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                                                                          Date: 2018.03.02
                              Appellate Court                             13:03:51 -06'00'




                  People v. Thomas, 2017 IL App (4th) 150815



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           CHRISTIAN DIOR THOMAS, Defendant-Appellant.



District & No.    Fourth District
                  Docket No. 4-15-0815



Filed             December 22, 2017



Decision Under    Appeal from the Circuit Court of McLean County, No. 14-CF-617; the
Review            Hon. Robert L. Freitag, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Karl H. Mundt, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
                  David J. Robinson, and John M. Zimmerman, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE DeARMOND delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Turner and Justice Knecht concurred in the judgment
                  and opinion.
                                               OPINION

¶1         In January 2015, the trial court found defendant, Christian Dior Thomas, guilty of armed
       robbery with a firearm and aggravated vehicular hijacking. At the March 2015 sentencing
       hearing, the court sentenced defendant to 26 years in prison on the aggravated vehicular
       hijacking conviction.
¶2         On appeal, defendant argues (1) he was denied the effective assistance of counsel and (2)
       the trial court erred by not conducting an inquiry under People v. Krankel, 102 Ill. 2d 181, 464
       N.E.2d 1045 (1984). We affirm.

¶3                                         I. BACKGROUND
¶4          In June 2014, a grand jury indicted defendant on single counts of armed robbery with a
       firearm (count I) (720 ILCS 5/18-2(a)(2) (West 2014)) and aggravated vehicular hijacking
       (count II) (720 ILCS 5/18-4(a)(4) (West 2014)). In count I, the State alleged defendant
       committed the offense of armed robbery with a firearm when he knowingly took property, a
       Chevrolet Tahoe, by threatening the use of imminent force while armed with a firearm. In
       count II, the State alleged defendant committed the offense of aggravated vehicular hijacking
       when he knowingly took a motor vehicle, a Chevrolet Tahoe, by threatening the imminent use
       of force while carrying a firearm on or about his person.
¶5          Following a January 2015 bench trial, the trial court found defendant guilty on both counts.
       In March 2015, during the sentencing hearing, it was determined that defendant could be
       sentenced on only one count because of the one-act, one-crime rule, and the State asked for a
       judgment on the aggravated-vehicular-hijacking conviction. The court informed the parties it
       believed the sentence would be served at 50% because the State did not allege or prove great
       bodily harm (730 ILCS 5/3-6-3(a)(2)(iii) (West 2014)), but it was willing to hear arguments
       from both sides. The State agreed it did not plead great bodily harm, nor would the evidence
       support a finding of great bodily harm. Defense counsel stated he originally “had no doubt that
       it was an 85 percent sentence,” but upon reviewing the statute, he agreed the court was correct
       in its assessment of the sentence. After further discussion and arguments on aggravating and
       mitigating factors, the court sentenced defendant to 11 years with a 15-year add-on in the
       Illinois Department of Corrections.
¶6          After the sentencing hearing, defendant filed a motion for a new trial and a motion to
       reconsider the sentence. The trial court deemed the motion for a new trial untimely and denied
       the motion to reconsider the sentence. This appeal followed.

¶7                                             II. ANALYSIS
¶8                                  A. Ineffective Assistance of Counsel
¶9          Defendant argues he received ineffective assistance of counsel because his attorney told
       him the plea offers would be served at 85%, which was not possible given the pleadings in the
       bill of indictment. We disagree.
¶ 10        A defendant’s claim of ineffective assistance of counsel is analyzed under the two-pronged
       test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Henderson, 2013 IL
       114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, “a defendant must show both that
       counsel’s performance was deficient and that the deficient performance prejudiced the

