                                     2016 IL App (4th) 140502                       FILED
                                                                                    May 11, 2016
                                           NO. 4-14-0502                            Carla Bender
                                                                                4th District Appellate
                                  IN THE APPELLATE COURT                              Court, IL

                                           OF ILLINOIS

                                       FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,                         )     Appeal from
            Plaintiff-Appellee,                               )     Circuit Court of
            v.                                                )     Sangamon County
 JAMES WILLIAMS, JR.,                                         )     No. 04CF760
            Defendant-Appellant.                              )
                                                              )     Honorable
                                                              )     Patrick W. Kelley,
                                                              )     Judge Presiding.


               JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
               Justices Turner and Appleton concurred in the judgment and opinion.

                                             OPINION

¶1             This appeal arises from the trial court's May 2014 second-stage dismissal of an

amended petition that defendant, James Williams, Jr., raised under the Post-Conviction Hearing

Act (725 ILCS 5/122-1 to 122-7 (West 2012)). In his October 2012 amended postconviction pe-

tition, defendant argued, in pertinent part, that he was denied his constitutional right to the effec-

tive assistance of counsel during guilty-plea negotiations with the State. Specifically, defendant

contended that his counsel failed to accurately inform him of the possible penalties he faced on

the State's charges for (1) attempt (first degree murder) (720 ILCS 5/8-4, 9-1(a)(1) (West 2004)),

(2) unlawful use of a weapon by a felon (720 ILCS 5/24.1-1(a) (West 2004)), and (3) attempt

(armed robbery) (720 ILCS 5/8-4, 18-2(a)(2) (West 2004)). Defendant claimed that, as a result

of counsel's failure, he rejected the State's 18-year guilty-plea offer and, instead, proceeded to

trial where a jury found him guilty of all three charges. The trial court later imposed an aggre-
gate sentence of 45 years in prison.

¶2             Defendant appeals, arguing that the trial court erred by dismissing his amended

postconviction petition because he had alleged a substantial showing of a constitutional viola-

tion. We agree and reverse and remand with directions.

¶3                                      I. BACKGROUND

¶4             In July 2005, a jury convicted defendant of (1) attempt (first degree murder)

(count I), (2) unlawful use of a weapon by a felon (count II), and (3) attempt (armed robbery)

(count III). In September 2005, the trial court imposed consecutive prison terms of 30 years on

count I and 15 years on count III. The court also imposed a 5-year sentence on count II, which it

ordered defendant to serve concurrently to his aggregate 45-year sentence.

¶5             Defendant appealed, and this court affirmed, rejecting defendant's only claim that

his counsel was ineffective for failing to file a pretrial motion to sever the unlawful-use-of-a-

weapon charge from the State's remaining charges. People v. Williams, No. 4-05-0997 (Apr. 13,

2007) (unpublished order under Supreme Court Rule 23).

¶6             In July 2008, defendant pro se filed a postconviction petition. In September 2008,

the trial court appointed counsel to represent defendant. Shortly thereafter, the State filed a mo-

tion to dismiss defendant's postconviction petition. In September 2012, postconviction counsel

filed an amended postconviction petition in accordance with Illinois Supreme Court Rule 651(c)

(eff. Apr. 26, 2012). Although defendant's amended postconviction petition raised several

claims, pertinent to this appeal is the allegation that defendant was denied the effective assistance

of counsel during guilty-plea negotiations with the State. Specifically, defendant's amended

postconviction petition, which incorporated defendant's claim from his June 2008 affidavit filed

in support of his pro se postconviction petition, alleged the following:



                                                -2-
               "My attorney[,] *** Matthew Maurer, [explained that] I could face

               up to 30 years at 50% on the attempt first degree murder charge.

               On count [II,] I was looking at [five] years. And on count [III], I

               was looking at 4 to 15 years at 50%. *** I wasn't told by

               [Maurer] that I could face up to 30 years on count [III]. I wasn't

               told [that] I could be sentence[d] to consecutive sentences because

               of my prior criminal record. [Maurer] never told me that count I

               was a truth-in-sentencing crime that carries 85%. If I had known

               this information[,] I would have accepted the State's offer of 18

               years rather than going to trial and receiving 45 years ***. The

               advice I received caused me to reject the [State's guilty-]plea offer

               of 18 years."

