                             2014 IL App (2d) 111314
                                  No. 2-11-1314
                           Opinion filed January 9, 2014
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 03-CF-3149
                                       )
JUAN J. TAPIA,                         ) Honorable
                                       ) Christopher R. Stride,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
       Justices McLaren and Zenoff concurred in the judgment and opinion.

                                           OPINION

¶1     Defendant, Juan J. Tapia, appeals a judgment denying his petition for relief under the

Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)). The petition claimed

that the attorney who represented defendant when he pleaded guilty to attempted first-degree

murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2002)) had been ineffective for failing to correct an

error in the presentence investigation report (PSI) on which the trial court relied in sentencing

defendant to 15 years’ imprisonment. We hold that defendant has forfeited the issue and affirm.

¶2                                    I. BACKGROUND

¶3     In September 2003, defendant was charged by complaint with two counts of attempted

murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2002)) and two counts of armed violence (720 ILCS
2014 IL App (2d) 111314


5/33A-2(a) (West 2002)). The charges were based on the events of August 28, 2003, when

defendant stabbed Liliana Martinez and Rosio Gonzalez (Rosio). Defendant failed to appear for

his arraignment on September 23, 2003. His bond was forfeited and a warrant was issued for his

arrest. Following his arrest and extradition from Georgia, defendant appeared for arraignment on

February 27, 2007.     In addition to the charges related to the August 28, 2003, stabbings,

defendant was charged in case number 03-CF-3213 with two counts of aggravated criminal sexual

abuse of Martinez.

¶4     On October 9, 2007, defendant, represented by attorney Barry Boches, entered a negotiated

guilty plea to the attempted murder of Rosio, a Class X felony with a sentencing range of 6 to 30

years’ imprisonment (see 720 ILCS 5/8-4(c)(1) (West 2002); 730 ILCS 5/5-8-1(a)(3) (West

2002)). In return, the State dismissed the other charges and recommended a sentencing cap of 18

years= imprisonment.

¶5     The State presented the following factual basis for the plea. On August 28, 2003,

defendant, the two victims, and Rene Gonzalez (Rene) (no relation to Rosio) were sitting in a

parked van. Defendant and Rene exited the van; defendant handed Rene a knife and told him to

stab Rosio while he attacked Martinez. Rene refused. Defendant opened the van door and

stabbed Martinez twice in the torso; she ran off. Defendant then reached in and tried to stab

Rosio. She left the van and ran, but defendant caught up to her, stabbed her in the chest and twice

in the abdomen, and slashed her across the back of her left shoulder and across her temple. In the

month preceding the attacks, defendant had told Rene that he believed that Martinez was cheating

on him and that he wanted to kill her.

¶6     The PSI revealed the following pertinent information.      Both victims were 15 years old

on August 28, 2003.      Martinez suffered stab wounds that required surgery, and she was

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2014 IL App (2d) 111314


hospitalized for a week.    Rosio suffered superficial stab wounds and was “stitched up and

released.” According to Martinez, on the evening of the incident, defendant drove her, Rosio,

and Rene to a park on the pretext of meeting and robbing a drug dealer; on arriving, he stabbed

Martinez, who ran screaming from the van; he then reentered the van, stabbed Rosio once, and,

after she ran away, caught up with her and stabbed her again.     Rene gave the police an account

that was consistent with the foregoing.   Defendant, in an interview for the PSI, said that he gave

Rosio, Martinez, and Rene a ride to the park so that Rosio could buy cocaine; that Rosio and

Martinez started fighting; that Rosio stabbed Martinez; and that defendant took the knife from

Rosio and, in the process, started “freaking out” and swinging the knife around.

¶7     The PSI related the following about the history of the case. Defendant was arrested on

August 28, 2003. On September 2, 2003, he posted bond and was released, but, on September 23,

2003, he failed to appear in court, and a warrant was issued for his arrest. Defendant had fled to

Mexico, where he later met and married Martinez. They had a daughter. In 2005, the three of

them moved to Davenport, Iowa. There, defendant was accused of kidnaping his daughter.

After he gave the child to his mother, he fled to Georgia, where he incurred new charges. He was

extradited to Illinois in February 2007. Since then, he had been in jail, with no major disciplinary

problems.

¶8     According to the PSI, defendant, who was born April 1, 1982, had no juvenile record. On

December 21, 2000, he pleaded guilty to unlawful use of a weapon, a Class A misdemeanor, and

received 18 months’ court supervision, which was terminated satisfactorily. On May 9, 2002, he

pleaded guilty to three counts of criminal damage to property and was sentenced to 30 months’

felony probation. In May 2002, defendant received supervision for driving under the influence of

alcohol. On November 18, 2002, he pleaded guilty to resisting a peace officer, a Class A

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2014 IL App (2d) 111314


misdemeanor; that day, the trial court revoked his probation for criminal damage to property and

resentenced him to two years= imprisonment.