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       defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203 (2010). To
       establish deficient performance, the defendant must show his attorney’s performance fell
       below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219, 808
       N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687). “ ‘Effective assistance of counsel
       refers to competent, not perfect representation.’ ” Id. at 220 (quoting People v. Stewart, 104 Ill.
       2d 463, 491-92, 473 N.E.2d 1227, 1240 (1984)). Mistakes in trial strategy or tactics do not
       necessarily render counsel’s representation defective. See People v. Kyse, 220 Ill. App. 3d 971,
       974, 581 N.E.2d 285, 287 (1991) (finding defense counsel’s decision not to tender an
       affirmative defense of voluntary intoxication was a trial tactic and did not constitute ineffective
       assistance of counsel).
¶ 11       To establish the second prong of Strickland, “[a] defendant establishes prejudice by
       showing that, but for counsel’s unprofessional errors, there is a reasonable probability that the
       result of the proceeding would have been different.” People v. Houston, 229 Ill. 2d 1, 4, 890
       N.E.2d 424, 426 (2008). A “reasonable probability” has been defined as a probability that
       would be sufficient to undermine confidence in the outcome of the trial. Id. “A defendant must
       satisfy both prongs of the Strickland test and a failure to satisfy any one of the prongs precludes
       a finding of ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
               “Although a defendant has no constitutional right to plea bargain, if the State chooses
               to bargain, the defendant has the right to the effective assistance of counsel in
               negotiations with the State. [Citation.] Moreover, the right to the effective assistance of
               counsel extends to the defendant’s decision to reject a plea offer, even if the defendant
               subsequently receives a fair trial.” People v. Brown, 309 Ill. App. 3d 599, 604, 723
               N.E.2d 362, 366 (1999) (citing People v. Curry, 178 Ill. 2d 509, 517, 687 N.E.2d 877,
               882 (1997)).
¶ 12       In this case, the prosecutor and defense counsel were mistaken in their belief the sentence
       would be served at 85%. Under section 3-6-3(a)(2)(iii) of the Unified Code of Corrections (730
       ILCS 5/3-6-3(a)(2)(iii) (West 2014)), defendant would receive “no more than 4.5 days of
       sentence credit for each month of his *** imprisonment” upon the court “enter[ing] a finding
       *** that the conduct leading to conviction for the enumerated offense [of armed robbery or
       aggravated vehicular hijacking] resulted in great bodily harm to a victim.” As the State failed
       to prove great bodily harm, resulting in the trial court declining to make such a finding, the
       conduct falls under section 3-6-3(a)(2.1) of the Unified Code of Corrections, which states
       “[f]or all offenses, other than those enumerated in subdivision (a)(2)(i), (ii), or (iii) *** a
       prisoner who is serving a term of imprisonment shall receive one day of sentence credit for
       each day of his or her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2.1) (West 2014).
       While the State offered several plea deals to defendant—the lowest alleged plea deal being 21
       years—these deals were all to be served at 85%. Only at the sentencing hearing did the court
       correct the misconception of the parties and note defendant could not get 85%, as the State
       requested. The court then sentenced defendant to a total of 26 years at 50%. After discovering
       he was misinformed, defendant sent a letter to the court, seeking an appeal of his sentence
       and/or a reduction of his sentence, saying that if he knew his sentence would be served at 50%,
       he “might have” taken the State’s plea offer of 21 years.
¶ 13       In People v. Williams, 2016 IL App (4th) 140502, 54 N.E.3d 934, this court discussed in
       detail the burden on a defendant asserting an ineffective assistance of counsel claim based on
       plea negotiations. Citing the Illinois Supreme Court’s holding in People v. Hale, 2013 IL

