Appeal from the Circuit Court of Cook County. No. 00 CR 24954 Honorable James M. Obbish, Judge Presiding.
The opinion of the court was delivered by: Justice Delort
JUSTICE DELORT delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant Flynard Miller was convicted of first degree murder and attempted first degree murder and sentenced to consecutive prison terms of 47 and 6 years. We affirmed on direct appeal. People v. Miller, No. 1-04-0114 (2005) (unpublished order pursuant to Supreme Court Rule 23) (Miller I). His 2006 post-conviction petition was summarily dismissed, and we affirmed that dismissal. We issued an opinion addressing the merits of his claim (the "lost plea claim") that his rejection of a plea offer of an unenhanced sentence resulted from counsel failing to inform him that he faced a firearm enhancement if he was convicted at trial. People v. Miller, 393 Ill. App. 3d 629 (2009) (modified upon denial of rehearing August 31, 2009) (Miller II). Defendant now appeals from a circuit court order denying him leave to file a successive post-conviction petition raising the same lost plea claim. He contends that he stated cause and prejudice sufficient to justify a successive petition. In particular, he contends that he established cause for the successive petition because (1) under Martinez v. Ryan, 132 S. Ct. 1309 (2012), the absence of counsel on his initial petition deprived him of the opportunity to fully and properly raise the lost plea claim, and (2) this court's affirmance of the summary dismissal of his initial petition was based on case law that has since changed under Lafler v. Cooper, 132 S. Ct. 1376 (2012). For the reasons stated below, we affirm the judgment of the circuit court.
¶ 3 I. Trial Proceedings and Direct Appeal
¶ 4 Defendant and co-defendant Joseph Eastling were charged in an October 2000 indictment with the first degree murder of Charles Fowler, by personal discharge of a firearm by both defendants proximately causing his death, and with the attempted murder and aggravated battery with a firearm of Michael Casiel, on or about September 16, 2000.
¶ 5 The evidence at trial showed that the incident began when defendant and Fowler bumped into or jostled each other at the apartment Fowler shared with his fiancee, the mother of co-defendant's child. Fowler left his apartment immediately after the bumping but returned with three friends, including Casiel. When Fowler entered his apartment, with no weapon visible and with his friends in the hallway, defendant and co-defendant drew their guns and fired at him. Fowler and his friends fled, with defendant and co-defendant in pursuit and still firing. Fowler collapsed near the doorway of the building. Defendant continued to chase and fire at Casiel and the others, striking Casiel. Police officers saw defendant's pursuit and firing, and two guns were recovered when defendant and co-defendant were arrested. A bullet recovered at the scene was fired from defendant's gun, and a bullet removed from Fowler's body was from co-defendant's gun. Defendant testified that he fired his gun in self-defense with the intent to merely scare Fowler.
¶ 6 The court found defendant guilty of first degree murder, attempted murder, and aggravated battery with a firearm, finding that he personally discharged a firearm that proximately caused death. Defendant was sentenced to 47 years' imprisonment for the murder, including a 25-year enhancement for personally discharging a firearm that proximately caused death, to be served consecutively with 6 years' imprisonment for the other two offenses.
¶ 7 On direct appeal, defendant unsuccessfully challenged the firearm enhancement and contended that he was not properly admonished regarding his right to file a motion to reconsider his sentence. We affirmed, except for vacating duplicate murder counts and the aggravated battery conviction on a one-actone-crime basis. Miller I, No. 1-04-0114 (2005) (unpublished order under Supreme Court Rule 23).
¶ 8 II. Initial Post-Conviction Petition and Appeal
¶ 9 In 2006, defendant filed a pro se post-conviction petition raising in relevant part the lost plea claim. Specifically, he alleged that pre-trial counsel*fn1 neglected to inform him that "if he did not take the plea bargain" offer of "20 years for the murder" and was found guilty, he was subject to a sentence enhancement of 25-years-to-life imprisonment for discharging a firearm that proximately caused death. Defendant attached affidavits from himself and his mother stating that the State made an offer of "20 years at 85% in exchange for a plea bargain wherein the charges of attempted murder and aggravated battery would be ousted" and that pre-trial counsel informed them in February 2001 of the offer but did not tell them about the firearm enhancement. He stated that he would have accepted the offer, and she stated that she would have advised him to accept it, had they been aware of the enhancement. Defendant also stated that pre-trial counsel at first agreed to sign an affidavit to the effect that he prejudiced defendant by failing to inform him that he was facing a sentencing enhancement of 25 years up to natural life, but "when time came for [pre-trial counsel] to sign the affidavit, he refused."
¶ 10 In October 2006, the circuit court summarily dismissed the petition, finding that the lost plea claim was predicated on conclusory allegations.
¶ 11 On appeal, defendant contended that his petition stated the gist of a meritorious claim regarding the lost plea. We summarized his claim:
"[D]efendant seeks to rely on not being told that he faced a sentencing enhancement of 25 years for proximately causing the first degree murder of Fowler to explain his rejection of an offer to plead guilty and receive the minimum sentence of 20 years for first degree murder. The defendant does not deny that he was duly informed that he faced up to 60 years if convicted of first degree murder. Nonetheless, he contends had he been informed that he faced a minimum sentence of 45 years by his pretrial attorney, he would have accepted a plea offer of 20 years purportedly extended in February 2001." Miller II, 393 Ill. App. 3d at 635.
¶ 12 Defendant cited People v. Curry, 178 Ill. 2d 509 (1997), and People v. Paleologos, 345 Ill. App. 3d 700 (2003), in support of his contention. In both Curry and Paleologos, the defendant rejected a plea offer without being informed that he was subject to consecutive sentencing if convicted after trial, and then received a consecutive sentence well in excess of the rejected offer. In Curry, a 41/2 -year offer was made, counsel informed the defendant that he would face approximately four years if tried, and the defendant was actually sentenced to three consecutive four-year terms. In Paleologos, the defendant rejected a 22-year offer on advice that he faced up to 30 years if tried, but a 50-year aggregate sentence was imposed.
¶ 13 We acknowledged that our "supreme court noted the broad constitutional principle: 'A criminal defendant has the constitutional right to be reasonably informed with respect to the direct consequences of accepting or rejecting a plea offer.' " [Emphasis in Curry.] Miller, at 633-34, quoting Curry, at 528. However, we distinguished defendant's case from Curry and Paleologos:
"In Curry and Paleologos, central to the claims of ineffective assistance of counsel was the misinformation provided by each defense counsel, prompting each ...