¶9     In the PSI it was noted that, on April 29, 2006, defendant was arrested in Gwinnett County,

Georgia, for “False Identification Documents (felony, 2 counts), Burglary (felony), Criminal

Trespass (misdemeanor), Simple Assault (misdemeanor) and Give False Name/Address/Birthdate

to Police.” The PSI also contained information that, on February 8, 2007, defendant pleaded

guilty to the two counts of “False Identification Documents” and was sentenced to consecutive

12-month probation terms.       He was then immediately returned to Illinois.       Finally, as to

defendant’s criminal record, the PSI noted that, on October 10, 2005, Davenport police obtained a

warrant to arrest him for kidnaping and child stealing, based on Martinez=s accusation that he had

stolen their daughter; the warrant was still active.

¶ 10   According to the PSI, defendant related that he left high school in 1996 but, in 1999,

obtained certification as a computer technician and received a G.E.D. He worked in computers,

then construction. In Mexico, he ran a chicken farm and sold it at a profit. He had been gainfully

employed in Iowa and Georgia.          He claimed that the kidnaping charge was based on a

misunderstanding.

¶ 11   On December 17, 2007, the trial court, Judge Phillips presiding, held a sentencing hearing.

At the outset, both the prosecutor and Boches told the court that they had reviewed the PSI and had

no corrections or additions. The State then called Donald Paulsen, the police officer who had

responded to the crime scene. He testified that, when he arrived, he saw the two victims lying in a

driveway, bleeding profusely. Rosio had a stab wound or a cut above her left shoulder blade, a

cut near her sternum, and another on her upper abdomen. Paulsen identified photographs of the

injuries to Rosio and Martinez; these photographs were admitted into evidence.

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2014 IL App (2d) 111314


¶ 12   In mitigation, defendant called his parents and Martinez. Defendant=s mother testified

that she wanted him to be available, because she was chronically ill. Defendant=s father testified

that defendant had dropped out of school in tenth grade because of the gang activity there.

Martinez testified that defendant had been a good father to their daughter, who was now three.

Since August 2003, defendant had changed “a lot”; he no longer drank. A few months after the

crime, Martinez had her baby, then went to Mexico and married defendant. Later, they moved to

Iowa. At one point, she reported to the police that he had taken their daughter, but she had been

mistaken; he had only dropped off the child at a relative=s home. After defendant moved to

Georgia, he regularly sent Martinez money.

¶ 13   In arguments, the prosecutor contended that defendant=s account of the offense, as recorded

in the PSI, differed widely from the evidence and demonstrated that defendant was minimizing his

responsibility for his acts. Defendant had a serious criminal record even before August 28, 2003,

and, after he was charged, he fled Illinois. Yet, despite being a fugitive, he “picked up offenses in

Iowa, for which he must still answer; and he also picked up offenses in Georgia, for which he was

convicted and sentenced.” Moreover, despite supportive parents and marketable job skills, he

still chose to commit crimes. The prosecutor asked the court to sentence defendant to the 18-year

cap.

¶ 14   Boches argued that, for most of the time after getting out on bond, defendant “did stay

arrest free. His stay in Iowa, there was an explanation for that. He was never found guilty of

that. I’m not sure what the probation or what the item we=re talking about Georgia is about [sic].”

Defendant had taken responsibility for this offense and demonstrated rehabilitative potential.

Boches asked the court to sentence defendant to “something more along the minimum.”



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¶ 15   The trial judge stated as follows. In mitigation, it appeared that defendant had “gotten

some control over [his] life” and was trying to care properly for his wife and child.             In

aggravation, however, were several considerations, the first being the offense itself.          The

photographs showed “a [sic] awful lot of blood.” Rosio had suffered several serious cuts.

Although the judge did not consider in aggravation the threat of serious harm, that being implicit in

the charge of attempted first-degree murder, he did consider “how this offense was, in fact,

committed in this case.” Further, although Martinez and defendant=s parents supported him,

Martinez’s testimony had “very little credibility” and defendant had not in fact been taking care of

his mother.

¶ 16   The judge continued:

               “In aggravation, however, I am considering your prior criminal history. And

       certainly you do have a prior felony conviction in this state where you eventually after

       failing probation went to the Department of Corrections. There were other offenses after

       that, and currently you have a pending probation case for felonies in the State of Georgia

       that were committed in 2006.

               I’m not considering anything at all in aggravation or otherwise other to have

       knowledge that there is a warrant still outstanding for your arrest in Iowa, and certainly you

       remain presumed innocent in that. And according to what your wife testified [to] today,

       there does not appear to be a lot of evidence; but nobody is going to prejudge that case,

       particularly I.”

¶ 17   The judge observed that defendant had “created *** havoc and the damage to a very young

female.” Defendant had Afled this jurisdiction@ and gone to Mexico but eventually “did take

responsibility by pleading guilty.”     The judge concluded that a sentence of 15 years was

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2014 IL App (2d) 111314


appropriate. After being sentenced, defendant did not file a postjudgment motion or a direct

appeal. On September 17, 2009, defendant filed a “Motion For Order Nunc Pro Tunc” requesting

additional credit for time served, including time in Georgia while awaiting extradition to Illinois.

