                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Powers, 2011 IL App (2d) 090292




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    THOMAS J. POWERS, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-09-0292


Filed                      November 23, 2011


Held                       The trial court properly dismissed defendant’s postconviction petition
(Note: This syllabus       alleging that his trial counsel was ineffective in failing to inform him that
constitutes no part of     the plea offer made by the State was subject to a day-for-day good-
the opinion of the court   conduct credit, since counsel’s failure to inform defendant of that
but has been prepared      consequence involved an element collateral to the sentence offered and
by the Reporter of         did not amount to ineffective assistance of counsel or provide a basis for
Decisions for the          reversal.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Winnebago County, No. 00-CF-369; the
Review                     Hon. Steven G. Vecchio, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Robert J. Agostinelli and Verlin R. Meinz, both of State Appellate
Appeal                      Defender’s Office, of Ottawa, for appellant.

                            Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer
                            and Marshall M. Stevens, both of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.


Panel                       JUSTICE McLAREN delivered the judgment of the court, with opinion.
                            Justices Hutchinson and Birkett concurred in the judgment and opinion.




                                              OPINION

¶1          Defendant, Thomas J. Powers, appeals from the trial court’s dismissal of his petition filed
        under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2006)). We affirm.
¶2          Following a jury trial, defendant was convicted of one count of attempted aggravated
        criminal sexual assault (720 ILCS 5/8-4(a) (West 2000)) and sentenced to 25 years in prison.
        This court affirmed the conviction in People v. Powers, No. 2-01-0496 (2003) (unpublished
        order under Supreme Court Rule 23). Defendant then filed a series of collateral petitions,
        including petitions for postconviction relief, for relief from judgment, and for habeas corpus,
        and he filed various appeals. In People v. Powers, 376 Ill. App. 3d 63 (2007), this court
        reversed and remanded the cause for the trial court to address defendant’s motion to
        reconsider the dismissal of his postconviction petition. After a hearing, the trial court denied
        the motion to reconsider, and this appeal followed.
¶3          Defendant now contends that the trial court erred in denying his motion to reconsider and
        dismissing his postconviction petition. Specifically, defendant seeks remand of the cause for
        the trial court to consider defendant’s claim that trial counsel was ineffective because he
        provided incorrect information regarding a plea offer made by the State prior to trial. The
        right to effective assistance of counsel extends to a defendant’s decision to reject a plea offer.
        People v. Curry, 178 Ill. 2d 509, 518 (1997). “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 in original.) Curry, 178 Ill. 2d at 528.
¶4          The trial court dismissed defendant’s petition at the second stage of the postconviction
        process. The dismissal of a postconviction petition is warranted only when the petition’s
        allegations of fact, which are to be liberally construed in the petitioner’s favor and in light
        of the original trial record, fail to make a substantial showing of a constitutional violation.
        People v. Coleman, 183 Ill. 2d 366, 382 (1998). This court will review de novo the dismissal
        of a postconviction petition without an evidentiary hearing. People v. Wallace, 406 Ill. App.
        3d 172, 174 (2010).

