                                                                          Digitally signed by
                                                                          Reporter of Decisions
                       Illinois Official Reports                          Reason: I attest to the
                                                                          accuracy and
                                                                          integrity of this
                                                                          document
                              Appellate Court                             Date: 2017.01.17
                                                                          09:24:29 -06'00'




                  People v. Brown, 2016 IL App (4th) 140760



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           ANTHONY S. BROWN, Defendant-Appellant.


District & No.    Fourth District
                  Docket No. 4-14-0760



Filed             November 10, 2016



Decision Under    Appeal from the Circuit Court of Champaign County, No.
Review            12-CF-1460; the Hon. Thomas J. Difanis, Judge, presiding.



Judgment          Affirmed.



Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Ann Fick, of State
Appeal            Appellate Defender’s Office, of Elgin, for appellant.

                  Julia Rietz, State’s Attorney, of Champaign (Patrick Delfino, David J.
                  Robinson, and Kathy Shepard, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE APPLETON delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Knecht and Justice Pope concurred in the judgment
                  and opinion.
                                               OPINION

¶1         Defendant, Anthony S. Brown, appeals the second-stage dismissal of his amended
       petition for postconviction relief. We affirm the trial court’s judgment because in our de novo
       review, we conclude that defendant has failed to make a substantial showing of a
       constitutional violation.

¶2                                       I. BACKGROUND
¶3                                  A. The Negotiated Guilty Plea
¶4         On May 6, 2013, defendant entered a fully negotiated plea of guilty to the charge of being
       an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2012)). In exchange, he received a
       sentence of 18 years’ imprisonment, and the State nol-prossed a charge of home invasion
       with a firearm (720 ILCS 5/19-6(a)(3) (West 2012)).

¶5                         B. The Amended Petition for Postconviction Relief
¶6         On June 19, 2014, defendant, through his appointed counsel, filed an amended petition
       for postconviction relief. In the amended petition, he alleged that before he pleaded guilty to
       being an armed habitual criminal, his trial attorney misinformed him regarding the
       good-conduct credit he could potentially receive, telling him the minimum time he would
       have to serve was 50% of his prison sentence rather than 85%. Defendant supported this
       allegation with his own affidavit, in which he stated as follows. Before entering into the
       negotiated guilty plea, he confirmed with his trial attorney that he would serve his prison
       sentence at 50% (meaning that he could receive day-for-day credit for good behavior and
       thus could be discharged after serving only nine years). He accepted the plea agreement in
       reliance on that advice. Later, after he was committed to the Department of Corrections
       (Department), he learned that, in reality, statutory law required him to serve 85% of his
       prison sentence. See 730 ILCS 5/3-6-3(a)(2)(ii) (West 2012). He would not have entered into
       the negotiated guilty plea if he had known he was required to serve at least 85% of the
       proposed 18-year prison sentence instead of 50% as his trial attorney had advised him.
¶7         On August 26, 2014, the trial court granted the State’s motion for dismissal on the ground
       that defendant had shown no prejudice from the incorrect legal advice.
¶8         This appeal followed.

¶9                                           II. ANALYSIS
¶ 10      In the second stage of a postconviction proceeding, the defendant must make a substantial
       showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). On
       appeal from a second-stage dismissal, we decide de novo whether the defendant made such a
       substantial showing, liberally construing the allegations of the petition (People v. Coleman,
       183 Ill. 2d 366, 388 (1998)) and taking as true all well-pleaded facts that are not positively
       rebutted by the record (Pendleton, 223 Ill. 2d at 473).
¶ 11      If we followed two cases that defendant cites, People v. Stewart, 381 Ill. App. 3d 200
       (2008), and People v. Kitchell, 2015 IL App (5th) 120548, we would find a substantial
       showing of a constitutional violation. The problem is, those two cases are irreconcilable with
       People v. Rissley, 206 Ill. 2d 403 (2003), binding authority that they do not mention. Given

