Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois No. 90--CF--185 Honorable H. Chris Ryan, Judge, Presiding.
The opinion of the court was delivered by: Justice Schmidt
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justices McDade and Wright concurred in the judgment and opinion.
Defendant, Joseph Cichon, was indicted on 54 counts consisting of: aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse, and child pornography. Pursuant to a plea agreement, defendant pled guilty to multiple counts in exchange for a 25-year sentence. Defendant filed a petition for post-conviction relief that was ultimately granted. The State then refiled the charges against defendant and offered him a plea deal with a 25-year sentence. He rejected the offer and went to trial. He was convicted and sentenced to 105 years.
After two unsuccessful post-conviction petitions, the court allowed defendant to file a third petition for post-conviction relief which advanced to a third-stage hearing. He claimed that he received ineffective assistance of counsel in his original post-conviction proceedings and at the subsequent arraignment. He also claimed his due process rights were violated at the arraignment. The trial court denied his petition. On appeal, defendant raises only the two arguments concerning ineffective assistance of counsel. We affirm the decision of the trial court.
FACTS I. Original Proceedings
In 1990 and 1991, the State charged defendant with 54 counts consisting of: aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse, and child pornography. Pursuant to a negotiated plea agreement, he pled guilty to six counts of aggravated criminal sexual assault, three counts of Class 1 felony child pornography and three counts of Class 3 felony child pornography; the State dropped the remaining charges. The court sentenced him to the agreed-upon sentence of 25 years. The victims' families approved of the deal to avoid putting the children through a trial.
In 1994, defendant hired James Geis to file a post-conviction petition, claiming the attorney who represented defendant in the original plea negotiations and sentencing had a conflict of interest. During the course of that representation, Geis explained to defendant the possible consequences if he chose to have his original guilty plea vacated. Geiss believed defendant could possibly receive a 30-year sentence if he was retried, but believed that it was unlikely defendant would receive a sentence greater than his original 25 years. This advice is documented in a letter that Geis sent to defendant.
However, Geis later told defendant that it was possible that any sentences he received would have to be served consecutively and could lead to a much longer sentence than the one he was serving. Geis explained that the prosecutor in charge, Timothy Huyett, was going to refile all 54 counts if defendant vacated his guilty plea. At some point before his original guilty plea was vacated, defendant met with Geis and Huyett. Huyett explained that he was going to seek a sentence in excess of 100 years.
In open court on the day the trial court granted defendant's petition, Geis stated that he had explained to defendant that it was possible he would face consecutive sentencing and receive a much longer sentence than his original sentence. Huyett also explained that defendant would face a maximum sentence of 60 years if he chose to go to trial again. After hearing both statements, defendant still chose to go forward with his petition. The trial court granted defendant's petition and vacated his original guilty plea and conviction. At this point, Geis's representation of defendant ended.
III. Representation by Bute and Cappellini After Geis withdrew, the court assigned public defenders Daniel Bute and Timothy Cappellini to represent defendant. Huyett spoke with Bute before the arraignment and offered defendant a sentence of 25 years if he would plead guilty. He indicated that the deal was only available for seven days. Prior to the arraignment, Bute and Cappellini tried to convince defendant that the 25-year term was an offer that he should accept. They provided case law to defendant and explained that because of recent interpretation of the statute by the Illinois Supreme Court, he would be subject to a much greater sentence if he went to trial.
Defendant was arraigned on the new charges within a week of his guilty plea being vacated. At the arraignment, Huyett clarified that he misspoke during the post-conviction hearing where defendant's guilty plea and sentence were vacated when he said defendant was subject to a maximum sentence of 60 years. He clarified that the maximum sentence defendant could receive was 120 years. He also reiterated that the 25-year offer would only be available for a "short time." The court asked Bute if he would like the court to admonish defendant on the maximum possible sentence and Bute declined.
Bute and Cappellini were unable to convince defendant to accept the plea. Bute later testified defendant was sure he would win at trial. The case went to trial and defendant was convicted of four counts of aggravated criminal sexual assault, two counts of criminal sexual assault, one count of aggravated criminal sexual abuse, and three counts of Class 1 felony child pornography. He was sentenced to consecutive terms totaling 105 years. This court affirmed defendant's sentences on direct appeal.
IV. Post-conviction Proceedings
Defendant filed two unsuccessful post-conviction petitions before he was granted leave to file the successive post-conviction appeal which is the subject of this appeal. In this petition, he raised three issues, two of which he pursues with this court. First, he claims that his sixth amendment right to counsel was triggered when the State plea bargained with Geis in 1997 prior to the court vacating his sentence and guilty plea. He argues that Geis was ineffective because he advised defendant that he faced only 25 years and that he should reject the plea. Second, he ...