                            No. 3--09--0408
                    Opinion filed March 17, 2011

                                IN THE
                     APPELLATE COURT OF ILLINOIS
                            THIRD DISTRICT
                              A.D., 2011

THE PEOPLE OF THE STATE OF      )     Appeal from the Circuit Court
ILLINOIS,                       )     of the 13th Judicial Circuit,
                                )     La Salle County, Illinois
     Plaintiff-Appellee,        )
                                )
           v.                   )     No.     90--CF--185
                                )
JOSEPH J. CICHON,               )
                                )     Honorable H. Chris Ryan,
     Defendant-Appellant.       )     Judge, Presiding.

     JUSTICE SCHMIDT delivered the judgment of the court, with
opinion.
     Justices McDade and Wright concurred in the judgment and
opinion.


                                OPINION

     Defendant, Joseph Cichon, was indicted on 54 counts

consisting of: aggravated criminal sexual assault, criminal
sexual assault, aggravated criminal sexual abuse, and child
pornography.    Pursuant to a plea agreement, defendant pled guilty
to multiple counts in exchange for a 25-year sentence.       Defendant
filed a petition for postconviction relief that was ultimately
granted.   The State then refiled the charges against defendant
and offered him a plea deal with a 25-year sentence.        He rejected
the offer and went to trial.    He was convicted and sentenced to
105 years.
     After two unsuccessful postconviction petitions, the court
allowed defendant to file a third petition for postconviction
relief which advanced to a third-stage hearing.    He claimed that
he received ineffective assistance of counsel in his original
postconviction proceedings and at the subsequent arraignment.       He
also claimed his due process rights were violated at the
arraignment.    The trial court denied his petition.   On appeal,
defendant raises only the two arguments concerning ineffective
assistance of counsel.    We affirm the decision of the trial
court.
                                FACTS
                       I. Original Proceedings
     In 1990 and 1991, the State charged defendant with 54 counts
consisting of: aggravated criminal sexual assault, criminal
sexual assault, aggravated criminal sexual abuse, and child
pornography.    Pursuant to a negotiated plea agreement, he pled
guilty to six counts of aggravated criminal sexual assault, three
counts of Class 1 felony child pornography and three counts of
Class 3 felony child pornography; the State dropped the remaining
charges.    The court sentenced him to the agreed-upon sentence of
25 years.    The victims’ families approved of the deal to avoid
putting the children through a trial.
                      II. Defendant Hires Geis

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     In 1994, defendant hired James Geis to file a postconviction
petition, claiming the attorney who represented defendant in the
original plea negotiations and sentencing had a conflict of
interest.   During the course of that representation, Geis
explained to defendant the possible consequences if he chose to
have his original guilty plea vacated.    Geis believed defendant
could possibly receive a 30-year sentence if he was retried, but
believed that it was unlikely defendant would receive a sentence
greater than his original 25 years.   This advice is documented in
a letter that Geis sent to defendant.
     However, Geis later told defendant that it was possible that
any sentences he received would have to be served consecutively
and could lead to a much longer sentence than the one he was
serving.    Geis explained that the prosecutor in charge, Timothy
Huyett, was going to refile all 54 counts if defendant vacated
his guilty plea.   At some point before his original guilty plea
was vacated, defendant met with Geis and Huyett.   Huyett
explained that he was going to seek a sentence in excess of 100
years.
     In open court on the day the trial court granted defendant’s
petition, Geis stated that he had explained to defendant that it
was possible he would face consecutive sentencing and receive a
much longer sentence than his original sentence.   Huyett also
explained that defendant would face a maximum sentence of 60
years if he chose to go to trial again.   After hearing both

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statements, defendant still chose to go forward with his
petition.    The trial court granted defendant’s petition and
vacated his original guilty plea and conviction.       At this point,
Geis’s representation of defendant ended.
             III. Representation by Bute and Cappellini
     After Geis withdrew, the court assigned public defenders
Daniel Bute and Timothy Cappellini to represent defendant.
Huyett spoke with Bute before the arraignment and offered
defendant a sentence of 25 years if he would plead guilty.       He
indicated that the deal was only available for seven days.       Prior
to the arraignment, Bute and Cappellini tried to convince
defendant that the 25-year term was an offer that he should
accept.   They provided case law to defendant and explained that
because of recent interpretation of the statute by the Illinois
Supreme Court, he would be subject to a much greater sentence if
he went to trial.
     Defendant was arraigned on the new charges within a week of
his guilty plea being vacated.    At the arraignment, Huyett
clarified that he misspoke during the postconviction hearing
where defendant’s guilty plea and sentence were vacated when he
said defendant was subject to a maximum sentence of 60 years.         He
clarified that the maximum sentence defendant could receive was
120 years.    He also reiterated that the 25-year offer would only
be available for a "short time."       The court asked Bute if he
would like the court to admonish defendant on the maximum

