People v. Nicholson

2021 IL App (3d) 180010

173 N.E.3d 1002

447 Ill.Dec. 359

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Sterling M. NICHOLSON, Defendant-Appellant.

Appeal No. 3-18-0010

Appellate Court of Illinois, Third District.

Opinion filed January 29, 2021

James E. Chadd, Patricia Mysza, and Deepa Punjabi, of State Appellate Defender's Office, of Chicago, for appellant.

John T. Pepmeyer, State's Attorney, of Galesburg (Patrick Delfino, Thomas D. Arado, and Gary F. Gnidovec, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion.

¶ 1 The State charged petitioner Sterling M. Nicholson with three counts of attempted first degree murder ( 720 ILCS 5/8-4, 9-1(a)(1)-(3) (West 2012)), one count of aggravated domestic battery (id. § 12-3.3(a)), and one count of aggravated battery (id. § 12-3.05(a)(1)). A jury acquitted Nicholson on all counts of attempted first degree murder but found him guilty of aggravated domestic battery and aggravated battery. The trial court entered convictions on each of those counts and sentenced him to 25 years’ imprisonment for aggravated domestic battery and 10 years’ imprisonment for aggravated battery, to be served consecutively. On direct appeal, we affirmed Nicholson's conviction for aggravated domestic battery and vacated his conviction for aggravated battery.

¶ 2 Nicholson now appeals the third-stage dismissal of his postconviction petition. He alleges that his trial counsel was ineffective in failing to inform him that he was eligible for Class X sentencing for his aggravated domestic battery conviction. For the following reasons, we reverse the trial court's decision and remand the matter with instructions for resentencing.

¶ 3 BACKGROUND

¶ 4 In this appeal, Nicholson challenges only the trial court's decision following the third-stage evidentiary hearing on his petition for postconviction relief. Therefore, we incorporate by reference our prior decision, where we described the evidence in detail. People v. Nicholson , 2015 IL App (3d) 130463-U, ¶¶ 9-21, 2015 WL 5020983. We repeat those facts necessary to resolve the claim of ineffective assistance of counsel. At trial, the State's evidence established that Nicholson "beat up" his then-girlfriend Mary Cannon, intentionally causing her great bodily harm. Although Cannon could not remember the events leading to her injuries when she testified, four State witnesses testified that Cannon identified Nicholson as her assailant immediately after suffering the injuries. In his own defense, Nicholson testified that a friend, Ollie Howell, struck Cannon in the mouth, following which Cannon and Howell had a violent altercation. Howell testified that he saw Nicholson strike Cannon after an argument over Cannon's previous boyfriend.

¶ 5 The jury found Nicholson not guilty of the three counts of attempted murder and guilty of aggravated domestic battery and aggravated battery. At the sentencing hearing, the trial court found that Nicholson was older than 21 years old and had seven prior felony convictions—six separate convictions for Class 2 felonies and one conviction for a Class 1 felony—over a period of roughly 20 years from 1993. Considering his age and criminal history, the court sentenced Nicholson to 20 years’ imprisonment as a Class X offender under the general recidivism provisions of the Unified Code of Corrections ( 730 ILCS 5/5-4.5-95 (2012) ). During his sentencing, Nicholson interrupted the court and stated:

"But my—my—my question would be of if I was informed of all this prior to when the State offered me the six years for the three counts of attempted murder, one aggravated domestic, and one aggravated battery, I would have considered the—I would have considered that plea more earnestly."

¶ 6 Nicholson filed a motion to reconsider his sentence. In the motion, Nicholson's trial counsel acknowledged that he failed to advise Nicholson of his Class X sentencing eligibility. Trial counsel admitted that he was unaware of Nicholson's eligibility. The trial court denied the motion.

¶ 7 On direct appeal, Nicholson raised no issues related to trial counsel's failure to inform him of the Class X sentencing. Instead, he challenged the trial court's ruling on two evidentiary matters and his conviction for aggravated battery. We affirmed his conviction for aggravated domestic battery but vacated his conviction for aggravated battery as violating the principles of one-act, one-crime.

