People v. Akins

FILED
2016 IL App (4th) 150539 September 22, 2016
Carla Bender
th
NO. 4-15-0539 4 District Appellate
Court, IL
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
KEVIN I. AKINS, ) No. 13CF1818
Defendant-Appellant. )
) Honorable
) Harry E. Clem,
) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Harris and Appleton concurred in the judgment and opinion.

OPINION

¶1 This appeal arises from the trial court’s June 2015 denial of a supplemental mo-

tion to withdraw a guilty plea and vacate the court’s judgment filed by defendant, Kevin I.

Akins. Defendant urges this court to vacate his conviction for delivery of a controlled substance

(less than one gram of a substance containing cocaine) (720 ILCS 570/401(d) (West 2012)) and

remand for further proceedings because of the alleged ineffectiveness of his guilty-plea counsel.

Defendant bases his claim on counsel’s purported failure to disclose and discuss with him all the

evidence upon which counsel based her recommendation that he enter a guilty plea. We affirm.

¶2 I. BACKGROUND

¶3 A. The State’s Charges

¶4 In November 2013, the State charged defendant with (1) two counts of possession

with intent to deliver a controlled substance (less than one gram of a substance containing co-
caine) (720 ILCS 570/407(b)(2) (West 2012)) (counts I and IV) and (2) two counts of delivery of

a controlled substance (less than one gram of a substance containing cocaine) (720 ILCS

570/401(d) (West 2012)) (counts II and III).

¶5 B. Defendant’s Guilty Plea

¶6 At an April 2014 pretrial hearing, defendant’s guilty-plea counsel, Assistant Pub-

lic Defender Stephanie Corum, informed the trial court that defendant intended to enter a guilty

plea to count III, which defendant confirmed to the court. In exchange for defendant’s guilty

plea, the State agreed to (1) dismiss the remaining counts and (2) recommend that the court im-

pose an eight-year extended-term sentence. The court then admonished defendant in compliance

with Illinois Supreme Court Rule 402(a) (eff. July 1, 2012). During the court’s admonishments,

the State provided the following factual basis:

“[T]he evidence would show that on October 28, 2013, the Cham-

paign police department conducted a controlled buy using a confi-

dential source who purchased $40.00 worth of cocaine, weighing

.5 grams from *** defendant ***, and at that time [defendant] was

out on bond in [Champaign County case No.] 12-CF-1927.”

¶7 After finding that defendant’s guilty plea was knowing and voluntary, the trial

court accepted the State’s sentencing recommendation and imposed an extended term of eight

years in prison, to be served consecutively to an eight-year prison sentence imposed in case No.

12-CF-1927.

¶8 C. Defendant’s Supplemental Motion To Withdraw His Guilty Plea
and Vacate the Trial Court’s Judgment

¶9 In May 2014, defendant—through Corum—filed a motion to withdraw his guilty

plea and vacate the trial court’s judgment, which was based on allegations of Corum’s ineffec-

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tiveness as guilty-plea counsel. Specifically, defendant asserted that (1) despite his innocence, he

pleaded guilty to count III because he was concerned about the possible sentencing ranges in the

three remaining counts; (2) Corum failed to file a motion requesting the identity of the confiden-

tial source; and (3) defendant did not have sufficient time to review the State’s offer or make ad-

ditional counteroffers to “secure the term of sentence that he wanted.”

¶ 10 In September 2014, defendant—through different counsel—filed a supplemental

motion to withdraw his guilty plea and vacate the trial court’s judgment, which added the follow-

ing claims: (1) Corum told him that “he had to accept the State’s [guilty-plea offer] immediately

or lose all counts against him at trial”; (2) he did not have sufficient time to “discuss the plea”

and was “intimidated [by Corum’s] statements about how much more prison time he would re-

ceive if he did not accept the [State’s guilty-plea] offer”; (3) after the court imposed his eight-

year prison sentence, Corum sent him photographs from a police surveillance recording; and (4)

he is not depicted in any of the photographs at issue.