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possible sentence and Bute declined.
     Bute and Cappellini were unable to convince defendant to
accept the plea.    Bute later testified defendant was sure he
would win at trial.    The case went to trial and defendant was
convicted of four counts of aggravated criminal sexual assault,
two counts of criminal sexual assault, one count of aggravated
criminal sexual abuse, and three counts of Class 1 felony child
pornography.    He was sentenced to consecutive terms totaling 105
years.    This court affirmed defendant’s sentences on direct
appeal.
                    IV. Postconviction Proceedings
     Defendant filed two unsuccessful postconviction petitions
before he was granted leave to file the successive postconviction
appeal which is the subject of this appeal.    In this petition, he
raised three issues, two of which he pursues with this court.
First, he claims that his sixth amendment right to counsel was
triggered when the State plea bargained with Geis in 1997 prior
to the court vacating his sentence and guilty plea.    He argues
that Geis was ineffective because he advised defendant that he
faced only 25 years and that he should reject the plea.    Second,
he argues that Bute was ineffective at the arraignment because he
waived the court’s offer to admonish defendant about the maximum
possible penalty.
                 V. Third-Stage Evidentiary Hearing
     The petition advanced to stage-three proceedings.    At the

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evidentiary hearing, Geis, Cichon, Huyett, Bute and Cappellini
testified.
     Geis testified that he originally told defendant that if he
were retried he would face at most 30 years.   He said that he
told defendant that because it was the law when they originally
filed the postconviction petition.   Geis also testified that once
he became aware that it was possible that defendant might face an
extended sentence, he never calculated exactly how much time
defendant faced.   Geis went on to say he had explained to
defendant that if he were retried, it was possible he would face
consecutive sentences instead of concurrent sentences and that he
could receive a sentence much longer than 25 years.   Geis
testified that defendant was "quite intelligent."   Geis said that
not only had he explained to defendant that he might face an
extended sentence but the trial judge also told defendant that he
could receive consecutive sentences.
     Geis explained that the law was changing between the time he
started to represent defendant in 1994 and 1997 when the
evidentiary hearing was held.   Geis testified that he had
explained to defendant that the law was changing and that the
issue of mandatory consecutive sentences was before the Illinois
Supreme Court at the time of the hearing.   In response to a
question by the court, Geiss testified that "[he] didn’t think
that [his representation] was ineffective assistance of counsel."
     Defendant testified that the only information that he ever

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received from Geis was that the longest sentence he could receive
would be 30 years.    He also said that Geis told him that the
prosecutor would likely try to scare him into withdrawing his
petition by telling him he faced a sentence much longer than 30
years.    Defendant testified that when he heard Huyett or Bute
talk about sentences longer than 30 years, he assumed they were
posturing to get him to back down.     Defendant testified that had
he known he faced even the possibility of 60 years, he would have
withdrawn his postconviction petition.     He prosecuted his
original postconviction petition in reliance on what Geis told
him.    He did admit that Bute told him that his understanding of
the time he was facing was wrong.     Defendant testified that Bute
told him he faced 40 or 45 years.     He said the only person who
ever told him he could receive over 100 years was Huyett.
       Following defendant’s testimony, Huyett testified.     He said
that prior to the day the court granted defendant’s petition,
Huyett, Geis and defendant discussed what would happen if the
petition was granted and the case went to trial.     Huyett
testified that he explained to defendant that he would receive
100 years or more at trial.    According to Huyett, defendant
responded by saying he was going to win at trial.     Huyett also
testified that on the day defendant’s petition was granted, he
explained to him that he faced a sentence of up to 60 years.
Huyett explained that he corrected that mistake at the
arraignment when he explained that the defendant could receive up

