             NOTICE
                                       2015 IL App (5th) 120548
 Decision filed 06/29/15.   The
 text of this decision may be              NO. 5-12-0548
 changed or corrected prior to
 the filing of a Peti ion for
 Rehearing or the disposition of              IN THE
 the same.

                                   APPELLATE COURT OF ILLINOIS

                            FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,        )     Appeal from the
                                            )     Circuit Court of
      Plaintiff-Appellee,                   )     Lawrence County.
                                            )
v.                                          )     No. 10-CF-108
                                            )
FREDERICK G. KITCHELL,                      )     Honorable
                                            )     Robert M. Hopkins,
      Defendant-Appellant.                  )     Judge, presiding.
________________________________________________________________________

      JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
      Presiding Justice Cates and Justice Chapman concurred in the judgment and
opinion.

                                           OPINION

¶1       Defendant, Frederick G. Kitchell, appeals from an order of the circuit court of

Lawrence County granting the State's motion to dismiss his postconviction petition in

which he alleged ineffective assistance of guilty plea counsel. The issue on appeal is

whether the circuit court erred in granting the State's motion to dismiss the postconviction

petition alleging ineffective assistance of guilty plea counsel where plea counsel's advice

was incorrect concerning available sentencing credit. In this appeal, the State has filed a

motion to cite additional authority. This court grants the State's motion. We reverse and

remand.
                                                 1
¶2                                BACKGROUND

¶3     Defendant was charged by information with home invasion (720 ILCS 5/12-

11(a)(2) (West 2008)), but ultimately pleaded guilty to attempted home invasion (720

ILCS 5/12-11(a)(2), 8-4(a) (West 2008)) and was sentenced to 10 years in the Illinois

Department of Corrections (Department) and 2 years' mandatory supervised release as

part of a fully negotiated plea. During negotiations, defendant's attorney advised him he

would be eligible to receive good-conduct credit while serving time in the Department if

he participated in various educational, vocational, and drug rehabilitation classes.

Defendant participated in such classes, but did not receive any good-time credit because

he was ineligible for such credit pursuant to section 3-6-3 of the Unified Code of

Corrections, "Rules and Regulations for Early Release" (730 ILCS 5/3-6-3 (West 2008)),

and section 107.520 of Title 20 of the Illinois Administrative Code "Eligibility" (20 Ill.

Adm. Code 107.520 (1996)).

¶4     On February 9, 2012, defendant filed a pro se petition for relief from judgment in

which he argued that he agreed to a negotiated plea agreement because he was promised

he could receive earned good-conduct credit, but he had since learned he was not eligible

for such credit and, therefore, he "did not receive his benefit of the bargain." The circuit

court appointed counsel to represent defendant. Appointed counsel withdrew the pro se

petition and filed instead a postconviction petition, alleging defendant was denied

effective assistance of plea counsel due to the erroneous advice plea counsel gave

defendant regarding good-time credit, asserting that plea "counsel provided ineffective

assistance of counsel when he incorrectly informed [defendant] that he would be eligible
                                            2
for good[-]conduct credit for participation in various [Department] programs, and

furthermore, the inaccurate advice of his counsel made his plea involuntary." Attached to

the petition was defendant's affidavit in which he averred that he participated in various

educational and vocational classes while in the Department, but failed to receive any

good-conduct credit for such participation, and he "would not have entered into the plea

agreement in this case if he would not have been erroneously informed by his defense

counsel that he was eligible to receive good[-]conduct credit for participation" in such

programs. The State filed a motion to dismiss. The circuit court granted the State's

motion to dismiss. Defendant now appeals.

¶5                                   ANALYSIS

¶6     The issue on appeal is whether the circuit court erred in granting the State's motion

to dismiss defendant's postconviction petition alleging ineffective assistance of plea

counsel where plea counsel's advice was incorrect concerning available sentencing credit.

Defendant contends he would not have entered into his guilty plea if he had not been

erroneously informed by plea counsel that he was eligible to receive good-conduct credit.

He insists the erroneous advice of plea counsel amounted to ineffective assistance of

counsel and the circuit court erred in granting the State's motion to dismiss the

postconviction petition alleging ineffective assistance of guilty plea counsel. We agree.

