                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Trujillo, 2012 IL App (1st) 103212




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



District & No.             First District, Second Division
                           Docket No. 1-10-3212


Filed                      May 8, 2012


Held                       The summary dismissal of defendant’s pro se postconviction petition was
(Note: This syllabus       reversed and the cause was remanded for further proceedings where
constitutes no part of     defendant sufficiently alleged an arguable claim of ineffective assistance
the opinion of the court   of counsel based on his counsel’s alleged failure to inform him of a guilty
but has been prepared      plea offer for multiple controlled substance charges, and on remand, the
by the Reporter of         trial court was directed to reconsider the credit due defendant for his
Decisions for the          pretrial custody.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-CR-791; the Hon.
Review                     Thomas M. Tucker, Judge, presiding.


Judgment                   Reversed and remanded.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Jeffrey Svehla, all of State
Appeal                      Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                            Kathryn A. Schierl, and Annette Collins, Assistant State’s Attorneys, of
                            counsel), for the People.


Panel                       JUSTICE CUNNINGHAM delivered the judgment of the court, with
                            opinion.
                            Presiding Justice Quinn and Justice Harris concurred in the judgment and
                            opinion.


                                              OPINION

¶1          Defendant Manuel Trujillo appeals from the summary dismissal of his pro se petition for
        relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 to 122-8 (West 2010).
        On appeal, the defendant contends that the petition presented an arguable claim of ineffective
        assistance of counsel based on counsel’s alleged failure to inform him of the State’s guilty
        plea offer, and that the mittimus must be corrected to reflect the correct amount of
        presentence custody credit. We reverse and remand for further proceedings.
¶2          At a jury trial, the State’s evidence established that on December 6, 2006, the police
        executed a search warrant of the defendant’s home. In addition to a large amount of
        narcotics, they also recovered scales and plastic baggies, which are generally used for the
        packaging and sale of drugs. On December 7, 2006, the defendant was arrested. He waived
        his Miranda rights and gave an inculpatory statement which was introduced at trial. The
        defendant was convicted of 10 counts of possession of a controlled substance and possession
        with intent to deliver, including a Super Class X felony (720 ILCS 570/401(a)(2)(C) (West
        2006)). The defendant was sentenced to an aggregate term of 12 years in prison and received
        62 days of presentence custody credit.
¶3          On direct appeal this court vacated seven of the defendant’s convictions and sentences
        as a violation of the one-act, one-crime rule, modified the mittimus to reflect only the
        remaining three convictions, and affirmed the sentences for those convictions. People v.
        Trujillo, No. 1-07-3320 (2009) (unpublished order pursuant to Supreme Court Rule 23).
¶4          In September 2010, the defendant filed the instant pro se petition alleging, in relevant
        part, that his trial counsel was ineffective for failing to inform him of a plea offer made by
        the State prior to trial. Specifically, the defendant alleges that the State made a plea offer of
        six years, that he would have accepted the plea offer if he had known of it, and that he only
        learned a plea offer was made from a letter which counsel sent to the Attorney Registration
        and Disciplinary Commission (ARDC). He also alleges that “[c]ontrary to what [counsel]
        said to the ARDC he never told [defendant] about this offer.” In support of his allegations,

