                                  Illinois Official Reports

                                          Appellate Court



                             People v. Barghouti, 2013 IL App (1st) 112373




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


District & No.               First District, Third Division
                             Docket No. 1-11-2373



Filed                        December 20, 2013
Rehearing denied             January 23, 2014



Held                         The dismissal of defendant’s postconviction petition as frivolous was
(Note: This syllabus         reversed and the cause was remanded for second-stage proceedings,
constitutes no part of the   since the appellate court did not exceed its authority by requesting
opinion of the court but     briefing on the overlooked issue of whether defense counsel was
has been prepared by the     ineffective in failing to advise defendant of the sentences available if
Reporter of Decisions        defendant rejected the State’s offer in exchange for a guilty plea and
for the convenience of       defendant adequately alleged ineffective assistance of counsel during
the reader.)                 plea negotiations.




Decision Under               Appeal from the Circuit Court of Cook County, No. 02-CR-23680; the
Review                       Hon. Stanley Sacks, Judge, presiding.




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

                               Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                               Mary P. Needham, and Hareena Meghani Wakely, Assistant State’s
                               Attorneys, of counsel), for the People.



     Panel                     JUSTICE NEVILLE delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Hyman specially concurred, with opinion.
                               Justice Mason specially concurred, with opinion.


                                               OPINION

¶1          This case involves the proper role of the appellate court on de novo review of the trial
       court’s order dismissing a postconviction petition. The trial court found Jamal Barghouti guilty
       of aggravated criminal sexual assault and aggravated kidnapping. Jamal filed a postconviction
       petition in which he alleged that he did not receive effective assistance of counsel. The trial
       court dismissed the petition as frivolous. In reviewing the trial record and the postconviction
       petition, this court encountered an obvious error by the trial court that defense counsel failed to
       brief in the initial brief on appeal. We asked the parties to brief the issue. Their briefs did not
       change the conclusion that the trial court committed an obvious error and that the
       postconviction petition stated the gist of a claim for ineffective assistance of counsel. We find
       that Jamal adequately alleged that he would have accepted a plea bargain the prosecution
       offered if his attorney had informed him accurately about the range of sentences he faced if the
       trial court found him guilty as charged. Accordingly, we reverse the dismissal of the
       postconviction petition and remand to advance the petition to the second stage of
       postconviction proceedings.

¶2                                         BACKGROUND
¶3         K.M. first met Jamal in July 2002. On August 17, 2002, K.M. went to a picnic with Jamal.
       Around 11 p.m. that evening, Marcelle Garcia heard a female voice, screaming “stop,” coming
       from a truck parked in an alley near Garcia’s home. Garcia called 911. The police officers who
       responded to the call arrived a few minutes later and also heard K.M. screaming “stop.” The
       officers saw Jamal, shirtless, get out of the truck while pulling up his shorts, with his brother,
       Eiad Barghouti, nearby. Jose Garcia, also shirtless, got out of the driver’s side of the truck. The
       officers saw K.M. in the truck, naked, crying hysterically. She told the officers the three men

