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People v. Custer

Court of Appeals of Illinois, Third District

February 6, 2018

JOHN MICHAEL CUSTER, Defendant-Appellant.

          Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Appeal Nos. 3-16-0202 and 3-16-0203 Circuit Nos. 10-CF-896 and 12-CF-410 Honorable Albert L. Purham, Jr., Judge, Presiding.

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


          McDADE JUSTICE

         ¶ 1 Defendant, John Michael Custer, appeals from the Peoria County circuit court's third-stage denial of his postconviction petition. Defendant argues that he received unreasonable assistance of postconviction counsel. We reverse and remand with directions.

         ¶ 2 FACTS

         ¶ 3 In case No. 10-CF-896, the State charged defendant with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2010)). During the pretrial proceedings, defendant retained private counsel, Clyde Hendricks. On November 14, 2011, defendant entered an open guilty plea to the unlawful possession of a controlled substance charge. Defendant told the court that he had discussed the plea with Hendricks and Hendricks had answered all his questions. The court admonished defendant that he could receive a sentence of 1 to 6 years' imprisonment or up to 30 months' probation. Defendant said he understood the possible penalties. Defendant also indicated he was entering the plea voluntarily. The court accepted defendant's plea and continued the case for a sentencing hearing. At the time, defendant remained free on bond.

         ¶ 4 In April 2012, while defendant was awaiting sentencing, the State charged defendant in case No. 12-CF-410 with unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2012)), aggravated assault (720 ILCS 5/12-2(a) (West 2012)), and unlawful use of a weapon (720 ILCS 5/24-1(a)(2) (West 2012)). Around the same time, in case No. 12-CF-246, the State also charged defendant with aggravated battery.[1]

         ¶ 5 On May 3, 2012, case Nos. 10-CF-896 and 12-CF-410 were called for a combined hearing. Defendant failed to appear at the hearing, and the court issued a warrant for defendant's arrest. Defendant was arrested on September 6, 2012.

         ¶ 6 On October 25, 2012, the court called case No. 10-CF-896 for a sentencing hearing. The State asked that the court impose a maximum six-year prison sentence. The State argued that defendant had failed to appear for the first sentencing hearing and his criminal history included 5 felony convictions, 26 misdemeanor convictions, and 2 pending felony charges. Hendricks argued for a lesser sentence and emphasized that the charge was based on possession of 0.3 grams of cocaine, a very small amount. Defendant explained in allocution that almost all of his prior felony cases were derived from his 13-year relationship with Michelle Colvin.

         ¶ 7 The court sentenced defendant to six years' imprisonment. The court admonished defendant that, to challenge the sentence, he must first file within 30 days either a motion to withdraw the guilty plea or a motion to reconsider sentence before he could file a notice of appeal. Defendant indicated that he did not have any questions about the appeal process. The court remanded defendant to the custody of the Illinois Department of Corrections.

         ¶ 8 On July 23, 2013, defendant entered fully negotiated guilty pleas in case Nos. 12-CF-410 and 12-CF-246. In exchange for defendant's guilty pleas, the court imposed the agreed sentence of 4½ years' imprisonment on the aggravated battery charge in case No. 12-CF-246 and a judgment of conviction on the unlawful possession of a weapon by a felon charge in case No. 12-CF-410. The court dismissed the remaining charges and admonished defendant of his right to appeal and the prerequisite that defendant file a motion to withdraw his guilty plea within 30 days of the sentence before filing a notice of appeal.

         ¶ 9 On May 27, 2014, defendant filed, in case Nos. 10-CF-896 and 12-CF-410, a pro se petition for postconviction relief. In his petition, defendant alleged that his right to the effective assistance of counsel had been violated because Hendricks said he would appeal the court's decision in case No. 10-CF-896 but he never effectuated an appeal. Defendant also alleged that Hendricks failed to file a motion to withdraw defendant's guilty plea in case No. 12-CF-410 after defendant had asked him to. The court appointed counsel and advanced the petition to the second stage of proceedings.

         ¶ 10 On June 4, 2015, appointed counsel, Sam Snyder, filed a supplemental petition. The supplemental petition incorporated by reference all the allegations in defendant's pro se petition and attached four supporting affidavits from defendant. In the affidavits, defendant averred that Hendricks had initially told defendant that he would appeal the sentence in case No. 10-CF-896. Defendant attempted to contact Hendricks several times by telephone regarding the status of his appeal. Eventually, Hendricks told defendant that he needed to file a motion to reconsider sentence before he filed the notice of appeal. Defendant received no further information from Hendricks on the status of his appeal. Defendant directed his father and girlfriend, Colvin, to also contact Hendricks. Defendant averred that Colvin argued over the telephone with Hendricks and Hendricks told Colvin that he would "take care of what needed to be done and for [defendant] not to worry." Based on Hendricks's statement to Colvin, defendant thought that Hendricks was appealing case No. 10-CF-896. When defendant next saw Hendricks at a hearing on case No. 12-CF-410, Hendricks told defendant that an appeal in case No. 10-CF-896 was "a waste of time." Defendant also averred that Hendricks did not file a motion to withdraw his guilty plea or a notice of appeal in case No. 12-CF-410 despite defendant's request.

         ¶ 11 The State answered defendant's petition with a general denial of the claims. The court ...

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