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     the defendant attached an affidavit in which he averred the same. The defendant also attached
     the letter counsel wrote to the ARDC, dated June 14, 2010. In the letter, counsel states that
     before trial, “the State’s Attorney offered six years in the penitentiary for the Defendant to
     plead guilty.” The letter also says that he “recommended to [defendant] prior to trial that he
     accept the offer due to the overwhelming evidence against him,” that the trial court
     admonished the defendant about the plea offer, and that the defendant rejected the offer.
¶5        On September 24, 2010, the trial court summarily dismissed the defendant’s petition.
¶6        On appeal, the defendant first contends that his petition adequately presented the gist of
     a claim of ineffective assistance of counsel based on his allegation that counsel failed to
     inform him of the State’s plea offer. Specifically, the defendant argues that he adequately
     supported his allegations by attaching counsel’s letter, that his allegations are not
     contradicted by the record, and that his petition successfully presented a claim with an
     arguable basis in both law and fact.
¶7        The summary dismissal of a postconviction petition is reviewed de novo. People v.
     Hodges, 234 Ill. 2d 1, 9 (2009). At the first stage of postconviction proceedings, a petition
     will only be dismissed if it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2)
     (West 2008); People v. Brown, 236 Ill. 2d 175, 184 (2010). A petition is considered frivolous
     or without merit only if it has “no arguable basis either in law or in fact.” Hodges, 234 Ill.
     2d at 11-12. Petitions based on meritless legal theory or fanciful factual allegations will be
     dismissed. Hodges, 234 Ill. 2d at 16.
¶8        In particular, a first-stage petition claiming ineffective assistance of counsel must show
     that it is arguable that counsel’s performance fell below an objective standard of
     reasonableness and that it is arguable that the defendant was prejudiced by counsel’s
     performance. Hodges, 234 Ill. 2d at 17.
¶9        Here, the defendant’s claim of ineffective assistance of counsel is based on a meritorious
     legal theory. A defendant has the right to decide whether to plead guilty. People v. Whitfield,
     40 Ill. 2d 308, 311 (1968). As such, an attorney’s failure to disclose a plea offer to the
     defendant may give rise to a constitutional claim, regardless of whether the defendant
     subsequently received a fair trial. People v. Curry, 178 Ill. 2d 509, 517 (1997); Whitfield, 40
     Ill. 2d at 311. Notably, the importance of defense counsel’s effective representation in the
     context of plea negotiations was recently reinforced by two recent United States Supreme
     Court opinions. See Lafler v. Cooper, ___ U.S.___, 132 S. Ct. 1376 (2012) (holding that a
     defendant can succeed on an ineffective assistance of counsel claim where that defendant
     rejects a plea offer based on counsel’s erroneous advice and can show that, but for the
     erroneous advice, he would have accepted the plea offer and the ultimate outcome of the plea
     process would have been different); Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012)
     (where the defendant showed that counsel did not inform him of a formal offer from the State
     and there was a reasonable probability the defendant would have accepted the offer had it
     been presented to him, counsel’s performance was constitutionally deficient). In fact, the
     Supreme Court specifically held that, as a general rule, “defense counsel has the duty to
     communicate formal offers from the prosecution to accept a plea on terms and conditions
     that may be favorable to the accused.” Frye, ___ U.S. at ___, 132 S. Ct. at 1408.


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¶ 10        If counsel in this case failed to inform defendant of the guilty plea offer, it is arguable
       that his assistance was deficient. Moreover, in his petition, the defendant also alleged that
       he would have accepted the offer if he had been advised of it. Therefore if he can establish
       that the offer was not communicated to him, arguably he has been prejudiced by counsel’s
       alleged deficiency. We find that the defendant’s assertion that his counsel was ineffective for
       failing to communicate the State’s guilty plea offer to him did not lack merit.
¶ 11        Additionally, the factual basis for the defendant’s claim is neither fantastic nor
       delusional. According to his allegations, the State presented an offer of a six-year prison term
       in exchange for his guilty plea, but his counsel failed to inform him of the offer and the
       defendant did not learn of it until counsel filed a letter with the ARDC in June 2010, long
       after the case had concluded. These allegations are supported by both the defendant’s
       affidavit, in which he avers the same, and counsel’s letter to the ARDC, which states,
       “[p]rior to trial the State’s Attorney offered six years in the penitentiary for the Defendant
       to plead guilty.” Based on the record before us, the defendant’s factual allegations are not
       fanciful.
¶ 12        Where the record rebuts the allegations in a petition, summary dismissal is proper. People
       v. Rogers, 197 Ill. 2d 216, 222 (2001). Here, the State mistakenly suggests that the
       defendant’s allegation concerning his counsel’s failure to communicate the State’s plea offer
       to him is flawed because it is rebutted by counsel’s letter, which states that he told the
       defendant about the plea offer. Counsel’s letter, however, is outside the actual trial record
       and was attached to the postconviction petition. The supreme court has said that under such
       circumstances, “ ‘it is not the intent of the [A]ct that [such] claims be adjudicated on the
       pleadings.’ ” People v. Coleman, 183 Ill. 2d 366, 382 (1998) (quoting People v. Airmers, 34
       Ill. 2d 222, 226 (1966)).
¶ 13        Furthermore, counsel’s letter stated that the trial judge admonished the defendant “prior
       to trial regarding the offer and what he faced if he lost the trial.” Somehow, the State
       extrapolates from this statement that the trial court’s admonishment about the plea offer was
       likely contained in two missing transcripts from the trial record, for the dates of July 9, 2007,
       and September 7, 2007. After the parties filed their respective briefs on appeal, the two
       missing transcripts were accounted for in a supplement to the record. In an affidavit, the
       official court reporter who took notes for the trial court on July 9, 2007, avers that she “made
       a thorough and diligent search” but was unable to find any record of the proceeding for the
       present case from that date. However, the memorandum of orders shows that on July 9, 2007,
       both parties were present and the case was continued by agreement to August 16, 2007. The
       transcript from September 7, 2007, shows that on that date the case was continued to October
       3, 2007. Accordingly, nothing of substance occurred on either date. Accordingly, the record
       fails to show that the trial court admonished the defendant about a guilty plea offer on the
       two dates inferred by the State or any other date and therefore does not positively rebut the
       defendant’s allegation that he did not know of the offer. Furthermore, although counsel’s
       letter contradicts some of the defendant’s allegations, credibility determinations are improper
       at this stage of proceedings. Coleman, 183 Ill. 2d at 385.
¶ 14        In sum, the defendant’s allegation as supported by trial counsel’s letter established that
       the State had made a guilty plea offer. In turn, trial counsel has a duty to disclose the plea

