People v. Ross

40 N.E.3d 461

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Demetrius D. ROSS, Defendant–Appellant.

No. 3–13–0077.

Appellate Court of Illinois, Third District.

Sept. 18, 2015.

Michael J. Pelletier and Paul Alexander Rogers (argued), both of State Appellate Defender's Office, Elgin, for appellant.

John L. McGehee, State's Attorney, Rock Island (Richard T. Leonard (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 Defendant Demetrius Ross pleaded guilty to one count of felony murder and was sentenced to an agreed 60–year term of imprisonment. He sought postconviction relief, alleging he was induced to enter into the plea agreement by his counsel's erroneous advice regarding truth-in-sentencing legislation and its effect on the length of his term of imprisonment. After an evidentiary hearing, the trial court denied Ross's postconviction petition. He appealed. We reverse and remand, finding that he was denied reasonable assistance of postconviction counsel and is entitled to additional credit for time spent in presentence custody in Wisconsin.

¶ 2 FACTS

¶ 3 Defendant Demetrius Ross was charged by information on January 19, 1995, with two counts of first degree murder and two counts of aggravated kidnapping. 720 ILCS 5/9–1(a)(1), (a)(3), 10–2(a)(3), (a)(5) (West 1994). Indictments setting forth the same charges were filed in March and August 1995. Ross was arrested on a warrant in Milwaukee, Wisconsin, in May 1996. An amended information was filed on June 18, 1996, alleging the same four counts.

¶ 4 Ross appeared in Rock Island County court on July 20, 1996. Also in July 1996, attorney Marshall Weinberg filed an appearance as defense counsel. On November 15, 1996, Ross appeared with Weinberg and entered a partially-negotiated guilty plea. Pursuant to the terms of the plea agreement, Ross pleaded guilty to one count of felony murder (count II) in exchange for dismissal of the other charges and a sentencing cap of 60 years' imprisonment. The trial court accepted the plea, entered judgment on felony murder, and sentenced Ross to a term of imprisonment of 60 years. Ross was given credit against his sentence for time spent in custody in the Rock Island County jail beginning July 20, 1996.

¶ 5 In April 1997, Ross moved pro se to withdraw his guilty plea and vacate his sentence. The trial court denied the motion as untimely. Ross appealed and this court dismissed the appeal for lack of jurisdiction. People v. Ross, No. 3–97–0399 (June 1997). In November 1999, Ross filed a pro se postconviction petition, alleging, in part, that trial counsel provided ineffective assistance. Ross filed an amended pro se postconviction petition, incorporating the allegations from his November 1999 petition and arguing that his plea was involuntary. The trial court found that it could not determine whether Ross's claims were frivolous and patently without merit, dismissed the petition, appointed Ray Conklin as counsel, and granted Ross six months to file an amended petition.

¶ 6 Conklin was given leave to withdraw in March 2000, and Herb Schultz was appointed to represent Ross. In June and November 2000, Ross filed pro se postconviction petitions. In September 2001, Schultz was granted leave to withdraw and Mark Jackson was appointed. In July 2002, Jackson filed an amended postconviction petition. The State filed a motion to dismiss, alleging the 1999 postconviction petition was untimely. The trial court granted the State's motion to dismiss and appointed postconviction counsel. In November 2004, this court reversed the order dismissing Ross's postconviction petition and remanded the cause for further proceedings. People v. Ross, 352 Ill.App.3d 617, 288 Ill.Dec. 803, 818 N.E.2d 738 (2004).

¶ 7 In November 2006, Ross sought presentence custody credit of an additional 67 days for the time he spent in jail in Wisconsin. In November 2007, Harry Khoury was appointed as counsel. In April 2009, Ross filed a pro se amended postconviction petition. In April 2011, he filed another pro se amended postconviction petition. Both petitions alleged that trial counsel Weinberg induced Ross into pleading guilty by advising him that if he went to trial he would have to serve 85% to 100% of his sentence, but if he pleaded guilty he would only have to serve 50% of the sentence. According to Ross, Weinberg misapplied the then recently amended truth-in-sentencing legislation when he advised Ross to plead guilty. Ross submitted a sworn statement supporting his allegation of erroneous advice. The statement informed that it was in compliance with section 1–109 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/1–109 (West 2010) ). The statement was not notarized.

