                       Illinois Official Reports

                               Appellate Court



                  People v. Kitchell, 2015 IL App (5th) 120548



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           FREDERICK G. KITCHELL, Defendant-Appellant.



District & No.    Fifth District
                  Docket No. 5-12-0548



Filed             June 29, 2015



Decision Under    Appeal from the Circuit Court of Lawrence County, No. 10-CF-108;
Review            the Hon. Robert M. Hopkins, Judge, presiding.



Judgment          Reversed and remanded.



Counsel on        Michael J. Pelletier, Ellen J. Curry, and Robert S. Burke, all of State
Appeal            Appellate Defender’s Office, of Mt. Vernon, for appellant.

                  Christopher M. Quick, State’s Attorney, of Lawrenceville (Patrick
                  Delfino, Stephen E. Norris, and Whitney E. Atkins, all 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 Cates and Justice Chapman concurred in the
                  judgment and opinion.
                                              OPINION

¶1       Defendant, Frederick G. Kitchell, appeals from an order of the circuit court of Lawrence
     County granting the State’s motion to dismiss his postconviction petition in which he alleged
     ineffective assistance of guilty plea counsel. The issue on appeal is whether the circuit court
     erred in granting the State’s motion to dismiss the postconviction petition alleging ineffective
     assistance of guilty plea counsel where plea counsel’s advice was incorrect concerning
     available sentencing credit. In this appeal, the State has filed a motion to cite additional
     authority. This court grants the State’s motion. We reverse and remand.

¶2                                         BACKGROUND
¶3        Defendant was charged by information with home invasion (720 ILCS 5/12-11(a)(2) (West
     2008)), but ultimately pleaded guilty to attempted home invasion (720 ILCS 5/12-11(a)(2),
     8-4(a) (West 2008)) and was sentenced to 10 years in the Illinois Department of Corrections
     (Department) and 2 years’ mandatory supervised release as part of a fully negotiated plea.
     During negotiations, defendant’s attorney advised him he would be eligible to receive
     good-conduct credit while serving time in the Department if he participated in various
     educational, vocational, and drug rehabilitation classes. Defendant participated in such classes,
     but did not receive any good-time credit because he was ineligible for such credit pursuant to
     section 3-6-3 of the Unified Code of Corrections, “Rules and Regulations for Early Release”
     (730 ILCS 5/3-6-3 (West 2008)), and section 107.520 of Title 20 of the Illinois Administrative
     Code, “Eligibility for Program Sentence Credit” (20 Ill. Adm. Code 107.520, amended at 20
     Ill. Reg. 5745 (eff. May 5, 1996)).
¶4        On February 9, 2012, defendant filed a pro se petition for relief from judgment in which he
     argued that he agreed to a negotiated plea agreement because he was promised he could receive
     earned good-conduct credit, but he had since learned he was not eligible for such credit and,
     therefore, he “did not receive his benefit of the bargain.” The circuit court appointed counsel to
     represent defendant. Appointed counsel withdrew the pro se petition and filed instead a
     postconviction petition, alleging defendant was denied effective assistance of plea counsel due
     to the erroneous advice plea counsel gave defendant regarding good-time credit, asserting that
     plea “counsel provided ineffective assistance of counsel when he incorrectly informed
     [defendant] that he would be eligible for good[-]conduct credit for participation in various
     [Department] programs, and furthermore, the inaccurate advice of his counsel made his plea
     involuntary.” Attached to the petition was defendant’s affidavit in which he averred that he
     participated in various educational and vocational classes while in the Department, but failed
     to receive any good-conduct credit for such participation, and he “would not have entered into
     the plea agreement in this case if he would not have been erroneously informed by his defense
     counsel that he was eligible to receive good[-]conduct credit for participation” in such
     programs. The State filed a motion to dismiss. The circuit court granted the State’s motion to
     dismiss. Defendant now appeals.

¶5                                        ANALYSIS
¶6      The issue on appeal is whether the circuit court erred in granting the State’s motion to
     dismiss defendant’s postconviction petition alleging ineffective assistance of plea counsel
     where plea counsel’s advice was incorrect concerning available sentencing credit. Defendant

