People v. Barkes

No. 2-08-0266 Filed: 4-5-10
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellee, )
)
v. ) No. 04--CF--212
)
EDWARD J. BARKES, JR., ) Honorable
) Thomas E. Mueller,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Edward J. Barkes, Jr., appeals from an order of the circuit court of Kendall

County granting the State's motion to dismiss his petition under the Post-Conviction Hearing Act

(Act) (725 ILCS 5/122--1 et seq. (West 2008)), which sought relief from his conviction of seven

counts of criminal sexual assault (720 ILCS 5/12--13(a)(4) (West 2004)) and seven counts of

aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 2004)). For the reasons that follow,

we affirm in part, reverse in part, and remand.

I. BACKGROUND

On November 16, 2004, following a jury trial, defendant was convicted of seven counts of

criminal sexual assault and seven counts of aggravated criminal sexual abuse. At trial, A.H., the 13-

year-old victim, testified that, from February 5 through May 18, 2004, she had sexual intercourse

with defendant (who was born on March 15, 1965) approximately two to three times per week.
No. 2--08--0266

Other testimony established that during much of that time, A.H. lived with defendant and defendant

was in a position of trust, authority, or supervision in relation to A.H. The evidence also included

multiple letters written by defendant to A.H., affirmatively stating that he had had a sexual

relationship with A.H. On February 4, 2005, the court merged the abuse charges into the assault

charges and sentenced defendant to seven consecutive eight-year terms of incarceration. Defendant

moved for reconsideration of his sentence, arguing that it was excessive. The trial court denied the

motion, and defendant timely appealed.

On appeal, defendant argued the following: (1) there was insufficient evidence that he was

in a position of trust, authority, or supervision over the victim; (2) there was insufficient evidence

to convict him of multiple sex offenses; and (3) his sentence was disproportionate to the nature of

the offenses. We rejected each argument and affirmed. See People v. Barkes, No. 2--05--0248

(2006) (unpublished order under Supreme Court Rule 23).

On July 18, 2007, defendant filed by mail a pro se postconviction petition alleging 15

instances of violations of his constitutional rights. Among those allegations, defendant alleged that

trial counsel was ineffective for refusing to allow him to waive a jury trial and refusing to allow him

to testify. He stated that he "desired to testify in this matter to refute allegations made by [A.H.] ***

[and] dispell [sic] the illusion that [A.H.] had no motive to testify." In addition, defendant alleged

that trial counsel was ineffective for failing to advise him that the sentences for criminal sexual

assault were statutorily mandated to be served consecutively. He further stated that the trial judge

failed to inform him that if he were convicted the sentences would have to be served consecutively

and incorrectly informed him that the maximum extended sentence for criminal sexual assault was

20 years, rather than 30 years. He maintained that, because he did not have accurate information

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about the possible penalties, he was unable to knowingly and intelligently weigh the State's plea

offers, which included an initial offer of 35 years and a subsequent offer of 25 years. Defendant

maintained that had he been properly advised, he "likely would have accepted" the State's second

offer and pleaded guilty.

Defendant attached to his pro se postconviction petition his affidavit, wherein he averred that

he told counsel that he wanted a bench trial but counsel refused, telling defendant that counsel "was

running the show and [defendant] was getting a jury trial." Defendant also stated that "counsel

refused to allow [him] to testify in [his] own defense at [his] jury trial, despite [his] request to do so."

Defendant stated that "[he] made no in-court fuss or motion concerning [his] trial counsel refusing

to permit [his] requests for bench trial and to testify in [his] own defense because [he] thought they

were [trial counsel's] calls to make." Defendant also averred that he was never told that consecutive

sentences were mandatory. In addition to his affidavit, defendant attached the State's written offer

to negotiate, dated July 20, 2004. Under the offer, in exchange for a guilty plea, defendant would

serve consecutive terms of 15, 10, and 10 years, and a concurrent 3-year term, for a total of 35 years.