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to 120 years.
     Following Huyett, Bute testified.   He said that after he was
appointed, he contacted Huyett to see if he would still offer 25
years.   Huyett offered a 25-year deal if defendant accepted in
the next seven days.   Bute said he told defendant that he could
not give him an exact length of sentence he could get at trial
because he had not seen the evidence yet.    However, he did tell
him that given the charges he could get up to 80 years.    Bute
described the 80-year figure as just a ballpark figure.
     Bute testified that defendant had a letter from Geis and
believed he could not get more than his original sentence.    Bute
testified that Cappellini brought case law that showed defendant
could get more than 25 years.   Bute testified that they could not
convince defendant to take the 25 years.    Bute testified that
defendant "wasn’t going to accept 25 years."    Bute said he tried
to get less than 25 years from Huyett but could not.
     Cappellini was the final witness to testify.    He testified
that he researched the potential sentence that defendant could
receive and tried to convince defendant that he should take the
25-year offer from Huyett.   Cappellini said that defendant told
him he was wrong about the potential sentence so Cappellini
showed him the actual case law and read portions of it,
explaining that defendant did face a sentence much longer than 25
years.   When asked who made the decision not to accept the 25-
year deal, Cappellini testified that defendant made the decision.

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Cappellini said that he and Bute tried to convince defendant for
between 30 and 45 minutes, but defendant would not accept the 25-
year deal.
     The court denied the petition.   The trial court found that
prior to the court granting defendant’s first petition, there
were some negotiations, discussions and advice given by Geis
regarding potential plea negotiations that might occur if
defendant decided to vacate his original guilty plea.    The court
also found that Geis originally told defendant that he was only
subject to 30 years, should he go to trial and be convicted.
     The trial court found that Geis informed defendant that the
supreme court was reviewing the issue of mandatory consecutive
and concurrent sentences.   The court went on to say that although
Geis had not sent a letter to defendant explaining the
possibility of consecutive sentencing, it was explained in open
court in front of defendant and he still chose to proceed.
     The court also found that prior to the final hearing during
which defendant’s original guilty plea and sentence were vacated,
Huyett, Geis and defendant had a meeting.    Huyett made it clear
that it was his position that defendant faced 100 years or more
by vacating his original plea.   The court said that in addition
to this meeting, defendant met with Bute and Cappellini and they
told him he was looking at up to 80 years.
     The court found that Geis may have been ineffective
originally because of the letter he sent, but that any deficiency

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was cured by the discussion between defendant, Huyett and Geis.
The court also said that it found no reasonable reliance on Geis
by defendant.    The court said it found no ineffective assistance
by Bute after he began representation of defendant.
                               ANALYSIS
     We review fact-finding and credibility determinations by the
trial court in a stage-three postconviction proceeding for
manifest error.     People v. Coleman, 183 Ill. 2d 366, 384 (1998).
A manifest error is one that is clearly evident, plain, and
indisputable.     People v Green, 218 Ill. App. 3d 71, 75 (1991).
Defendant alleges a sixth amendment ineffective assistance of
counsel claim.    In People v. Albanese, 104 Ill. 2d 504, 526
(1984), the supreme court adopted the ineffective assistance of
counsel test from Strickland v. Washington, 466 U.S. 668 (1984).
     A petitioner shows ineffective assistance of counsel when he
shows first "that counsel's representation fell below an
objective standard of reasonableness and that counsel's
shortcomings were so serious as to ‘deprive the defendant of a
fair trial, a trial whose result is reliable.’ [Citation.]"
People v. Albanese,     104 Ill. 2d at 525.   The petitioner must
also show "that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different."    (Internal quotations marks omitted.)
People v. Albanese, 104 Ill. 2d at 525.
     The analysis can proceed in any order. "If it is easier to

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dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that
course should be followed."   (Internal quotation marks omitted.)
People v. Albanese, 104 Ill. 2d at 527.
     We now review the trial court’s decision that defendant
failed to prove both elements required to show ineffective
assistance of counsel.
              I. Alleged Ineffective Assistance by Geis
     Defendant argues that Geis was ineffective because he
originally told him that he was not in danger of receiving more
the a 30-year sentence.   The State raises two arguments in
support of the court's decision.      First, that Geis did not
represent defendant in any proceeding where he was convicted, so
any potential ineffective assistance is not cognizable in this
proceeding.   Second, that even if Geis’s actions are cognizable
in this proceeding, Geis’s actions were reasonable.
                       A. Not Cognizable Here
     Section 122-1(a) of the Code of Criminal Procedure of 1963
(the Code) (725 ILCS 5/100-1 et seq. (West 2008)) provides that a
person imprisoned in the penitentiary can file a petition for
postconviction relief if he claims that: "in the proceedings
which resulted in his or her conviction there was a substantial
denial of his or her rights under the Constitution of the United
States or of the State of Illinois or both."      725 ILCS 5/122-
1(a)(1) (West 2008).