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     contends 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. He insists the
     erroneous advice of plea counsel amounted to ineffective assistance of counsel and the circuit
     court erred in granting the State’s motion to dismiss the postconviction petition alleging
     ineffective assistance of guilty plea counsel. We agree.
¶7       The Post-Conviction Hearing Act (Act) provides a method by which a person under
     criminal sentence may assert that his or her conviction resulted from a substantial denial of his
     or her rights. 725 ILCS 5/122-1(a)(1) (West 2012); People v. Tate, 2012 IL 112214, ¶ 8, 980
     N.E.2d 1100. A postconviction proceeding is commenced by the filing of a petition. 725 ILCS
     5/122-1(b) (West 2012). Each proceeding has three distinct stages. People v. Edwards, 197 Ill.
     2d 239, 244, 757 N.E.2d 442, 445 (2001). The instant appeal is from a second stage dismissal
     of a postconviction petition. At the second stage, the circuit court must determine whether the
     petition and any accompanying documents make a substantial showing of a constitutional
     violation. Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446. If the petition fails to make a
     substantial showing of a constitutional violation, it is dismissed, but if such a showing is made,
     the petition advances to the third stage, where the court conducts an evidentiary hearing. 725
     ILCS 5/122-6 (West 2012); Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446. The dismissal of a
     postconviction proceeding at the second stage is reviewed de novo. People v. Coleman, 183 Ill.
     2d 366, 389, 701 N.E.2d 1063, 1075 (1998).
¶8       A challenge to a guilty plea based upon allegations of ineffective assistance of counsel is
     subject to the two-pronged test established in Strickland v. Washington, 466 U.S. 668 (1984).
     People v. Hall, 217 Ill. 2d 324, 334-35, 841 N.E.2d 913, 920 (2005). In order to obtain relief
     under Strickland, a petitioner must show both that (1) counsel’s performance fell below an
     objective standard of reasonableness, and (2) there is a reasonable probability that, but for
     counsel’s unprofessional errors, the result would have been different. Strickland, 466 U.S. at
     687. Plea counsel performs inadequately where he or she fails to ensure that the defendant’s
     plea was entered voluntarily and intelligently. Hall, 217 Ill. 2d at 335, 841 N.E.2d at 920.
¶9       In support of his ineffective assistance claim, defendant relies on People v. Young, 355 Ill.
     App. 3d 317, 822 N.E.2d 920 (2005). Young is factually similar to the instant case because it
     also involved a guilty plea which was procured through an affirmative misstatement of the
     consequences of a guilty plea. The issue in that case was whether trial counsel was ineffective
     when he incorrectly informed the defendant that he would serve less actual prison time by
     pleading guilty to a Class 1 felony with a 12-year prison term than he would serve by pleading
     guilty to a Class X felony with a 10-year prison term. Young, 355 Ill. App. 3d at 321, 822
     N.E.2d at 923-24. The State moved to dismiss the petition, arguing that the claim was not
     supported by the record, and the circuit court granted the motion. Young, 355 Ill. App. 3d at
     320, 822 N.E.2d at 923. In reversing, our colleagues in the Second District distinguished a case
     cited by the State, relied on our supreme court’s analysis in another case, and discussed in
     detail the difference between an attorney’s passive failure to inform a defendant of the
     collateral consequences of a guilty plea and an affirmative misrepresentation of the
     consequences as follows:
                 “As defendant points out, [People v.] Maury[, 287 Ill. App. 3d 77, 678 N.E.2d 30
             (1997),] completely fails to consider People v. Correa, 108 Ill. 2d 541[, 485 N.E.2d
             307] (1985), which draws a crucial distinction between ‘the passive conduct of counsel
             in failing to discuss with a defendant the collateral consequences of a guilty plea’ and

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               ‘unequivocal, erroneous, misleading representations’ that counsel makes in response to
               a defendant’s specific inquiries. Correa, 108 Ill. 2d at 551-52[, 485 N.E.2d at 311].
               Correa involved the latter situation. While the court refused to decide whether the
               defendant’s counsel would have been ineffective had he ‘simply failed to advise the
               defendant of the collateral consequence’ (Correa, 108 Ill. 2d at 550[, 485 N.E.2d at
               311]), it held that counsel’s ‘unequivocal, erroneous, misleading representations’ about
               the collateral consequences of the plea amounted to ineffective assistance that rendered
               the defendant’s plea involuntary. Correa, 108 Ill. 2d at 552[, 485 N.E.2d at 311]. ***
                   ***
                   Defendant’s allegation that he pleaded guilty based on [plea counsel’s] erroneous
               advice is legally sufficient under the Act. Of course, whether defendant can actually
               prove his contention must be resolved at an evidentiary hearing.” Young, 355 Ill. App.
               3d at 323-24, 822 N.E.2d at 925-26.
¶ 10       Young concluded the defendant was entitled to a hearing on his claim that his trial counsel
       was ineffective and his plea was not voluntary and, therefore, reversed the trial court’s
       judgment and remanded the case for an evidentiary hearing. Young, 355 Ill. App. 3d at 325,
       822 N.E.2d at 926-27.
¶ 11       Nevertheless, in the instant case, the State asserts that because defendant indicated to the
       circuit court that there were no “promises” made by his attorney that persuaded him to accept
       the plea agreement, his argument on appeal must fail. However, we find that neither the fact
       that defendant stated on the record that no promises were made nor the fact that his attorney
       recited the plea agreement terms and failed to mention Department program credit is material.
       The question of good-time credit for program participation is directly related and a direct
       consequence of the charge to which defendant pled guilty. Here, there is no controversy that
       plea counsel’s advice that defendant would be eligible for credit was erroneous.
¶ 12       The recent case of People v. Clark, 2011 IL App (2d) 100188, 957 N.E.2d 162, is
       instructive on the showing required to establish ineffectiveness of trial counsel. In Clark, the
       defendant alleged in a postconviction petition that he was denied the effective assistance of
       counsel during his guilty plea hearing when his attorney told him there were no witnesses
       available to support his defense of insanity. In support of his claim, the defendant attached the
       affidavit of the victim, who averred that the defendant was schizophrenic and had not been
       taking his medications at the time of the offense, that he heard voices telling him to stab her,
       and that she knew he did not mean to harm her. The reviewing court found that the defendant
       made a substantial showing that counsel was ineffective for failing to investigate the witness
       and that he was prejudiced because counsel told him that there were no witnesses available to
       support his defense. Clark, 2011 IL App (2d) 100188, ¶¶ 28-29, 957 N.E.2d 162. Similar to
       Young, Clark also contained an allegation of an unequivocally false misrepresentation, not
       mere passive conduct, sufficient to warrant a finding of ineffective assistance of counsel
       should the defendant be able to prove his allegations.
¶ 13       In the instant case, 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
       defendant was eligible to receive good-conduct credit for participation in certain Department
       programs. As our colleagues in the Fourth District stated, “Defendant’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 ***.” People v. Stewart, 381 Ill. App. 3d 200, 206, 887 N.E.2d 461, 467

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       (2008). Whether defendant can prove his contention will be determined at the evidentiary
       hearing.
¶ 14       For the foregoing reasons, we reverse the circuit court’s judgment and remand for an
       evidentiary hearing.

¶ 15      Reversed and remanded.




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