¶ 11 D. The Hearing on Defendant’s Supplemental Motion To Withdraw
His Guilty Plea and Vacate the Trial Court’s Judgment

¶ 12 1. Defendant’s Evidence

¶ 13 At a hearing held later in September 2014, defendant testified that at the time he

pleaded guilty in the instant case, he was serving an eight-year prison sentence. During the April

2014 guilty-plea hearing, defendant felt “rushed” and did not have enough time to consider the

State’s guilty-plea offer because he surmised, “[e]ither I take the time, or I go to trial.” Defend-

ant added that (1) he “never [saw] what was going on in my case” and (2) Corum told him that

he had a “possible chance of losing,” which made defendant feel like it was a take-it-or-leave-it

proposition. As a result, defendant felt that he “had to take” the State’s eight-year offer. Defend-

ant wanted additional time to make counteroffers to possibly negotiate a lower sentence, adding

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that he “mentioned seven years, six years[,] *** four years” to Corum.

¶ 14 Defendant acknowledged that Corum informed him of the eight-year offer while

he was in prison. At the April 2014 hearing, defendant spoke to Corum “for two or three se-

conds” before telling her that he would accept the State’s guilty-plea offer. Defendant noted that

the short time he had to discuss the State’s offer with Corum affected his decision. Defendant

was also concerned that he would be found guilty on the State’s remaining three counts. Defend-

ant acknowledged that during the April 2014 guilty-plea hearing, he told the trial court that he

had not been threatened, intimidated, or forced to plead guilty, but, in retrospect, he felt rushed,

despite his admissions to the court.

¶ 15 Defendant asserted his innocence and that he did not want to plead guilty but reit-

erated that he felt rushed to do so. After entering his guilty plea, defendant received police sur-

veillance pictures from Corum. Defendant acknowledged that he had previously seen some pic-

tures, but “I did not see all of them.” Defendant stated that he was not depicted in any of the pic-

tures that Corum sent. Defendant added that he asked Corum on several occasions to file a mo-

tion to disclose the confidential source but she failed to do so.

¶ 16 Defendant acknowledged that in December 2013, Corum explained (1) the sen-

tencing ranges on each of the State’s four charges; (2) that probation was not an option; (3)

“what would happen” if he opted to go to trial; (4) the State’s evidence on each count charged;

(5) that defendant could be found not guilty on some of the State’s charges; (6) the strong possi-

bility that defendant could be found guilty; (7) the strengths and weaknesses of the State’s case;

(8) that if he opted to go to trial, the State would reveal the identity of the confidential source just

prior to trial; (9) in her opinion, the State tendered a fair guilty-plea offer; (10) that it was de-

fendant’s choice whether to accept or reject the State’s guilty-plea offer; and (11) that if he opted

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to go to trial, Corum would defend him to the “fullest extent.” Defendant noted that he had—at

most—a week to consider the State’s eight-year guilty-plea offer.

¶ 17 2. The State’s Evidence

¶ 18 Corum testified that in November 2013—shortly after her assignment to defend-

ant’s case—she explained the sentencing ranges defendant was facing and conveyed the State’s

then 15-year guilty-plea offer. During his incarceration, Corum called defendant and, thereafter,

documented each call in a letter, which she sent to defendant. During those conversations,

Corum discussed the possibility of defendant pleading guilty or going to trial, which Corum told

defendant was entirely his choice. After reviewing the State’s evidence, Corum told defendant

that he had a chance of being found not guilty on two counts because of a lack of evidence.

Corum also told defendant that the State’s best evidence was on count III, which depicted him in

a surveillance recording. Corum also sent defendant photographs the State had disclosed.

¶ 19 Corum noted that defendant asked to see the surveillance recordings, but “because

he was in the Department of Corrections, that was a complicated process.” Instead, Corum sent

defendant a photograph she had taken from a paused portion of the surveillance recording, which

she believed “depicted [defendant] in the best fashion,” and an accompanying letter. Corum in-

formed defendant that once the State revealed the confidential source, any guilty-plea offers

made would be rescinded, and the State would proceed to trial. Thereafter, Corum testified to the

content of the following three letters she sent to defendant.