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       113140, ¶ 19, 996 N.E.2d 607, this court noted how the requirements for establishing prejudice
       in plea negotiations discussed in Curry had since been addressed by the United States Supreme
       Court in Missouri v. Frye, 566 U.S. 134 (2012), and Lafler v. Cooper, 566 U.S. 156 (2012).
       Williams, 2016 IL App (4th) 140502, ¶ 27, 54 N.E.3d 934. In cases where a defendant claims
       but for counsel’s ineffective assistance, he might have accepted a plea offer, the Hale court
       added an additional factor that required a defendant to also show a reasonable probability the
       offer would not have been withdrawn by the State or rejected by the court. Hale, 2013 IL
       113140, ¶ 19, 996 N.E.2d 607.
                    “Thus, to prevail on a claim that a trial attorney’s given deficient performance
               denied 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 rescinding the offer or the court’s refusing to
               accept the parties’ agreement. [Citations.]” Williams, 2016 IL App (4th) 140502, ¶ 29,
               54 N.E.3d 934.
¶ 14       We find defendant cannot satisfy the prejudice prong of the Strickland standard for two
       reasons. First, nothing in the record indicates the State would not have increased its offer upon
       recognition of the error about the percentage of time defendant would serve. See People v.
       Powers, 2011 IL App (2d) 090292, ¶ 8, 961 N.E.2d 906. In Powers, the defendant alleged the
       State made several plea offers to him to serve the sentence at 85%, with the lowest sentence
       being 14 years at 85%. Id. ¶ 6. The defendant claimed he was eligible to serve only 50%, and
       his counsel was ineffective because he would have taken the plea deal if it was accurately
       conveyed to him. Id. ¶¶ 6, 7. The Second District found the defendant’s argument “a
       counterfactual conditional, a conclusion based on a false premise.” Id. ¶ 7.
               “Defendant’s premise is that, had his attorney been competent in raising the correct
               good-conduct credit calculation, the State would have stood by the offer of 14 years
               with the more generous credit applying. This premise is both speculative and
               counterintuitive. Not only is there nothing in the record to support this premise,
               common sense leads one to conclude that the State would have amended its offer
               upwards when it learned of the proper good-conduct credit calculation.” Id.
       The court noted the defendant did not accept the plea deal and there was no “meeting of the
       minds on that offer.” Id. ¶ 8. “However, there was a meeting of the minds regarding the State’s
       intention in extending the offer: defendant would serve at least 11.9 years in prison.” Id. The
       court found the same result could have been achieved by offering a plea of 24 years, and thus,
       there was “no showing of a reasonable probability that, but for counsel’s deficient
       performance, the result of the proceeding would have been different.” Id. As a result, the court
       denied the defendant’s claim of ineffective assistance of counsel because he could not prove
       prejudice. Id.
¶ 15       In this case, as in Powers, there was a meeting of the minds regarding the State’s intention
       in extending the offer with a requirement that defendant serve 17.85 years (21 years served at
       85%). To reach the same result served at 50%, the State could have offered 36 years, which
       was possible under the sentencing range available for aggravated vehicular hijacking. See 720
       ILCS 5/18-4(b) (West 2014) (indicating a violation of subsection (a)(4) is a Class X felony
       with a 15-year add-on); 730 ILCS 5/5-4.5-25(a) (West 2014) (stating the sentence for a Class

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       X felony is 6 to 30 years in prison). As such, defendant cannot show the outcome would have
       changed as a result of counsel’s lack of knowledge about the percentage of time served under
       the statute.
¶ 16       In addition, counsel’s failure to inform the defendant of a collateral consequence of his
       guilty plea, i.e., actual time served, will not normally provide a basis for relief. People v.
       Frison, 365 Ill. App. 3d 932, 851 N.E.2d 890 (2006). “[T]he failure to inform a defendant of a
       consequence of a guilty plea is material only if the consequence is a direct consequence of the
       guilty plea. [Citations.] Collateral consequences on the other hand, provide no basis for
       reversal.” Id. at 934, 851 N.E.2d at 892-93.
¶ 17       The Powers court discussed Frison, noting how “[a] direct consequence is one that is
       definite, immediate, and largely automatic in its effect on a defendant’s punishment, while a
       collateral consequence does not relate to the length of the sentence that is imposed.” Powers,
       2011 IL App (2d) 090292, ¶ 9. The court pointed out how the focus, in such an analysis, is on
       the sentence imposed, not the time to be actually served. Id.
¶ 18       Although defendant’s counsel claimed at oral argument our supreme court has done away
       with the “direct vs. collateral” consequences analysis when a defendant is given incorrect
       advice by counsel as a result of its decision in People v. Correa, 108 Ill. 2d 541, 485 N.E.2d
       307 (1985), such is not the case. The court in Correa merely noted how a failure by counsel to
       properly advise a defendant of the collateral consequences of deportation pursuant to a plea of
       guilty, after being specifically asked whether he was subject to deportation, could result in a
       finding of ineffective assistance, even though deportation was a collateral consequence. Id. at
       551-52, 485 N.E.2d at 311. A failure to advise of such consequences is still considered a
       collateral consequence, which does not amount to ineffective assistance.
¶ 19       The Illinois Supreme Court confirmed the continued existence of the “direct vs. collateral”
       consequences analysis necessary in assessing claims of ineffective assistance at guilty pleas in
       People v. Manning, 227 Ill. 2d 403, 883 N.E.2d 492 (2008). Although the court found it
       inapplicable to the particular facts of their case, the court noted how the direct-consequences
       doctrine requires a defendant must understand the direct results of any plea he enters. Id. at
       415, 883 N.E.2d at 501. “ ‘[A] trial court’s obligation to ensure that a defendant understands
       the direct consequences of his or her plea encompasses only those consequences of the
       sentence that the trial judge can impose.’ ” (Emphasis omitted.) Id. (quoting People v.
       Williams, 188 Ill. 2d 365, 372, 721 N.E.2d 539, 544 (1999)).
¶ 20       Both Correa and People v. Young, 355 Ill. App. 3d 317, 822 N.E.2d 920 (2005), were cited
       by defendant’s counsel as support for his position that erroneous advice regarding collateral
       consequences may form the basis for an ineffective assistance of counsel claim. It is
       particularly important to note however, both cases involved affirmative erroneous statements
       or misinformation in response to specific inquiries by the defendant. Correa, 108 Ill. 2d 541,
       485 N.E.2d 307; Young, 355 Ill. App. 3d 317, 822 N.E.2d 920.
¶ 21       The second reason defendant cannot show prejudice is defendant claims he “might have”
       taken the deal, not that he would have taken the deal. To succeed on a claim of ineffective
       assistance of counsel, defendant has to show a probability sufficient to undermine the
       confidence in the outcome of the trial. Houston, 229 Ill. 2d at 4, 890 N.E.2d at 426. His
       wavering statement in his letter to the trial court fails to show a reasonable probability existed,
       if given the 21-year plea deal at 50%, defendant would not have proceeded to trial. If the
       noncommittal statement “might have” satisfies the prejudice prong under Strickland, it would