                                                  -2-
       the choice between following Stewart and Kitchell on the one hand or Rissley on the other,
       we should follow Rissley, since it is a decision by the supreme court. See Agricultural
       Transportation Ass’n v. Carpentier, 2 Ill. 2d 19, 27 (1953) (“Where the Supreme Court has
       declared the law on any point, it alone can overrule and modify its previous opinion, and the
       lower judicial tribunals are bound by such decision and it is the duty of such lower tribunals
       to follow such decision in similar cases.”).
¶ 12       We decline to follow Stewart and Kitchell because for purposes of ineffective assistance
       in the context of guilty pleas, Rissley requires a particular showing of prejudice that Stewart
       and Kitchell do not seem to require. To explain what we mean, we will take those three cases
       one at a time.

¶ 13                                             A. Stewart
¶ 14       In Stewart, the amended petition for postconviction relief alleged that the trial court had
       omitted to admonish the defendant, before accepting his guilty plea, that he would have to
       serve a minimum of 85% of his prison sentence. Stewart, 381 Ill. App. 3d at 201. The State
       moved to dismiss the amended petition, and it appears that, in the hearing on the State’s
       motion for dismissal, the evidence and the arguments went beyond the scope of the amended
       petition by addressing a new, unpleaded theory of ineffective assistance of plea counsel. Id.
       at 202. The trial court acknowledged a letter from the defendant’s plea counsel advising the
       defendant, incorrectly, that he could receive day-for-day good-conduct credit. Id. It appears,
       though, that when granting the State’s motion for dismissal, the court said nothing about
       ineffective assistance (perhaps regarding the issue as forfeited (725 ILCS 5/122-3 (West
       2006)) but confined itself to the observation that, in a guilty-plea hearing, it was unnecessary
       to admonish the defendant regarding good-conduct credit. Id.
¶ 15       On appeal, the defendant argued that his amended petition should have been “advanced to
       the third stage to present evidence that he only pleaded guilty because of his attorney’s
       explicit wrong advice and he would not have pleaded guilty had it not been for this bad
       information.” Id. at 205. We responded as follows:
               “In this case, [the] defendant’s pro se petition, the attached letter from guilty-plea
               counsel, the amended petition, and the arguments during the postconviction
               proceedings demonstrate that [the] defendant alleges that (1) guilty-plea counsel gave
               him erroneous advice, (2) based on that erroneous advice he decided to plead guilty,
               and (3) he would not have pleaded guilty had it not been for the misinformation.
               [The] [d]efendant’s contention that counsel gave him wrong advice and he relied on
               that advice is sufficient under the [Post-Conviction Hearing] Act [(Act)] to entitle him
               to an evidentiary hearing—even though the advice involved a collateral consequence
               of his guilty plea.” Id. at 206.

¶ 16                                           B. Kitchell
¶ 17       In the subsequent decision of Kitchell, the defendant alleged in his postconviction
       petition that he would not have pleaded guilty but for his attorney’s erroneous advice, during
       the plea negotiations, that he could receive good-conduct credit for participation in various
       programs within the Department. Kitchell, 2015 IL App (5th) 120548, ¶ 4. He alleged he had
       taken educational and vocational classes while in prison only to find out that, contrary to


                                                  -3-
       what his attorney had told him, he actually was ineligible for good-conduct credits for taking
       such classes. Id.
¶ 18       On appeal from the second-stage dismissal of his postconviction petition, the defendant
       “contend[ed] 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.” Id. ¶ 6. He
       insisted the erroneous advice amounted to ineffective assistance and that the trial court had
       erred by granting the State’s motion to dismiss his petition. Id.
¶ 19       The Fifth District agreed with the defendant (id.), relying in part on our decision in
       Stewart (id. ¶ 13). The Fifth District said:
                   “In the instant case, [the] 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 [the] defendant was eligible to receive good-conduct credit
               for participation in certain Department programs. As our colleagues in the Fourth
               District stated, ‘[The] [d]efendant’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 ***.’ [Citation.] Whether [the] defendant can prove his contention will be
               determined at the evidentiary hearing.” Id. (quoting Stewart, 381 Ill. App. 3d at 206).

