from the Circuit Court of Du Page County. Nos. 11-CF-1616,
11-CF-1792 Honorable Brian F. Telander, Judge, Presiding.
JUSTICE McLAREN delivered the judgment of the court, with
opinion. Justices Zenoff and Birkett concurred in the
judgment and opinion.
1 Defendant, Miguel G. Cuevas, appeals the second-stage
dismissal of his petition filed under the Post-Conviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2012))
in connection with his conviction of two counts of possession
of a controlled substance with intent to deliver (720 ILCS
570/401(c)(2) (West 2010)). He contends that he made a
substantial showing of ineffective assistance of counsel when
he asserted that counsel failed to move to reconsider his
sentence to preserve his right to appeal and failed to
provide evidence in mitigation at sentencing. We reverse and
remand for third-stage proceedings.
2 I. BACKGROUND
3 Defendant was charged with two counts in two consolidated
cases and ultimately pleaded guilty with the stipulation in
one case that he delivered more than five grams of cocaine
(id.), making him ineligible for probation.
Defendant had been released on bond in the first case when he
committed the offense in the second case.
4 In July 2012, defendant pleaded guilty. He was represented
by private counsel at the plea hearing and was fully
admonished of the sentencing range of 4 to 15 years'
incarceration on each count. The factual basis for the plea
stated that, through the use of a confidential informant and
controlled drug buys, officers obtained warrants to search
defendant's home and recovered cocaine and other drugs.
Defendant told the police that he sold the drugs to support
5 The court accepted the guilty plea and ordered a
presentence investigation report (PSI). On October 2, 2012,
defendant failed to appear, and a bond forfeiture judgment
was entered. On December 7, 2012, his counsel appeared and
stated that defendant was picked up on warrants. Counsel told
the court that defendant put himself into a treatment center
for heroin addiction after he missed his court date. The
court noted that the PSI had not been completed due to
defendant's failure to appear and continued the matter
6 On January 9, 2013, the sentencing hearing was held. The
PSI showed that defendant had a long history of drug use
beginning at age 10 and a long history of drug-related
offenses. He was expelled from his first high school for
delivery and possession of drugs on school property and
dropped out of his second high school. He later obtained a
GED and attended a technical school during a time when he
briefly stopped using drugs. Defendant reported no drug use
since October 2012 and stated that he was involved in a
7 Defendant gave a statement for the PSI in which he said
that he sold drugs to support his habit and that, when the
offenses occurred, he was thinking only of his habit so that
he would not get sick. He said that, when he got out on bond,
his addiction got worse, and he tried to get clean. He said
that he could stay clean with help, that his family deserved
better from him, and that, if he did not get clean, he would
end up dying.
8 The PSI reported multiple unverified periods of employment.
In regard to family, it stated that he had a 12-year
relationship with Tamara Matelske, although defendant sought
an order of protection against her in 2007. Defendant had two
sons with Tamara. Their relationship ended when he was
released on bond. Tamara was a codefendant in one of these
cases and was on probation. The children were in the custody
of defendant's father and stepmother. Defendant said that
he was still close to Tamara but needed to take care of his
own problems. Defendant moved in with Maria Gonzalez in April
2012, but he had not spoken with her since his arrest in
December 2012. The PSI showed that defendant was convicted in
2009 of endangering the life or health of a child when he
allowed his children to roam around in an apartment parking
lot unattended and unsupervised.
9 The PSI stated that, when the first search warrant was
executed, one child was present in the home with the illegal
drugs. The Department of Children and Family Services was
notified, and a neglect petition was pending in juvenile
court. A police investigator testified for the State that, on
the date of the second offense, cocaine was found in
defendant's kitchen and in the children's bedroom. He
said that the children were in the house when the warrant was
executed. He said that defendant's bond was reduced in
the first case because he was going to cooperate with a
police investigation, but then he failed to do so.
10 Defense counsel did not present any witnesses. Defendant
told the court that he was ashamed of his life and that he
hurt his family and children. He said that he needed to be a
better role model for his children and that they deserved
better than what he had been.
11 The State asked for an eight-year sentence in each case.
Defense counsel asked for the minimum of four years, arguing
that defendant's addiction was the root of his problems
and that he had sought treatment. The trial court sentenced
defendant to seven years' incarceration on each count, to
run consecutively, and recommended drug treatment. The court
observed that addiction had ruined defendant's life and
that his children deserved better. The court found
"extremely aggravating" that drugs were found at
the home when at least one child was present. The court
further stated that it was difficult to imagine what type of
environment could be worse for the children and that
defendant obviously did not work enough to support the
children. The court also noted defendant's "terrible
history" of criminal offenses. The court found very
little rehabilitative potential, based on defendant's
admission about his drug use and past failures at
rehabilitation. The court admonished ...