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       offer to the defendant because only the defendant can decide what plea to enter. Whether or
       not counsel informed the defendant of the State’s plea offer cannot be resolved at the first
       stage of these postconviction proceedings because it would require a credibility
       determination. The defendant alleges that counsel did not tell him about the plea and, in
       contrast, counsel states that he told the defendant about the plea. The defendant alleges that
       he would have accepted the offer and counsel states that the defendant rejected it. The actual
       record neither supports nor rebuts either position. We hold that the defendant sufficiently
       alleged an arguable claim of ineffective assistance of counsel to withstand summary
       dismissal. Accordingly, upon remand the trial court is directed to conduct further proceedings
       consistent with this opinion.
¶ 15       The defendant next asserts that the mittimus must be modified to credit him with the full
       number of days he spent in pretrial custody. The defendant was given 62 days of presentence
       custody credit, but claims that he should have been credited for 96 days.
¶ 16       A defendant is entitled to credit “for time spent in custody as a result of the offense for
       which the sentence was imposed.” 730 ILCS 5/5-8-7(b) (West 2006). Here, the parties agree
       that the defendant was in custody starting December 7, 2006, posted bail on December 11,
       2006, and was ultimately released from state custody on January 31, 2007. They also agree
       that the defendant was in the custody of the Immigration and Naturalization Service (INS)
       at some point between December 11 and January 31, but disagree as to the specifics of when
       he was in state and federal custody.
¶ 17       The defendant’s calculation of additional days of presentencing custody credit is
       premised on his position that he was in state custody the entire time from December 7, 2006
       (the date of his arrest) through January 31, 2007 (the date of his release on bond). However,
       the record indicates that the defendant was in federal custody of the INS from December 11,
       2006 (the date the defendant posted bail) through January 22, 2007, when defense counsel
       informed the court at an arraignment hearing that the defendant was presently in INS custody
       and would be released from the INS later that same day. The defendant can only receive
       credit for the time he spent in federal custody if it was “a consequence of the offenses upon
       which he seeks credit.” Thomas v. Greer, 143 Ill. 2d 271, 280 (1991). Therefore, if the
       defendant was in federal custody as a consequence of the present case, he is entitled to credit
       for those days. The record does not establish the reason for, or the definitive time frame of,
       the defendant’s days in federal custody and, therefore, we cannot determine if the defendant
       is entitled to any additional days of credit. Accordingly, on remand, we direct the trial court
       to make a determination regarding the appropriate amount of custody credit to which the
       defendant is entitled. See People v. Gilkey, 263 Ill. App. 3d 706, 714-15 (1994) (where the
       record was unclear as to what days the defendant served on unrelated charges and what days
       he served on charges related to the matter at hand, this court remanded the cause to the trial
       court for recalculation of presentence custody credit).
¶ 18       For the foregoing reasons, we reverse the ruling of the circuit court of Cook County and
       remand for further proceedings consistent with this opinion.

¶ 19      Reversed and remanded.


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