                         Nos. 2-05-0583 & 2-06-0247 cons. Filed: 6-10-10
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 01--CF--1324
                                       )
FREDDIE RAMIREZ,                       ) Honorable
                                       ) Victoria A. Rossetti,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BURKE delivered the opinion of the court:

       Our supreme court has ordered us to vacate and reconsider our initial resolution of this

consolidated appeal from the summary dismissal of two pro se postconviction petitions filed by

defendant, Freddie Ramirez, pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1

et seq. (West 2004)). In his petitions, defendant claimed that his trial counsel was ineffective for

misleading him into pleading guilty on counsel's erroneous legal advice that there was no meritorious

basis to pursue two motions to suppress incriminating statements. In our previous order, we affirmed

the trial court's dismissal of the postconviction petitions. We now reverse the dismissal of the first

postconviction petition (appeal No. 2--05--0583), but we affirm the dismissal of the second

postconviction petition (appeal No. 2--06--0247).

                                         BACKGROUND
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       Defendant and Luis Fernando Vasquez were charged by indictment on April 25, 2001, with

five counts of first-degree murder (720 ILCS 5/9--1(a)(1) (West 2004)) in connection with the

November 13, 2000, shooting death of Victor Chavez. Defendant was sentenced to 34 years'

imprisonment upon a plea of guilty.

       Following sentencing, defendant filed two pro se petitions for postconviction relief, alleging

ineffective assistance of counsel. Defendant claimed that he pled guilty because his counsel misled

him into believing that counsel's motions to suppress had no merit and that no appeal could be taken

from a finding against him on the motions. Those motions, and defendant's postconviction petitions,

alleged that defendant had invoked his right to counsel upon questioning for Chavez's murder. David

Weinstein, who was defendant's counsel at the time, filed a supporting affidavit, in which he averred

that he had informed the police that defendant would be exercising his fifth amendment right to

remain silent when police questioned defendant about Chavez's murder. Defendant alleged that, after

he had invoked his right to counsel, the police wired his mother and she obtained incriminating

statements from defendant about the murder of Chavez, while defendant was incarcerated for another

offense. Later, while defendant was still incarcerated on the other offense, the police questioned

defendant, again in the absence of his counsel, about the murder, and he wrote an incriminating

statement, which the State sought to introduce against defendant if a trial on the merits had taken

place. Both motions to suppress attacked the eavesdrop evidence obtained by defendant's mother and

the statement obtained by the police interrogation.

       The trial court dismissed both petitions at the first stage of the postconviction process. On

appeal, we agreed with the trial court as to the first petition, finding that evidence available to the

State, other than the evidence subject to the motions to suppress, likely would have led to a



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conviction of first-degree murder based on accountability and, thus, defendant did not show that it

was reasonably probable that, had the motions to suppress been granted, counsel would have advised

defendant differently. People v. Ramirez, 371 Ill. App. 3d 738, 745 (2007). We also held that

defendant forfeited the second postconviction petition by failing to present any argument on appeal.

Ramirez, 371 Ill. App. 3d at 746. The supreme court ordered this court to vacate our decision and

to reconsider it in light of People v. Hodges, 234 Ill. 2d 1 (2009).

                                             ANALYSIS

                                   I. STANDARD OF REVIEW

       Under the Act, a person imprisoned for a crime may collaterally attack his conviction and

sentence based on violations of his or her constitutional rights. People v. Erickson, 183 Ill. 2d 213,

222 (1998). Except where the death penalty has been imposed, proceedings under the Act are

divided into three stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). During the first stage,

the trial court independently examines the petition. If the petition is frivolous or patently without

merit, it will be summarily dismissed by the trial court. 725 ILCS 5/122--2.1(a)(2) (West 2006).

       Our supreme court in Hodges stated that a pro se petition is frivolous or patently without

merit if it "has no arguable basis either in law or in fact." Hodges, 234 Ill. 2d at 16. A petition has

no basis in law when it is based on an "indisputably meritless legal theory." Hodges, 234 Ill. 2d at

16. "An example of an indisputably meritless legal theory is one which is completely contradicted by

the record." Hodges, 234 Ill. 2d at 16. A petition has no basis in fact if it is based on a "fanciful

factual allegation." Hodges, 234 Ill. 2d at 16. "Fanciful factual allegations include those which are

fantastic or delusional." Hodges, 234 Ill. 2d at 17.