¶7             In October 2013, the State filed a memorandum in support of its motion to dis-

miss defendant's postconviction petition, arguing that defendant could not show how he was

prejudiced by his counsel's performance. Specifically, the State contended that defendant (1)

cannot realistically claim that if he knew he faced a sentencing range of at least 30 to possibly 45

years in prison, that he would have accepted a negotiated guilty-plea offer, which required him to

serve 85% of an 18-year sentence; (2) was "adamant" that counsel essentially negotiate a 7 1/2-

year sentence with the State (a 15-year guilty-plea agreement in which he would serve only 50%

of the sentence); and (3) cannot demonstrate, given his criminal history and the facts of this case,

that the trial court would have accepted the negotiated guilty plea.

¶8             In May 2014, the trial court granted the State's motion and dismissed defendant's

amended postconviction petition, finding that defendant failed to demonstrate how his counsel's



                                                -3-
representation (1) fell below the objective standard of reasonableness and (2) prejudiced him.

¶9             This appeal followed.

¶ 10                                      II. ANALYSIS

¶ 11           Defendant argues that the trial court erred by dismissing his amended

postconviction petition because he alleged a substantial showing of a constitutional violation.

We agree.

¶ 12               A. Proceedings Under the Act and the Standard of Review

¶ 13           In People v. Tate, 2012 IL 112214, ¶¶ 9-10, 980 N.E.2d 1100, the supreme court

outlined the following three-stage process contemplated under the Act:

                      "In a noncapital case, a postconviction proceeding contains

               three stages. At the first stage, the circuit court must independent-

               ly review the petition, taking the allegations as true, and determine

               whether the petition is frivolous or is patently without merit. [Cita-

               tion.] A petition may be summarily dismissed as frivolous or pa-

               tently without merit only if the petition has no arguable basis either

               in law or in fact. [Citation.] ***

                      If the circuit court does not dismiss the petition as frivolous

               or *** patently without merit [citation], the petition advances to

               the second stage, where counsel may be appointed to an indigent

               defendant [citation], and where the State, as respondent, enters the

               litigation [citation]. *** At this second stage, the circuit court

               must determine whether the petition and any accompanying docu-

               mentation make a substantial showing of a constitutional violation.



                                                -4-
               [Citations.] If no such showing is made, the petition is dismissed.

               [Citation.] If, however, a substantial showing of a constitutional

               violation is set forth, the petition is advanced to the third stage,

               where the circuit court conducts an evidentiary hearing. [Cita-

               tions.] The summary dismissal of a postconviction petition is re-

               viewed de novo." (Internal quotations marks omitted.)

¶ 14                       B. Ineffective-Assistance-of-Counsel Claims

¶ 15           Ineffective assistance of counsel claims are judged under the now familiar test set

forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

"The [Strickland] test is composed of two prongs: deficiency and prejudice." People v. Griffin,

178 Ill. 2d 65, 73, 687 N.E.2d 820, 827 (1997). A defendant must demonstrate that his defense

counsel's performance was deficient in that "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the [s]ixth [a]mendment." Strickland,

466 U.S. at 687. In so doing, a defendant must overcome the strong presumption that the chal-

lenged action or inaction of counsel was the product of sound trial strategy and not of incompe-

tence. Id. at 689. A defendant must also demonstrate prejudice—that is, a reasonable probabil-

ity that, but for defense counsel's deficient performance, the result of the proceeding would have

been different. Id. at 694. Both prongs of the Strickland test must be satisfied before a defend-

ant can prevail on a claim of ineffective assistance of counsel.

¶ 16                C. The Constitutional Right to the Effective Assistance of
                           Counsel During Guilty-Plea Negotiations

¶ 17           Prior to addressing the merits of defendant's challenge to the trial court's second-

stage dismissal of his amended postconviction petition, we first provide a historical perspective

to place defendant's constitutional claim in its proper context.

