                                      2018 IL App (5th) 140556
            NOTICE
 Decision filed 04/04/18. The
 text of this decision may be              NO. 5-14-0556
 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,                       )     St. Clair County.
                                                )
v.                                              )     No. 13-CF-882
                                                )
GABRIEL BOYD,                                   )     Honorable
                                                )     Robert B. Haida,
      Defendant-Appellant.                      )     Judge, presiding.
________________________________________________________________________

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

                                            OPINION

¶1       This appeal arises from an order of the circuit court of St. Clair County that denied

defendant’s motion to withdraw plea of guilty to the offense of armed robbery (720 ILCS 5/18­

2(a)(1) (West 2012)). In his motion, defendant argued his plea was not knowing and voluntary

because his plea counsel was ineffective. For the following reasons, we reverse the circuit court’s

order denying defendant’s motion to withdraw plea of guilty, vacate defendant’s conviction and

sentence, and remand this cause with directions to allow defendant to plead anew.

¶2                                        BACKGROUND

¶3       Defendant, Gabriel Boyd, pled guilty to a single count of armed robbery, a Class X

felony, on May 15, 2014, pursuant to a fully negotiated plea agreement in which defendant

agreed to a sentence of 18 years in the Illinois Department of Corrections, with 3 years of

                                                  1

mandatory supervised release. See 720 ILCS 5/18-2(a)(1) (West 2012). In exchange for

defendant’s guilty plea, the St. Clair County State’s Attorney’s Office (State) dismissed three

other counts against him. After admonishing defendant and finding a factual basis for the plea,

the court concluded there were no improper promises or inducements that caused defendant to

plead guilty and accepted the plea as voluntary.

¶4     Defendant filed a pro se motion to reconsider sentence on June 2, 2014, alleging that the

sentence imposed was excessive and his plea counsel was ineffective. Because defendant’s

motion alleged ineffective assistance of counsel and defendant had already entered a guilty plea,

the trial court construed defendant’s motion as a motion to withdraw the guilty plea and

appointed the public defender to represent defendant in all postplea proceedings. The appointed

public defender filed a motion to withdraw plea of guilty on September 26, 2014, asserting

(1) defendant’s plea of guilty was not voluntary because defendant’s plea counsel was

ineffective, (2) defendant did not fully understand the potential sentence he faced, and

(3) defendant did not understand the nature of the charges against him. The motion to withdraw

plea of guilty further asserted defendant had a defense worthy of consideration.

¶5     A hearing on defendant’s motion was held on October 1, 2014. At the hearing, defendant

testified his plea counsel informed him that in exchange for a plea of guilty, defendant may be

eligible to enter certain programs in prison which would allow him to receive credit for good

time against his sentence. However, after he arrived at the Department of Corrections, defendant

testified he discovered he was ineligible to receive any type of good time credit because his case

involved a Class X felony. Defendant testified that if he had known he was ineligible to receive

good time credit prior to pleading guilty, it would have “changed [his] mind on pleading guilty.”

On cross-examination, defendant testified the trial judge asked him a number of questions prior


                                                   2

to defendant pleading guilty, including whether defendant had been promised anything other

than the plea negotiations and whether anyone threatened him. Defendant testified he had not

been promised anything and was not threatened.

¶6     Plea counsel also testified at the hearing. He testified that he and defendant had a number

of conversations about the nature of the charges brought against defendant and the State’s plea

offers. Plea counsel testified he did not promise defendant that he would be eligible for good

time credit, meritorious service credit, or credit obtained through programs in the Department of

Corrections. He also testified he spoke with defendant about the potential for programs in the

Department of Corrections but denied ever telling defendant he would be guaranteed acceptance

into those programs or that the programs would reduce defendant’s time. He testified that he

“absolutely” never made any promises or used threats or coercion to convince defendant to plead

guilty and that defendant knew trial was always an option up until the day he pled guilty.

¶7     On cross-examination, plea counsel testified that when talking to defendant about the

amount of time he would have to serve, he told defendant his sentence may be cut in half if he

received day for day good time credit. He testified he also discussed that defendant may receive

an initial six-month credit. He further testified that he talked to defendant in general regarding

educational programs that may result in a reduction of time, but nothing specific as to the amount

of time or whether there would actually be a reduction of time. In rebuttal, defendant testified, “It

was kind of absolutely a promise that I would be able to get into some programs and I would be

able to get some good time if I completed the programs.”