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        If a petition survives the first stage of review, it proceeds to the second stage, at which an

indigent defendant is entitled to appointed counsel, the petition may be amended, and the State may

answer or move to dismiss the petition. Gaultney, 174 Ill. 2d at 418. At the second stage, the

petition may be dismissed "when the allegations in the petition, liberally construed in light of the trial

record, fail to make a substantial showing of a constitutional violation." People v. Alberts, 383 Ill.

App. 3d 374, 376 (2008). A petition that is not dismissed at the first or second stage advances to the

third stage, at which an evidentiary hearing is held. Gaultney, 174 Ill. 2d at 418.

        Defendant argues that his postconviction petitions set forth a valid claim of ineffective

assistance of counsel because his counsel misled him into pleading guilty on counsel's erroneous legal

advice that there was no meritorious basis for suppressing the incriminating statements. Under the

two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.

2052 (1984), a defendant claiming ineffective assistance of counsel must show that his counsel's

performance "fell below an objective standard of reasonableness" and that the deficient performance

was prejudicial in that "there is a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694, 80 L. Ed.

2d at 693, 698, 104 S. Ct. at 2064, 2068. "At the first stage of postconviction proceedings under the

Act, 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." Hodges, 234 Ill. 2d at 17.

                            II. FIRST POSTCONVICTION PETITION

        Before addressing the merits of defendant's postconviction claim, we first find that defendant's

petition satisfied the evidentiary requirements set forth in section 122--2 of the Act. 725 ILCS



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5/122--2 (West 2004). Attached to the first postconviction petition was the signed affidavit of his

former counsel, David Weinstein, who averred that he was retained to represent defendant and that

he went to the Waukegan police department to speak with defendant. His affidavit independently

corroborated those allegations in defendant's petition regarding the invocation of defendant's right

to have counsel present during questioning.

       As to defendant's claim that his attorney induced him to plead guilty based on erroneous legal

advice, which defendant averred in his affidavit, Weinstein did not represent him when he pled guilty,

and defendant did not submit an affidavit from Barbra Cahn, the attorney who represented him at that

time. However, the failure to attach independent corroborating documentation or explain its absence

may be excused where the petition contains facts sufficient to infer that the only affidavit the

defendant could have furnished, other than his own sworn statement, was that of his attorney. See

People v. Collins, 202 Ill. 2d 59, 67-68 (2002). The difficulty of obtaining such an affidavit is self-

apparent here where defendant claimed that his counsel provided ineffective assistance in advising him

about a constitutional violation. Moreover, the trial court must accept as true all well-pleaded facts

not positively rebutted by the record. People v. Crane, 333 Ill. App. 3d 768, 773 (2002).

                                           A. Legal Basis

       On the merits, defendant claims that counsel was ineffective for advising him that the

statements he gave to police were obtained legally. The trial court is required to make an

independent assessment in the summary review stage as to whether the allegations in the petition,

liberally construed and taken as true, set forth a constitutional claim for relief. People v. Coleman,

183 Ill. 2d 366, 388-89 (1998). Assuming that counsel advised defendant to plead guilty because

there was no legal basis for suppressing the incriminating statements, as we must, we agree that



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defendant has alleged facts sufficient to show that counsel's performance fell below an objective

standard of reasonableness.

       When a defendant invokes his fifth amendment right to counsel during interrogation, all

questioning must cease until counsel actually is present. Smith v. Illinois, 469 U.S. 91, 94-95, 83 L.

Ed. 2d 488, 493, 105 S. Ct. 490, 492 (1984); Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed.

2d 378, 386, 101 S. Ct. 1880, 1885-86 (1981); People v. Hicks, 132 Ill. 2d 488, 492 (1989). Once

a defendant invokes his right to counsel, the prosecution is barred from using any statement later

made by the defendant in its case-in-chief, unless the defendant initiated the subsequent contact and

made a knowing and intelligent waiver of his Miranda rights. People v. Winsett, 153 Ill. 2d 335, 360-

61 (1992).

       Defendant's petition alleged that he invoked his fifth amendment right to counsel in relation

to the questioning about the murder of Chavez. Weinstein's affidavit supports defendant's legal

conclusion that his fifth amendment right to counsel was violated. Furthermore, defendant's legal

theory is not contradicted by the record. See Hodges, 234 Ill. 2d at 16. Thus, the alleged advice of

defendant's attorney that the police obtained the statements legally was clearly erroneous.