                                                 -5-
¶ 18                    1. The Illinois Supreme Court's Decision in Curry

¶ 19           In People v. Curry, 178 Ill. 2d 509, 528, 687 N.E.2d 877, 887 (1997), the Illinois

Supreme Court recognized a defendant's sixth amendment right to the effective assistance of

counsel during guilty-plea negotiations. Specifically, the supreme court held that "[a] criminal

defendant has the constitutional right to be reasonably informed with respect to the direct conse-

quences of accepting or rejecting a [guilty-]plea offer." (Emphasis in original.) Id. In so hold-

ing, the supreme court noted that the constitutional right to the effective assistance of counsel

during guilty-plea negotiations "extends to the decision to reject a plea offer, even if the defend-

ant subsequently receives a fair trial." Id. at 518, 687 N.E.2d at 882.

¶ 20           In Curry, the State charged the defendant with residential burglary (720 ILCS

5/19-3 (West 1992)) and two counts of criminal sexual assault (720 ILCS 5/12-13(a)(2) (West

1992)). Curry, 178 Ill. 2d at 512, 687 N.E.2d at 879. On the eve of the defendant's jury trial, the

State offered to dismiss two of the three counts and recommend that the trial court impose a 4

1/2-year sentence if the defendant pleaded guilty to one count of criminal sexual assault. Id. at

523, 687 N.E.2d at 884. Based on counsel's advice regarding the possible sentences he was fac-

ing on the charged offenses, the defendant rejected the State's guilty-plea offer and proceeded to

trial, where the jury convicted him of all three charges. Id. at 512, 687 N.E.2d at 879. The court

later sentenced the defendant to a statutorily mandated minimum term of 12 years in prison

(three consecutive terms of four years' imprisonment on each conviction). Id.

¶ 21           Shortly thereafter, the defendant filed a motion to reconsider the sentence. Id. at

515, 687 N.E.2d at 881. Appended to that motion was a stipulation, which read, as follows:

" '[H]ad [defendant] been called to testify, he would [have] testif[ied] that had he known that

consecutive sentences were mandatory, he would have accepted the State's [guilty-]plea [offer]



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of 4 1/2 years of imprisonment on one count of criminal sexual assault.' " Id. at 523, 687 N.E.2d

at 884. Also appended to the defendant's motion to reconsider the sentence was an affidavit from

the defendant's counsel, in which counsel averred, as follows:

                       " 'During [guilty-plea] discussions, both myself and [the

               State] assumed that [the defendant] was not eligible for consecu-

               tive sentences.

                       On the eve of trial, [the State] offered to dismiss all remain-

               ing charges if [the defendant] pled to one count of criminal sexual

               assault and a sentence of 4 1/2 years.

                       I nor anyone from my firm informed [the defendant] that if

               he were convicted of more than one offense, consecutive sentences

               were mandatory.

                       After speaking with [the State] ***, I informed [the de-

               fendant] that in my opinion, given his lack of prior criminal record,

               if convicted of any of these charges ***, it was my belief that there

               was a substantial possibility that he would receive close to the min-

               imum sentence of four (4) years. Based upon this advice, [the de-

               fendant] rejected the State's plea offer.' " Id. at 523, 687 N.E.2d at

               884-85.

¶ 22           Following a July 1995 hearing, the trial court denied the defendant's motion to

reconsider the sentence. Id. at 516, 687 N.E.2d at 881. The appellate court later affirmed the

trial court's judgment, rejecting the defendant's claim that he received ineffective assistance of

counsel during guilty-plea negotiations. Id. at 516-17, 687 N.E.2d at 881. The supreme court



                                                -7-
subsequently allowed the defendant's petition for leave to appeal. People v. Curry, 169 Ill. 2d

574, 675 N.E.2d 635 (1996).

