Modified upon denial of rehearing February 14, 2018
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,
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.
McDADE JUSTICE delivered the judgment of the court, with
opinion. Justices Lytton and O'Brien concurred in the
judgment and opinion.
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
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
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
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."
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).
"[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
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. ...