On September 24, 2009, the judge entered an order granting this request.

¶ 18   On December 7, 2009, defendant filed a pro se postconviction petition under the Act. The

only factual allegations were contained in paragraph five, which stated that “[t]he trial court took

into consideration improper aggravating factors of case No. 06-B-5117-9 listed as a felony

conviction in the P.S.I. before the court in fashioning a sentence in this case, when in fact case No.

06-5117-9 are misdemeanors. See attached Exhibits [sic] A); and counsel was ineffective in not

correcting these facts before the court or going over the P.S.I. with petitioner to make corrections

in violation of petitioner’s 5th, 6th, and 14th Amendment Constitutional rights.” (Emphasis

added.) Attached to defendant=s petition was his certificate prepared pursuant to section 1-109 of

the Code of Civil Procedure (735 ILCS 5/1-109 (West 2010)).

¶ 19   Also attached to the petition was a copy of the court order disposing of case number

06-B-5117-9 in the superior court of Gwinnett County, Georgia. The order reflects that on

February 7, 2007, defendant entered a negotiated plea to two misdemeanor counts of

“manufacturing false identification document” in exchange for consecutive terms of 12 months’

probation.   Printed at the top of the order in bold capital letters are the words, “FINAL

DISPOSITION/NEGOTIATED PLEA/MISDEMEANOR SENTENCE.”                                 In exchange for

defendant=s pleas to those charges, the State of Georgia nol-prossed charges of burglary, simple

assault, criminal trespass, and giving a false name. Judge Phillips reassigned the case to Judge

Stride. Judge Stride docketed the petition, finding that defendant had raised the gist of a

constitutional claim, and appointed counsel for defendant. Counsel filed an amended petition,

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2014 IL App (2d) 111314


raising the claim that Boches had provided ineffective assistance in two respects. First, Boches

had failed to recognize and correct a crucial error in the PSI: the statement that, in Georgia in 2006,

defendant had been convicted of two counts of a felony, “False Identification Documents.” The

amended petition noted that, in sentencing defendant, the judge had specifically mentioned the

“felonies in the State of Georgia.” Second, Boches had failed to object when the judge mentioned

defendant’s arrest warrant in Iowa, as defendant was presumed innocent of the charges. Counsel

filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984), but did not

attach any affidavits to the amended petition.

¶ 20   On May 27, 2011, the State moved to dismiss the amended petition. In support, the State

filed Boches’ affidavit, which stated as follows. Before the sentencing hearing, he reviewed the

PSI with defendant. At that time, defendant “did not indicate that the report was inaccurate with

respect to the convictions out of Georgia.” At the time of the sentencing hearing, defendant also

“did not indicate that the report was inaccurate with respect to the convictions out of Georgia.” In

its motion, the State also argued that “[t]he defendant had the opportunity to review the

presentence investigation report and remained silent regarding the inaccuracies. Through his

silence, he waived these issues. The failure of counsel to raise these inaccuracies does not satisfy

the first prong under Strickland as there is no assertion that counsel knew of the error or that the

defendant informed counsel of the error.”

¶ 21   On October 6, 2011, prior to the argument on the motion to dismiss, the State asked that the

trial court not consider Boches’ affidavit and the court agreed. The State then argued that

defendant remained silent at the sentencing hearing and did not offer any corrections and that

Boches did not represent defendant in the State of Georgia. Defense counsel responded by

arguing that defendant “was never given a copy of the P.S.I. to review. That was done with

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2014 IL App (2d) 111314


Mr. Boches while he was incarcerated in Lake County Jail, and he was never actually able to view

the P.S.I.” (Emphasis added.)

¶ 22   The trial court denied the motion to dismiss, finding that there was no basis for the

dismissal at that point. On October 25, 2011, the State answered the amended petition and

maintained that defendant had failed to satisfy either prong of the test in Strickland v. Washington,

466 U.S. 668 (1984), for evaluating claims of ineffective assistance of counsel. The State also

argued that the record showed that defendant had the opportunity to review the PSI and remained

silent regarding the inaccuracy and that, through his silence, he waived the issue. Further, the

State argued that there was no assertion that Boches knew of the error or that defendant informed

him of the error.

¶ 23   On December 20, 2011, the day of the third-stage hearing, defendant filed an affidavit in

which he stated as follows. He did not receive a copy of the PSI to review until the date of

sentencing. Before then, he had discussed his background with Boches. On December 17, 2007,

just before sentencing, Boches showed defendant the PSI and “asked [him] to very quickly to look

over it.” Defendant did so and told Boches that he “did not notice any errors but could not be sure

because [he] did not understand all of the legalese in it.” Boches saw no errors either. He

“assured [defendant] that everything was in order, even though he was aware of [defendant’s]

criminal history.”

