People v. Brown

2017 IL 121681

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 121681)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

ANTHONY S. BROWN, Appellant.

Opinion filed November 30, 2017.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Chief Justice Karmeier and Justices Freeman, Thomas, Garman, Burke, and

Theis concurred in the judgment and opinion.

OPINION

¶1 In this appeal, we address a disagreement in the appellate court on the proper

standard for reviewing a guilty-plea defendant’s challenge to his plea counsel’s

performance raised in a petition seeking relief under the Post-Conviction Hearing

Act (725 ILCS 5/122-1 et seq. (West 2014)). The specific issue presented is

whether defendant made a substantial showing of a violation of his constitutional

right to counsel by alleging that he entered into a negotiated guilty-plea agreement

in reliance on his counsel’s erroneous sentencing advice.

¶2 The trial court granted the State’s motion to dismiss defendant’s postconviction

petition without an evidentiary hearing. The appellate court affirmed. In relevant

part, the court rejected two other appellate court decisions holding that such a claim

was sufficient, standing alone, to establish prejudice and to warrant an evidentiary

hearing. See 2016 IL App (4th) 140760, ¶¶ 11, 25 (disagreeing with and ultimately

rejecting People v. Kitchell, 2015 IL App (5th) 120548, and People v. Stewart, 381

Ill. App. 3d 200 (2008)). For the reasons that follow, we agree with the appellate

court’s conclusion and affirm its judgment, albeit under a slightly different

rationale.

¶3 BACKGROUND

¶4 On September 13, 2012, defendant Anthony S. Brown was charged by

information with the offenses of being an armed habitual criminal (720 ILCS

5/24-1.7(a) (West 2012)) and home invasion with a firearm (720 ILCS 5/19-6(a)(3)

(West 2012)). The charges arose from an incident that occurred on September 9 in

Champaign, Illinois, at the home of defendant’s former girlfriend.

¶5 On May 6, 2013, defendant entered a fully negotiated guilty plea to the charge

of being an armed habitual criminal in the circuit court of Champaign County. In

exchange, defendant was sentenced to 18 years’ imprisonment, and the State

nol-prossed the home invasion charge.

¶6 Before entry of the plea agreement, the trial court explained the charges, noting

that defendant was charged as an armed habitual criminal after having previously

been convicted of unlawful use of a weapon by a felon and unlawful possession

with intent to deliver cannabis. The court admonished defendant that the armed

habitual criminal charge was a Class X felony with a minimum sentence of 6 years

and a maximum sentence of 30 years, a 3-year term of mandatory supervised

release, and a potential fine of $25,000. The court further admonished defendant of

his trial rights and the consequences of waiving those rights and entering a guilty

plea. Defendant responded that he understood his rights and that he intended to

plead guilty.

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¶7 In presenting the plea agreement, the State recommended a sentence of 18

years’ imprisonment and payment of fees. When asked by the trial court if

defendant agreed with those terms, defendant responded affirmatively. Defendant

denied that he was promised anything and denied that he was threatened or forced

to accept the plea agreement.

¶8 The State then offered the following factual basis for the plea agreement:

“On September 9 of 2012, Champaign police were called to 1207 Crispus in

Champaign by Shauntrayah Foster and Taylor Rodgers, who were reporting

that the defendant, who they knew as their mother’s ex-boyfriend, was in the

home with a gun. Police responded and had to force entry into the home. As

they forced entry, the defendant ran down the hallway towards them. Three

police officers saw him lifting the gun from the area of his waistband [and]

pointing it in their direction. They discharged their weapons. The revolver was

recovered where [defendant] dropped it. It was sent to the state lab and

determined to be a .22 caliber revolver that was in functioning condition.”

After the State concluded its factual basis, the trial court asked defendant’s attorney

if he believed the State had witnesses who would testify to those facts. Defense

counsel responded affirmatively. The court asked defendant if he was pleading

guilty to the charge of being an armed habitual criminal, and defendant responded

“yes.”

¶9 The trial court accepted the plea agreement and proceeded to sentencing.

Consistent with the plea agreement, the court sentenced defendant to 18 years’

imprisonment and dismissed the home invasion charge.

¶ 10 On May 22, 2013, defendant filed a pro se notice of appeal. Defendant attached

a signed affidavit, indicating that he “took plea at 50% not 85%.” The trial court

appointed the Office of the State Appellate Defender to represent defendant.

¶ 11 On June 7, 2013, defendant filed a pro se motion for reduction of sentence,

asserting that he received ineffective assistance of trial counsel because his counsel

erroneously advised defendant that he would serve only 50% of his 18-year

sentence. The trial court denied the motion because defendant entered a negotiated

guilty plea and, therefore, was not permitted to file a motion to reduce sentence.

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¶ 12 On August 16, 2013, the appellate court dismissed defendant’s direct appeal at

his request. Defendant did not refile an appeal.