On July 26, 2007, the trial court ruled that the petition could not be dismissed as frivolous

or patently without merit and appointed counsel to represent defendant.

On September 5, 2007, postconviction counsel filed an amended postconviction petition,

which incorporated the issues set forth in the pro se petition, added three claims, and attached

additional documentation. Claim 18 alleged that "[t]rial counsel told [defendant] that he could not

fire [trial counsel] as counsel. [Defendant] tried to hire private counsel, Fred Morelli, but decided

not to pursue retaining Mr. Morelli when appointed counsel erroneously informed [defendant] that

[defendant] could not get rid of appointed counsel." Defendant attached to his amended

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postconviction petition letters from Morelli to defendant dated June 24, 2004, and October 27, 2004.

The June 24, 2004, letter advised defendant that Morelli was unable to give defendant any advice

on his case unless defendant retained Morelli. The letter concluded: "If you wish to retain me, please

send someone in to hire me." The October 27, 2004, letter advised defendant that Morelli could not

take defendant's case pro bono.

On September 18, 2007, postconviction counsel filed a second amended postconviction

petition, which was identical to the amended petition, except that it provided additional supporting

documentation.

On October 23, 2007, postconviction counsel filed a third amended postconviction petition.

The third amended petition incorporated the second amended petition; however, it withdrew

allegations related to charges filed against defendant in a separate case.

On November 19, 2007, the State moved to dismiss defendant's second amended

postconviction petition.1 In its motion, the State argued that the petition should be dismissed because

(1) all claims could have been, but were not, raised on direct appeal or were raised on direct appeal

and were denied; (2) defendant failed to attach sufficient affidavits, records, or other evidence

supporting the petition's allegations or state why they were not attached; (3) the allegations were

conclusory; and (4) as to defendant's claims of ineffective assistance of counsel, defendant had not

1
Although the State indicated in its motion that it was moving to dismiss defendant's second
amended petition, the State noted at the hearing on the motion that defendant had filed a third

amended petition and that the State's arguments would address "any and all post-conviction petitions

filed, whether they be second or third amended."

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met the standard set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.

2052 (1984).

On December 10, 2007, defendant responded to the State's motion. Defendant argued that

the issues raised in the petition could not have been raised on appeal because they were based on

facts that were off the record or, if the issues could have been raised but were not, any forfeiture was

due to ineffective appellate counsel. Defendant further argued that the allegations were supported

by the affidavit and other documents.

On December 17, 2007, the trial court granted the State's motion and dismissed defendant's

postconviction petition. The court agreed that defendant's claims had been forfeited. Further, citing

People v. Yates, 223 Ill. App. 3d 110, 116 (1991), the court stated that for defendant to avoid

forfeiture of his claims he must show "cognizable cause for his failure to raise the error and actual

prejudice flowing from the error." The court stated:

"For this court to deny the People's motion and find that the second amended petition

for post-conviction relief should stand on its own and therefore go to hearing is to completely

obliterate the need for affidavits and for supporting documentation to bolster the claims and

show actual prejudice and cognizable cause. All we have in this case is [defendant's] bald

accusations that all these things occurred without, as [the State] points out, any supporting

affidavits, whether they would come from actual trial counsel or appellate counsel or from

other counsel who reviewed the record is neither here nor there. It's the fact that they're

absent, and I don't think it's the intention of our Appellate Court or the Legislature in setting

forth the grounds available or the relief available in a post-conviction petition to allow a

disgruntled litigant who has otherwise exhausted their appeal methods to simply allege

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ineffectiveness of counsel without more and bootstrap themselves into a full evidentiary

hearing back at the trial court which I think is what is being attempted here.

So, for those reasons, the court will grant the People's motion to dismiss the second

amended petition for post-conviction relief."