¶ 24   The State indicated its intent to call Boches, who would be arriving shortly. The court

stood in recess. After the recess, the parties agreed to proceed “based on the affidavit” of Boches.

The court stated that “[i]t’s a very narrow issue that=s being presented here. I think it=s appropriate

to proceed with the hearing via affidavit, there being no objection from the defense.” After



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submitting Boches’ affidavit, the State rested. The court took judicial notice of the sentencing

hearing transcript. Defendant presented no rebuttal.

¶ 25   Defense counsel argued that Boches never sent defendant a copy of the PSI, which counsel

said was “40 or 50 pages long,” 1 and gave it to him only “moments before the sentencing hearing.”

Counsel also argued that “Mr. Boches and Mr. Tapia had discussed Mr. Tapia’s criminal

background prior to this court date, and Mr. Boches was aware of the misdemeanor from Georgia,

and Mr. Boches indicated to Mr. Tapia that he didn=t notice any errors as issues.” Counsel argued

that Boches was ineffective for not going through and reviewing the PSI with defendant. Counsel

argued that this error caused the trial court to rely on erroneous information in reaching the

sentence, which was “obviously” damaging for defendant.

¶ 26   When the case was called for hearing, the trial court asked the State if it was conceding that

the Georgia convictions were of misdemeanors. The State said, “[t]hat=s correct, judge.” Next,

the trial court asked defense counsel if defendant was still maintaining that when “the sentence was

held, Mr. Boches failed to review the presentence investigation report with the defendant.”

Counsel initially said yes, but then said, “I=m sorry. Not that he failed to complete the two. He

did― in the affidavit he stated that he did review it with him. He didn=t review it with him. He

gave him a copy of the PSI just minutes before the sentencing hearing went, and that was the time

he was given to review the PSI and that was it.” Counsel indicated that defendant had no other

evidence to present and was resting on the pleadings and defendant’s affidavit. The State raised

no objection to this procedure.




       1
           The report, without attachments, consists of 13 pages.

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2014 IL App (2d) 111314


¶ 27   In response, the State first addressed the amended petition’s claim that Boches had been

ineffective for failing to object to the trial court’s consideration of the Iowa arrest warrant for

defendant. The State noted the judge’s statement that he was “not considering anything at all, in

aggravation or otherwise,” in relation to the Iowa case, as defendant was presumed innocent in that

case. Next, the State addressed Boches’ alleged ineffectiveness for failing to recognize and point

out that the two Georgia convictions were of misdemeanors, not felonies. The State noted that

defendant had never asserted that he ever told Boches that the two convictions were of

misdemeanors. Boches had not represented defendant in the Georgia case, so Boches had had no

way of knowing that the convictions were of misdemeanors; therefore defendant had not met his

burden of proving deficient performance. Further, defendant had shown no prejudice from

Boches’ alleged carelessness. Defendant had been sentenced to three years less than the cap. In

reply, defendant argued that Boches had had a duty to discuss the Georgia convictions with

defendant and a more general duty to research the issue “if there were question marks.”

¶ 28   After taking the case under advisement, the trial court denied the amended petition. The

court explained that at a third-stage evidentiary hearing the defendant bears the burden of making a

substantial showing of a constitutional violation. The court summarized defendant=s position,

that as a result of counsel’s deficient performance in failing to discover and correct the error in the

PSI regarding the Georgia convictions, Judge Phillips “erroneously relied upon those convictions

being felonies” in arriving at his sentence. The court said that it had reviewed the affidavits as

well as the transcript of the sentencing hearing. The court observed that during the sentencing

hearing Judge Phillips asked both the State and defendant if they had reviewed the PSI and both

sides said they had. They were asked if they had any additions, corrections, or deletions and

neither side indicated that they had any. The court then recounted the evidence in aggravation

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2014 IL App (2d) 111314


and mitigation presented at the sentencing hearing. The court noted that the State called Paulsen

to talk about the injuries “to the complaining witness or witnesses.” On behalf of defendant,

defendant’s mother described how defendant would help her get to and from doctor appointments.

Defendant=s father testified to how, despite defendant’s struggles in school, he was a “hard

working and earnest young fellow that was trying to turn his life around.” The defense then,

remarkably, called Martinez. The court summarized defendant=s statement in allocution, where

he mentioned his prior incarceration, his difficulty finding work because of his past, and his plea

for leniency. The court then observed that “[w]hat=s important to note is there is nothing

mentioned about the case in Georgia being a misdemeanor, not a felony.” The court noted that at

sentencing the State referenced additional information in the PSI regarding defendant=s prior

convictions, including a 2000 firearm case; a 2001 case for criminal damage to property, which

resulted in a penitentiary sentence; a 2002 case for aggravated battery to a police officer; and cases

for driving under the influence of alcohol.

¶ 29   The court noted that, while Judge Phillips “absolutely” referred to the Georgia case, he also

considered the rest of defendant’s criminal history, including a prior felony conviction in Illinois,

his failure to successfully complete probation, and a sentence to the Department of Corrections.