¶ 13 On February 27, 2014, defendant filed a pro se postconviction petition,

challenging the constitutionality of the armed violence statute that relied on his

prior conviction for unlawful use of a weapon. Defendant also argued that he

received ineffective assistance of trial counsel because counsel misinformed him

on his potential eligibility for good time credit and incorrectly advised defendant

that he would serve only 50% of his 18-year sentence. 1

¶ 14 The trial court appointed the Champaign County public defender to represent

defendant in the postconviction proceedings. Defendant’s counsel filed an

amended postconviction petition on June 19, 2014. The amended petition is the

subject of this appeal.

¶ 15 Defendant’s amended petition withdrew his constitutional challenge to the

armed violence statute and, instead, focused exclusively on his sentencing claim.

Specifically, defendant alleged that trial counsel told him that he would serve 85%

of his sentence if convicted of the home invasion charge but that he would serve

only 50% of his sentence if convicted of the armed habitual criminal charge.

Defendant noted that his counsel’s advice was erroneous because the applicable

sentencing statute requires a person convicted of the offense of armed habitual

criminal to serve 85% of the sentence (730 ILCS 5/3-6-3(a)(2)(ii) (West 2012)). In

addition, the record of the plea hearing demonstrates that defendant was not

advised on how much of his sentence he would have to serve. Nor did any of the

accompanying documentation (the charges, the sentencing papers, or the mittimus)

include that information. Defendant further alleged in his amended petition that his

counsel’s ineffective assistance prejudiced him because he pleaded guilty based on

the erroneous belief that he would serve only 50% of his 18-year sentence when he

actually must serve 85%, an additional 6 years in prison. Defendant asserted that if

he had been properly advised on sentencing he “would not have accepted the plea

and would have taken the case to trial wherein he would have been acquitted.”

1

Section 3-6-3(a)(2.1) of the Unified Code of Corrections (730 ILCS 5/3-6-3(a)(2.1) (West

2012)) allows defendants convicted of certain enumerated offenses to receive “day-for-day” credit

against their sentences, potentially allowing those defendants to serve only 50% of their sentence.

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Defendant argued that he made the requisite “substantial showing of a violation of a

constitutional right” and was entitled to an evidentiary hearing.

¶ 16 Defendant attached several documents to his amended petition, including his

own affidavit. In his affidavit, defendant averred that he trusted his trial counsel to

give him accurate information on sentencing and believed his counsel because

“[counsel] showed me paperwork for the plea and it said nothing about having to do

85%.” Defendant further attested that “right before the plea” he confirmed with his

trial counsel that he would serve only 50% of his sentence and that counsel told

defendant, “don’t play with these people.”

¶ 17 Defendant did not discover that his trial counsel erroneously advised him on

sentencing until he arrived at the Department of Corrections. Although defendant

attempted to contact his trial counsel after learning this information, he was never

contacted by counsel. Defendant averred that he would not have accepted the plea

agreement if he knew that he was required to serve 85% of his 18-year sentence.

¶ 18 On August 18, 2014, the State filed a motion to dismiss defendant’s amended

petition. The State argued that defendant failed to establish the requisite substantial

showing of a constitutional violation to entitle him to an evidentiary hearing.

¶ 19 On August 26, 2014, the trial court granted the State’s motion to dismiss. The

court determined that defendant was not prejudiced by any error in counsel’s

advice on sentencing.

¶ 20 On direct appeal, the appellate court affirmed. 2016 IL App (4th) 140760. The

court first noted that defendant’s position was supported by the decisions in

Stewart, 381 Ill. App. 3d at 206, and Kitchell, 2015 IL App (5th) 120548, ¶ 13, both

holding that a postconviction petitioner makes a substantial showing of a

constitutional violation and is entitled to an evidentiary hearing when he alleges in

his petition that he entered into a guilty plea in reliance on his trial counsel’s

erroneous sentencing advice. 2016 IL App (4th) 140760, ¶ 11.

¶ 21 The appellate court, however, declined to follow Stewart and Kitchell after

determining that those decisions conflicted with this court’s opinion in People v.

Rissley, 206 Ill. 2d 403 (2003), as it applied the familiar two-prong Strickland

standard (Strickland v. Washington, 466 U.S. 668 (1984)) to a guilty-plea

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defendant’s claim of ineffective assistance of counsel. The appellate court

explained,

“[Stewart and Kitchell] assume a defendant can show prejudice [for

purposes of Strickland] simply by asserting that, but for plea counsel’s bad

advice, he or she would have pleaded differently and would have gone to trial.

But Rissley is quite clear: a bare allegation to that effect will not establish

prejudice. [Citation.] The defendant must additionally claim he or she is

innocent of the charges or must identify a plausible defense to the charges.

[Citation.]” 2016 IL App (4th) 140760, ¶ 25.