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     raped her. Doctors at a nearby hospital found semen in K.M.’s vagina. Prosecutors charged
     Garcia, Jamal, and Eiad with aggravated criminal sexual assault and aggravated kidnapping.
¶4       Jamal and Eiad chose a joint bench trial. Jamal testified that after the picnic ended, K.M.
     agreed to go with him to another party. They decided to take Garcia’s truck, with Eiad and
     Garcia, to get there. Jamal had consensual sexual contact with K.M., and then he got out of the
     truck. When he returned, he saw Garcia kissing K.M. He walked away. He heard K.M. scream
     “stop,” and then he returned to the truck, just before police arrived. Eiad corroborated Jamal’s
     testimony.
¶5       K.M. testified that on the way back home from the picnic, Jamal forcibly removed her
     clothes and had intercourse with her against her will. Eiad performed oral sex on her as she
     continued screaming. Garcia had intercourse with her while Eiad held her down, and then Eiad
     had intercourse with her shortly before police arrived. An officer testified that when he
     approached the truck, he saw Eiad on top of K.M.
¶6       The trial court found Jamal and Eiad guilty as charged. The court sentenced Eiad to 45
     years in prison and Jamal to 35 years in prison. The appellate court affirmed the convictions
     and sentences on the direct appeal. People v. Barghouti, Nos. 1-06-3448, 1-06-3465 cons.
     (June 9, 2009) (unpublished order under Supreme Court Rule 23).
¶7       On April 29, 2011, Jamal filed a postconviction petition, claiming that he received
     ineffective assistance of trial and appellate counsel, and that the State withheld exculpatory
     evidence. Jamal alleged that his trial attorney failed to interview witnesses Jamal identified
     who would have cast doubt on K.M.’s credibility.
¶8       Jamal also alleged:
             “trial counsel *** failed to advise petitioner that if he denied the 12 year plea bargain
             that the State offered both petitioners, they would be facing the possibility of a prison
             term of 6 to 60 years if found guilty.
                                                ***
                 Defense counsel *** erroneously advised petitioner and his father that, if
             convicted, petitioner would be eligible for probation since he did not have a criminal
             record and Eiad, co-petitioner, would only rec[ei]ve 8 to 10 years. Due to this
             erroneous advice petitioner rejected the State plea offer ***.
                                                ***
                 If the defendant was aware of the minimum and maximum sentencing range of 6 to
             60 years and defendant was not erroneously advised that he would only get probation
             since he had no criminal record[,] Petitioner would have *** accepted the plea offer of
             12 years that the prosecutor offered him.”
¶9       Jamal’s affidavit, and the affidavit of Jamal’s father, echo the allegations of the petition.
     Jamal said:
                 “Attorneys Perry Grimaldi and Ezra Hemphill erroneously advised my father,
             Jamal Barghouti Sr., Eiad Barghouti, and [me] that if we were found guilty, the most
             Eiad, co-defendant, would get is 8 to 10 years in prison. Jamal Jr. would be eligible for
             probation since he had no criminal record ***.
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                    Both attorneys never advised us that we faced the possibility of a prison term of 6 to
               60 years if we were found guilty and never told us about the extended sentencing
               factors that could apply ***.
                    ***
                    I, at the time [of plea bargaining], did not know that I faced 6 to 60 years in prison,
               if I was found guilty of the counts with the extended terms in them and if I did know, I
               would have taken the plea offer but would have tr[i]ed to negotiate a less amount of
               time first.”
¶ 10       The trial court dismissed the petition as frivolous and patently without merit. Jamal filed a
       notice of appeal, and the court appointed counsel to assist Jamal with the appeal. In the brief on
       appeal, appellate counsel raised the issue of the State’s failure to disclose a witness who might
       have affected K.M.’s credibility and the failure of defense counsel to interview and call
       witnesses Jamal identified who might have cast further doubt on K.M.’s credibility. Counsel
       for the postconviction appeal raised no issue concerning Jamal’s allegation that he rejected a
       plea bargain based on erroneous advice from his trial counsel. This court asked the parties for
       briefs concerning the allegations of erroneous advice concerning the plea bargain.

¶ 11                                           ANALYSIS
¶ 12        At this court’s prompting, counsel for the postconviction appeal asserted that Jamal did not
       intend to waive his claim that his trial counsel provided ineffective assistance by giving Jamal
       erroneous advice concerning the plea bargain. The State responded that we had overstepped
       our bounds when we requested briefing on an issue Jamal’s attorneys failed to raise in their
       opening brief on appeal.
¶ 13        Because this case arises on appeal from the dismissal of a postconviction petition at the
       first stage of postconviction proceedings, we review the dismissal de novo. People v. Coleman,
       183 Ill. 2d 366, 387-88 (1998). At the first stage of proceedings, “a petition alleging ineffective
       assistance may not be summarily dismissed if (i) it is arguable that counsel’s performance fell
       below an objective standard of reasonableness and (ii) it is arguable that the defendant was
       prejudiced.” People v. Hodges, 234 Ill. 2d 1, 17 (2009). We should affirm the dismissal “only
       if the petition has no arguable basis either in law or in fact. A petition which lacks an arguable
       basis either in law or in fact is one which is based on an indisputably meritless legal theory or a
       fanciful factual allegation.” Hodges, 234 Ill. 2d at 16. Because we review the trial court’s
       decision de novo, “the issue before us is limited solely to whether defendant’s ‘petition is
       frivolous or is patently without merit.’ ” People v. Edwards, 197 Ill. 2d 239, 247 (2001)
       (quoting 725 ILCS 5/122-2.1(a)(2) (West 1998)). We should not affirm the dismissal of the
       petition if the petition states the gist of a claim for a deprivation of constitutional rights.
       Edwards, 197 Ill. 2d at 244.
¶ 14        We note particularly that the Edwards court did not say that the court needed to decide
       whether the parts of the postconviction petition argued on appeal state the gist of a
       constitutional claim. Instead, this court must review the entire postconviction petition, in light
       of the trial record, to determine whether it states the gist of a constitutional claim. The Hodges