¶ 20 In December 2013, Corum sent defendant a three-page letter addressed to Big

Muddy Correctional Center, where defendant was incarcerated. In her letter, Corum (1) con-

firmed defendant’s next court date, (2) explained the State’s four charges and the associated sen-

tencing ranges, and (3) noted that any sentence imposed had to be served consecutively to the

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sentence defendant was serving in a different case. Corum provided defendant the following

three options: (1) proceed to trial, (2) accept the State’s then 15-year guilty-plea offer, or (3) en-

ter an open guilty plea. Corum then explained the procedures defendant would face under each

option.

¶ 21 Corum’s December 2013 letter also “outline[d] the evidence in [defendant’s]

case,” which included (1) when and where the transactions took place, (2) the telephone number

the confidential source used to initiate contact, and (3) the weight of the controlled substance and

the amount of cash that were exchanged during each transaction. Corum then provided extensive

details regarding the procedures police used to conduct three controlled buys on October 14, 23,

and 28, 2013, which included recording and photographing the October 23 and 28 transactions.

Based on the State’s discovery, Corum informed defendant that she expected the police officer

supervising the controlled buys would testify that defendant was the person who delivered the

controlled substances. Corum scheduled a January 2014 phone appointment, in which she stated

her intent to answer defendant’s questions.

¶ 22 On February 7, 2014, Corum sent a second letter, confirming a February 2014

hearing to “either enter into a negotiated plea or to prepare for trial the following week.” Corum

then reviewed defendant’s aforementioned options “one last time,” which included a summary of

the charges defendant was facing and the associated sentencing ranges. With regard to defend-

ant’s request to file a motion to disclose the confidential source, Corum explained, as follows:

“I don’t need to file a motion *** because the State will give us

that name the day before trial, and they do not have to give us that

name until the day before trial. The reason is that these confidential

sources are put under protection for their safety ***. The State on-

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 ly has to give me the name right before trial so I may look up crim-

inal history *** to try to attack their credibility. *** Based on the

evidence that I have reviewed, I believe that you could give me the

name of this person right now if you wanted to since the video

shows you having contact with this person.”

¶ 23 Corum confirmed that the State’s then current offer was eight years in exchange

for defendant pleading guilty to one count of delivery of a controlled substance and that the

State’s offer was valid until February 14, 2014, when defendant was scheduled to appear in

court. Corum opined that based on the evidence she reviewed, the State (1) “will prove you

guilty on at least [c]ount [III] and (2) “may have enough evidence to convict you of [c]ount [I] or

[c]ount [IV] ***.” In closing, Corum provided the following guidance:

“I am advising you to take this negotiated offer because I believe it

is a fair offer considering the evidence that the State has against

you ***. I want to remind you that this is your choice and *** I

will defend your case to the fullest extent of my abilities should

you decide to take your case to trial.”

¶ 24 During her direct testimony, Corum recounted that at the February 2014 hearing,

defendant intended to plead guilty but changed his mind. Corum explained, as follows:

“[Defendant] indicated *** that he needed more time. We re-

viewed the sentencing order, and he said that he wasn’t ready to

plead. So, I believe at that point, we set his case for *** the April

trial call and I asked the court to writ him back a week early so that

he and I could review the confidential source as well as [defend-

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 ant] could watch the video in full prior to trial.”

¶ 25 On March 17, 2014, Corum sent defendant a third letter, in which she explained,

in pertinent part, defendant’s options, as follows:

“I am going to explain to you how things have happened in your

case up to this point and how they will happen going forward. You

need to make your decision before court and be ready to go when

the court date happens. Your first offer was 15 years ***. I talked

to you on January 10, 2014, and you gave me permission to begin

negotiating *** for [six] years as a starting number. I negotiated

back and forth with the State between January 10, 2014, and Feb-

ruary 4, 2014. I started with 6 [years] and the [State] came back

with 10 [years]. *** I *** offered [eight] years which [the State]

accepted. When I talked with you on January 10, 2014, I told you

that I believed the best we could hope for was [eight] years be-

cause that is what you are already serving. I sent you a letter on

February 7, 2014, to tell you about your options and also to tell

you about the offer. I also talked with you by phone again on Feb-

ruary 7[, 2014,] to review your options and to tell you the offer. It

appeared to me at that time that you may not take the offer because

you requested that I get the name of the confidential source. ***

When you returned to court on February 14, [2014,], the

[State] revoked the offer *** and made you a new offer of 10 years

the following week. *** I have been negotiating with the [State].

