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.,
JUSTICE McDADE delivered the judgment of the court, with
opinion. Justices Holdridge and O'Brien concurred in the
judgment and opinion.
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.
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
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 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
11 The State answered defendant's petition with a general
denial of the claims. The court ...