On December 19, 2007, defendant moved for reconsideration. Defendant argued that the

court erred in finding that the issues were forfeited and unsupported, because forfeiture does not

apply when there is an allegation of ineffective assistance of appellate counsel. Further, defendant

argued that the petition was supported by defendant's own affidavit and other supporting documents

and that case law did not require a defendant to obtain an affidavit from the very counsel alleged to

be ineffective. Finally, defendant argued that many of the claims in the petition were based upon

matters outside the record and must be taken as true at the second stage of the postconviction

proceedings.

Following argument, the trial court denied defendant's motion, stating:

"It again comes back to the court's concern with the bald assertion as the State has just

pointed out, that there is no affidavit submitted by either counsel and just a suggestion that

it would be hard to get one with no proof thereof, and what we're talking about here is an

allegation of ineffectiveness of counsel--ineffective assistance of counsel and under

Strickland it's very clear that the effectiveness--that what is required is prove that counsel's

performance was so deficient that the trial lost its character as a confrontation between

adversaries thus resulting in actual breakdown of the adversary process. And what we have

here is affidavits from lay people that would suggest strategy issues as opposed to going to

the heart of the test under Strickland, and I don't think that just throwing those out to the

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court buys an evidentiary hearing, and so I would deny the motion to reconsider and the

court's prior ruling will stand and obviously it can go from there."

Defendant timely appealed. Defendant argues that the trial court erred in granting the State's

motion to dismiss his claims that he was denied his constitutional right to effective assistance of trial

counsel as a result of (1) counsel's refusal to allow defendant to waive a jury and proceed to a bench

trial; (2) counsel's refusal to allow defendant to testify in his defense; (3) counsel's statement to

defendant that defendant could not hire counsel of his choice; and (4) counsel's failure to advise him

that the sentences for criminal sexual assault were statutorily mandated to be served consecutively.

Although defendant raised other claims in his postconviction petition, he does not challenge the

dismissal of those claims.

II. ANALYSIS

A. Post-Conviction Hearing Act

The Act provides a means by which a defendant may challenge his conviction for "substantial

deprivation of federal or state constitutional rights." People v. Tenner, 175 Ill. 2d 372, 378 (1997).

A postconviction action is a collateral attack on a prior conviction and sentence and "is not a

substitute for, or an addendum to, direct appeal." People v. Kokoraleis, 159 Ill. 2d 325, 328 (1994).

Except in cases where the death penalty has been imposed, proceedings under the Act are divided

into three distinct stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At the first stage, the trial

court has 90 days to examine the petition independently and summarily dismiss it if it is frivolous

or patently without merit. 725 ILCS 5/122--2.1(a)(2) (West 2008); Gaultney, 174 Ill. 2d at 418. The

petition need present only the gist of a constitutional claim; if it does, summary dismissal is

improper. Gaultney, 174 Ill. 2d at 418. If not summarily dismissed, the petition proceeds to the

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second stage, at which an indigent defendant is entitled to appointed counsel, the petition may be

amended, and the State may answer or move to dismiss the petition. Gaultney, 174 Ill. 2d at 418.

At the second stage, the petition may be dismissed "when the allegations in the petition, liberally

construed in light of the trial record, fail to make a substantial showing of a constitutional violation."

People v. Hall, 217 Ill. 2d 324, 334 (2005). A postconviction petitioner is not entitled to an

evidentiary hearing as a matter of right; rather, to require an evidentiary hearing, the allegations in

the petition must be supported by the record or by accompanying affidavits. People v. Coleman, 183

Ill. 2d 366, 381 (1998). Nonspecific and nonfactual assertions that merely amount to conclusions

are not sufficient to require a hearing under the Act. Coleman, 183 Ill. 2d at 381. "In determining

whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any

accompanying affidavits are taken as true." People v. Towns, 182 Ill. 2d 491, 503 (1998). A petition

that is not dismissed at the first or second stage advances to the third stage, at which an evidentiary

hearing is held. Gaultney, 174 Ill. 2d at 418. Dismissal of a petition at the second stage, as occurred

here, is reviewed de novo. People v. Whitfield, 217 Ill. 2d 177, 182 (2005).