The court noted also that Judge Phillips expressly declined to consider the active arrest warrant

from Iowa. The court found that defendant had not proven that Boches= performance was

objectively unreasonable. The court then went on to hold that, even assuming that defendant had

proven deficient performance, it could not say that the result of the proceedings would have been

different “had Mr. Boches said, ‘well, judge, that probation isn’t for felonies, it=s for

misdemeanors.’ ”



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¶ 30   The court concluded, “I cannot find that the defendant has met their [sic] burden of making

a substantial showing of a constitutional violation, and defendant=s post-conviction petition is

denied.” Defendant timely appealed.

¶ 31                                      II. ANALYSIS

¶ 32   On appeal, defendant argues that the trial court erred in denying his amended

postconviction petition, because the evidence proved both that Boches’ failure to recognize and

correct the PSI error concerning the Georgia convictions was objectively unreasonable and that

defendant was prejudiced thereby. Defendant argues that, based on discussions with Boches prior

to the date of his sentencing, Boches “was aware of the true nature of his Georgia convictions.”

Defendant no longer contends that Boches was ineffective for failing to object to the reference to

the open arrest warrant from Iowa. The State responds first by asserting that defendant, having

been given proper admonishments under Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001),

procedurally defaulted his claim because he did not raise it, as he could have, in a postjudgment

motion or a direct appeal. Alternatively, the State argues that defendant failed to prove that

Boches’ performance was deficient. Further, the State argues that, even if Boches’ performance

was deficient, defendant failed to establish that he was prejudiced.

¶ 33   Both parties assert that a denial of a postconviction petition following a third-stage

evidentiary hearing is reviewed for manifest error, citing People v. Coleman, 183 Ill. 2d 366,

384-85 (1998). However, in this case, the trial court heard no testimony during the hearing. The

court considered the pleadings and the transcript of the sentencing hearing and heard arguments.

No fact finding or credibility determinations were involved. Additionally, the court did not

preside over defendant=s plea and sentencing and hence had no special expertise or familiarity with



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those proceedings. Under these circumstances, our review is de novo. People v. English, 2013

IL 112890, & 24; People v. Pendleton, 223 Ill. 2d 458, 473 (2006).

¶ 34   The Unified Code of Corrections requires the sentencing court to “consider any

presentence reports.” 730 ILCS 5/5-4-1(a)(2) (West 2002). While it is the duty of the probation

officer to prepare a presentence report, it is the duty of the parties to bring to the attention of the

sentencing authority any alleged deficiency or inaccuracy in the presentence report. People v.

Meeks, 81 Ill. 2d 524, 533 (1980).

¶ 35   We first address the State’s forfeiture claim. As the State points out, defendant did not file

a postjudgment motion or a direct appeal in this case. Ordinarily, forfeiture bars a postconviction

claim that could have been, but was not, raised on direct appeal. People v. Blair, 215 Ill. 2d 427,

453 (2005). Because defendant entered a partially negotiated plea, he could not have moved to

reconsider his sentence on the sole ground that it was excessive or sought appellate relief on that

ground. People v. Linder, 186 Ill. 2d 67, 74 (1999) (defendant who agrees to a potential

sentencing range implicitly concedes that a sentence imposed within the range cannot be

excessive). Defendant’s claim does not involve mere excessiveness, but instead alleges that, due

to counsel’s deficient performance, the trial court considered inaccurate information, resulting in a

longer sentence than defendant would have otherwise received. In the trial court, the State argued

that defendant had waived this claim by remaining silent after he had an opportunity to review the

PSI.

¶ 36   On appeal, the State argues that defendant has forfeited his claim of ineffective assistance

of counsel because the facts and record for this claim existed when he could have taken a direct

appeal. Blair, 215 Ill. 2d at 443-44. As our supreme court recently explained:



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               “The common law doctrine of waiver bars a claim that could have been presented

       previously. See People v. Blair, 215 Ill. 2d 427, 443 (2005). Waiver is distinct from

       forfeiture, however. While forfeiture applies to issues that could have been raised but

       were not, waiver is the voluntary relinquishment of a known right. Blair, 215 Ill. 2d at

       443-44 & n.2. In Blair, this court noted, ‘ “[w]hereas forfeiture is the failure to make the

       timely assertion of the right, waiver is the >intentional relinquishment or abandonment of a

       known right.’ ” ’ Blair, 215 Ill. 2d at 444 n.2, quoting United States v. Olano, 507 U.S.

       725, 733, 123 L. Ed. 2d 508, 519, 113 S. Ct. 1770, 1777 (1993).

               In determining whether a legal claim has been waived, courts examine the

       particular facts and circumstances of the case. See Edwards v. Arizona, 451 U.S. 477,

       482, 68 L. Ed. 2d 378, 385, 101 S. Ct. 1880, 1884 (1981). Waiver principles are construed

       liberally in favor of the defendant. United States v. Jaimes-Jaimes, 406 F.3d 845, 848-49

       (7th Cir. 2005).” People v. Phipps, 238 Ill. 2d 54, 62 (2010).