¶ 23           The issue before the supreme court in this direct appeal was whether the defend-

ant was denied his constitutional right to the effective assistance of counsel during plea negotia-

tions with the State when counsel failed to advise the defendant that he would receive mandatory

consecutive sentences if convicted of multiple charges. Curry, 178 Ill. 2d at 512, 687 N.E.2d at

880. In reversing the judgments of the trial and appellate courts, the supreme court addressed the

first prong of the Strickland analysis regarding counsel's deficient performance, as follows:

                       "Defense counsel's recommendation to reject the State's

               plea offer was not the product of a defensive strategy or judgment

               which was proven to be unwise only in hindsight. [Citation.] Ra-

               ther, counsel's advice was predicated on an understanding of sen-

               tencing law which was plainly erroneous when viewed at the time

               of plea negotiations. Based on the facts before us, we conclude

               that defense counsel's performance during plea negotiations was

               objectively unreasonable and fell outside 'the wide range of rea-

               sonable professional assistance.' [Citation.] " Id. at 529, 687

               N.E.2d at 887.

¶ 24           As to the prejudice prong of the Strickland analysis, the supreme court concluded

that "the disparity between the 12-year, mandatory minimum sentence which [the] defendant

faced and the 4 1/2-year [guilty-]plea offer; and most importantly, defense counsel's

uncontradicted affidavit that [the] defendant rejected the plea offer because of counsel's errone-

ous advice, we conclude that [the] defendant has established a reasonable probability that he



                                                -8-
would have accepted the plea offer, absent his attorney's deficient performance." Id. at 533, 687

N.E.2d at 889. In so concluding, the supreme court determined that the appropriate remedy was

to remand the defendant's cause for a new trial, which "may include the resumption of the plea

bargaining process." Id. at 536-37, 687 N.E.2d at 890.

¶ 25                     2. The Illinois Supreme Court's Decision in Hale

¶ 26           Sixteen years after Curry, the Illinois Supreme Court decided People v. Hale,

2013 IL 113140, ¶ 1, 996 N.E.2d 607, which considered whether the defendant was denied his

constitutional right to the effective assistance of counsel during guilty-plea negotiations with the

State when counsel did not mention that the defendant would receive mandatory consecutive

sentences if convicted of multiple charged counts of attempt (first degree murder). In reversing

the appellate court's judgment and affirming the trial court's denial of the defendant's

postconviction petition following a third-stage evidentiary hearing, the supreme court concluded

that the defendant had failed to establish how he was prejudiced by counsel's performance. Id.

¶¶ 1, 11, 13, 996 N.E.2d 607.

¶ 27           In so concluding, the Hale court discussed the then-recently decided companion

cases of Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 566 U.S.

___, 132 S. Ct. 1376 (2012), in which the United States Supreme Court addressed ineffective-

assistance-of-counsel issues similar to those in Curry and Hale. Hale, 2013 IL 113140, ¶ 19,

996 N.E.2d 607. Specifically, the Illinois Supreme Court's discussion in Hale focused on the

following requirements that a defendant must demonstrate to satisfy the prejudice prong of the

Strickland analysis:

                       " 'To show prejudice from ineffective assistance of counsel

               where a plea offer has lapsed or been rejected because of counsel's



                                                -9-
              deficient performance, defendants must demonstrate a reasonable

              probability they would have accepted the earlier plea offer had

              they been afforded effective assistance of counsel. Defendants

              must also demonstrate a reasonable probability that the plea

              would have been entered without the prosecution canceling it or

              the trial court refusing to accept it, if they had the authority to ex-

              ercise that discretion under state law. To establish prejudice in

              this instance, it is necessary to show a reasonable probability that

              the end result of the criminal process would have been more favor-

              able by reason of a plea to a lesser charge or a sentence of less

              prison time.' " (Emphasis in original.) Id. (quoting Frye, 566 U.S.

              at ___, 132 S. Ct. at 1409).

See also Cooper, 566 U.S. at ___, 132 S. Ct. at 1384-85.

¶ 28          Given the Supreme Court's holding in Frye and Cooper, the Hale court acknowl-

edged the following:

                       "While it is clear that the first and last factors which Frye

              and Cooper set forth as necessary to establish the prejudice prong

              of Strickland are similar to those set forth in Curry, the require-

              ments highlighted above are new. *** Thus, Frye and Cooper, ra-

              ther than Curry, control and the factors set forth in those cases

              must now be relied upon in deciding if prejudice has been shown

              where a plea offer has lapsed or been rejected because of counsel's

              deficient performance." Id. ¶ 20, 996 N.E.2d 607.