¶8     The court entered an order on October 9, 2014, denying defendant’s motion to withdraw

plea of guilty. The court noted the crux of the motion related to defendant’s claim that his

counsel promised him the opportunity to earn additional good time credits against his sentence


                                                 3

after transfer to the Department of Corrections. However, based upon the testimony and a

transcript of defendant’s plea, the court found no improper promises relating to good time credit

or any other matter were made to defendant that caused him to enter a guilty plea. The court

concluded defendant’s plea was voluntary.

¶9     This appeal followed.

¶ 10                                       ANALYSIS

¶ 11   The single issue raised by defendant on appeal alleges his plea counsel was ineffective,

which in turn rendered his guilty plea not truly knowing and voluntary. Specifically, defendant

contends his plea counsel was ineffective because counsel informed defendant that in exchange

for his guilty plea, defendant may receive good time credit and a reduction in his sentence if he

participated in certain educational programs provided by the Illinois Department of Corrections.

Defendant also asserts his plea counsel was ineffective because counsel informed defendant he

may be eligible for day for day good time credit and an initial six-month credit. However,

defendant was statutorily ineligible for such credit due to the offense to which he pled guilty.

¶ 12   At the onset, we note the parties disagree as to the standard of review. The State contends

the decision to grant or deny a motion to withdraw a guilty plea ordinarily rests within the sound

discretion of the trial court and will not be reversed absent an abuse of discretion. People v.

Walston, 38 Ill. 2d 39, 42 (1967); People v. Delvillar, 235 Ill. 2d 507, 520 (2009). Conversely,

defendant argues that because the issue raised on appeal does not rely on any contested issue of

fact and concerns the purely legal issue of whether the trial court properly followed the

applicable law in reaching its decision, our standard of review should be de novo. In support of

this proposition, defendant cites People v. Hale, 2013 IL 113140, and People v. Coleman, 2015

IL App (4th) 131045.


                                                 4

¶ 13   After careful consideration, we agree with the State. A thorough review of several Illinois

Supreme Court decisions lends support to our conclusion that the trial court’s denial of

defendant’s motion to withdraw plea of guilty should be reviewed for an abuse of discretion. See

People v. Manning, 227 Ill. 2d 403, 411-12 (2008) (“[T]he decision whether or not to allow a

defendant to withdraw his guilty plea is a matter within the discretion of the trial court and will

not be disturbed absent an abuse of that discretion.”); Delvillar, 235 Ill. 2d at 519 (“The decision

to grant or deny a motion to withdraw a guilty plea rests in the sound discretion of the circuit

court and, as such, is reviewed for abuse of discretion.”); People v. Hughes, 2012 IL 112817,

¶ 32 (“Generally, the decision to grant or deny a motion to withdraw a guilty plea rests in the

sound discretion of the circuit court and, as such, is reviewed for abuse of discretion.”).

¶ 14   Accordingly, we will review the trial court’s denial of defendant’s motion to withdraw

plea of guilty for an abuse of discretion. An abuse of discretion occurs only where the court’s

ruling is so arbitrary or unreasonable that no reasonable person would take the view adopted by

the trial court. Delvillar, 235 Ill. 2d at 519. Before turning to the merits of this appeal, we note

that the two cases cited by defendant, Hale and Coleman, concern claims of ineffective

assistance of counsel, but not in the context of a motion to withdraw a guilty plea. This appeal

stems from the trial court’s denial of defendant’s motion to withdraw plea of guilty. Therefore,

we limit our inquiry to whether the trial court abused its discretion in denying defendant’s

motion. However, regardless of what standard we apply, we find defendant’s plea counsel was

ineffective.

¶ 15   We now turn to defendant’s contention that the trial court erred in denying his motion to

withdraw plea of guilty because the plea was not knowing and voluntary as a result of his plea

counsel’s ineffectiveness. It is well settled that a defendant does not have an absolute right to


                                                  5

withdraw his or her guilty plea. Manning, 227 Ill. 2d at 411-12. However, a defendant should be

allowed to withdraw the plea where it was not constitutionally entered. Manning, 227 Ill. 2d at

412. Where a plea of guilty was entered as a result of misrepresentations by counsel, the

defendant should be allowed to withdraw his or her plea of guilty and plead not guilty. Manning,

227 Ill. 2d at 412. A defendant may challenge the constitutionality of his or her guilty plea by

asserting (1) he or she did not receive the benefit of the bargain made with the State or (2) the

plea of guilty was not made voluntarily or with full knowledge of the consequences. Manning,

227 Ill. 2d at 412.

¶ 16    Here, as previously stated, defendant claims his plea was not knowing and voluntary.