¶ 8 Khoury was replaced as postconviction counsel by Aaron Dyer in July 2010. In March, 2011, Dyer moved to withdraw and Nate Nieman was appointed as postconviction counsel. Nieman filed an amended postconviction petition in March 2012. The petition included the truth-in-sentencing claims. The petition expressly incorporated all prior petitions, motions, addendums, and supplemental pleadings related to the original postconviction petition filed in 1999. Included with the petition was Ross's sworn statement pursuant to section 1–109 of the Civil Code (735 ILCS 5/1–109 (West 2010) ). Also included with the petition was an Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) certificate, in which counsel attested he satisfied the requirements of a postconviction attorney.

¶ 9 The State filed an answer and also filed an affidavit signed by attorney Weinberg. In the affidavit, Weinberg disputes Ross's claims of ineffective assistance of counsel. The affidavit did not indicate what advice he gave Ross regarding the percentage of his sentence he would be required to serve if he were found guilty following a trial as opposed to entering a guilty plea. An evidentiary hearing took place on the 2012 postconviction petition. Ross and Weinberg testified but neither defense counsel nor the State asked the witnesses about the sentencing advice Weinberg provided Ross. The witnesses were not questioned about and did not raise the truth-in-sentencing issue. The trial court denied Ross's postconviction petition. The trial court found “no reason to credit” any of Ross's claims; that trial counsel properly discharged his duties; and trial counsel's assistance was not ineffective. Ross appealed.

¶ 10 ANALYSIS

¶ 11 The issues on appeal are whether the trial court erred when it denied Ross's postconviction petition alleging ineffective assistance of trial counsel and when it failed to credit him for the 67 days he spent in presentence custody in Wisconsin.

¶ 12 We begin with whether the trial court's denial of the postconviction petition on the basis that Ross was not denied effective assistance of counsel was in error. Ross argues that his conviction should be reversed because the incorrect advice he received from his trial attorney induced him to plead guilty and, but for the bad advice, he would not have agreed to enter a plea. He maintains his sworn statement remains unrebutted and qualifies as “other” evidence under sections 122–2 and 122–6 of the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–2, 122–6 (West 2010)). In the alternative, he submits that if his sworn statement does not constitute “other evidence,” he is still entitled to relief because his postconviction counsel's unreasonable assistance prevented him from submitting an affidavit as required under the Act.

¶ 13 The Act (725 ILCS 5/122–1 et seq. (West 2010)) provides a defendant the means to challenge his conviction or sentence for constitutional violations. People v. Pendleton, 223 Ill.2d 458, 471, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006). A defendant must demonstrate that he suffered a substantial deprivation of his constitutional rights in the proceeding that resulted in his conviction and sentence. Id. The Act sets forth a three-stage process for adjudicating postconviction petitions. People v. English, 2013 IL 112890, ¶ 23, 369 Ill.Dec. 744, 987 N.E.2d 371. At the third stage, an evidentiary hearing takes place where the defendant may present evidence in support of his petition and the trial court makes fact-finding and credibility determinations. Pendleton, 223 Ill.2d at 472–73, 308 Ill.Dec. 434, 861 N.E.2d 999. At the evidentiary hearing, a defendant may present affidavits, depositions, oral testimony or other evidence to support a claim of substantial violation of a constitutional right. 725 ILCS 5/122–6 (West 2010). The defendant bears the burden of making a substantial showing of a constitutional violation. People v. Coleman, 206 Ill.2d 261, 277, 276 Ill.Dec. 380, 794 N.E.2d 275 (2002). This court will not reverse a trial court's denial of a postconviction petition after an evidentiary hearing unless it is manifestly erroneous. English, 2013 IL 112890, ¶ 23, 369 Ill.Dec. 744, 987 N.E.2d 371.

¶ 14 The two-prong test for ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). To prevail on an ineffective assistance claim, a defendant must demonstrate that his counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052. A defendant must show there is a reasonable probability that, but for his attorney's errors, he would not have pleaded guilty but would have proceeded with a trial. Hill, 474 U.S. at 59, 106 S.Ct. 366. Where a defendant alleges unreasonable assistance of postconviction counsel, the prejudice prong focuses on whether counsel's deficient performance affected the...