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       completely dismantle the nature of the proof required to show prejudice in guilty pleas, as
       many defendants would claim they might have taken the plea deal if the sentence after trial
       proved to be harsher than the plea offered. However, the standard is “a probability sufficient to
       undermine confidence in the outcome” of the trial, and defendant’s lackadaisical assertion is
       clearly insufficient to undermine the confidence in the outcome of the trial. Id. As such,
       counsel’s performance at trial was not constitutionally ineffective.

¶ 22                                          B. Krankel Inquiry
¶ 23       Defendant argues he was entitled to a Krankel inquiry on his claim of ineffective assistance
       of counsel. We disagree.
¶ 24       “[W]hen a defendant presents a pro se posttrial claim of ineffective assistance of counsel,
       the trial court should first examine the factual basis of the defendant’s claim.” People v.
       Moore, 207 Ill. 2d 68, 77-78, 797 N.E.2d 631, 637 (2003). “[A] pro se defendant is not
       required to do any more than bring his or her claim to the trial court’s attention.” Id. at 79, 797
       N.E.2d at 638. “[W]hen a defendant brings a clear claim asserting ineffective assistance of
       counsel, either orally or in writing, this is sufficient to trigger the trial court’s duty to conduct a
       Krankel inquiry.” People v. Ayres, 2017 IL 120071, ¶ 18. “If a defendant does not make a valid
       ineffective assistance claim, [he] does not trigger the need for the trial court to inquire.” People
       v. King, 2017 IL App (1st) 142297, ¶ 15, 80 N.E.3d 599 (citing People v. Taylor, 237 Ill. 2d 68,
       927 N.E.2d 1172 (2010)). “The issue of whether the circuit court properly conducted a
       preliminary Krankel inquiry presents a legal question that we review de novo.” People v. Jolly,
       2014 IL 117142, ¶ 28, 25 N.E.3d 1127.
¶ 25       In this case, defendant wrote a letter to the trial court after sentencing, which stated, in part:
                “I would also like a motion filed for a reduction of sentence. I was sentenced 3/5/15 to
                26 years at 50%. I would like this motion filed due to the fact that during my time in the
                county I was offered three plea deals at 85% not knowing that I had the option of 50%.
                If told I had the option of 50% or even told that I could not get a 85% offer due to the
                nature of my offense, at my plea offer of 21 yrs at 85% if known I could get 50% I
                might have taken the plea instead of going to trial.”
       Defendant argues he made an implicit claim of ineffective assistance of counsel in his letter to
       the court.
¶ 26       Courts have found a defendant is entitled to a Krankel inquiry when the defendant makes
       an explicit or “clear” complaint of trial counsel’s performance or ineffective assistance of
       counsel. See Ayres, 2017 IL 120071, ¶ 18 (finding the defendant was entitled to a Krankel
       inquiry after claiming ineffective assistance of counsel in his petition to withdraw his guilty
       plea); Moore, 207 Ill. 2d at 81, 797 N.E.2d at 639-40 (finding the defendant’s claim in open
       court that his attorney could not adequately represent him entitled him to a Krankel inquiry);
       People v. Giles, 261 Ill. App. 3d 833, 848, 635 N.E.2d 969, 979-80 (1994) (finding the trial
       court inquired into defendant’s allegation of counsel’s incompetence in a pro se posttrial
       motion and found it without merit); People v. Finley, 222 Ill. App. 3d 571, 584, 584 N.E.2d
       276, 284-85 (1991) (finding the defendant was entitled to a Krankel inquiry after the defendant
       wrote letters to the judge claiming his attorney failed to call witnesses on his behalf). People v.
       Lobdell, 2017 IL App (3d) 150074, cited by defendant as supplemental authority, is inapposite.
       In Lobdell, the court found the defendant was entitled to a Krankel inquiry when he wrote a
       letter to the trial court, claiming his attorney did not bring up fourth and fifth amendment