Whether a defendant’s plea was knowing and voluntary depends upon whether the defendant

was provided effective assistance of counsel. Manning, 227 Ill. 2d at 412. Challenges to guilty

pleas that allege ineffective assistance of counsel are subject to the standard set forth by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by

the Illinois Supreme Court in People v. Albanese, 104 Ill. 2d 504, 525-28 (1984). In order to

succeed on a claim of ineffective assistance of counsel, a defendant must show (1) counsel’s

representation fell below an objective standard of reasonableness (deficiency prong) and

(2) there is a reasonable probability that, but for counsel’s error, the result of the proceedings

would have been different (prejudice prong). Strickland, 466 U.S. at 687-88; Albanese, 104 Ill.

2d at 525; People v. Mack, 2016 IL App (5th) 130294, ¶ 26.

¶ 17    To establish deficiency under the first prong of the Strickland test, an individual must

overcome the strong presumption that the challenged action or inaction was the product of sound

trial strategy. People v. Simms, 192 Ill. 2d 348, 361 (2000). It is well settled there is a strong

presumption that counsel’s conduct falls within the wide range of professional assistance. People


                                                6

v. Crutchfield, 2015 IL App (5th) 120371, ¶ 34. However, the decision regarding what plea to

enter is a right that belongs to the defendant and is not a decision that counsel may make as a part

of trial strategy. Manning, 227 Ill. 2d at 416.

¶ 18   As to the prejudice prong of the Strickland test, a reasonable probability is one that is

sufficient to undermine confidence in the outcome, namely that counsel’s deficient performance

caused the result of the trial to be unreliable or fundamentally unfair. Mack, 2016 IL App (5th)

130294, ¶ 27. To establish prejudice for purposes of a claim of ineffective assistance of counsel,

the defendant must show there is a “ ‘reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.’ ” People v. Rissley, 206

Ill. 2d 403, 458 (2003) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). A bare allegation that

a defendant would have pled not guilty is insufficient to establish prejudice for purposes of an

ineffective assistance of counsel claim. People v. Brown, 2017 IL 121681, ¶ 26. Rather, the

defendant must convince the court that a decision to reject the plea would have been rational

under the circumstances. Brown, 2017 IL 121681, ¶ 41.

¶ 19   Both prongs under Strickland must be satisfied in order to succeed on a claim of

ineffective assistance, and the failure to satisfy either prong will be fatal to the claim. Mack,

2016 IL App (5th) 130294, ¶ 27. Therefore, a court need not address both components of the

inquiry if the defendant makes an insufficient showing on one. People v. Ramos, 339 Ill. App. 3d

891, 900 (2003).

¶ 20   Relevant to this appeal, Illinois courts distinguish the direct consequences of a guilty plea

from the collateral consequences of the plea and have consistently held that good time credit is a

collateral consequence of a guilty plea. People v. Williams, 188 Ill. 2d 365, 371 (1999); People v.

La Pointe, 2015 IL App (2d) 130451, ¶ 46. It is well settled that plea counsel’s failure to advise


                                                  7

of a collateral consequence does not provide a basis to invalidate the plea. People v. Presley,

2012 IL App (2d) 100617, ¶¶ 27-28. However, if plea counsel gives wrong or incorrect advice,

even as to a collateral consequence of the plea, and the defendant relies on that advice in making

the decision to plead guilty, the counsel’s performance falls below an objective standard of

reasonableness and amounts to ineffective assistance. People v. Correa, 108 Ill. 2d 541, 552

(1985).

¶ 21      Here, the record shows defendant pled guilty on the basis of inaccurate information

provided by his plea counsel—namely, that he would be eligible for good time credit against his

sentence upon being incarcerated. The testimony of plea counsel and defendant supports this

finding. At the hearing, in response to a question regarding what he discussed with defendant

about the amount of time defendant would serve, and what his understanding was regarding what

defendant would have to serve, counsel testified:

          “Well, the main thing was that, yeah, the 18 years if he got the day for day good time

          would basically cut his time in half. He may get some initial credit, six-month credit. But

          other than that, you know, we talked about there may be additional programs available

          through Department of Corrections. Nothing specifically other than, you know—I think

          we talked in general that there may be educational programs that may result in reduction

          of time, but nothing specific as to *** amount of time that would be—or whether there

          would actually be a reduction.”