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¶5       To succeed on a claim of ineffective assistance of counsel, a petitioner must show that
     counsel’s performance was deficient and that the substandard performance prejudiced the
     defendant. People v. Miller, 393 Ill. App. 3d 629, 632 (2009). To establish deficiency in
     counsel’s performance, the defendant must show that the performance was below an
     objective standard of reasonableness; prejudice is established by demonstrating a reasonable
     probability that, but for counsel’s deficient performance, the result of the proceeding would
     have been different. Miller, 393 Ill. App. 3d at 632-33. Unless both showings are made, it
     cannot be said that a conviction resulted from a breakdown in the adversary process that
     renders the result unreliable. Miller, 393 Ill. App. 3d at 633.
¶6       In his affidavit, defendant stated that his trial counsel, while on the telephone with
     assistant State’s Attorney Mark Karner, told defendant “ ‘that the [S]tate is offering you 14
     years and that it would be served at 85%.’ ” Defendant also alleged that Karner stated at
     unspecified times “during the trial” and “on the record” that defendant’s “charge is to be
     served at 85%” and that “all offers were at 85%.” Without specifying when or where,
     defendant also alleged that defense counsel told him “that the charge is at 85%.” However,
     defendant claimed that he was eligible to serve only 50%, instead of 85%, of his sentence.
     Under section 3-6-3(a)(2.1) of the Unified Code of Corrections (Code), defendant was
     eligible to receive “one day of good conduct credit” for each day of his sentence, and each
     day of credit “shall reduce by one day the prisoner’s period of imprisonment.” 730 ILCS 5/3-
     6-3(a)(2.1) (West 2000). Thus, both Karner and defense counsel were incorrect in their
     statements that defendant would be required to serve 85% of his sentence.
¶7       According to defendant, the difference between 85% and 50% was “almost 40 months.”
     Defendant then stated that he “never received a proper offer” and that if he had “received a
     proper offer [he] would not have been forced to take this case to trial.” Defendant argues that
     counsel was ineffective because, had counsel advised him correctly regarding the potential
     good-conduct credit, defendant would have taken the plea offer. However, this argument is
     a counterfactual conditional, a conclusion based on a false premise. Defendant’s premise is
     that, had his attorney been competent in raising the correct good-conduct credit calculation,
     the State would have stood by the offer of 14 years with the more generous credit applying.
     This premise is both speculative and counterintuitive. Not only is there nothing in the record
     to support this premise, common sense leads one to conclude that the State would have
     amended its offer upwards when it learned of the proper good-conduct credit calculation. We
     do not accept defendant’s claim, as it is speculative and presumes facts that have not been
     established.
¶8       Defense counsel passed along an offer the State presented that contained an element that
     did not conform to the applicable statutory scheme. There was no meeting of the minds on
     that offer, i.e., no acceptance of the State’s offer. However, there was a meeting of the minds
     regarding the State’s intention in extending the offer: defendant would serve at least 11.9
     years in prison. The State could achieve such an outcome with the proper rate of good-
     conduct credit by offering defendant a term of approximately 24 years. There simply is no
     showing of a reasonable probability that, but for counsel’s deficient performance, the result
     of the proceeding would have been different. In the absence of such a showing of prejudice,
     there is no substantial showing of a constitutional violation, and dismissal of the

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       postconviction petition was not error.
¶9         Further, the failure to inform a defendant of a consequence of a guilty plea is material
       only if the consequence is a direct consequence of the guilty plea; a collateral consequence
       provides no basis for reversal. People v. Frison, 365 Ill. App. 3d 932, 934 (2006). A direct
       consequence is one that is definite, immediate, and largely automatic in its effect on a
       defendant’s punishment, while a collateral consequence does not relate to the length of the
       sentence that is imposed. Frison, 365 Ill. App. 3d at 934. The focus is on the sentence
       imposed rather than on the sentence that is ultimately served. Frison, 365 Ill. App. 3d at 934.
       In general, collateral consequences are things beyond the court’s control. Frison, 365 Ill.
       App. 3d at 934.
¶ 10       In Frison, the defendant alleged in his postconviction petition that his trial counsel was
       ineffective for failing to inform him prior to pleading guilty that he would be required, under
       section 3-6-3(a)(2) of the Code (730 ILCS 5/3-6-3(a)(2) (West 2000)) (“truth-in-
       sentencing”), to “serve at least 85% of his sentence.” Frison, 365 Ill. App. 3d at 935. This
       court found the defendant’s characterization of the applicable Code section to be “ill-taken.”
       Frison, 365 Ill. App. 3d at 936. The statute makes a defendant “eligible” for good-conduct
       credit and allows a defendant to reduce his sentence by a certain amount of such credit.
       Frison, 365 Ill. App. 3d at 935-36. “It no more mandates that he serve a certain sentence than
       the day-for-day good-conduct provisions require a defendant to serve half of his or her
       sentence.” Frison, 365 Ill. App. 3d at 936. The award of good-conduct credit is contingent
       on the defendant’s behavior while in prison; it is not something that is “definite, immediate,
       and largely automatic in its effect upon a defendant’s punishment.” Frison, 365 Ill. App. 3d
       at 935. Thus, we concluded that good-conduct credit “is not a direct consequence of a guilty
       plea.” Frison, 365 Ill. App. 3d at 935. Therefore, counsel was not ineffective for failing to
       inform the defendant of the good-conduct credit provisions of the Code. Frison, 365 Ill. App.
       3d at 936.
¶ 11       Liberally construing the petition’s allegations of fact in defendant’s favor and in light of
       the original trial record, we conclude that defendant failed to make a substantial showing of
       a constitutional violation. Defense counsel informed defendant of the plea offer made by the
       State; while the offer, and defense counsel’s representation to defendant, contained an
       element that was statutorily incorrect, that element, regarding good-conduct credit, involved
       a consequence that was collateral to the issue of the sentence offered. Counsel’s failure to
       properly inform defendant of that consequence does not constitute ineffectiveness and
       provides no basis for reversal.
¶ 12       For these reasons, the judgment of the circuit court of Winnebago County is affirmed.

¶ 13      Affirmed.




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