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       court elaborated on the standard applicable when the postconviction petitioner has alleged
       ineffective assistance of counsel. Nothing in Hodges limits the scope of review to those parts
       of the postconviction petition argued on appeal.
¶ 15        Applying the directives of Edwards, Hodges, and Coleman, we reviewed the record of the
       trial and the postconviction petition. In the petition, we encountered allegations not raised in
       appellate counsel’s brief but which appeared to make the postconviction petition meritorious.
       Jamal alleged that his counsel failed to inform him of the range of sentences available if he
       rejected the State’s offer to recommend a 12-year sentence in exchange for a guilty plea. The
       trial record did not contradict those allegations, which state the gist of a claim that trial counsel
       provided ineffective assistance. Because “a reviewing court does not lack authority to address
       unbriefed issues and may do so in the appropriate case, i.e., when a clear and obvious error
       exists in the trial court proceedings” (People v. Givens, 237 Ill. 2d 311, 325 (2010)), we could
       reverse the trial court’s judgment on the basis of those allegations. See Hodges, 234 Ill. 2d at
       17. We chose instead to request supplemental briefs to allow the parties to address the issue.
       See People v. Williams, 239 Ill. 2d 119, 128 (2010); People v. Green, 225 Ill. 2d 612, 616
       (2007); see also People v. Feyrer, 269 Ill. App. 3d 734, 739 (1994). We hold that we did not
       overstep the proper bounds of an appellate court when, upon discovering that the trial court
       committed an obvious error, we asked the parties to brief the issue.
¶ 16        In its supplemental brief, the State argues that, because Jamal did not obtain an affidavit
       from his trial counsel, we must not accept as true Jamal’s allegation that his trial counsel failed
       to inform him, at the time of plea bargaining, that he faced a sentence of 6 to 60 years in prison
       if the trial court found him guilty as charged, and that he would have accepted the plea bargain
       the prosecution offered if trial counsel had informed him of the range of sentences available.
       The argument asks us to ignore the standards set in Edwards and Coleman. At the first stage of
       proceedings, we must accept as true all facts alleged in the postconviction petition, unless the
       record contradicts those allegations. Coleman, 183 Ill. 2d at 385. Our supreme court also has
       held that courts should excuse the absence of affidavits in which attorneys must confess their
       errors, because the “difficulty or impossibility of obtaining such an affidavit is self-apparent.”
       People v. Williams, 47 Ill. 2d 1, 4 (1970), quoted in People v. Hall, 217 Ill. 2d 324, 333-34
       (2005). We find that the lack of an affidavit from Jamal’s trial counsel does not permit us to
       ignore the allegations of his postconviction petition, supported by his affidavit and the affidavit
       of his father.
¶ 17        Our supreme court, in People v. Curry, 178 Ill. 2d 509 (1997), said:
                     “A criminal defendant has the constitutional right to be reasonably informed with
                respect to the direct consequences of accepting or rejecting a plea offer. [Citations.]
                Concomitantly, a criminal defense attorney has the obligation to inform his or her
                client about the maximum and minimum sentences that can be imposed for the offenses
                with which the defendant is charged. [Citations.] In the case at bar, defense counsel did
                not fulfill this obligation. ***
                     *** Based on the facts before us, we conclude that defense counsel’s performance
                during plea negotiations was objectively unreasonable.” (Emphasis in original.) Curry,
                178 Ill. 2d at 528-29.
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¶ 18       Following Curry, we find that Jamal has adequately alleged facts showing that, arguably,
       his trial counsel provided ineffective assistance during plea negotiations. Jamal also
       adequately alleged that he arguably suffered prejudice because he would have accepted the
       plea bargain if he had known the sentencing range applicable to the crimes charged. See Lafler
       v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1391 (2012) (allegation that defendant would
       have accepted plea bargain credible when sentence imposed greatly exceeded bargain offered,
       and counsel failed to inform the defendant of sentencing range (citing Cooper v. Lafler, 376
       F. App’x 563, 571-72 (6th Cir. 2010))). Accordingly, we reverse the trial court’s judgment and
       remand for the appointment of counsel to assist Jamal with the second stage of postconviction
       proceedings.