¶ 8 Subsequently, Nicholson filed a pro se petition for postconviction relief that advanced to the second stage. In his amended petition, Nicholson raised six claims, including a claim of ineffective assistance of trial counsel. In that claim, he argued that trial counsel informed him of a plea offer from the State. The offer was for six years’ imprisonment for the aggravated domestic battery. In exchange, the State would dismiss the charges of attempted murder and aggravated battery. Nicholson alleged that trial counsel told him the State could not prove attempted murder and the most he would face on the aggravated battery—the next serious offense, according to counsel—was 14 years’ imprisonment if he was convicted. Nicholson claimed that because of trial counsel's advice, he rejected the State's offer. He argued that trial counsel was ineffective because counsel should have known that he was facing Class X sentencing on the aggravated domestic battery.

¶ 9 The trial court advanced the petition to a third-stage evidentiary hearing, where Nicholson and trial counsel testified. Nicholson testified that counsel said the State could not prove the attempted murder. He wanted to take the State's offer, but counsel dissuaded him. Counsel said that it was unlikely that Nicholson would get a sentence greater than six years on the aggravated domestic battery. Nicholson stated that he would have considered the sentence more "earnestly" if he had known he was still facing 25 years: "if I'd known that all these things were possible, I most definitely would've taken the six years, point-blank."

¶ 10 Trial counsel testified that he was unaware of the statutory enhancement at the time and failed to advise Nicholson on the possibility of an extended sentence. But counsel stated that he did not "urge" Nicholson to reject the plea. He could not recall the details of his advice but believed that he would have advised Nicholson on the relative strengths and weaknesses of the State's evidence for each count.

¶ 11 The trial court denied Nicholson relief, finding that trial counsel's advice fell short of the competence required by the first prong of the Strickland test (see Strickland v. Washington , 466 U.S. 668 (1984) ) but not finding the prejudice demanded for the second prong. The court stated that while Nicholson "was receiving a 6-year offer and a dismissal of the attempted murder charge, [he] rejected a 6-year sentence and subjected himself to the possibility that he could receive up to 30 years if he was found guilty of attempted murder." The court concluded that, regardless of counsel's advice, Nicholson decided to reject a "6-year offer with the understanding that [he] could be facing up to 30 years."

¶ 12 Nicholson appeals that decision.

¶ 13 ANALYSIS

¶ 14 This case comes to us on appeal from a third-stage evidentiary hearing under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2016)). The Act provides a three-stage process by which a petitioner may allege a substantial deprivation of a constitutional right. People v. Pellegrini , 2019 IL App (3d) 170827, ¶ 51, 434 Ill.Dec. 601, 137 N.E.3d 182. At the third stage, the circuit courts hold fact-finding evidentiary hearings where they may make credibility determinations. Id. After such hearings, the courts’ fact-finding and credibility decisions will not be reversed unless they were manifestly erroneous. Id. But, we apply a mixed standard of review to claims of ineffective assistance of counsel. People v. Peterson , 2015 IL App (3d) 130157, ¶ 222, 400 Ill.Dec. 40, 47 N.E.3d 1005. The court's fact-finding and credibility assessments in deciding whether or not counsel was ineffective will be reviewed under the ordinary standard for the dismissal of a postconviction petition following the third-stage evidentiary hearing. See id. "However, the ultimate question of whether counsel's actions support a claim of ineffective assistance is a question of law that is subject to de novo review on appeal." Id. ; see also People v. Hale , 2013 IL 113140, ¶ 15, 374 Ill.Dec. 912, 996 N.E.2d 607 (applying a de novo standard of review to a claim of ineffective assistance of counsel).

¶ 15 The Illinois Constitution, like the United States Constitution, guarantees all criminal defendants the right to effective assistance of counsel. Hale , 2013 IL 113140, ¶ 15, 374 Ill.Dec. 912, 996 N.E.2d 607. This right extends to the plea-bargaining process, including situations where a defendant rejects a guilty plea offer and subsequently receives a fair trial. Id. ¶ 16. Claims of ineffective assistance of counsel are reviewed under the two-prong test established in Strickland . Id. ¶ 15. To prevail on such a claim, a defendant must show that counsel's performance was both deficient and prejudicial. People v. Curry , 178 Ill. 2d 509, 519, 227 Ill.Dec. 395, 687 N.E.2d 877 (1997) "More precisely, a defendant must show that his attorney's assistance was objectively unreasonable under prevailing professional norms, and that there is a ‘reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ " Id. (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).

¶ 16 Nicholson contends that trial counsel's performance was unreasonable because counsel failed to inform him that he was subject to Class X sentencing under section 5-4.5-95(b). The trial court agreed and found that trial counsel's...