B. Propriety of Dismissal Based on Forfeiture

We first consider the State's argument that defendant's postconviction claims of ineffective

assistance of counsel have been forfeited. "In an initial postconviction proceeding, the common law

doctrines of res judicata and waiver operate to bar the raising of claims that were or could have been

adjudicated on direct appeal." People v. Blair, 215 Ill. 2d 427, 443 (2005). The State maintains that,

because defendant could have advanced his arguments on direct appeal but failed to do so,

defendant's claims are forfeited. We disagree. Although issues a defendant could have raised on

direct appeal but did not are considered waived or, as more recently described, forfeited (Blair, 215

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Ill. 2d at 443-44), where a defendant relies on matters outside the record, forfeiture does not apply.

People v. Munson, 206 Ill. 2d 104, 118 (2002). Here, defendant's postconviction allegations of

ineffectiveness of counsel are based on information outside the record, specifically things his counsel

told him or failed to tell him. Therefore, defendant could not have raised these allegations on direct

appeal, and thus he has not forfeited them.

C. Propriety of Dismissal Based on Absence of Affidavits

Defendant argues that the court erred in dismissing his allegations of ineffective assistance

of counsel for defendant's failure to support these allegations with an affidavit from counsel.

According to defendant, "reviewing courts do not place upon defendants the burden of producing

an affidavit from the very counsel whom they are alleging was ineffective."

A postconviction petition must be verified by affidavit. 725 ILCS 5/122--1(b) (West 2008).

The allegations in the petition must also be supported by affidavits, records, or other evidence. 725

ILCS 5/122--2 (West 2008). If this documentation is not attached, the petition must explain why it

is unavailable. 725 ILCS 5/122--2 (West 2008). As this court has observed, "[a] postconviction

petition that is not supported by affidavits or other supporting documents is generally dismissed

without an evidentiary hearing unless the petitioner's allegations stand uncontradicted and are clearly

supported by the record." People v. Waldrop, 353 Ill. App. 3d 244, 249 (2004).

The State argues that the court properly dismissed the petition for failure to attach sufficient

affidavits and relies principally on People v. Collins, 202 Ill. 2d 59 (2002). In Collins, the defendant

filed a pro se postconviction petition, challenging his conviction of possession of a controlled

substance with intent to deliver. He alleged in his petition that his trial counsel failed to help him

file an appeal and seek reduction of his sentence. The defendant attached to his petition a sworn

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verification, but he did not attach any other supporting documentation. The trial court dismissed the

petition as frivolous and patently without merit, and the defendant appealed. On appeal, the supreme

court affirmed, finding that the defendant's sworn verification stating that his petition was true and

correct to the best of his recollection did not satisfy the requirement of section 122--2 of the Act.

The supreme court held that the defendant's failure to comply with section 122--2 justified the

summary dismissal of the defendant's petition. Collins, 202 Ill. 2d at 66.

However, under People v. Hall, 217 Ill. 2d 324 (2005), defendant's petition was not subject

to dismissal pursuant to Collins. In Hall, the defendant filed a postconviction petition alleging that

his trial counsel was ineffective for telling him that he did not have a valid defense to the charge of

aggravated kidnaping. Hall, 217 Ill. 2d at 334. The defendant attached to his petition his affidavit,

wherein he described two conversations that he had had with his trial counsel concerning his lack

of a valid defense. Although the trial court docketed the petition for further consideration, it

subsequently granted the State's motion to dismiss under Collins. On appeal, the supreme court held

that the defendant's petition was not subject to dismissal pursuant to Collins. The court noted that

Collins involved a first-stage dismissal whereas the present case had advanced to the second stage.

The court stated that Collins does not apply "beyond the first stage of the proceedings." Hall, 217

Ill. 2d at 332. Thus, we hold that the trial court improperly dismissed on this basis defendant's

allegations of ineffective assistance of counsel.

