Appeal from the Circuit Court of Cook County, Illinois, County Department, Criminal Division. No. 03 CR 1729 Honorable Dennis J. Porter Judge Presiding.
The opinion of the court was delivered by: Justice Fitzgerald Smith
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.
Justices PUCINSKI and STERBA concurred in the judgment and opinion.
¶ 1 The defendant, Jacques Avery, was charged with multiple counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2000)) and one count of attempted armed robbery (720 ILCS 5/8-4, 18-2(West 2000)) for his involvement in the shooting of the victim, Eduardo Flores. The defendant pleaded guilty to one count of first degree murder in exchange for a 33-year sentence and the dismissal of the remaining charges. The defendant subsequently filed a pro se motion to withdraw his guilty plea, which was rejected by the circuit court following a hearing. After the defendant's conviction and sentence were affirmed on appeal (see People v. Avery, No. 1-07-3360 (2009) (unpublished order pursuant to Supreme Court Rule 23), appeal denied, 235 Ill. 2d 591 (2010)), the defendant filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)). In that petition, the defendant made several allegations, including that he was denied his constitutional right to effective assistance of counsel when: (1) his postplea counsel failed to introduce any objective evidence of the defendant's learning disability at the hearing on the defendant's motion to withdraw his guilty plea; (2) his appellate counsel failed to raise postplea counsel's ineffectiveness; and (3) his trial counsel failed to investigate the factual basis of his plea, where the defendant had alleged that the police coerced a number of the State's witnesses to present evidence against him. The circuit court summarily dismissed the defendant's pro se petition as frivolous and patently without merit and the defendant now appeals. On appeal, the defendant abandons the contentions raised in his pro se petition and, for the first time, argues that we should permit him to withdraw his guilty plea and proceed to trial because his conviction and sentence are void under the recent decision of our supreme court in People v. White, 2011 IL 109616. For the reasons that follow, we disagree with the defendant and affirm the judgment of the circuit court.
¶ 3 On December 10, 2002, the victim Eduardo Flores was shot and killed as he was sitting in the driver's seat of his delivery van. In January, the defendant was arrested in connection with the shooting and indicted with 15 counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2000)) and 1 count of attempted armed robbery (see 720 ILCS 5/8-4, 18-2 (West 2000)).
¶ 4 On April 10, 2007, the defendant and the State entered into a negotiated plea agreement. The defendant pleaded guilty to one count of first degree murder in exchange for a sentence of 33 years' imprisonment and the dismissal of all remaining charges. Count I of the indictment to which the defendant pleaded guilty specifically alleged: "Jacques Avery committed the offense of first degree murder in that he, without lawful justification, intentionally or knowingly shot and killed Eduardo Flores while armed with a firearm ***."
¶ 5 Before the defendant accepted the plea, the circuit court admonished him in accordance with Illinois Supreme Court Rule 402 (Ill. S. Ct. R. 402 (eff. July 1, 1997)). The court advised the defendant that by pleading guilty to first degree murder, he faced a sentence between 20 and 60 years in prison, followed by 3 years of mandatory supervised release (hereinafter MSR). The defendant indicated that he understood the charge, the terms of the plea agreement and the potential penalties.
¶ 6 The circuit court further advised the defendant that by pleading guilty, he was giving up his rights to a bench or jury trial. The court informed the defendant that if he chose to proceed with a trial, he would have the right to be present at trial, to call witnesses in his own defense and to confront the witnesses against him. The court also informed the defendant that if he proceeded to trial he had a right to testify on his own behalf if he chose to do so. The defendant stated that he understood all these rights and that he was freely and voluntarily relinquishing them.
¶ 7 The circuit court next asked the defendant if anybody had threatened or promised him anything (aside from the negotiated plea agreement) in return for his plea of guilty. The defendant responded in the negative. The circuit court also asked the defendant if he had any questions for the court and the defendant indicated that he did not.
¶ 8 The State then proceeded with the factual basis for the defendant's plea. The State indicated that if the case were to proceed to trial the facts would show that on December 10, 2002, at 4724 West Ohio Street in Chicago, the defendant ordered a pizza delivery from Guy's Pizza to a series of addresses culminating at 4732 West Ohio Street. When the victim, Eduardo Flores, arrived to deliver the pizza, the defendant walked up to his delivery van and attempted to "stick him up." The victim tried to drive away but the defendant shot him. The bullet from the defendant's gun lacerated the victim's liver, killing him.
¶ 9 According to the State, the facts would further show that the defendant was using the cell phone of an individual by the name of Mr. Williams, which is the name that the defendant used when he ordered the pizza. The evidence would further establish that the defendant's fingerprints matched those lifted from inside the victim's delivery van. In addition, eyewitnesses would identify the defendant as the individual who committed the offense.
¶ 10 After defense counsel stipulated to the aforementioned facts, the circuit court accepted the defendant's plea of guilty on count I of the indictment and nol-prossed the remaining charges. The circuit court then sentenced the defendant to 33 years in prison, assessed costs of $545 and credited the defendant for 1,574 days in jail.
¶ 11 On April 20, 2007, the defendant filed a pro se motion to withdraw his guilty plea as well as a motion for new counsel. The defendant alleged, inter alia: (1) that he was mislead to believe that he would only have to serve 50% of his 33-year sentence; (2) that he did not understand the plea proceedings because of his learning disability and (3) that his trial counsel was ineffective. The circuit court appointed new counsel to represent the defendant on his motion to withdraw his guilty plea. That attorney filed a certificate pursuant to Supreme Court Rule 604(d) (Ill. S. Ct. R.604(d) (eff. July 1, 2006)), attesting that she had consulted with the defendant, reviewed his file and the transcripts of the guilty plea and sentencing proceedings, and that she had determined that no amendments to the motion were necessary.
¶ 12 On November 8, 2007, the circuit court conducted a hearing on the defendant's motion to withdraw his guilty plea. At the hearing, the defendant testified that defense counsel representing him at the plea hearing told him that under the plea agreement he would serve only 50% of his 33-year sentence. Defense counsel denied ever telling the defendant that he would serve only 50% of his sentence. Rather, defense counsel testified that both at his first meeting with the defendant, as well as on the date of the guilty plea, he advised the defendant that the defendant would have to serve 100% of his sentence. Defense counsel explained that the defendant was charged with personally discharging a firearm and initially faced a minimum sentence of 45 years in prison. As a result, defense counsel approached the prosecutor and proposed that the defendant solely be charged with murder, which carried a sentence between 20 to 60 years' imprisonment. Defense counsel stated that he was aware that the defendant faced a minimum sentence of 45 years at 100% and that he reached an agreement with the State for the sentence of 33 years. Defense counsel told the defendant that the minimum would be 45 years if they went to trial, but that they could try to plead to less if the State dismissed the "personally discharged" count.
¶ 13 Defense counsel also testified that he never observed the defendant to be confused or to have trouble understanding the legal process. He therefore never considered ...