¶ 20                                              C. Rissley
¶ 21        In Rissley, which predates Stewart and Kitchell, the defendant pleaded guilty to
       aggravated kidnapping and murder (Rissley, 206 Ill. 2d at 408), and his sentence of death
       ultimately was commuted to natural-life imprisonment without the possibility of parole (id. at
       409).
¶ 22        He filed a petition for postconviction relief, which later was amended by his appointed
       postconviction counsel. Id. at 408. One of the claims in the amended petition was that plea
       counsel had rendered ineffective assistance by failing to advise the defendant that “the option
       existed for a bench trial during the guilt/innocence phase of the proceedings.” Id. at 457.
¶ 23        The supreme court explained that when challenging a guilty plea on the ground of
       ineffective assistance, the defendant had to prove both elements of Strickland v. Washington,
       466 U.S. 668 (1984), namely, deficient performance and resulting prejudice. Rissley, 206 Ill.
       2d at 457. In the context of a guilty plea, “[c]ounsel’s conduct [was] deficient under
       Strickland if the attorney failed to ensure that the defendant entered the plea voluntarily and
       intelligently.” Id. To establish the other element of Strickland, prejudice, the defendant had to
       “show that there [was] a reasonable probability that, but for counsel’s errors, he would not
       have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks
       omitted.) Id.
¶ 24        It was the second element, the element of prejudice, that the supreme court found to be
       unsubstantiated. Id. at 460. The defendant had made an adequate showing of the first
       element. Id. at 457. The supreme court was willing to assume that plea counsel had been
       “deficient” in failing to “realiz[e] that the option existed for a bench trial during the
       guilt/innocence phase of the proceedings.” Id. But when it came to the element of prejudice,
       all the defendant had presented was his “bare allegation that had counsel not been deficient
       during plea discussions, defendant would have pleaded differently and gone to trial.”
       (Internal quotation marks omitted.) Id. at 458. Such a “subjective” and “self-serving”


                                                   -4-
       allegation, standing alone, simply was not good enough. (Internal quotation marks omitted.)
       Id. at 459. The defendant’s naked assertion that, but for plea counsel’s bad advice, he would
       not have pleaded guilty—“unaccompanied by either a claim of innocence or the articulation
       of any plausible defense that he could have raised had he opted for a trial”—failed to show
       prejudice. (Emphasis in original and internal quotation marks omitted.) Id. The defendant in
       Rissley never claimed he was innocent of the charges, nor had he identified a plausible
       defense to the charges; therefore, he had failed to establish prejudice, as required under
       Strickland. Id. at 460.
¶ 25        From this explication of Rissley, it should be apparent that Stewart is mistaken in its
       evaluation of prejudice, and the same holds true for Kitchell, which relied on Stewart.
       Stewart held: “[The] [d]efendant’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—even
       though the advice involved a collateral consequence of his guilty plea.” Stewart, 381 Ill. App.
       3d at 206. Kitchell echoed that holding. Kitchell, 2015 IL App (5th) 120548, ¶ 13. Those
       cases assume a defendant can show prejudice simply by asserting that, but for plea counsel’s
       bad advice, he or she would have pleaded differently and would have gone to trial. But
       Rissley is quite clear: a bare allegation to that effect will not establish prejudice. Rissley, 206
       Ill. 2d at 458. The defendant must additionally claim he or she is innocent of the charges or
       must identify a plausible defense to the charges. Id. at 459. Defendant in the present case has
       done neither, and therefore the trial court was correct to grant the State’s motion for
       dismissal.

¶ 26                                    III. CONCLUSION
¶ 27      For the foregoing reasons, we affirm the trial court’s judgment, and we award the State
       $50 in costs against defendant.

¶ 28      Affirmed.




                                                    -5-