                                               - 10 -
¶ 29           Thus, to prevail on a claim that a trial attorney's given deficient performance de-

nied a defendant his constitutional right to the effective assistance of counsel during guilty-plea

negotiations with the State, a defendant must also demonstrate that (1) a reasonable probability

existed that the defendant would have accepted the guilty-plea offer absent counsel's deficient

performance and (2) the guilty-plea offer would have been entered without the prosecution re-

scinding the offer or the court's refusing to accept the parties' agreement. Id.; People v. Jellis,

2016 IL App (3d) 130779, ¶ 29.

¶ 30           3. Implications of a Defendant's Constitutional Right to the Effective
                     Assistance of Counsel During Guilty-Plea Proceedings

¶ 31           As the aforementioned cases reveal, both the United States Supreme Court and

the Illinois Supreme Court have long recognized that plea negotiations are an important part of

the criminal justice system. See Blackledge v. Allison, 431 U.S. 63, 71 (1977) ("Whatever might

be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea

bargain are important components of this country's criminal justice system. Properly adminis-

tered, they can benefit all concerned."); see also People v. Boyt, 109 Ill. 2d 403, 416, 488 N.E.2d

264, 271 (1985) ("Plea bargaining plays an important role in our criminal justice system. ***

[W]hen [it is] properly administered, [it] is to be encouraged.").

¶ 32           Prior to the supreme court's decision in Curry, many judges—including this au-

thor when serving as a trial judge—prohibited discussions with the trial court regarding the de-

tails of guilty-plea negotiations between the State and a defendant. One rationale for this prohi-

bition was to ensure that any sentence ultimately imposed by the court would be based upon the

court's individualized assessment of the various factors to be considered when imposing sentence

and would have nothing to do with whatever plea negotiations the parties may have engaged in.

Another rationale was to avoid any appearance of impropriety if the defendant later opted instead

                                                - 11 -
to proceed to trial, especially if details stated during the guilty-plea negotiations were not re-

vealed through admissible evidence during defendant's trial. However, the aforementioned con-

stitutional protections placed on the plea-bargaining process by Curry, Frye, Lafler, and their

progeny make the practice of not informing the court of the details of the guilty-plea negotiations

no longer sound.

¶ 33            We note that a criminal defendant personally possesses a constitutional right to

elect what plea to enter. See People v. Phillips, 217 Ill. 2d 270, 281, 840 N.E.2d 1194, 1201

(2005) ("The *** five decisions that ultimately belong to the defendant in a criminal case after

consultation with his attorney: (1) what plea to enter; (2) whether to waive a jury trial; (3)

whether to testify in his own behalf; (4) whether to tender a lesser-included-offense instruction;

and (5) whether to appeal."). As we previously mentioned, underlying a defendant's constitu-

tional right to either plead guilty or not guilty is the constitutional right to be reasonably in-

formed with respect to the direct consequences of accepting or rejecting a guilty-plea offer from

the State. The consequences of a defendant's not being so informed could be the reversal of an

otherwise error-free trial when the record is silent (as is typically the case) as to what a defendant

was told about rejecting or accepting a guilty-plea offer from the State.

¶ 34            In People v. Frieberg, 305 Ill. App. 3d 840, 852, 713 N.E.2d 210, 219 (1999), this

court cautioned about the potential reversible error associated with a defendant's constitutional

right to testify "lurk[ing]—like an unexploded bomb—in every case resulting in a conviction," as

follows:

                "As the supreme court noted in People v. Brown, 54 Ill. 2d 21, 24,

                294 N.E.2d 285, 287 (1973), 'in every case in which the issue is

                raised, the lawyer's advice will in retrospect appear to the defend-



                                                 - 12 -
               ant to have been bad advice.' Thus, convicted defendants who tes-

               tified on their own behalf at trial often will later claim that doing

               so was not their personal choice and their trial counsel forced them

               to testify. On the other hand, defendants who did not testify at trial

               often will later claim that they really wanted to testify but their trial

               counsel prevented them from doing so.

