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June 30, 1997


Appeal from Circuit Court of Champaign County. No. 95CF12. Honorable John R., DeLaMar, Judge Presiding.

As Corrected September 26, 1997.

Honorable Robert J. Steigmann, P.j., Honorable Frederick S. Green, J. - Concur, Honorable John T. McCullough, J. - Concur And Dissent. Presiding Justice Steigmann delivered the opinion of the court. Green, J. concurs. McCULLOUGH, J., concurs in part and dissents in part.

The opinion of the court was delivered by: Steigmann

PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:

In May 1995, defendant, Gregory J. Moore, pleaded guilty to first degree murder (720 ILCS 5/9-1(a)(1) (West 1994)). The trial court sentenced him to 20 years in prison (730 ILCS 5/5-8-1(a)(1)(a) (West 1994)) and gave him credit for 120 days previously served in county jail. In February 1996, defendant filed an amended motion to withdraw his guilty plea, which the court denied.

Defendant appeals, arguing that (1) the trial court abused its discretion by denying his motion to withdraw his guilty plea where his trial counsel was ineffective; and (2) he is entitled to one additional day of credit for time served. We affirm.


Defendant pleaded guilty to first degree murder on May 3, 1995, and the trial court sentenced him the same day. After consulting with both the State and defense counsel, the court ordered that defendant be given credit for 120 days of credit for time served.

In his amended motion to withdraw his guilty plea, defendant alleged that he did not knowingly and voluntarily waive his right to jury trial because (1) he or a member of his family was threatened with serious physical harm if he did not plead guilty; (2) he was confused and frightened due to those threats; (3) his court-appointed trial counsel, James Kuehl, did not interview material witnesses or explain to defendant the evidence against him; and (4) Kuehl advised him that he would receive a more severe sentence if the case proceeded to trial and would be required to serve 85% of a sentence under the new sentencing guidelines, as opposed to 50% of a sentence if he pleaded guilty.

In March 1996, the trial court conducted a hearing on defendant's motion, heard counsel's arguments, and denied it.


Defendant first argues that the trial court abused its discretion by denying his motion to withdraw his guilty plea where Kuehl provided ineffective assistance of counsel. Defendant specifically contends that Kuehl gave him incorrect advice about changes in section 3-6-3(a)(2) of the Unified Code of Corrections (Correctional Code) concerning good-conduct credit (730 ILCS 5/3-6-3(a)(2) (West Supp. 1995)). We disagree.

Defendant's testimony at the hearing on his motion to withdraw reveals Kuehl, in response to defendant's decision to plead guilty, said, "'It's up to you. It's the best offer they have,' and that it's up to me to take it." Kuehl testified that on a prior date when defendant was to enter a plea, "I asked Greg, 'Do you want to do this?' And he said, 'No.' And I said, 'Fine.' And I stood' up and I said, 'Judge, we're not doing the plea,' and we left." According to Kuehl, defendant stated he was "upset at the time" and came in a day or two later and finalized the plea. "He did want to do the plea; it wasn't his favorite thing to do, but that's what he wanted to do."

In denying defendant's motion, the trial court stated, in relevant part, as follows:

"There's a big difference between wanting to plead guilty and choosing to plead guilty. [Not wanting to plead guilty] doesn't answer the question whether or not [defendant] voluntarily pled guilty.

There is nothing in the record of the plea, nothing in the fact that [defendant] was not surprised, that he may have been in a layperson's observation depressed, that he didn't like the detention center, or that he was, in fact, reluctant to enter into his plea to suggest it was other than knowingly, intelligently, [and] voluntarily made.

*** I am not persuaded even by a preponderance of the evidence that that threat [to defendant's brother] was ever relayed to the defendant.

More importantly, I'm certainly not persuaded that [the threat] in any way influenced, affected, or coerced the defendant into pleading guilty."

In arguing the motion to the trial court, defendant's new counsel argued that defendant's guilty plea was involuntary because (1) defendant was depressed; (2) he thought he was going to lose the case; and (3) he was afraid for his own safety. Defendant's newly appointed counsel did not argue that the guilty plea was rendered involuntary because of Kuehl's advice concerning the possible length of the sentence or the then-recent amendment to the statute authorizing good-conduct credit. As a result, defendant raises a theory on appeal not relied on in the trial court, and that court never addressed it in denying defendant's motion to withdraw the guilty plea. Thus, defendant has waived consideration of that argument on appeal. People v. Hamilton, 283 Ill. App. 3d 854, 861-62, 670 N.E.2d 1189, 1194-95, 219 Ill. Dec. 301 (1996)

Even if defendant had not waived this argument, we would conclude that he failed to demonstrate ineffective assistance of counsel. The denial of a motion to withdraw a guilty plea rests in the trial court's sound discretion, and a reviewing court will not overturn that determination unless (1) the guilty plea was entered through a misapprehension of the facts or law; or (2) doubt of the defendant's guilt exists and justice would be better served by submitting the case to trial. People v. Hillenbrand, 121 Ill. 2d 537, 545, 521 N.E.2d 900, 903, 118 Ill. Dec. 423 (1988). To establish that defendant was denied effective assistance of counsel in entering a guilty plea, defendant must demonstrate both (1) that his counsel's performance was deficient; and (2) prejudice to defendant (defined as a reasonable probability that, but for counsel's errors, defendant would not have pleaded guilty and would have insisted on going to trial). Prejudice is assessed in light of the likelihood of success at trial, and if prejudice has not been demonstrated, we need not consider whether counsel's performance was deficient. People v. Pugh, 157 Ill. 2d 1, 14-15, 623 N.E.2d 255, 261-62, 191 Ill. Dec. 10 (1993).

Defendant concedes in his brief that Kuehl's advice--that if defendant's case went to trial, conviction and a sentence of 25 to 30 years were likely--was neither unreasonable nor deficient. However, defendant contends that Kuehl's incorrect advice concerning the matter of good-conduct credit requires reversal. We disagree.

Our review of the record makes clear that the trial court thoroughly and completely admonished defendant as to the consequences of his guilty plea. Defendant's responses to the court's questions do not reveal any ...

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