D. Substantive Merits

Having determined that defendant's postconviction allegations of ineffective assistance of

counsel have not been forfeited and were sufficiently supported, we now determine whether these

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allegations, taken as true and liberally construed, make a substantial showing of a constitutional

violation entitling defendant to an evidentiary hearing.

Under the two-prong test set forth in Strickland, a defendant claiming ineffective assistance

of counsel must show that his counsel's performance "fell below an objective standard of

reasonableness" and that the deficient performance was prejudicial in that "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 688, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068.

1. Alleged Ineffectiveness of Counsel for Refusing to Allow Defendant to Waive a Jury Trial

We first address defendant's allegation that his trial counsel was ineffective for refusing to

allow defendant to waive a jury trial.

"Under the Illinois constitution, an accused has the right to waive trial by jury. [Citation.]

It is the defendant's prerogative to decide whether or not to exercise this right of waiver

[citation], and failure to accept defendant's waiver of a jury trial is generally considered

reversible error. [Citation.] Therefore, the prerogative to choose a bench trial over a jury

trial belongs to the defendant and not to his counsel." People v. McCarter, 385 Ill. App. 3d

919, 942-43 (2008).

Where the defendant's ineffectiveness claim is based on counsel's refusal to allow the defendant to

waive a jury trial, prejudice under Strickland "is presumed if there is a reasonable probability that

the defendant would have waived a jury trial in the absence of the alleged error." McCarter, 385 Ill.

App. 3d at 943. "[T]he fact that the outcome of the case might have been the same if defendant had

received a bench trial is not relevant to the question of prejudice under Strickland." McCarter, 385

Ill. App. 3d at 944. Here, defendant alleged that he told counsel that he wanted a bench trial but

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counsel refused, telling defendant that counsel "was running the show and [defendant] was getting

a jury trial." Accordingly, taking the allegations in defendant's postconviction petition and his

supporting affidavit as true, we find that defendant is entitled to an evidentiary hearing on this issue.

2. Alleged Ineffectiveness of Counsel for Refusing to Allow Defendant to Testify

We next address defendant's allegation that counsel was ineffective for refusing to allow

defendant to testify in his defense when he specifically asked during trial to testify.

"The decision whether to testify on one's own behalf belongs to the defendant [citation],

although this decision should be made with the advice of counsel [citation]. Advice not to

testify is a matter of trial strategy and does not constitute ineffective assistance of counsel

unless evidence suggests that counsel refused to allow the defendant to testify." People v.

Youngblood, 389 Ill. App. 3d 209, 217 (2009).

A defendant making a postconviction claim that trial counsel was ineffective for refusing to allow

the defendant to testify must allege that he "made a 'contemporaneous assertion *** of his right to

testify.' " Youngblood, 389 Ill. App. 3d at 217, quoting People v. Brown, 54 Ill. 2d 21, 24 (1973).

Further, a defendant must "show prejudice from the denial of his right to testify in order to make out

a claim of ineffective assistance of counsel." Youngblood, 389 Ill. App. 3d at 218.

In Youngblood, the defendant petitioned for postconviction relief from his conviction of

aggravated battery and mob action. Evidence at trial established, among other things, that the

defendant bit a police officer while being arrested. In his postconviction petition, the defendant

alleged that his counsel was ineffective for refusing to allow him to testify at trial. The trial court

summarily dismissed his petition. This court affirmed. First, we found that because the defendant's

petition contained no allegation that he made a contemporaneous assertion of his right to testify, his

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petition did not state the gist of a claim that his right to testify was violated by counsel. We further

found that the defendant failed to satisfy the prejudice prong of Strickland. Specifically, we found:

"Defendant did not indicate that, if he had been called to testify, he would have stated that

he had no altercation with the officer, that the officer's finger was injured before the

altercation began, or that he did not bite the officer. Rather, defendant, who, as we noted on

direct appeal, admitted that he resisted the arrest, pleaded only that he would have testified

about where his altercation with the officer took place. Specifically, defendant indicated that

'he would have testified to the whereabouts surrounding his arrest.' The location of the arrest

has no bearing on whether defendant injured the officer or not, which, in contrast to the

location of the arrest, was a fact at issue in defendant's trial." Youngblood, 389 Ill. App. 3d

at 218-19.