¶ 22      Contrary to plea counsel’s suggestion that defendant may be eligible to receive credit

against his sentence upon his incarceration, a review of the version of section 3-6-3 of the

Unified Code of Corrections (Code) in effect at the time defendant entered his plea shows

defendant was ineligible to receive such credit. 730 ILCS 5/3-6-3 (West 2012). Regarding


                                                   8

counsel’s assertion that defendant may be eligible to receive day for day credit, section 3-6­

3(a)(2)(iii) of the Code provides that a prisoner serving a sentence for armed robbery “shall

receive no more than 4.5 days of sentence credit for each month of his or her sentence of

imprisonment.” 730 ILCS 5/3-6-3(a)(2)(iii) (West 2012). Thus, defendant was ineligible to

receive day for day credit. Regarding counsel’s assertion that defendant may receive an initial

six-month credit, which would be awarded for good conduct, and additional credit through

participation in educational programs, defendant was ineligible to receive such credit because he

was convicted of armed robbery. 730 ILCS 5/3-6-3(a)(3), (4) (West 2012).

¶ 23   Based on the foregoing, we find defendant’s plea of guilty was not truly knowing and

voluntary. The record shows defendant pled guilty on the basis of inaccurate information

provided by his plea counsel—namely, that he would be eligible for certain good time credit

against his sentence upon his incarceration when, in fact, defendant was statutorily ineligible to

receive such credit. Plea counsel’s deficient performance satisfies the first prong under

Strickland. Furthermore, at the hearing, defendant testified that if he had known he was ineligible

to receive good time credit prior to pleading guilty, it would have “changed [his] mind on

pleading guilty.” Because there is a reasonable probability that, absent counsel’s errors,

defendant would have pled not guilty and proceeded to trial, defendant has shown he suffered

prejudice. Considering defendant has satisfied both prongs under Strickland, we find the trial

court abused its discretion in denying his motion to withdraw plea of guilty.

¶ 24   Turning to the State’s argument, we initially note that the fact defendant has already been

afforded an evidentiary hearing to present his case about whether his plea was knowing and

voluntary does not lend support to the State’s position that the trial court properly denied

defendant’s motion to withdraw plea of guilty. For the reasons discussed above, we find


                                                9

defendant has shown his plea counsel was ineffective in accordance with the requirements under

Strickland. Accordingly, the trial court abused its discretion in denying defendant’s motion.

¶ 25   The State next argues that defendant has failed to show he was prejudiced by counsel’s

performance, as a bare allegation that defendant would have pled not guilty and would have

insisted on a trial if counsel had not been deficient is not enough to establish prejudice. People v.

Hall, 217 Ill. 2d 324, 335 (2005). The State argues that defendant’s claim must include either a

claim of innocence or the articulation of a plausible defense that could have been raised at trial

and contends that defendant has failed to assert his innocence or a plausible defense. Hall, 217

Ill. 2d at 335-36. The State further cites our supreme court decision in Correa, which observed

the fact that a defendant enters a plea of guilty because of some erroneous advice by his counsel

does not itself destroy the voluntary nature of the plea. Correa, 108 Ill. 2d at 548-49.

¶ 26   After careful consideration, we find defendant has presented more than a bare allegation

that he would have pled not guilty and proceeded to trial absent plea counsel’s deficient

performance. Here, defendant agreed to plead guilty in exchange for a sentence of 18 years with

3 years of mandatory supervised release, which is at the midpoint statutory range of 6 to 30 years

for Class X offenders. 730 ILCS 5/5-4.5-25(a) (West 2012). Plea counsel testified that when

reviewing the terms of the plea agreement with defendant prior to defendant entering his guilty

plea, he discussed the possibility of good time credit through participation in educational

programs, day for day good time credit, and an initial six-month credit. Thus, considering this

advice, it was possible for defendant to believe he could reduce his sentence by 50% when, in

fact, defendant was required to serve 85% of his sentence. 730 ILCS 5/3-6-3(a)(2)(iii) (West

2012). Plea counsel’s testimony corroborates defendant’s testimony that the possibility of a

reduction in his sentence was a major factor in defendant’s decision to enter his guilty plea.


                                                 10 

¶ 27   We further note, as our supreme court has recently observed, that the requirement of a

claim of innocence or a plausible defense does not apply to allegations of plea counsel’s errors

regarding defendant’s understanding of the consequences of entering a guilty plea. Brown, 2017

IL 121681, ¶ 46. Rather, to succeed on a claim that he was prejudiced as a result of counsel’s

erroneous advice about the consequences of pleading guilty, defendant must convince the court

that a decision to reject the plea would have been rational under the circumstances. Brown, 2017

IL 121681, ¶ 48.