                       To defuse this explosive situation, we urge trial courts in

               every criminal case to take the few seconds needed, after the State

               has rested its case in chief and before the presentation of the de-

               fense case, to admonish the defendant personally that he alone pos-

               sesses the right to choose whether to testify on his own behalf, and

               that he should make that decision after consulting with counsel.

               ***

                       Taking a few seconds to so admonish the defendant would

               insulate the record from postconviction attacks ***." (Emphasis in

               original.)

¶ 35                         4. The Trial Court's "Preflight Checklist"

¶ 36           Consistent with the reasoning underlying Frieberg, we recommend that before

proceeding to trial in a criminal case, a trial court should question the parties to ensure compli-

ance with the defendant's constitutional rights. In other words, the court should go through a

"preflight checklist" to address—and thereby avoid—problems that might later arise, as in the

present case, from a defendant's (or defense counsel's) alleged confusion or uncertainty about the

consequences of the defendant's standing trial and rejecting a negotiated guilty plea the State of-



                                                - 13 -
fered. The court's inquiry should be conducted at a pretrial hearing so that if problems arise, cor-

rective action can be taken prior to the scheduled trial. Creating such a record should not only

prevent the reversal of a judgment reached after an otherwise error-free trial, but would also al-

low for the efficient adjudication of any collateral challenges at the first stage of the

postconviction proceeding and, by extension, save time and limit the expenditure of scarce judi-

cial resources. See People v. Hernandez, 2014 IL App (2d) 131082, ¶ 16, 20 N.E.3d 484 (af-

firming the trial court's first-stage dismissal of the defendant's postconviction petition because

the record affirmatively rebutted the defendant's claim that his counsel failed to communicate the

State's guilty-plea offer). Akin to a pilot performing a preflight check of aeronautical systems to

ensure safety, we recommend that, at a minimum, the court's pretrial inquiry should address the

following topics:

                       Ensure that the prosecutor, defense attorney, and the de-

                        fendant all understand the applicable minimum and maxi-

                        mum sentences the defendant is facing on the State's charg-

                        es if he is convicted at trial, which should include a discus-

                        sion of any sentencing enhancements (such as extended

                        terms), any mandatory or discretionary consecutive sen-

                        tencing options, and any truth-in-sentencing considerations.

                       Inquire of the State whether it entered into negotiations

                        with defense counsel, and if the State made a guilty-plea

                        offer to defense counsel, the exact nature of the offer (in-

                        cluding expiration dates, if any).

                       Confirm with defense counsel the terms of the State's stated



                                                - 14 -
                       guilty-plea offer and whether counsel conveyed that offer

                       to the defendant.

                      Confirm personally with the defendant his understanding of

                       the State's guilty-plea offer as conveyed by his counsel.

                      Ensure the defendant's understanding that the ultimate deci-

                       sion whether to accept or reject the State's offer rests with

                       the defendant after consultation with his counsel.

                      Confirm the defendant's decision to reject the State's guilty-

                       plea offer.

                      Confirm that given his understanding of the minimum and

                       maximum sentences that the trial court can impose if con-

                       victed of the State's current charges, the defendant persists

                       with his decision regarding the State's guilty-plea offer.

                      Admonish the defendant that although he should consult

                       with his counsel and consider counsel's advice, the decision

                       whether to (1) plead guilty or not guilty and (2) have a jury

                       trial or a bench trial is ultimately the defendant's decision to

                       make.

¶ 37           The pages of Illinois jurisprudence are filled with cases—like this one—where

trial courts could have avoided reversal by taking an extra moment at some point prior to trial to

make a record regarding any pretrial negotiations. Hernandez provides an excellent example of

the trial court making a record prior to trial, which enabled it to successfully summarily dismiss

several of these types of postconviction claims.