¶7     The Post-Conviction Hearing Act (Act) provides a method by which a person

under criminal sentence may assert that his or her conviction resulted from a substantial

denial of his or her rights. 725 ILCS 5/122-1(a)(1) (West 2012); People v. Tate, 2012 IL

112214, ¶ 8, 980 N.E.2d 1100. A postconviction proceeding is commenced by the filing
                                        3
of a petition. 725 ILCS 5/122-1(b) (West 2012). Each proceeding has three distinct

stages. People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001). The

instant appeal is from a second stage dismissal of a postconviction petition. At the

second stage, the circuit court must determine whether the petition and any

accompanying documents make a substantial showing of a constitutional violation.

Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446. If the petition fails to make a substantial

showing of a constitutional violation, it is dismissed, but if such a showing is made, the

petition advances to the third stage, where the court conducts an evidentiary hearing. 725

ILCS 5/122-6 (West 2012); Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446.              The

dismissal of a postconviction proceeding at the second stage is reviewed de novo. People

v. Coleman, 183 Ill. 2d 366, 389, 701 N.E.2d 1063, 1075 (1998).

¶8     A challenge to a guilty plea based upon allegations of ineffective assistance of

counsel is subject to the two-pronged test established in Strickland v. Washington, 466

U.S. 668 (1984). People v. Hall, 217 Ill. 2d 324, 334-35, 841 N.E.2d 913, 920 (2005). In

order to obtain relief under Strickland, a petitioner must show both that (1) counsel's

performance fell below an objective standard of reasonableness, and (2) there is a

reasonable probability that, but for counsel's unprofessional errors, the result would have

been different. Strickland, 466 U.S. at 687. Plea counsel performs inadequately where

he or she fails to ensure that the defendant's plea was entered voluntarily and

intelligently. Hall, 217 Ill. 2d at 335, 841 N.E.2d at 920.

¶9     In support of his ineffective assistance claim, defendant relies on People v. Young,

355 Ill. App. 3d 317, 822 N.E.2d 920 (2005). Young is factually similar to the instant
                                         4
case because it also involved a guilty plea which was procured through an affirmative

misstatement of the consequences of a guilty plea. The issue in that case was whether

trial counsel was ineffective when he incorrectly informed the defendant that he would

serve less actual prison time by pleading guilty to a Class 1 felony with a 12-year prison

term than he would serve by pleading guilty to a Class X felony with a 10-year prison

term. Young, 355 Ill. App. 3d at 321, 822 N.E.2d at 923-24. The State moved to dismiss

the petition, arguing that the claim was not supported by the record, and the circuit court

granted the motion. Young, 355 Ill. App. 3d at 320, 822 N.E.2d at 923. In reversing, our

colleagues in the Second District distinguished a case cited by the State, relied on our

supreme court's analysis in another case, and discussed in detail the difference between

an attorney's passive failure to inform a defendant of the collateral consequences of a

guilty plea and an affirmative misrepresentation of the consequences as follows:

              "As defendant points out, [People v.] Maury[, 287 Ill. App. 3d 77, 678

       N.E.2d 30 (1997),] completely fails to consider People v. Correa, 108 Ill. 2d

       541[, 485 N.E.2d 307] (1985), which draws a crucial distinction between 'the

       passive conduct of counsel in failing to discuss with a defendant the collateral

       consequences of a guilty plea' and 'unequivocal, erroneous, misleading

       representations' that counsel makes in response to a defendant's specific inquiries.

       Correa, 108 Ill. 2d at 551-52[, 485 N.E.2d at 311]. Correa involved the latter

       situation.   While the court refused to decide whether the defendant's counsel

       would have been ineffective had he 'simply failed to advise the defendant of the

       collateral consequence' (Correa, 108 Ill. 2d at 550[, 485 N.E.2d at 311]), it held
                                           5
       that counsel's 'unequivocal, erroneous, misleading representations' about the

       collateral consequences of the plea amounted to ineffective assistance that

       rendered the defendant's plea involuntary. Correa, 108 Ill. 2d at 552[, 485 N.E.2d

       at 311]. ***

              ***

              Defendant's allegation that he pleaded guilty based on [plea counsel's]

       erroneous advice is legally sufficient under the Act. Of course, whether defendant

       can actually prove his contention must be resolved at an evidentiary hearing."

       Young, 355 Ill. App. 3d at 323-24, 822 N.E.2d at 925-26.