¶ 37   Construing waiver liberally, it cannot be said that defendant waived his current claim,

because there is no indication that he knowingly gave up his claim of ineffective assistance of

counsel based on counsel’s failure to correct an error in the PSI. However, because the support

for the claim existed, defendant could have raised it in a postjudgment motion or a direct appeal.

Because he did not, the issue has been forfeited. English, 2013 IL 112890, & 22.

¶ 38   In his reply brief, defendant claims that the State has forfeited its claim of procedural

default because “the State never alleged during the entire course of the post-conviction

proceedings below that the petitioner procedurally defaulted his ineffective assistance claim by

failing to file a post-plea motion or a direct appeal.” We disagree. We note that the State argued



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waiver in the trial court and has not indicated that it wishes to forgo the affirmative defense of

procedural default on appeal. Blair, 215 Ill. 2d at 456.

¶ 39   Defendant argues in his reply brief that he was “not required to seek to vacate his plea as

his only available remedy for counsel’s deficient representation.” He argues that, rather than

claiming that his “sentence is excessive per se,” he is alleging “that the procedures used to

determine his sentence were improper because, due to ineffective representation by plea counsel,

the trial judge relied on inaccurate and unreliable information when determining his sentence”

(emphasis in original). Defendant then provides a “see” cite to People v. Economy, 291 Ill. App.

3d 212 (1997). Defendant’s reliance on Economy is misplaced. In Economy, the defendant

entered a negotiated plea, seeking entry into the Treatment Alternatives for Safe Communities

(TASC) program. The trial court sentenced the defendant to prison. The defendant filed a

motion to reconsider his sentence, which was denied. On appeal, the State argued that all of the

defendant’s claims were waived. The appellate court agreed on all claims except the defendant’s

claim that the trial court misapplied the law by considering improper sentencing factors, as that

claim was not merely that the sentence was excessive and the claim was included in his motion to

reconsider his sentence. Id. at 219 (citing People v. Catron, 285 Ill. App. 3d 36, 37-38 (1996)).

The appellate court reached the merits of that claim and rejected it. Of course, Economy predates

Linder, where the supreme court held that where the sentence imposed is within the agreed range

the defendant may not challenge his sentence without first moving to withdraw his guilty plea.

Linder, 186 Ill. 2d at 74.

¶ 40   Defendant also cites People v. Doguet, 307 Ill. App. 3d 1 (1999), for the proposition that,

despite his negotiated plea, he can challenge the trial court=s consideration of improper or

unreliable evidence at sentencing and request a new sentencing hearing.                Defendant

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acknowledges that the appellate court did not address the merits of this issue in Doguet, however,

because the case was remanded “for the trial court to admonish defendant of his right to file a

motion to withdraw his guilty plea and the consequences thereof.” Id. at 7. The defendant was

charged with first-degree murder of his wife.       The State agreed to allow him to plead to

second-degree murder and dismissed the first-degree-murder charge.            The defendant was

sentenced to 11 years’ imprisonment. The trial court’s admonishments were defective because

the defendant was told “that if he wanted to appeal his sentence, he would first have to file a

motion to reconsider sentence.” Id. at 3. The defendant filed a motion to reconsider his

sentence, which the trial court denied.      As part of his motion, defendant claimed that in

determining his sentence the trial court improperly relied on a letter, purportedly written by the

victim. At the sentencing hearing, defense counsel objected to the admission of the letter. The

letter was purportedly recovered from the defendant’s vehicle, was signed by the victim, and

“referenced defendant’s tendency to beat up his wife.” Id. This court said, in dicta, that the

defendant’s argument that he was deprived of a fair sentencing hearing by the trial court’s

improper consideration of the letter “compels judicial review.” Id. at 7.

¶ 41   Finally, defendant relies on People v. Hermann, 349 Ill. App. 3d 107 (2004), for the

proposition that he was not required to file a motion to withdraw his plea where he alleges not that

his sentence was excessive but that the trial court improperly applied the law. In Hermann, the

defendant entered a negotiated guilty plea to two counts of criminal damage to property. At a

restitution hearing, the trial court ordered restitution on a dismissed count. The defendant filed a

motion to reconsider the sentence, which was denied. However, the defendant’s attorney failed to

file a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. Nov. 1, 2000). Relying on

People v. Janes, 158 Ill. 2d 27 (1994), this court reversed the denial of the defendant’s motion to

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reconsider and remanded the case so that the defendant could file a new postjudgment motion and

for a hearing in compliance with Rule 604(d). In also determining that the defendant could

challenge her sentence by filing only a motion to reconsider, this court said:

       “The motion did not allege that the sentence was excessive and was not an improper

       attempt by defendant to avoid or modify the terms of her plea agreement with the State.

