from the Circuit Court of Will County, No. 04-CF-2005; the
Hon. Carla Alessio-Policandriotes, Judge, presiding.
L. Bakker, Jeffrey R. Carroll, Michael P. Doss, and Daniel M.
Greenfield, of Sidley Austin LLP, of Chicago, for appellant.
W. Glasgow, State's Attorney, of Joliet (Marie Q. Czech
and Colleen M. Griffin, Assistant State's Attorneys, of
counsel), for the People.
JUSTICE O'BRIEN delivered the judgment of the court, with
opinion. Presiding Justice Holdridge and Justice Carter
concurred in the judgment and opinion.
1 The defendant appeals a trial court order rejecting a plea
deal that was reoffered by the State on remand after a
federal habeas court found that the defendant had
received ineffective assistance of counsel during plea
3 In 2004, the defendant, Robert Hudson, was indicted for
armed robbery, a Class X felony (720 ILCS 5/18-2(a)(2) (West
2004)), and three counts of unlawful restraint, Class 4
felonies (720 ILCS 5/10-3(a) (West 2004)), arising from the
act of robbing a truck stop and restraining three of the
employees. A public defender was appointed to represent the
defendant, and an investigator with the Will County public
defender's office interviewed the defendant and completed
a "Public Defender's Investigative Sheet" that
appears to demonstrate defendant's dishonesty about his
criminal history. The sheet indicates that the defendant
admitted to three previous convictions for murder, theft, and
unlawful possession of a controlled substance. It also
appears that the defendant denied using an alias. That
interview took place on December 28, 2004. A month later,
Hudson's counsel received a copy of the LEADS (Law
Enforcement Agencies Data System) criminal history report,
which was generated using Hudson's fingerprints. That
criminal history report showed that a person with
Hudson's fingerprints had no less than six criminal
convictions and had used both an alias name and date of
birth. Based on the contents of the LEADS criminal history
report, the defendant would have been subject to mandatory
life imprisonment if convicted of the offenses arising out of
the truck stop robbery, as a habitual criminal, pursuant to
the Criminal Code of 1961 (formerly 720 ILCS 5/33B-1 et
seq. (West 2004) (repealed by Pub. Act 95-1052, §
93 (eff. July 1, 2009))).
4 Despite the LEADS criminal history report, defense counsel
informed the defendant that, if convicted, the defendant was
subject to an extended-term sentence of 6 to 60 years because
of his previous Class X felony murder conviction. Following
an Illinois Supreme Court Rule 402 (eff. July 1, 1997) plea
discussion conference, defense counsel informed the defendant
that he would most likely receive a sentence of 44 years if
convicted, and he would be eligible for good-time credit.
Prior to trial, the State offered the defendant some plea
deals, including a 20-year sentence, an 18-year sentence on a
Class 1 felony, and finally, a 17-year sentence on a Class X
felony. The defendant rejected each offer. Then, while the
jury was deliberating, the State offered the defendant a
16-year sentence, which the defendant also rejected. The jury
found the defendant guilty of armed robbery and unlawful
5 Following the defendant's conviction, the trial court
ordered the preparation of a presentence investigation, and
the probation officer determined that the defendant had two
prior Class X felonies, making the defendant subject to a
mandatory life sentence due to the armed robbery conviction,
the defendant's third Class X felony conviction. The
defendant filed a pro se motion for a new trial on
the basis of ineffective assistance of counsel and the trial
court's failure to admonish regarding the life sentence.
The trial court appointed new counsel, who filed another
motion for a new trial, asserting that trial counsel failed
to conduct an adequate investigation of the defendant's
criminal history and thus failed to advise the defendant of
the true consequences of a decision to plead not guilty. The
motion asserted that the defendant would have accepted the
16-year plea deal had he been correctly informed.
6 After a hearing on the motion, the trial court denied the
motion and sentenced the defendant to natural life in prison.
The defendant appealed, arguing that he was denied the
effective assistance of counsel during plea negotiations.
This court affirmed the defendant's convictions and
sentence, finding that the misinformation was the result of
the defendant's own subterfuge. People v.
Hudson, No. 3-07-0596 (2009) (unpublished order under
Supreme Court Rule 23). The defendant sought leave to appeal
to the Illinois Supreme Court, but the petition was denied.
People v. Hudson, 233 Ill.2d 578 (2009) (table).
7 Thereafter, the defendant filed a pro se petition
for postconviction relief under the Post-Conviction Hearing
Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). In
his postconviction petition, the defendant argued that he was
not eligible for sentencing as a habitual criminal. He also
argued that his trial and appellate attorneys were
ineffective for failing to raise this issue and for failing
to argue that his sentence violated the ex post
facto clauses of the United States and Illinois
Constitutions. The trial court found that the defendant's
constitutional claims were waived because they could have
been raised on direct appeal, and the rest of defendant's
arguments were substantially without merit. The
defendant's petition was summarily dismissed and the
defendant appealed. This court affirmed the dismissal.
People v. Hudson, 2012 IL App (3d) 100485-U.
8 The defendant then filed a petition for a writ of
habeas corpus in federal district court under 28
U.S.C. § 2254 (2000), claiming that this court
unreasonably concluded that he was not denied the right to
the effective assistance of counsel during plea negotiations.
The federal district court conditionally granted the
defendant's habeas petition, finding that trial
counsel was ineffective for failing to advise the defendant
that he was subject to a mandatory life sentence. Hudson
v. Harrington, No. 13 C 00678, 2014 WL 4244255 (N.D.
Ill. Aug. 27, 2014), enforcement denied sub nom. Hudson
v. Butler, No. 13 C 00678, 2016 WL 3742848 (N.D. Ill.
July 13, 2016), aff'd sub nom. Hudson v.
Lashbrook, 863 F.3d 652 (7th Cir. 2017). The federal
court explained that in cases involving ineffective
assistance of counsel during plea negotiations, there are two
kinds of prejudice that criminal defendants can suffer. The
first arises where a defendant was offered a lesser sentence
on a charge, rejected the plea offer, and then was convicted
on the same charge. In that situation, the "state trial
'court may exercise discretion in determining whether the
defendant should receive the term of imprisonment the
government offered in the plea, the sentence he received at
trial, or something in between.' " Hudson,
2014 WL 4244255, at *9 (quoting Lafler v. Cooper,
566 U.S. 156, 171 (2012)). "The second form of prejudice
arises where 'resentencing alone will not be full redress
for the constitutional injury. If, for example *** a
mandatory sentence confines a judge's sentencing
discretion after trial, a resentencing [based] on the
conviction at trial may not suffice.' " (Emphasis
added.) Id. (quoting Lafler, 566 U.S. at
171). The federal district court concluded that the remedy
for the sixth amendment violation pursuant to Lafler
was to direct the State to reoffer the 20-year deal, to a
charge that would not trigger mandatory life imprisonment.
Assuming the defendant accepted the offer, " 'the
state trial court [could] then exercise its discretion in
determining whether to vacate the convictions and resentence
[defendant] pursuant to the plea agreement, to vacate only
some of the convictions and resentence [defendant]
accordingly, or to leave the convictions and sentence from
trial undisturbed.' " Id. (quoting
Lafler, 566 U.S. at 174).
9 Pursuant to the order from the federal district court, the
State reoffered the 20-year plea deal to the charge of
attempted armed robbery, a Class 1 felony, a charge that
would not trigger mandatory life imprisonment. The defendant
accepted the offer. The trial court, though, after reviewing
the materials in the case as if there was never a trial,
rejected the plea deal and said it would not have accepted it
in 2005. The trial court maintained the defendant's prior