¶ 28   In Brown, the defendant argued he was denied his right to effective assistance of counsel

when he entered into a fully negotiated guilty plea agreement in reliance on his plea counsel’s

advice that he would only have to serve 50% of his 18-year sentence. Brown, 2017 IL 121681,

¶ 23. The defendant alleged he was prejudiced by his counsel’s failure to correctly advise him

that he was required to serve 85% of his sentence. Brown, 2017 IL 121681, ¶ 46. Our supreme

court concluded the defendant’s allegation, standing alone, was insufficient to establish

prejudice.

¶ 29   Unlike the defendant in Brown, however, defendant in the instant case has presented

more than a bare allegation that he would not have pled guilty and would have proceeded to trial

absent plea counsel’s deficient advice that he may be eligible to receive good time credit. Again,

plea counsel’s testimony corroborates defendant’s position that he entered his guilty plea under

the false impression that he would be eligible to obtain credit against his sentence. Accordingly,

we find defendant has shown that a decision to reject the guilty plea would have been rational if

he had known he was ineligible to receive credit against his sentence, especially considering the

floor of his sentencing range was 12 years less than the 18-year sentence to which he agreed.




                                               11 

¶ 30   As it pertains to Correa, the State correctly observes the fact that a defendant enters a

plea of guilty because of some erroneous advice by his counsel does not itself destroy the

voluntary nature of the plea. Correa, 108 Ill. 2d at 548-49. However, the State ignores our

supreme court’s further observation:

       “If the defendant’s pleas were made in reasonable reliance upon the advice or

       representation of his attorney, which advice or representation demonstrated

       incompetence, then it can be said that the defendant’s pleas were not voluntary; that is,

       there was not a knowing and intelligent waiver of the fundamental rights which a plea of

       guilty entails.” Correa, 108 Ill. 2d at 549.

¶ 31   Based on our findings of deficiency and prejudice, we cannot say defendant’s plea of

guilty was truly knowing and voluntary. Defendant entered his guilty plea under the ill-advised

presumption he would be eligible to receive good time credit and a reduction in his sentence

despite the fact that he was statutorily ineligible to receive good time credit. This satisfies the

deficiency prong under Strickland. Moreover, if he had known he was ineligible to receive good

time credit prior to pleading guilty, defendant testified it would have changed his mind regarding

whether to plead guilty. This satisfies the prejudice prong under Strickland, as there is a

reasonable probability that, but for counsel’s errors, defendant would not have pled guilty and

would have proceeded to trial. We deem it important to stress that defendant has presented more

than a bare allegation that he would have pled not guilty absent counsel’s errors, as plea

counsel’s testimony corroborates defendant’s testimony that the possibility of a reduction in his

sentence was a major factor in defendant’s decision to enter his guilty plea. We further note that

even with enough evidence to support a conviction, a decision to reject the guilty plea and

proceed to trial would have been rational under the circumstances considering defendant could


                                                 12 

have received a much lesser sentence than that to which he agreed in his guilty plea. In light of

the foregoing, we conclude the trial court abused its discretion in denying defendant’s motion to

withdraw plea of guilty.

¶ 32                                    CONCLUSION

¶ 33    For the reasons stated herein, we reverse the judgment of the circuit court of St. Clair

County denying defendant’s motion to withdraw plea of guilty. We vacate defendant’s plea of

guilty and subsequent sentence and remand this cause with directions to allow defendant to plead

anew.

¶ 34    Reversed in part, vacated in part, and remanded with directions.




                                               13 

                                2018 IL App (5th) 140556 


                                     NO. 5-14-0556


                                         IN THE


                          APPELLATE COURT OF ILLINOIS


                                   FIFTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,       )    Appeal from the
                                           )    Circuit Court of
      Plaintiff-Appellee,                  )    St. Clair County.
                                           )
v. 	                                       )    No. 13-CF-882
                                           )
GABRIEL BOYD,                              )    Honorable
                                           )    Robert B. Haida,
      Defendant-Appellant.                 )    Judge, presiding.
______________________________________________________________________________

Opinion Filed:         April 4, 2018
______________________________________________________________________________

Justices:           Honorable Richard P. Goldenhersh, J.

                  Honorable John B. Barberis, P.J., and
                  Honorable Melissa A. Chapman, J.,
                  Concur
______________________________________________________________________________

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

Attorneys         Hon. Brendan F. Kelly, State’s Attorney, St. Clair County Courthouse,
for               10 Public Square, Belleville, IL 62220; Patrick Delfino, Director,
Appellee          David J. Robinson, Acting Deputy Director, Kelly M. Stacey, 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
______________________________________________________________________________