¶ 19                                       CONCLUSION
¶ 20       When this court, in reviewing the record on appeal de novo, encounters an obvious error by
       the trial court, the court may address the issue even if the parties failed to brief the issue.
       Givens, 237 Ill. 2d at 325. The court does not overstep its bounds when it asks for briefing on
       the overlooked issue, rather than resolving the issue without briefing. See Williams, 239 Ill. 2d
       at 128. Jamal here adequately alleged that his trial counsel provided ineffective assistance
       during plea negotiations, when counsel failed to inform him accurately of the potential
       consequences of rejecting the bargain. Jamal also adequately alleged that he suffered prejudice
       due to counsel’s error. Accordingly, we reverse the trial court’s judgment and remand to
       advance the petition to the second stage of postconviction proceedings.

¶ 21      Reversed and remanded.

¶ 22       JUSTICE HYMAN, specially concurring.
¶ 23       As this court’s opinion lays out, the request for supplemental briefing falls well within our
       authority. I write this special concurrence, however, to take issue with the repeated
       characterization in the State’s supplemental brief that this court “stepped outside of its proper
       role as a neutral arbiter.” The accusation stems from our asking the parties for supplemental
       briefing on petitioner’s claim of ineffective assistance of trial counsel involving the plea
       bargain. Petitioner’s opening brief did not address the claim, even though he raised it in his
       postconviction petition.
¶ 24       My experience on the bench has convinced me that judges, trial as well appellate, feel
       acutely conscious of their proper role as neutral arbiters. Every day, in every case I handle, I
       am reminded of that essential, central, and indispensable role entrusted to me and every
       member of the judiciary–that of neutral arbiter. I have never known a judge who felt otherwise.
       Whether denoted as neutrality or impartiality or independence, our legal system hinges on its
       observance. Our adherence is inviolable.
¶ 25       This is not the first time I have seen a brief accuse a court of crossing the line which cannot
       be crossed–the line of absolute neutrality. Recently this court issued an opinion involving an
       especially egregious example. See Talamine v. Apartment Finders, Inc., 2013 IL App (1st)

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       121201. While the intemperate rhetoric employed here may not be as offensive as in Talamine,
       the damage is the same–every gratuitous and petulant comment hurts the integrity of the
       courts.
¶ 26       The State presents a cogent response, which does not benefit an iota from its distasteful
       characterization. The throw-away line, which is made without citation to authority, should
       have been deleted in the editing process as a matter of respect and decorum.
¶ 27       Of all those who might sling an arrow at the integrity of the court, the office of the State’s
       Attorney would seem the least likely to do so. The office of State’s Attorney knows what it
       means to uphold the law and the Constitution. And if we believe it means supplemental
       briefing for clarification that does not equate with shedding our neutrality, irrespective of the
       legal soundness of the request.
¶ 28       The words of Supreme Court Justice David Souter at his confirmation hearing summarize
       for me, not only my role and the role of every other judge of the courts of this nation, but also
       why we asked for the supplemental briefing:
               “The first lesson, simple as it is, is that whatever court we’re in, whatever we are doing,
               at the end of our task some human being is going to be affected. Some human life is
               going to be changed by what we do. And so we had better use every power of our minds
               and our hearts and our beings to get those rulings right.” The Nomination of David H.
               Souter to Be Associate Justice of the Supreme Court of the United States, Hearing
               Before the Sen. Comm. on the Judiciary, 101st Cong. 51-52 (1991) (statement of David
               Souter), available at http://www.gpo.gov/fdsys/pkg/GPO-CHRG-SOUTER/pdf/
               GPO-CHRG-SOUTER.pdf.
¶ 29       The supplemental briefing helped us get this ruling right.

¶ 30       JUSTICE MASON, specially concurring.
¶ 31       I specially concur in the judgment reversing and remanding petitioner’s postconviction
       petition for second-stage proceedings. I do so because another panel of this division, on
       allegations virtually identical to those raised by petitioner here regarding witnesses who a
       codefendant claimed were not interviewed by defense counsel and whose testimony could
       have cast doubt on the victim’s credibility, determined that first-stage dismissal was
       inappropriate. People v. Barghouti, 2013 IL App (1st) 110584-U. I can conceive of no basis
       why these codefendants should receive different treatment. I express no view on the remaining
       issue.




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