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 On March 14, 2014, the [State] made the following offer. You

plead guilty to *** possession with intent to deliver for [eight]

years on [the] April 14[, 2014, hearing date]. If you do not plead

guilty on that day, the [State] will bring me discovery on the confi-

dential source and all offers will be revoked. We then go to trial

***. So you understand you have three options. Plead guilty [to] an

offer of [eight] years, take your case to trial, or make an open plea

of guilty ***.”

Corum noted that at the April 2014 hearing, she anticipated going to trial the following week.

Just prior to that hearing, defendant stated his intent to plead guilty in exchange for the State’s

eight-year guilty-plea offer.

¶ 26 On cross-examination, defendant’s counsel asked Corum about three specific pho-

tographs the State had disclosed. Corum confirmed that two of the photographs did not depict

defendant, but she opined that the third picture (defendant’s exhibit No. 3) was a picture of de-

fendant. Corum explained that she sent the first two pictures to defendant because defendant

wanted to know who would be testifying against him at trial. As to exhibit No. 3, Corum stated

that she sent defendant that picture “virtually every time I sent him a letter.”

¶ 27 3. The Trial Court’s Judgment

¶ 28 Following argument, the trial court denied defendant’s supplemental motion to

withdraw his guilty plea and vacate the court’s judgment, finding that defendant’s guilty plea

was knowing and voluntary.

¶ 29 E. Subsequent Proceedings

¶ 30 Defendant appealed, but this court summarily remanded that appeal for strict

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compliance with Illinois Supreme Court Rule 604(d) (eff. Dec. 11, 2014). People v. Akins, No. 4-

14-0851 (Feb. 23, 2015) (unpublished summary remand order).

¶ 31 In April 2015, defendant’s newly appointed counsel filed a certificate in compli-

ance with Rule 604(d). The following month, defendant’s counsel filed a motion in which coun-

sel informed the trial court that (1) a new postplea motion was not necessary and (2) counsel in-

tended to stand on defendant’s previously filed May 2014 motion to withdraw his guilty plea and

vacate the court’s judgment, which defendant supplemented in September 2014.

¶ 32 In June 2015, the trial court conducted a second hearing on defendant’s supple-

mental motion “to determine whether there was anything in addition to the evidence presented at

the hearing herein on September 26, 2014.” At that second hearing, defendant and Corum testi-

fied during defendant’s case in chief. The State did not present evidence. (We decline to present

a summary of the evidence presented at the June 2015 hearing because, in their respective briefs

to this court, the parties concede that the evidence defendant presented at the June 2015 hearing

was substantially similar to the evidence presented at the September 2014 hearing.) Following

argument, the court stated, in part, the following:

“[T]he evidence is that the [State’s] initial plea offer was 15 years.

*** [D]efendant rejected that offer. The [State] then offered 10

years. *** [D]efendant rejected that offer. In February of 2014,

*** defendant was brought to the court with the intent that he

would plead guilty to eight years but, on that particular occasion,

he indicated that he wasn’t ready for a plea and the matter was set

over until the April trial call of this court. So it isn’t the case that

*** defendant was rushed into a plea. He had more than two

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 months to consider the plea offer.”

In concluding, the court stated that “defendant’s contentions in his motion and supplemental mo-

tion are not supported by credible evidence and *** for that reason, the court has denied the re-

lief requested.”

¶ 33 This appeal followed.

¶ 34 II. ANALYSIS

¶ 35 A. The Standard of Review

¶ 36 A defendant has no absolute right to withdraw his guilty plea. People v. Hughes,

2012 IL 112817, ¶ 32, 983 N.E.2d 439. Instead, a defendant “must show a manifest injustice un-

der the facts involved.” Id. We will not reverse a trial court’s decision denying a defendant’s mo-

tion to withdraw his guilty plea unless the trial court abused its discretion. People v. Chavez,

2013 IL App (4th) 120259, ¶ 14, 998 N.E.2d 143. “ ‘An abuse of discretion occurs where the tri-

al court’s decision is arbitrary, fanciful, or unreasonable [citation] or where no reasonable person

would agree with the position adopted by the trial court [citations].’ ” People v. Shaw, 2016 IL

App (4th) 150444, ¶ 61, 52 N.E.3d 728 (quoting People v. Becker, 239 Ill. 2d 215, 234, 940

N.E.2d 1131, 1142 (2010)).

