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People v. McDonald

Court of Appeals of Illinois, Third District

January 4, 2018

RICHARD A. McDONALD, Defendant-Appellant.

          Modified upon denial of rehearing February 14, 2018

          Appeal from the Circuit Court of Henry County, Nos. 12-CF-283, 12-CF-341; the Hon. Terence M. Patton and the Hon. Richard A. Review Zimmer, Judges, presiding. Judgment Judgment vacated.

          Michael J. Pelletier, Peter A. Carusona, and Thomas A. Karalis, of State Appellate Defender's Office, of Ottawa, for appellant.

          Matthew Schutte, State's Attorney, of Cambridge (Patrick Delfino, Lawrence M. Bauer, and Stephanie L. Raymond, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          Panel McDADE JUSTICE delivered the judgment of the court, with opinion. Justices Lytton and O'Brien concurred in the judgment and opinion.


          McDADE JUSTICE

         ¶ 1 Defendant, Richard A. McDonald, appeals from the third-stage denial of his postconviction petition. He argues that third-stage counsel provided unreasonable assistance by failing to make an ineffective assistance of trial counsel argument at defendant's evidentiary hearing. We vacate the circuit court's judgment and remand for further proceedings.

         ¶ 2 FACTS

         ¶ 3 The State charged defendant with two counts of criminal damage to property (720 ILCS 5/21-1(a)(1) (West 2012))-one felony count and one misdemeanor count-and two Class 4 felony counts of violation of an order of protection (720 ILCS 5/12-3.4(a)(1) (West 2012)). On October 19, 2012, in exchange for the State dropping one of the violation charges, defendant pled guilty to the three remaining counts. The court admonished defendant regarding the potential sentences he faced, including that a four-year period of mandatory supervised release (MSR) would attach to the sentence for violating an order of protection. Defendant affirmed that he was not being coerced into pleading guilty, nor was he induced to do so by any unspoken promises. The circuit court accepted defendant's plea.

         ¶ 4 On December 26, 2012, the court sentenced defendant to an 18-month term of imprisonment on the felony criminal damage to property conviction, to be followed by a 1-year term of MSR. A term of 364 days in jail on the misdemeanor criminal damage to property conviction would run concurrently. The court imposed an 18-month term of imprisonment on the violation of an order of protection conviction, to be served consecutively to the other sentences and to be followed by a 4-year term of MSR. Defendant never pursued a direct appeal.

         ¶ 5 Defendant filed a pro se postconviction petition on July 30, 2014. In the petition and attached affidavit, defendant claimed that because he was indigent and a convicted sex offender, he would be required to serve his term of MSR in prison. He alleged that he was "not fully informed as to the consequences of his guilty plea." Defendant did not mention in his petition any potential remedy. The circuit court docketed defendant's petition and appointed James Cosby as counsel. Notably, Cosby was the same attorney that had represented defendant throughout his guilty plea.

         ¶ 6 On September 8, 2015, Cosby filed a certificate of compliance pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). The same day, defendant filed a supplemental affidavit, in which he asserted:

"I was not fully advised as to the consequences of my guilty plea. Specifically, I was not advised that as a registered sex offender, I would not be placed on [MSR] if I was indigent and homeless. Thus I was unaware that the 4 year [MSR] would extend my period of incarceration by 2 years."

         ¶ 7 The State filed a motion to dismiss defendant's petition on October 1, 2014, and a hearing on the matter was held later that month. At the hearing, the State argued that the Department of Corrections (DOC) is an agency distinct from the court and that it is the DOC that ultimately determines how an MSR term will be discharged. In his argument, Cosby compared the situation at hand to that in the Supreme Court case of Padilla v. Kentucky, 559 U.S. 356 (2010), a case in which the Court held that counsel had a duty to discuss potential deportation consequences with a defendant before pleading guilty. Cosby argued:

"That is a situation where *** deportation is not a part of the sentence that an individual receives but is, in fact, still a possible consequence of that sentence, and because of that, the United States Supreme Court said it's up to the Court to admonish defendants of that possibility and it's up to defendant's counsel to also counsel the defendant as to that possibility, not just tell them that it's merely possible that they might be deported, but, in fact, try to, as best they can, tell them whether as a practical matter they will or will not be deported."

         Cosby concluded that, as a remedy, defendant should be allowed to withdraw his plea. The State insisted that defendant had received all of the admonishments called for in Illinois Supreme Court Rule 402(a) (eff. July 1, 2012)) and cited a case that stood for the proposition that a defendant need not be admonished regarding truth in sentencing (i.e., whether his sentence would run day-for-day or otherwise). Cosby responded:

"[T]here's an argument even in that particular case that it's the obligation of the lawyer, not necessarily the Court, but the lawyer that's involved there to tell your client, 'Hey, you're pleading guilty to something that's a truth-in-sentencing case. You're going to serve 85 percent of that sentence.' So while it's not part of the Court's obligation, it's still, in my opinion, part of Defense Counsel's obligation."

         ¶ 8 After taking the matter under review, the circuit court denied the State's motion to dismiss, advancing defendant's petition to a third-stage evidentiary hearing. Cosby subsequently moved to withdraw as counsel, citing the probability that he would be called as a witness. The court granted Cosby's motion and appointed Edward Woller to represent defendant. ...

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