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People v. Ross

Court of Appeals of Illinois, Third District

September 18, 2015

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DEMETRIUS D. ROSS, Defendant-Appellant

Page 462

Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois, Circuit No. 95-CF-75. Honorable Walter D. Braud Judge, Presiding.

Michael J. Pelletier and Paul Alexander Rogers (argued), both of State Appellate Defender's Office, of Elgin, for appellant.

John L. McGehee, State's Attorney, of Rock Island (Richard T. Leonard (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justice Holdridge concurred in the judgment and opinion. Justice Schmidt concurred in part and dissented in part, with opinion.

Page 463

OPINION

O'BRIEN, JUSTICE

[¶1] Defendant Demetrius Ross pleaded guilty to one count of felony murder and was sentenced to an agreed 60-year term of imprisonment. He sought postconviction relief, alleging he was induced to enter into the plea agreement by his counsel's erroneous advice regarding truth-in-sentencing legislation and its effect on the length of his term of imprisonment. After an evidentiary hearing, the trial court denied Ross's postconviction petition. He appealed. We reverse and remand, finding that he was denied reasonable assistance of postconviction counsel and is entitled to additional credit for time spent in presentence custody in Wisconsin.

[¶2] FACTS

[¶3] Defendant Demetrius Ross was charged by information on January 19, 1995, with two counts of first degree murder and two counts of aggravated kidnapping. 720 ILCS 5/9-1(a)(1), (a)(3), 10-2(a)(3), (a)(5) (West 1994). Indictments setting forth the same charges were filed in March and August 1995. Ross was arrested on a warrant in Milwaukee, Wisconsin, in May 1996. An amended information was filed on June 18, 1996, alleging the same four counts.

[¶4] Ross appeared in Rock Island County court on July 20, 1996. Also in July 1996, attorney Marshall Weinberg filed an appearance as defense counsel. On November 15, 1996, Ross appeared with Weinberg and entered a partially-negotiated guilty plea. Pursuant to the terms of the plea agreement, Ross pleaded guilty to one count of felony murder (count II) in exchange for dismissal of the other charges and a sentencing cap of 60 years' imprisonment. The trial court accepted the plea, entered judgment on felony murder,

Page 464

and sentenced Ross to a term of imprisonment of 60 years. Ross was given credit against his sentence for time spent in custody in the Rock Island County jail beginning July 20, 1996.

[¶5] In April 1997, Ross moved pro se to withdraw his guilty plea and vacate his sentence. The trial court denied the motion as untimely. Ross appealed and this court dismissed the appeal for lack of jurisdiction. People v. Ross, No. 3-97-0399 (June 1997). In November 1999, Ross filed a pro se postconviction petition, alleging, in part, that trial counsel provided ineffective assistance. Ross filed an amended pro se postconviction petition, incorporating the allegations from his November 1999 petition and arguing that his plea was involuntary. The trial court found that it could not determine whether Ross's claims were frivolous and patently without merit, dismissed the petition, appointed Ray Conklin as counsel, and granted Ross six months to file an amended petition.

[¶6] Conklin was given leave to withdraw in March 2000, and Herb Schultz was appointed to represent Ross. In June and November 2000, Ross filed pro se postconviction petitions. In September 2001, Schultz was granted leave to withdraw and Mark Jackson was appointed. In July 2002, Jackson filed an amended postconviction petition. The State filed a motion to dismiss, alleging the 1999 postconviction petition was untimely. The trial court granted the State's motion to dismiss and appointed postconviction counsel. In November 2004, this court reversed the order dismissing Ross's ...


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