¶ 37 B. Ineffective Assistance of Counsel Claims

¶ 38 Claims of ineffective assistance of counsel are analyzed under the test set forth in

Strickland v. Washington, 466 U.S. 668 (1984), which requires a defendant to demonstrate both a

deficient performance by trial counsel and prejudice arising therefrom. People v. Guzman, 2014

IL App (3d) 090464, ¶ 32, 24 N.E.3d 831. “To show prejudice in the plea context, the defendant

must demonstrate that but for trial counsel’s error, there is a reasonable probability that he would

not have pled guilty and would have insisted on going to trial.” Id. ¶ 33. A defendant’s failure to

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satisfy either Strickland prong—that is, to show either deficient performance or actual preju-

dice—is fatal to an ineffective assistance of counsel claim. People v. Clendenin, 238 Ill. 2d 302,

317-18, 939 N.E.2d 310, 318 (2010).

¶ 39 C. Defendant’s Claims of Ineffective Assistance of Counsel

¶ 40 In his brief to this court, defendant presents his ineffective assistance of counsel

claims in three separate arguments. Specifically, defendant contends that (1) counsel failed to

disclose and discuss the evidentiary basis upon which she recommended that defendant enter a

guilty plea, (2) counsel failed to assess and discuss with him the impact of relevant evidence on

his decision before advising him to enter a guilty plea, and (3) counsel’s actions ultimately de-

nied defendant the right to effective assistance of counsel.

¶ 41 We note, however, that the fundamental premise underlying all of defendant’s

contentions is his following assertion: “[W]here *** counsel’s advice is on a fundamental right

held by the defendant, such as whether to plead guilty or not, [counsel] is required to support

[that] advice with all the evidence that leads [counsel] to give [that] recommendation.” (Empha-

sis added.) Defendant adds that counsel had a constitutional duty to present and discuss with him

all of the relevant evidence before advising him to plead guilty. We emphatically reject that de-

fendant’s claims should be evaluated under his proposed standard.

¶ 42 A criminal defendant personally possesses a constitutional right to elect what plea

to enter. People v. Williams, 2016 IL App (4th) 140502, ¶ 33, 54 N.E.3d 934. Although a de-

fendant does not have a constitutional right to a plea bargain, if the State elects to make a guilty-

plea offer, the defendant has a constitutional right to the effective assistance of counsel during

the ensuing negotiations. People v. Guerrero, 2011 IL App (2d) 090972, ¶ 61, 953 N.E.2d 936.

“[U]nderlying a defendant’s constitutional right to either plead guilty or not guilty is the constitu-

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tional right to be reasonably informed with respect to the direct consequences of accepting or

rejecting a guilty-plea offer from the State.” (Emphasis added.) Williams, 2016 IL App (4th)

140502, ¶ 33, 54 N.E.3d 934. In order for a defendant’s decision to plead guilty to be a knowing

and voluntary one, a criminal defense attorney must fully inform herself of the facts and the law

relevant to the State’s offer and candidly advise her client as to the direct consequences of ac-

cepting or rejecting the guilty-plea offer. People v. Brown, 309 Ill. App. 3d 599, 605, 723 N.E.2d

362, 366 (1999).

¶ 43 In this case, defendant’s ineffective assistance of counsel claim concerns primari-

ly the following two pieces of evidence: (1) the police surveillance recording and (2) defendant’s

exhibit No. 3—an image taken from one frame of the surveillance recording showing what

Corum believed was defendant’s image. Specifically, defendant asserts that Corum had a consti-

tutional duty to show and discuss that recording with him before advising him to plead guilty.

Defendant also asserts that the image derived from the recording did not provide him the “same

level of information” because the recording would have shown the entire sale with audio and

“may also contain more identifying features that would lead [him] to better assess the evidence

against him.” Defendant notes that Corum “believed that the State would meet its burden of

proof by introducing the [surveillance recording] from which defendant’s exhibit [No.] 3 was

produced.” From this premise, defendant then assets that Corum “failed to appropriately deliber-

ate with [defendant] on either his or her assessment of the evidence on this important matter by

showing and discussing the evidence with him.”

