous,

misleading representations' that counsel makes in response to a

defendant's specific inquiries." Young, 355 Ill. App. 3d at 323,

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822 N.E.2d at 925, quoting Correa, 108 Ill. 2d at 551-52, 485

N.E.2d at 311. Because of its failure to address Correa, the

Young court declined to follow Maury as it was "simply mistaken

in holding that there is no legally meaningful distinction

between counsel's passive failure to inform a defendant of the

collateral consequences of a guilty plea and counsel's

affirmative misrepresentation of those consequences." Young, 355

Ill. App. 3d at 323, 822 N.E.2d at 926. The Young court held

that defendant's allegation that he pleaded guilty based on his

guilty-plea counsel's erroneous advice was legally sufficient

under the Act to entitle the defendant to an evidentiary hearing

to determine whether the defendant could prove his contention

that his counsel was ineffective and his plea was involuntary.

Young, 355 Ill. App. 3d at 323-24, 822 N.E.2d at 926.

We agree with Young that the Illinois Supreme Court

drew a distinction in Correa and Huante between failure to give

advice and actively giving wrong advice regarding collateral

consequences of a plea. In this case, defendant's pro se

petition, the attached letter from guilty-plea counsel, the

amended petition, and the arguments during the postconviction

proceedings demonstrate that defendant alleges that (1) guilty-

plea counsel gave him erroneous advice, (2) based on that

erroneous advice he decided to plead guilty, and (3) he would not

have pleaded guilty had it not been for the misinformation.

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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--even though the advice involved a

collateral consequence of his guilty plea. Whether defendant can

ultimately prove his contention will be resolved at the

evidentiary hearing. As we are remanding this case for an

evidentiary hearing, we need not address defendant's claim of

ineffective assistance of postconviction counsel.

III. CONCLUSION

For the reasons stated, we reverse the trial court's

judgment and remand for an evidentiary hearing.

Reversed and remanded.

McCULLOUGH and MYERSCOUGH, JJ., concur.

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