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                               Appellate Court                             Date: 2018.07.10
                                                                           09:04:58 -05'00'




                    People v. Boyd, 2018 IL App (5th) 140556



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            GABRIEL BOYD, Defendant-Appellant.



District & No.     Fifth District
                   Docket No. 5-14-0556


Filed              April 4, 2018
Rehearing denied   April 25, 2018



Decision Under     Appeal from the Circuit Court of St. Clair County, No. 13-CF-882; the
Review             Hon. Robert B. Haida, Judge, presiding.



Judgment           Reversed in part, vacated in part, and remanded with directions.


Counsel on         Michael J. Pelletier, Ellen J. Curry, and Richard J. Whitney, of State
Appeal             Appellate Defender’s Office, of Mt. Vernon, for appellant.

                   Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino,
                   David J. Robinson, and Kelly M. Stacey, of State’s Attorneys
                   Appellate Prosecutor’s Office, of counsel), for the People.



Panel              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 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 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

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       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
       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.
¶ 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

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


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       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 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

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       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
       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

                                                   -6-
       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.
¶ 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.
¶ 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

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       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
       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.




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