¶ 44 Given our aforementioned recitation of the actions Corum took to (1) inform de-

fendant about the severity of the charges and sentences he faced, (2) apprise defendant at appro-

priate intervals regarding the status of his case, (3) provide candid advice concerning his availa-

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ble options, and (4) document her assessment concerning the direct consequences of accepting or

rejecting the State’s guilty-plea offer and providing that summation to defendant, we deem bi-

zarre defendant’s claim that Corum’s performance was constitutionally deficient in any sense.

We reject defendant’s implication that guilty-plea counsel is constitutionally mandated to mar-

shal the entirety of the State’s case—including every piece of relevant physical evidence the

State discloses—and not only present it to defendant for inspection but also discuss in detail its

impact on defendant’s decision whether to enter a guilty plea or proceed to trial. Defendant is

essentially contending that his guilty-plea counsel was somehow required to garner all of the

State’s evidence and then present it to defendant in such a fashion as to convince him of the

strength of the State’s case and that he will be convicted if the case goes to trial. We emphasize

no such requirement exists.

¶ 45 Through various phone conversations with defendant and the aforementioned cor-

respondence sent to defendant, Corum demonstrated her thorough knowledge of the State’s case,

which she conveyed to defendant. In conducting her assessment of defendant’s case, Corum’s

only duty was “to make reasonable investigations or to make a reasonable decision which makes

particular investigations unnecessary.” People v. Cloutier, 191 Ill. 2d 392, 402-03, 732 N.E.2d

519, 525 (2000). Our standard in evaluating counsel’s conduct is to apply “a heavy measure of

deference to counsel’s judgment.” Id. at 403, 732 N.E.2d at 525. Contrary to defendant’s claims,

the record shows that Corum’s actions to keep defendant fully informed about his guilty-plea op-

tions were exemplary and far beyond what she was required to do.

¶ 46 Although defendant would have this court focus solely on the surveillance record-

ing and the photograph derived from that recording, he fails to mention that the State was also

prepared to solicit testimony from the police officer supervising the controlled buys that defend-

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ant was the person who sold the contraband at issue to the confidential source. Defendant fails to

explain how Corum’s additional discussions with defendant—above and beyond what she had

already conveyed in her phone conversations and correspondence—would have served to further

inform defendant’s decision to plead guilty or proceed to trial. Therefore, we disagree with de-

fendant’s assessment that Corum’s decision to provide only a single photograph from that re-

cording depicting what she opined was his image was unreasonable. Id.

¶ 47 At multiple times throughout her representation, Corum explained to defendant

(1) the sentencing ranges on each of the State’s four charges; (2) that probation was not an op-

tion; (3) the consequences if he opted to go to trial; (4) the State’s evidence on each count

charged; (5) that defendant could be found not guilty on some of the State’s charges; (6) the

strong possibility that defendant could be found guilty on other charges; (7) the strengths and

weaknesses of the State’s case; (8) that if he opted to go to trial, the State would reveal the iden-

tity of the confidential source just prior to trial; (9) that she believed the State tendered a fair

guilty-plea offer; (10) that it was defendant’s choice whether to accept or reject the State’s guilty

plea offer; and (11) that if he opted to go to trial, she would defend him to the “fullest extent.”

We note that despite defendant’s current claim that Corum provided ineffective assistance, he

does not dispute the aforementioned actions Corum took on his behalf. Accordingly, we con-

clude that the trial court did not abuse its discretion by denying defendant’s supplemental motion

to withdraw his guilty plea and vacate the court’s judgment.

¶ 48 In so concluding, we note that Corum’s representation should not be considered

the standard that all defense counsel are expected to maintain. Simply put, Corum’s representa-

tion of defendant in these proceedings was truly exceptional and demonstrated a commitment

that was well beyond the reasonable standard normally expected of guilty-plea counsel. We

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commend Corum for her extraordinary efforts.

¶ 49 III. CONCLUSION

¶ 50 For the foregoing reasons, we affirm the trial court’s judgment. As part of our

judgment, we award the State its $75 statutory assessment as costs of this appeal. 55 ILCS 5/4-

2002 (West 2014).

¶ 51 Affirmed.

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