Thus, we held that because the defendant failed to assert his right to testify and did not allege

prejudice, the petition was properly dismissed. Youngblood, 389 Ill. App. 3d at 219.

Here, defendant did allege that he told counsel that he wanted to testify. However, defendant

failed to satisfy the prejudice prong of Strickland. Defendant alleged that he "desired to testify in

this matter to refute allegations made by [A.H.] *** [and] dispell [sic] the illusion that [A.H.] had

no motive to testify." Without specifying which allegations he would have refuted, this assertion is

conclusory and may be disregarded. Coleman, 183 Ill. 2d at 381. Indeed, defendant did not indicate

that had he been called to testify he would have stated that he did not have sexual intercourse with

A.H. or that he was not in a position of trust, authority, or supervision over her, the central issues in

the case. Accordingly, because defendant did not establish prejudice, we find that the trial court

properly dismissed this allegation.

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3. Alleged Ineffectiveness of Counsel for Denying Defendant Counsel of Choice

We next address defendant's allegation that counsel was ineffective for denying him his right

to counsel of choice. The sixth amendment to the United States Constitution provides: "In all

criminal prosecutions, the accused shall enjoy the right *** to have the Assistance of Counsel for

his defence." U.S. Const., amend. VI. The right to retained counsel of one's choice "has been

regarded as the root meaning of the constitutional guarantee" in the sixth amendment. United States

v. Gonzalez-Lopez, 548 U.S. 140, 147-48, 165 L. Ed. 2d 409, 419, 126 S. Ct. 2557, 2563 (2006),

citing Wheat v. United States, 486 U.S. 153, 159, 100 L. Ed. 2d 140, 148-49, 108 S. Ct. 1692, 1697

(1988). Nevertheless, there are some limitations on the right to counsel of choice. A criminal

defendant has no right to select an attorney he cannot afford or one who is not a member of the bar,

has a conflict of interest, or declines to represent him. People v. Howard, 376 Ill. App. 3d 322, 335

(2007), citing Wheat, 486 U.S. at 159, 100 L. Ed. 2d at 149, 108 S. Ct. at 1697. The court does not

abuse its discretion in denying a defendant's motion for new counsel if the motion does not "contain

a representation that substitute counsel had been secured, much less an averment that such substitute

counsel was ready and willing to enter an appearance in the case." People v. Segoviano, 189 Ill. 2d

228, 245 (2000). Consideration of a defendant's lack of resources is proper "because his ability to

hire private counsel would be essential in order for him to change counsel." People v. Montgomery,

373 Ill. App. 3d 1104, 1112 (2007).

We find that defendant's allegations, taken as true, do not establish any prejudice as a result

of counsel's alleged statement concerning private counsel. Defendant alleged that as a result of

counsel's alleged statement, defendant decided "not to pursue retaining Morelli." Defendant did not

allege that he had retained Morelli or that he had the funds to retain Morelli. In fact, the letters from

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Morelli establish the contrary. In Morelli's October 27, 2004, letter, he advised defendant that

Morelli could not take defendant's case pro bono. Absent an allegation that Morelli was ready and

willing to enter an appearance in defendant's case or at least that defendant had the funds to hire

private counsel, defendant failed to establish that he was prejudiced as a result of counsel's alleged

statement. Accordingly, we find that the trial court properly dismissed this allegation.

4. Alleged Ineffectiveness of Counsel for Failing to Advise Defendant Concerning Mandatory

Consecutive Sentences

Last, defendant argues that he is entitled to an evidentiary hearing on his claim that trial

counsel was ineffective for failing to advise him that the sentences for criminal sexual assault were

statutorily mandated to be served consecutively. He argues that, because he did not have accurate

information about the potential penalties upon conviction, he was unable to knowingly and

intelligently weigh the State's plea offers.