       The statements also could have been suppressed based on a violation of the sixth amendment

right to counsel. The Lake County grand jury returned indictments on April 25, 2001, charging

defendant with five counts of first-degree murder. The sixth amendment guarantees a right to counsel

after the initiation of adversarial proceedings and guarantees counsel's presence during any

communication between State agents and the defendant. See People v. Brown, 358 Ill. App. 3d 580,

587 (2005), citing Maine v. Moulton, 474 U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477 (1985);

Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964). The sixth



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amendment right to counsel attaches at or after the initiation of adversarial judicial proceedings,

whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

People v. Garrett, 179 Ill. 2d 239, 247 (1997). Defendant sufficiently alleged that, after he was

indicted, the police violated his sixth amendment right to counsel when they obtained incriminating

statements from defendant without his attorney's presence, first when his mother, who was acting as

an agent of the police, surreptitiously recorded her conversation with defendant, and later, when the

police interrogated defendant at the prison. Thus, defendant's petition establishes another arguable

basis that his counsel's advice was objectively unreasonable.

        Having established that counsel's advice was arguably objectively unreasonable, we must

address whether "it is arguable that the defendant was prejudiced." Hodges, 234 Ill. 2d at 17. In

order to establish the prejudice prong of an ineffective-assistance-of-counsel claim in connection with

the entry of a guilty plea (as is the case here), the defendant must show a reasonable probability that,

absent counsel's errors, the defendant would have pleaded not guilty and insisted on going to trial.

People v. Hall, 217 Ill. 2d 324, 335 (2005). A defendant's claim must be accompanied by either a

claim of innocence or the articulation of a plausible defense that could have been raised at trial. Hall,

217 Ill. 2d at 335-36. The question of whether counsel's deficient representation caused the

defendant to plead guilty depends in large part on predicting whether the defendant likely would have

been successful at trial. Hall, 217 Ill. 2d at 336.

        At this preliminary stage of review, we believe that defendant would have had a greater

likelihood of success at trial had the motions to suppress been granted. The State would not have

been able to present as strong a case against defendant without the use of the inculpatory statements.

At the guilty plea hearing, the factual basis of the State's case rested almost entirely on the contested



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statements. The other evidence upon which the State relied at the guilty plea hearing was Jose

Quinonez's physical description of a person he saw running from the scene after he heard gunshots.

This description matched defendant's appearance. At the sentencing hearing, the only other evidence

introduced was Officer Schletz's testimony about his interview with defendant's girlfriend, who told

him that she overheard defendant talk about how "they" killed a Latin King and that defendant later

described to her how "they" shot Chavez. Thus, we conclude that defendant has established a

reasonable probability that he would have persisted in his not-guilty plea and insisted on a trial absent

counsel's deficient advice.

                                           B. Factual Basis

        Finally, defendant's factual allegation that his attorney induced him to plead guilty is not

contradicted by the record; nor is it fanciful, fantastic, or delusional. See Hodges, 234 Ill. 2d at 17.

Accordingly, we find that the first postconviction petition was not frivolous or patently without merit

and that the trial court erred in summarily dismissing it. See Hodges, 234 Ill. 2d at 16.

                          III. SECOND POSTCONVICTION PETITION

       While we reverse the trial court's dismissal of the first postconviction petition, we continue to

find that defendant has forfeited the second postconviction petition by failing to raise any argument

on appeal concerning the trial court's dismissal of the second postconviction petition (appeal No.

2--06--0247). See 210 Ill. 2d R. 341(h)(7) (points not argued on appeal are forfeited).

                                         IV. CONCLUSION

       For the preceding reasons, the judgment of the circuit court of Lake County dismissing the first

postconviction petition is reversed in appeal No. 2--05--0583, and the cause is remanded with

directions to proceed to the second stage of the postconviction process. The judgment of the circuit



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court of Lake County dismissing the second postconviction petition is affirmed in appeal No.

2--06--0247.

       Appeal No. 2--05--0583, Reversed and remanded.

       Appeal No. 2--06--0247, Affirmed.

       McLAREN and BOWMAN, JJ., concur.




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