Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 02 CR 23680 Honorable Stanley Sacks, Judge Presiding.
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Hyman specially concurred, with opinion. Justice Mason specially concurred, with opinion.
¶ 1 This case involves the proper role of the appellate court on de novo review of the trial court's order dismissing a postconviction petition. The trial court found Jamal Barghouti guilty of aggravated criminal sexual assault and aggravated kidnaping. Jamal filed a postconviction petition in which he alleged that he did not receive effective assistance of counsel. The trial court dismissed the petition as frivolous. In reviewing the trial record and the postconviction petition, this court encountered an obvious error by the trial court that defense counsel failed to brief in the initial brief on appeal. We asked the parties to brief the issue. Their briefs did not change the conclusion that the trial court committed an obvious error and that the postconviction petition stated the gist of a claim for ineffective assistance of counsel. We find that Jamal adequately alleged that he would have accepted a plea bargain the prosecution offered if his attorney had informed him accurately about the range of sentences he faced if the trial court found him guilty as charged. Accordingly, we reverse the dismissal of the postconviction petition and remand to advance the petition to the second stage of postconviction proceedings.
¶ 2 BACKGROUND
¶ 3 K.M. first met Jamal in July 2002. On August 17, 2002, K.M. went to a picnic with Jamal. Around 11 p.m. that evening, Marcelle Garcia heard a female voice, screaming "stop, " coming from a truck parked in an alley near Garcia's home. Garcia called 911. The police officers who responded to the call arrived a few minutes later and also heard K.M. screaming "stop." The officers saw Jamal, shirtless, get out of the truck while pulling up his shorts, with his brother, Eiad Barghouti, nearby. Jose Garcia, also shirtless, got out of the driver's side of the truck. The officers saw K.M. in the truck, naked, crying hysterically. She told the officers the three men raped her. Doctors at a nearby hospital found semen in K.M.'s vagina. Prosecutors charged Garcia, Jamal, and Eiad with aggravated criminal sexual assault and aggravated kidnaping.
¶ 4 Jamal and Eiad chose a joint bench trial. Jamal testified that after the picnic ended, K.M. agreed to go with him to another party. They decided to take Garcia's truck, with Eiad and Garcia, to get there. Jamal had consensual sexual contact with K.M., and then he got out of the truck. When he returned, he saw Garcia kissing K.M. He walked away. He heard K.M. scream "stop, " and then he returned to the truck, just before police arrived. Eiad corroborated Jamal's testimony.
¶ 5 K.M. testified that on the way back home from the picnic, Jamal forcibly removed her clothes and had intercourse with her against her will. Eiad performed oral sex on her as she continued screaming. Garcia had intercourse with her while Eiad held her down, and then Eiad had intercourse with her shortly before police arrived. An officer testified that when he approached the truck, he saw Eiad on top of K.M.
¶ 6 The trial court found Jamal and Eiad guilty as charged. The court sentenced Eiad to 45 years in prison and Jamal to 35 years in prison. The appellate court affirmed the convictions and sentences on the direct appeal. People v. Barghout, Nos. 1-06-3448, 1-06-3465 cons. (June 9, 2009) (unpublished order under Supreme Court Rule 23).
¶ 7 On April 29, 2011, Jamal filed a postconviction petition, claiming that he received ineffective assistance of trial and appellate counsel, and that the State withheld exculpatory evidence. Jamal alleged that his trial attorney failed to interview witnesses Jamal identified who would have cast doubt on K.M.'s credibility.
¶ 8 Jamal also alleged:
"trial counsel failed to advise petitioner that if he denied the 12 year plea bargain that the State offered both petitioners, they would be facing the possibility of a prison term of 6 to 60 years if found guilty.
Defense counsel erroneously advised petitioner and his father that, if convicted, petitioner would be eligible for probation since he did not have a criminal record and Eiad, co-petitioner, would only rec[ei]ve 8 to 10 years. Due to this erroneous advice petitioner rejected the State plea offer .
If the defendant was aware of the minimum and maximum sentencing range of 6 to 60 years and defendant was not erroneously advised that he would only get probation since he had no criminal record[, ] Petitioner would have accepted ...