       Instead, defendant argued that the trial court was without statutory authority to order

       restitution on the dismissed charge. Also, defendant asserted that the plea agreement

       entered into by the parties did not require the payment of restitution on the dismissed

       charge. Under these circumstances, Rule 604(d) did not require defendant to file a motion

       to withdraw her guilty plea and to vacate the judgment. [Citations.] Hence, dismissal of

       the appeal is not warranted.” Hermann, 349 Ill. App. 3d at 114.

¶ 42   In each of the cases relied upon by defendant, the alleged error, whether it related to an

improper application of the law, an improper receipt of evidence, or the imposition of a sentence

that was not agreed upon, there was a timely objection and the issue was raised in a postjudgment

motion. None of these cases helps defendant’s cause. Defendant did not file a postjudgment

motion. Instead he waited more than two years to raise the claim in his pro se petition.

¶ 43   The State argued below that defendant had the opportunity to review the PSI and through

his silence waived the issue. The State did not cite any cases in support of this proposition.

However, our research led us to People v. Harden, 221 Ill. App. 3d 993 (1991), where the

defendant made an argument similar to defendant’s argument in this case. There, after a bench

trial the defendant was convicted of armed robbery and sentenced to an extended term of 60 years’

imprisonment. He filed a postconviction petition, alleging in part that he was denied effective

assistance of counsel because trial counsel did not apprise the sentencing court that a prior federal

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conviction “had apparently been vacated.”         Id. at 994-95.    The defendant’s petition was

dismissed without an evidentiary hearing. The First District affirmed, holding that the defendant

had waived the issue. Id. at 995. The court stated:

       “It is significant that defendant did not allege he was unaware of the district court’s 1976

       order regarding his Federal conviction. It is clear that defendant could have raised this

       issue in the direct appeal, but he did not do so. Defendant did present a related issue, that

       the extended-term sentence based upon his prior Federal conviction was improper. This

       court held that issue was waived because of defendant=s failure to object in the trial court.

       The supreme court concluded that we correctly held that defendant had waived any

       question on the propriety of the imposition of an extended term based on his Federal

       conviction.” Id. at 995-96 (citing People v. Harden, 113 Ill. 2d 14, 18 (1986)).

¶ 44   In Harden, as in this case, the sentencing court received in evidence a PSI. The report,

like here, had been examined by the defendant. As in Harden, defendant does not claim that he

was unaware of the true nature of the Georgia convictions. To the contrary, he argues that he was

aware and so informed Boches prior to the date of the sentencing hearing.               The Harden

sentencing court “observed that the defendant’s criminal record showed a Federal conviction for

>Armed Bank Robbery.’ ” Harden, 113 Ill. 2d at 17. The supreme court noted that, during the

sentencing hearing, the defendant, except by requesting a minor deletion, did not object to the

admission of the PSI or to its reference to the defendant’s having had a federal conviction of armed

bank robbery. Id. at 18-19. By not objecting, the defendant did not preserve the issue. Id. at 19.

¶ 45   It is clear that under Illinois law a presentence report is generally a reliable source for the

purpose of inquiring into a defendant’s criminal history. People v. Williams, 149 Ill. 2d 467, 491

(1992). It is equally clear that “[a]ny claimed deficiency or inaccuracy within a presentence

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report must first be brought to the attention of the sentencing court, and a failure to do so results in

waiver of the issue on review.” (Emphases added.) Id. at 493. As the court in Williams made

clear, a defendant has an obligation to notify the sentencing court that he believes that the

presentence report is deficient. Id. In this case, defendant concedes that he reviewed the PSI

prior to the sentencing hearing. While defendant’s affidavit provides some explanation for his

failure to catch the error when he reviewed the PSI, that he “did not understand all of the legalese

in it,” there is no explanation for defendant’s failure to speak up when the sentencing judge

specifically referenced “the felonies in the state of Georgia.” For postconviction purposes, we

conclude that defendant has forfeited the issue.

¶ 46   Whereas waiver precludes review, forfeiture permits review under the plain-error doctrine.

People v. Bowens, 407 Ill. App. 3d 1094, 1101 (2011) (citing People v. Townsell, 209 Ill. 2d 543,

547-48 (2004)). But even if we were to relax the rules of forfeiture, defendant=s claim of

ineffective assistance of counsel is completely without merit. To be entitled to relief, a defendant

has the burden to prove a substantial deprivation of a constitutional right. Pendleton, 223 Ill. 2d at

471. In proving ineffective assistance of counsel, he must first overcome a strong presumption

that counsel provided competent representation. Strickland, 466 U.S. at 689. We understand the

trial court=s decision to docket defendant’s pro se petition. In his petition, defendant alleged that

Boches “was ineffective in not correcting these facts before the court or going over the PSI with

petitioner to make corrections.” (Emphasis added.) This assertion was not clearly rebutted by

the trial court record. It is worth noting that the trial court allowed the amended petition to

proceed to a third-stage hearing without first requiring postconviction counsel to file “affidavits,

records, or other evidence supporting its allegations.” See 725 ILCS 5/122-2 (West 2008).