¶ 10   Young concluded the defendant was entitled to a hearing on his claim that his trial

counsel was ineffective and his plea was not voluntary and, therefore, reversed the trial

court's judgment and remanded the case for an evidentiary hearing. Young, 355 Ill. App.

3d at 325, 822 N.E.2d at 926-27.

¶ 11   Nevertheless, in the instant case, the State asserts that because defendant indicated

to the circuit court that there were no "promises" made by his attorney that persuaded him

to accept the plea agreement, his argument on appeal must fail. However, we find that

neither the fact that defendant stated on the record that no promises were made nor the

fact that his attorney recited the plea agreement terms and failed to mention Department

program credit is material. The question of good-time credit for program participation is

directly related and a direct consequence of the charge to which defendant pled guilty.

Here, there is no controversy that plea counsel's advice that defendant would be eligible

for credit was erroneous.
                                             6
¶ 12   The recent case of People v. Clark, 2011 IL App (2d) 100188, 957 N.E.2d 162, is

instructive on the showing required to establish ineffectiveness of trial counsel. In Clark,

the defendant alleged in a postconviction petition that he was denied the effective

assistance of counsel during his guilty plea hearing when his attorney told him there were

no witnesses available to support his defense of insanity. In support of his claim, the

defendant attached the affidavit of the victim, who averred that the defendant was

schizophrenic and had not been taking his medications at the time of the offense, that he

heard voices telling him to stab her, and that she knew he did not mean to harm her. The

reviewing court found that the defendant made a substantial showing that counsel was

ineffective for failing to investigate the witness and that he was prejudiced because

counsel told him that there were no witnesses available to support his defense. Clark,

2011 IL App (2d) 100188, ¶¶ 28-29, 957 N.E.2d 162. Similar to Young, Clark also

contained an allegation of an unequivocally false misrepresentation, not mere passive

conduct, sufficient to warrant a finding of ineffective assistance of counsel should the

defendant be able to prove his allegations.

¶ 13   In the instant case, defendant attached to his petition an affidavit in which he

specifically averred that he would not have pleaded guilty but for the erroneous advice of

plea counsel that defendant was eligible to receive good-conduct credit for participation

in certain Department programs.       As our colleagues in the Fourth District stated,

"Defendant's contention that counsel gave him wrong advice and he relied on that advice

is sufficient under the Act to entitle him to an evidentiary hearing ***." People v.

Stewart, 381 Ill. App. 3d 200, 206, 887 N.E.2d 461, 467 (2008). Whether defendant can
                                           7
prove his contention will be determined at the evidentiary hearing.

¶ 14   For the foregoing reasons, we reverse the circuit court's judgment and remand for

an evidentiary hearing.



¶ 15   Reversed and remanded.




                                            8
                               2015 IL App (5th) 120548
                                    NO. 5-12-0548
                                        IN THE
                          APPELLATE COURT OF ILLINOIS
                                   FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,      )   Appeal from the
                                          )   Circuit Court of
      Plaintiff-Appellee,                 )   Lawrence County.
                                          )
v.                                        )   No. 10-CF-108
                                          )
FREDERICK G. KITCHELL,                    )   Honorable
                                          )   Robert M. Hopkins,
      Defendant-Appellant.                )   Judge, presiding.
__________________________________________________________________________

Opinion Filed:        June 29, 2015
__________________________________________________________________________

Justices:           Honorable Richard P. Goldenhersh, J.

                 Honorable Judy L. Cates, P.J., and
                 Honorable Melissa A. Chapman, J.,
                 Concur
__________________________________________________________________________

Attorneys        Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy
for              Defender, Robert S. Burke, Assistant Appellate Defender, Office of
Appellant        the State Appellate Defender, Fifth Judicial District, 909 Water Tower
                 Circle, Mt. Vernon, IL 62864
__________________________________________________________________________

Attorneys        Hon. Christopher M. Quick, State's Attorney, Lawrence County
for              Courthouse, Courthouse Square, Lawrenceville, IL 62439, Patrick
Appellee         Delfino, Director, Stephen E. Norris, Deputy Director, Whitney E.
                 Atkins, Staff Attorney, Office of the State's Attorneys Appellate
                 Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt.
                 Vernon, IL 62864
__________________________________________________________________________
