Appeal from the Circuit Court of Lawrence County. No. 10-CF-108. Honorable Robert M. Hopkins, Judge, presiding.
For Appellant: Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Robert S. Burke, Assistant Appellate Defender, Office of the State Appellate Defender, Fifth Judicial District, Mt. Vernon, IL.
For Appellee: Hon. Christopher M. Quick, State's Attorney, Lawrence County Courthouse, Lawrenceville, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Whitney E. Atkins, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL.
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Chapman concurred in the judgment and opinion. Honorable Judy L. Cates, P.J., and Honorable Melissa A. Chapman, J., Concur.
Richard P. Goldenhersh,
[¶1] Defendant, Frederick G. Kitchell, appeals from an order of the circuit court of Lawrence County granting the State's motion to dismiss his postconviction petition in which he alleged ineffective assistance of guilty plea counsel. The issue on appeal is whether the circuit court erred in granting the State's motion to dismiss the postconviction petition alleging ineffective assistance of guilty plea counsel where plea counsel's advice was incorrect concerning available sentencing credit. In this appeal, the State has filed a motion to cite additional authority. This court grants the State's motion. We reverse and remand.
[¶3] Defendant was charged by information with home invasion (720 ILCS 5/12-11(a)(2) (West 2008)), but ultimately pleaded guilty to attempted home invasion (720 ILCS 5/12-11(a)(2), 8-4(a) (West 2008)) and was sentenced to 10 years in the Illinois Department of Corrections (Department) and 2 years' mandatory supervised release as part of a fully negotiated plea. During negotiations, defendant's attorney advised him he would be eligible to receive good-conduct credit while serving time in the Department if he participated in various educational, vocational, and drug rehabilitation classes. Defendant participated in such classes, but did not receive any good-time credit because he was ineligible for such credit pursuant to section 3-6-3 of the Unified Code of Corrections, " Rules and Regulations for Early Release" (730 ILCS 5/3-6-3 (West 2008)), and section 107.520 of Title 20 of the Illinois Administrative Code " Eligibility" (20 Ill. Adm. Code 107.520 (1996)).
[¶4] On February 9, 2012, defendant filed a pro se petition for relief from judgment in which he argued that he agreed to a negotiated plea agreement because he was promised he could receive earned good-conduct credit, but he had since learned he was not eligible for such credit and, therefore, he " did not receive his benefit of the bargain." The circuit court appointed counsel to represent defendant. Appointed counsel withdrew the pro se petition and filed instead a postconviction petition, alleging defendant was denied effective assistance of plea counsel due to the erroneous advice plea counsel gave defendant regarding good-time credit, asserting that plea " counsel provided ineffective assistance of counsel when he incorrectly informed [defendant] that he would be eligible for good[-]conduct credit for participation in various [Department] programs, and furthermore, the inaccurate advice of his counsel made his plea involuntary." Attached to the petition was defendant's affidavit in which he averred that he participated in various educational and vocational classes while in the Department, but failed to receive any good-conduct credit for such participation, and he " would not have entered into the plea agreement in this case if he would not have been erroneously informed by his defense counsel that he was eligible to receive good[-]conduct credit for participation" in such programs. The State filed a motion to dismiss. The circuit court granted the State's motion to dismiss. Defendant now appeals.
[¶6] The issue on appeal is whether the circuit court erred in granting the State's motion to dismiss defendant's postconviction petition alleging ineffective assistance
of plea counsel where plea counsel's advice was incorrect concerning available sentencing credit. Defendant contends he would not have entered into his guilty plea if he had not been erroneously informed by plea counsel that he was eligible to receive good-conduct credit. He insists the erroneous advice of plea counsel amounted to ineffective assistance of counsel and the circuit court erred in granting the State's ...