                                                - 15 -
¶ 38           In Hernandez, the defendant was found guilty of first degree murder and sen-

tenced to an extended term of 84 years in prison. After his conviction was affirmed on appeal,

he filed a postconviction petition alleging, among other claims, that his counsel failed to com-

municate the State's offer to plead guilty in exchange for a sentencing cap of 60 years. After not-

ing that "defense counsel has a duty to communicate to the defendant formal offers from the

prosecution, and a failure to do so may present an arguable claim of deficient performance" un-

der Strickland (Hernandez, 2014 IL App (2d) 131082, ¶ 15, 20 N.E.3d 484), the Hernandez court

reiterated that "if the record rebuts the allegation that a defendant did not know of the offer,

summary dismissal of the petition may remain proper." Id.

¶ 39           After reviewing the trial court's various admonishments to and discussions with

the defendant, the Hernandez court emphatically concluded that "[h]ere, the record positively

rebuts defendant's assertions." Id. ¶ 16, 20 N.E.3d 484. Indeed, the trial court's colloquy with

the defendant addressed most of the "preflight checklist" inquiries set forth above.

¶ 40                      D. Defendant's Claim of Ineffective Assistance
                                    of Counsel in this Case

¶ 41           Defendant argues that the trial court erred by dismissing his amended

postconviction petition because he alleged a substantial showing of a constitutional violation.

We agree.

¶ 42           "Dismissal is warranted at the second stage [of postconviction proceedings] where

the defendant's claims, liberally construed in light of the trial record, fail to make a substantial

showing of a constitutional violation." People v. Turner, 2012 IL App (2d) 100819, ¶ 21, 972

N.E.2d 1205. "[A]ll well-pleaded facts that are not positively rebutted by the trial record are to

be taken as true," and "the court is prohibited from engaging in any fact finding." (Internal quota-

tion marks omitted.) People v. Snow, 2012 IL App (4th) 110415, ¶ 15, 964 N.E.2d 1139.

                                                - 16 -
"[W]hen a petitioner's claims are based upon matters outside [of] the record, the [Act] does not

intend such claims to be adjudicated on the pleadings." Id. We review de novo the trial court's

dismissal of a postconviction petition at the second stage. Turner, 2012 IL App (2d) 100819,

¶ 21, 972 N.E.2d 1205.

¶ 43            In this case, defendant alleged in his June 2008 affidavit, which he appended to

his amended postconviction petition, that he was denied his constitutional right to the effective

assistance of counsel during guilty-plea negotiations with the State. Specifically, defendant con-

tended that his counsel's performance was deficient in that counsel failed to accurately inform

him of the possible penalties he faced on the State's aforementioned charges. In addition, de-

fendant contended further that he was prejudiced by counsel's ineffectiveness in that if he had

known he was facing the possibility of consecutive sentences that required him to serve at least

85% of any sentence imposed, he would have accepted the State's 18-year guilty-plea offer in-

stead of opting to proceed to a jury trial.

¶ 44            As previously noted, postconviction challenges based on a claim that the defend-

ant was denied his constitutional right to the effective assistance of counsel during guilty-plea

negotiations with the State are almost always based on matters that occur de hors the record.

Thus, absent a pretrial hearing in which the trial court could make a record regarding guilty-plea

negotiations by asking questions of the parties on the record in accordance with the aforemen-

tioned preflight checklist, the court must take all well-pleaded facts as true. When those well-

pleaded facts allege a substantial constitutional violation—as in this case—the court must ad-

vance the postconviction petition to the third stage of postconviction proceedings for an eviden-

tiary hearing. Because we conclude that the court erred by not so doing, we reverse and remand

with directions that the court (1) permit the State to answer defendant's postconviction petition



                                               - 17 -
pursuant to section 122-5 of the Act (725 ILCS 5/122-5 (West 2014)) and (2) conduct a third-

stage evidentiary hearing pursuant to section 122-6 of the Act (725 ILCS 5/122-6 (West 2014)).

¶ 45                                 III. CONCLUSION

¶ 46          For the foregoing reasons, we reverse the trial court's judgment and remand with

directions.

¶ 47          Reversed; cause remanded with directions.




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