Appeal from the Circuit Court of) Cook County. No. 07 CR 791 Honorable Thomas M. Tucker, Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
01-1103212.pdf Unpublished opinion
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Harris concurred in the judgment and opinion.
¶ 1 Defendant Manuel Trujillo appeals from the summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 to 122-8 (West 2010). On appeal, the defendant contends that the petition presented an arguable claim of ineffective assistance of counsel based on counsel's alleged failure to inform him of the State's guilty plea offer, and that the mittimus must be corrected to reflect the correct amount of presentence custody credit. We reverse and remand for further proceedings.
¶ 2 At a jury trial, the State's evidence established that on December 6, 2006, the police executed a search warrant of the defendant's home. In addition to a large amount of narcotics, they also recovered scales and plastic baggies, which are generally used for the packaging and sale of drugs. On December 7, 2006, the defendant was arrested. He waived his Miranda rights and gave an inculpatory statement which was introduced at trial. The defendant was convicted of 10 counts of possession of a controlled substance and possession with intent to deliver, including a Super Class X felony (720 ILCS 570/401(a)(2)(C) (West 2006)). The defendant was sentenced to an aggregate term of 12 years in prison and received 62 days of presentence custody credit.
¶ 3 On direct appeal this court vacated seven of the defendant's convictions and sentences as a violation of the one-act, one-crime rule, modified the mittimus to reflect only the remaining three convictions, and affirmed the sentences for those convictions. People v. Trujillo, No. 1-07-3320 (2009) (unpublished order pursuant to Supreme Court Rule 23).
¶ 4 In September 2010, the defendant filed the instant pro se petition alleging, in relevant part, that his trial counsel was ineffective for failing to inform him of a plea offer made by the State prior to trial. Specifically, the defendant alleges that the State made a plea offer of six years, that he would have accepted the plea offer if he had known of it, and that he only learned a plea offer was made from a letter which counsel sent to the Attorney Registration and Disciplinary Commission (ARDC). He also alleges that "[c]ontrary to what [counsel] said to the ARDC he never told [defendant] about this offer." In support of his allegations, the defendant attached an affidavit in which he averred the same. The defendant also attached the letter counsel wrote to the ARDC, dated June 14, 2010. In the letter, counsel states that before trial, "the State's Attorney offered six years in the penitentiary for the Defendant to plead guilty." The letter also says that he "recommended to [defendant] prior to trial that he accept the offer due to the overwhelming evidence against him," that the trial court admonished the defendant about the plea offer, and that the defendant rejected the offer.
¶ 5 On September 24, 2010, the trial court summarily dismissed the defendant's petition.
¶ 6 On appeal, the defendant first contends that his petition adequately presented the gist of a claim of ineffective assistance of counsel based on his allegation that counsel failed to inform him of the State's plea offer. Specifically, the defendant argues that he adequately supported his allegations by attaching counsel's letter, that his allegations are not contradicted by the record, and that his petition successfully presented a claim with an arguable basis in both law and fact.
¶ 7 The summary dismissal of a post-conviction petition is reviewed de novo. People v. Hodges, 234 Ill. 2d 1, 9 (2009). At the first stage of post-conviction proceedings, a petition will only be dismissed if it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2008); People v. Brown, 236 Ill. 2d 175, 184 (2010). A petition is considered frivolous or without merit only if it has "no arguable basis either in law or in fact." Hodges, 234 Ill. 2d at 11-12. Petitions based on meritless legal theory or fanciful factual allegations will be dismissed. Hodges, 234 Ill. 2d at 16.
¶ 8 In particular, a first stage petition claiming ineffective assistance of counsel must show that it is arguable that counsel's performance fell below an objective standard of reasonableness, and that it is arguable that the defendant was prejudiced by counsel's performance. Hodges, 234 Ill. 2d at 17.
¶ 9 Here, the defendant's claim of ineffective assistance of counsel is based on a meritorious legal theory. A defendant has the right to decide whether to plead guilty. People v. Whitfield, 40 Ill. 2d 308, 311 (1968). As such, an attorney's failure to disclose a plea offer to the defendant may give rise to a constitutional claim, regardless of whether the defendant subsequently received a fair trial. People v. Curry, 178 Ill. 2d 509, 517 (1997); Whitfield, 40 Ill. 2d at 311. Notably, the importance of defense counsel's effective representation in the context of plea negotiations was recently reinforced by two recent United States Supreme Court opinions. See Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012) (holding that a defendant can succeed on an ineffective assistance of counsel claim where that defendant rejects a plea offer based on counsel's erroneous advice and can show that, but for the erroneous advice, he would have accepted the plea offer and the ultimate outcome of the plea process would have been different); Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012) (where the defendant showed that counsel did not inform him of a formal offer from the State and there was a reasonable probability the defendant would have accepted the offer had it been presented to him, counsel's performance was constitutionally deficient). In fact, the Supreme Court specifically held that, as a general rule, "defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Frye, ___ U.S. at ___, 132 S. Ct. at 1408.
¶ 10 If counsel in this case failed to inform defendant of the guilty plea offer, it is arguable that his assistance was deficient. Moreover, in his petition, the defendant also alleged that he would have accepted the offer if he had been advised of it. Therefore if he can establish that the offer was not communicated to him, arguably he has been prejudiced by counsel's alleged deficiency. We find that the defendant's assertion that ...