When counsel finally filed defendant’s affidavit in support of the petition it became clear that no

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hearing was necessary. Contrary to defendant’s arguments on appeal, there was no clear evidence

that Boches knew that the PSI was inaccurate before he learned of defendant’s petition. Boches’

affidavit essentially mirrors what defendant said in his affidavit. Boches and defendant agree that

they discussed defendant’s background before the sentencing hearing and that Boches reviewed

the PSI and asked defendant to review it for errors. Defendant stated in his affidavit, “I did not

notice any errors but could not be sure because I did not understand all of the legalese in it.” The

information regarding the Georgia convictions is on page seven of the PSI. As the trial court

explained, defendant had a substantial criminal history before his convictions in Georgia. There

is no question that defendant knew the difference between a felony and a misdemeanor. While

competent representation clearly requires that defense counsel reasonably consult with their

clients, communication is a two-way street. As the supreme court has explained, information

given by a defendant to defense counsel is critical in determining the reasonableness of counsel’s

investigation. People v. Thomas, 164 Ill. 2d 410, 425 (1995) (citing Strickland, 466 U.S. at 691).

The record in this case reveals that prior to the sentencing hearing defendant and Boches discussed

his criminal history.    The record also reveals that defendant and Boches had significant

discussions prior to defendant=s decision to accept the plea offer. It is based on these discussions

that defendant argues that Boches “was aware of the true nature of his Georgia convictions.”

However, defendant was given a copy of the PSI to review prior to the sentencing hearing, and he

told Boches that he “did not notice any errors.” Defendant did not allege in his affidavit that he

had insufficient time to review the report. Nor did he allege that he told Boches that he did not

understand the contents of the report. Defendant is correct in arguing that the allegation that his

criminal history was known to Boches prior to the sentencing hearing was not contradicted by

Boches’ own affidavit. However, the information that defendant allegedly provided to Boches on

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the Georgia convictions was contradicted by the PSI, which defendant said was accurate. This

discrepancy explains Boches’ comment to the court during his sentencing argument that he was

not sure about the “probation item” from Georgia. Defendant also fails to explain his silence

when the trial court made a specific reference to the “felonies in the State of Georgia.” The trial

court admonished defendant pursuant to Rule 605(c) that if he wished to appeal he had to file

within 30 days a “written motion asking to have the judgment vacated and for leave to withdraw

your plea of guilty” and that any issue or claim of error not raised would be deemed waived.

Defendant said he understood.

¶ 47   As the supreme court has explained, “[t]he issue of incompetency of counsel is always to

be determined from the totality of counsel’s conduct.” People v. Mitchell, 105 Ill. 2d 1, 15

(1984). In this case, defendant was originally facing a sentence of 12 to 60 years. See 730 ILCS

5/5-8-4(a)(i) (West 2002) (where one of the charges is a Class X felony and the defendant inflicts

severe bodily injury, a consecutive sentence is mandatory). Defendant also faced two counts of

aggravated criminal sexual abuse in another case, convictions of which, upon discharge from the

penitentiary, would have required defendant to register as a sex offender. See 730 ILCS 150/1 et

seq. (West 2002). Boches pursued plea negotiations and successfully minimized defendant’s

sentencing exposure. We find that defense counsel’s performance was objectively reasonable.

Boches would have had no way of knowing that the Georgia conviction information was

inaccurate other than by asking defendant to review the information in the PSI, which is precisely

what he did. As we have stated, defects in a presentence report may be waived. See People v.

Madej, 106 Ill. 2d 201, 212 (1985). We cannot say that any failure to further check the records of

these convictions was conduct falling below an objective standard of reasonableness. Harden,

221 Ill. App. 3d at 997.

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¶ 48   Finally, even if we were to find that Boches was deficient for failing to correct the PSI,

defendant has failed to prove any resulting prejudice. Under Strickland, proof of prejudice cannot

be based on mere conjecture or speculation. People v. Palmer, 162 Ill. 2d 465, 481 (1994).

Instead, defendant was required to show that correcting the Georgia conviction information

“would have likely resulted in a lesser sentence.” People v. Williams, 272 Ill. App. 3d 868, 880

(1995). The sentencing court’s reference to the Georgia case was nothing more than a passing

reference and took up one line of seven transcript pages of its findings. The court was merely

observing that defendant continued to violate the law after his felony conviction in Illinois and

sentence to the Department of Corrections. We further note that in its sentencing argument, while

the State made reference to the Georgia convictions, it did not emphasize that they were of

felonies. The sentencing court noted that, while they were of “felonies,” defendant received a

“probation” sentence. It was defendant’s burden to prove more than the possibility that the error

prejudiced him. Defendant did not carry his burden of proving prejudice.

¶ 49                                   III. CONCLUSION

¶ 50   Accordingly, the judgment of the circuit court of Lake County is affirmed.

¶ 51   Affirmed.




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