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       claims. Id. ¶ 37. Such is not the case before this court. In instances where the defendant’s claim
       is implicit and could be subject to different interpretations, a Krankel inquiry is not required.
       See Taylor, 237 Ill. 2d at 77, 927 N.E.2d at 1777 (finding a defendant’s statement, which could
       be subject to multiple interpretations, including regret over a rejected plea deal, was not
       sufficient to trigger a Krankel inquiry); King, 2017 IL App (1st) 142297, ¶ 20, 80 N.E.3d 599
       (finding the defendant was not entitled to Krankel inquiry when, at sentencing, the defendant
       claimed error in that a witness was not called without mentioning her attorney).
¶ 27        Here, defendant did not mention his attorney in his letter to the trial court. In addition,
       when considered in context, the court was aware, by the time it received defendant’s letter, that
       both parties had been operating under the misconception defendant’s charges were subject to
       sentencing at 85%. In addition, the defendant was present before the court when both the State
       and his counsel were informed of their error in calculating the actual sentence to be served. The
       letter sent to the judge two days after the sentencing hearing requested a “motion for appeal”
       and a “motion for a reduction of sentence” be filed on his behalf. Defendant’s letter, under
       these circumstances, could have easily appeared to be his hoping to somehow get another
       chance at a lesser sentence.
¶ 28        As he made no mention of his attorney, or any assertion of ineffective assistance, the letter
       was subject to many interpretations, including defendant’s ex post facto regret at not taking the
       State’s alleged offer.
¶ 29        The trial court had before it the defendant’s presentence report, in which he maintained his
       innocence of the offenses charged. It also heard defendant during his opportunity for allocution
       at the conclusion of the sentencing hearing make no comment about the differences in actual
       time to be served and again assert his innocence of the offense. The court was also aware, from
       its review of the presentence report, that the defendant was no stranger to the criminal justice
       process. Coupled with the fact that he also sought to file a notice of appeal, his assertion that he
       “might have taken the plea” may have carried even less weight.
¶ 30        There is no question our courts have lessened the burden on defendants, unskilled in the
       law, to make an assertion sufficient to warrant a Krankel inquiry. However, it is equally clear
       courts of review are, and reasonably should be, reluctant to require trial courts to somehow
       glean an ineffective-assistance-of-counsel claim from every obscure complaint or comment
       made by a defendant.
¶ 31        Defendant argued the State was suggesting that a defendant was required to use the magic
       words “ineffective assistance of counsel” before a trial court need conduct the type of inquiry
       required by Krankel. This is not true. The court held in Ayres that judicial economy is best
       served by allowing an express claim of ineffective assistance of counsel to trigger a Krankel
       inquiry. Ayres, 2017 IL 120071, ¶ 21. However, for a defendant to make a “clear claim” of
       ineffective assistance of counsel, the defendant must at least mention his attorney. The trial
       court was in a position to review defendant’s letter within the context of the circumstances
       surrounding the plea and sentencing. Here, defendant did not request the appointment of new
       counsel, or reference his counsel in any way, which might have directed the court’s attention to
       some perceived deficiency in trial counsel’s representation. See Finley, 222 Ill. App. 3d at 576,
       584 N.E.2d at 279. As defendant’s letter falls short of a “clear claim asserting ineffective
       assistance of counsel” (Ayres, 2017 IL 120071, ¶ 18), he is not entitled to a Krankel inquiry.



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¶ 32                                       III. CONCLUSION
¶ 33      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $75 statutory assessment against defendant as costs of this appeal.

¶ 34      Affirmed.




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