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     Geis never represented defendant in a proceeding that
resulted in defendant’s conviction.    Geis represented defendant
in postconviction-relief proceedings, the result of which was
that defendant’s previous guilty plea was vacated.    At the end of
the hearing, Geis indicated that his representation of defendant
then terminated.   The result of the proceeding was that defendant
was "unconvicted."   Postconviction hearings are intended to
provide a collateral remedy for constitutional violations that
occur at trial or sentencing.     People v. Woods, 193 Ill. 2d 483,
489 (2000).   Any violation defendant alleges by Geis is not
reviewable in a postconviction hearing.
     Defendant argues that once Huyett discussed possible
outcomes of defendant’s postconviction proceedings, he created
bifurcated proceedings: one, the postconviction proceedings, and
the other, the second criminal proceeding against defendant.
Defendant argues that the second criminal proceeding did result
in his conviction and is cognizable in this proceeding.     We
disagree.
     There could be no second criminal proceeding against
defendant while his original guilty plea and sentence remained
valid.   Huyett’s actions prior to the court's vacating
defendant’s guilty plea and sentence cannot have been plea
bargaining because it was impossible for the State to bring
charges against defendant due to the double jeopardy clause of
the United States Constitution.    U.S. Const. amend. V.   Huyett

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was trying to explain to defendant that it was not a good idea to
have his original sentence and plea vacated because the outcome
would likely be a much longer sentence.    He was unable to bargain
with defendant because it was impossible at that point for Huyett
to charge defendant with anything.    Therefore, Geis never
represented defendant in a proceeding that is cognizable in a
postconviction proceeding.   That is, under no stretch of the
imagination can we consider a postconviction proceeding that
resulted in defendant’s conviction being vacated as "proceedings
which resulted in [defendant’s] conviction."    725 ILCS 5/122-
1(a)(1) (West 2008).
            B. Even if Cognizable, No Error Occurred
     Even if defendant’s claim were cognizable in this
proceeding, the trial court’s decision was not manifest error.
The trial court found that any error founded on Geis’s letter was
cured when defendant was told in open court that it was possible
he could receive a sentence much greater than 25 years.
     The court found no ineffective assistance because defendant
was ultimately given the correct information.    The trial court
focused on the statements to defendant that it was possible to
get a larger sentence and that the supreme court was reviewing
the issue, but it was possible that he would face mandatory
consecutive sentences.   We find no error in the trial court’s
decision.
                       C. "But For" Causation

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     Defendant’s actions speak much louder than his words.    When
defendant knew that he faced the possibility of receiving a
sentence much longer than 25 years, he still chose not to accept
the plea offer of 25 years.   Defendant argues that, but for the
actions of Geis, he would only have a 25-year sentence.    Yet, it
is clear to this court that defendant did know by his arraignment
that he faced up to 120 years and he still rejected the deal the
State offered.    Even assuming, arguendo, that Geis’s actions were
not objectively reasonable, defendant still cannot show that
Geis’s actions prejudiced him.    Geis got defendant what defendant
wanted: his conviction vacated.    Later, with full knowledge of
what could happen, defendant rejected another offer of 25 years.
    II. Alleged Ineffective Assistance by Bute and Cappellini
     Defendant argues that when Bute and Cappellini waived having
the judge admonish defendant as to the maximum possible sentence
if he was convicted on all counts, they provided ineffective
assistance of counsel.   Defendant must show that this decision
fell below an objectively reasonable standard.    See Albanese, 104
Ill. 2d at 525.
     The trial court found that defendant was aware that it was
possible he would receive a much longer sentence than the 25
years offered by the State.   The trial court did not believe it
was unreasonable to waive the court’s offer to admonish defendant
concerning the maximum penalty because the court found defendant
was aware of the fact he faced a sentence over 100 years.

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     The record supports the trial court’s finding.   The evidence
is clear that Huyett first informed defendant that he was looking
at 60 years if he rejected the State’s offer.   He later corrected
the 60 years to 120 years at the arraignment.   Bute and
Cappellini testified that they spent at least 30 minutes showing
defendant case law and explaining that the 25-year offer was in
his best interest because it was likely he would get much more
time if he went to trial.   There is no reason to believe that
after all this, defendant would have changed his mind if the
judge had told him the same thing again.   Defendant rejected the
offer because he thought he could win at trial.
     We find no manifest error in the trial court’s decision.
The trial court was in the best position to make credibility and
factual determinations and we will not second-guess those
decisions.
                            CONCLUSION
     For the foregoing reasons, the judgment of the circuit court
of La Salle County is affirmed.
     Affirmed.




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