Although a defendant has no constitutional right to plea bargain, if the State chooses to

bargain, the defendant has the right to the effective assistance of counsel in negotiations with the

State. People v. Curry, 178 Ill. 2d 509, 517 (1997). Moreover, the right to the effective assistance

of counsel extends to the defendant's decision to reject a plea offer, even if the defendant

subsequently receives a fair trial. Curry, 178 Ill. 2d at 517. Whether to accept or reject a plea offer

is a decision only the defendant can make. People v. Blommaert, 237 Ill. App. 3d 811, 816 (1992).

In order for this decision to be knowing and voluntary, defense counsel must fully inform himself

of the facts and the law relevant to the State's offer and candidly advise his client as to the direct

consequences of accepting or rejecting the offer. Blommaert, 237 Ill. App. 3d at 817. Part of this

obligation is satisfied when defense counsel accurately informs his client of the maximum and

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minimum sentences that can be imposed for the offenses charged by the State. Blommaert, 237 Ill.

App. 3d at 817.

"A criminal defendant has the constitutional right to be reasonably informed with respect to

the direct consequences of accepting or rejecting a plea offer." (Emphasis omitted.) Curry, 178 Ill.

2d at 528. In Curry, counsel advised the defendant of the State's plea offer but failed to inform the

defendant that he would be subject to mandatory consecutive sentences if convicted of more than

one of the charges he faced. This failure was based on counsel's admitted "erroneous" understanding

of sentencing law at the time of the plea hearing. Our supreme court ruled that, in advising a

defendant of the State's plea offer, "a criminal defense attorney has the obligation to inform his or

her client about the maximum and minimum sentences that can be imposed for the offenses with

which the defendant is charged." Curry, 178 Ill. 2d at 528. The court found that counsel did not

fulfill that obligation and that his performance was deficient under Strickland. Curry, 178 Ill. 2d at

529. The court further found that in order to demonstrate prejudice under Strickland, the "defendant

must demonstrate that there is a reasonable probability that, absent his attorney's deficient advice,

he would have accepted the plea offer." Curry, 178 Ill. 2d at 531. The court found that the defendant

met that standard, noting that the defendant did not have a strong case, the disparity between the 12-

year mandatory minimum sentence that the defendant faced and the 4½-year plea offer, and defense

counsel's affidavit stating that the defendant rejected the plea offer because of counsel's erroneous

advice. Curry, 178 Ill. 2d at 533.

We note that Curry was before the court on direct appeal, after a hearing in the trial court.

Here, under the Act, "all well-pleaded facts in the petition and in any accompanying affidavits are

taken as true." People v. Towns, 182 Ill. 2d 491, 503 (1998). Defendant stated in his petition that

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counsel failed to inform him that he faced mandatory consecutive sentences if convicted, and he also

filed an affidavit stating that he was never told that consecutive sentences were mandatory. He also

maintained that, had he been so informed, he likely would have accepted the State's offer of 25 years.

We find that the allegations in the petition, supported by defendant's affidavit, are sufficient to

warrant an evidentiary hearing on this issue.

III. CONCLUSION

Based on the foregoing, we affirm the dismissal of (1) defendant's allegation that his trial

counsel was ineffective for telling him that he could not hire counsel of his choice; and (2)

defendant's allegation that his trial counsel was ineffective for refusing to allow defendant to testify

at trial. We reverse the dismissal of (1) defendant's allegation that his trial counsel was ineffective

for refusing to allow defendant to waive a jury trial; and (2) defendant's allegation that his trial

counsel was ineffective for failing to advise defendant concerning mandatory consecutive sentences.

We remand for further proceedings.

Affirmed in part and reversed in part; cause remanded.

ZENOFF, P.J., and McLAREN, J., concur.

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