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United States ex rel. Cichon v. Lemke

United States District Court, N.D. Illinois, Eastern Division

February 12, 2013

UNITED STATES of America ex rel. Joseph CICHON, Petitioner,
v.
Michael LEMKE, Warden of Stateville Correctional Center, Illinois Department of Corrections,[1] Respondent.

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[Copyrighted Material Omitted]

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Douglas B. Harper, Law Office of Douglas B. Harper, Attorney at Law, Chicago, IL, for Plaintiff.

Brian McLeish, Illinois Office of the Attorney General, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MILTON I. SHADUR, Senior District Judge.

Joseph Cichon (" Cichon" ) has filed a petition for a writ of habeas corpus (" Petition" ) under the Antiterrorism and Effective Death Penalty Act (" AEDPA," 28 U.S.C. ยง 2254(d)).[2] Cichon challenges his 105 year sentence stemming from convictions in Illinois state court on four counts of aggravated criminal sexual assault, two counts of criminal sexual assault, one count of aggravated criminal sexual abuse and three counts of child pornography, basing his challenge on two ineffective-assistance-of-counsel claims.[3] For the reasons stated hereafter, Cichon's Petition is denied in its entirety.

Statement of Facts

Under Section 2254(e)(1) the state court's findings of fact are presumptively correct in any federal habeas proceeding. Hence this opinion begins with the Illinois Appellate Court's recitation in the course of its direct review of Cichon's case ( People v. Cichon, 408 Ill.App.3d 1020, 1021-25, 348 Ill.Dec. 833, 945 N.E.2d 140, 142-45 (3d Dist.2011)):

I. Original Proceedings
In 1990 and 1991, the State charged defendant with 54 counts consisting of:

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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.
II. Defendant Hires Geis
In 1994, defendant hired James Geis [" Geis" ] to file a postconviction 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. Geis 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.[4] Geis explained that the prosecutor in charge, Timothy Huyett [" 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.[5] 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 [" Bute" ] and Timothy Cappellini [" Cappellini" ] to represent defendant. Huyett spoke with Bute before the arraignment and offered defendant a sentence of 25 years

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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 postconviction 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. Postconviction Proceedings
Defendant filed two unsuccessful postconviction petitions before he was granted leave to file the successive postconviction 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 argues that Bute was ineffective at the arraignment because he waived the court's offer to admonish defendant about the maximum possible penalty.
V. Third-Stage Evidentiary Hearing
The petition advanced to stage-three proceedings. At the evidentiary hearing, Geis, Cichon, Huyett, Bute and Cappellini testified.
Geis testified that he originally told defendant that if he were retried he would face at most 30 years. He said that he told defendant that because it was the law when they originally filed the postconviction petition. Geis also testified that once he became aware that it was possible that defendant might face an extended sentence, he never calculated exactly how much time defendant faced. Geis went on to say he had explained to defendant that if he were retried, it was possible he would face consecutive sentences instead of concurrent sentences and that he could receive a sentence much longer than 25 years. Geis testified that defendant was " quite intelligent." Geis said that not only had he explained to defendant that he might face an extended sentence but the trial judge also told defendant that he could receive consecutive sentences.
Geis explained that the law was changing between the time he started to represent defendant in 1994 and 1997 when the evidentiary hearing was held. Geis

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testified that he had explained to defendant that the law was changing and that the issue of mandatory consecutive sentences was before the Illinois Supreme Court at the time of the hearing. In response to a question by the court, Geis testified that " [he] didn't think that [his representation] was ineffective assistance of counsel."
Defendant testified that the only information that he ever received from Geis was that the longest sentence he could receive would be 30 years. He also said that Geis told him that the prosecutor would likely try to scare him into withdrawing his petition by telling him he faced a sentence much longer than 30 years. Defendant testified that when he heard Huyett or Bute talk about sentences longer than 30 years, he assumed they were posturing to get him to back down. Defendant testified that had he known he faced even the possibility of 60 years, he would have withdrawn his postconviction petition. He prosecuted his original postconviction petition in reliance on what Geis told him. He did admit that Bute told him that his understanding of the time he was facing was wrong. Defendant testified that Bute told him he faced 40 or 45 years. He said the only person who ever told him he could receive over 100 years was Huyett.
Following defendant's testimony, Huyett testified. He said that prior to the day the court granted defendant's petition, Huyett, Geis and defendant discussed what would happen if the petition was granted and the case went to trial. Huyett testified that he explained to defendant that he would receive 100 years or more at trial. According to Huyett, defendant responded by saying he was going to win at trial. Huyett also testified that on the day defendant's petition was granted, he explained to him that he faced a sentence of up to 60 years. Huyett explained that he corrected that mistake at the arraignment when he explained that the defendant could receive up to 120 years.
Following Huyett, Bute testified. He said that after he was appointed, he contacted Huyett to see if he would still offer 25 years. Huyett offered a 25-year deal if defendant accepted in the next seven days. Bute said he told defendant that he could not give him an exact length of sentence he could get at trial because he had not seen the evidence yet. However, he did tell him that given ...

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