Because defendant made neither assertion, the appellate court affirmed the trial

court’s order granting the State’s motion to dismiss defendant’s amended petition.

2016 IL App (4th) 140760, ¶ 25. This court allowed defendant’s petition for leave

to appeal. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016).

¶ 22 ANALYSIS

¶ 23 On appeal, defendant contends that the trial court erred in dismissing his

postconviction petition without an evidentiary hearing because he established a

substantial showing of a constitutional violation. Specifically, defendant argues

that he was denied his right to effective assistance of counsel when he entered into a

fully negotiated guilty-plea agreement in reliance on his plea counsel’s erroneous

advice that he would only serve 50% of his 18-year sentence if he pleaded guilty to

the armed habitual criminal charge.

¶ 24 When, as here, a postconviction petition reaches the second stage, the circuit

court reviews the petition and any accompanying documents to determine whether

the petitioner has made “ ‘a substantial showing of a constitutional violation.’ ”

People v. Tate, 2012 IL 112214, ¶ 10 (2012) (quoting People v. Edwards, 197 Ill.

2d 239, 246 (2001)). Upon a substantial showing of a constitutional violation, the

petition must be advanced to the third stage, where the circuit court conducts an

evidentiary hearing. 725 ILCS 5/122-6 (West 2012); Tate, 2012 IL 112214, ¶ 10.

Upon no showing, the petition should be dismissed. Tate, 2012 IL 112214, ¶ 10.

We review de novo the dismissal of a postconviction petition without an

evidentiary hearing. People v. Sanders, 2016 IL 118123, ¶ 31.

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¶ 25 The sixth amendment guarantees a criminal defendant the right to effective

assistance of trial counsel at all critical stages of the criminal proceedings,

including the entry of a guilty plea. People v. Hughes, 2012 IL 112817, ¶ 44 (citing

Missouri v. Frye, 566 U.S. 134, 140 (2012)). A claim that a defendant was denied

his constitutional right to effective assistance of counsel is generally governed by

the familiar two-pronged test established in Strickland, 466 U.S. 668. Under

Strickland, a defendant must establish that his counsel’s performance fell below an

objective standard of reasonableness and that he was prejudiced by counsel’s

deficient performance. Hughes, 2012 IL 112817, ¶ 44.

¶ 26 The Strickland standard also applies to a claim that trial counsel was ineffective

during the guilty-plea process. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The first

prong of Strickland remains the same under Hill for guilty-plea defendants. Hill,

474 U.S. at 58-59. For purposes of the second prong, however, a guilty-plea

defendant “must show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.”

Hill, 474 U.S. at 59. This court follows Hill’s application of Strickland when a

guilty-plea defendant raises a claim of ineffective assistance of counsel. People v.

Valdez, 2016 IL 119860, ¶ 29; Hughes, 2012 IL 112817, ¶ 63; People v. Hall, 217

Ill. 2d 324, 335 (2005); Rissley, 206 Ill. 2d at 457. We have also held that “[a]

conclusory allegation that a defendant would not have pleaded guilty and would

have demanded a trial is insufficient to establish prejudice” for purposes of an

ineffectiveness claim. Valdez, 2016 IL 119860, ¶ 29 (citing Hughes, 2012 IL

112817, ¶ 64, and Hall, 217 Ill. 2d at 335).

¶ 27 Here, the State does not contest defendant’s argument that his trial counsel’s

performance was objectively unreasonable, the requisite showing for the first prong

of Strickland. The applicable sentencing statute effectively requires a defendant

convicted of the offense of armed habitual criminal to serve 85% of his sentence

(730 ILCS 5/3-6-3(a)(2)(ii) (West 2012)), but defendant alleges in his petition that

his counsel erroneously advised him that he would serve only 50% of his sentence

for that offense. At this stage of review, we must take as true all well-pleaded facts

in the petition and supporting documentation. People v. Pitsonbarger, 205 Ill. 2d

444, 467 (2002). We agree with defendant that there is no objectively reasonable

justification for counsel’s erroneous advice on this straightforward and readily

verifiable sentencing information. See, e.g., Padilla v. Kentucky, 559 U.S. 356, 369

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(2010) (explaining the need for trial counsel to give “correct advice” to a defendant

on a “truly clear” consequence of pleading guilty). Accordingly, we accept the

State’s implicit concession that defendant’s allegations in his petition are sufficient

to satisfy the first prong of Strickland.

¶ 28 We next address the prejudice prong, the primary focus of defendant’s

argument before this court. As we have explained, Hill instructs that “[t]o establish

prejudice in the guilty-plea context, ‘the defendant must show that there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.’ ” Valdez, 2016 IL 119860, ¶ 29

(quoting Hill, 474 U.S. at 59).

¶ 29 Although acknowledging that our decisions have relied on the Strickland

standard as applied by the United States Supreme Court in Hill, defendant

nonetheless contends that “[i]n Illinois, post-conviction petitioners alleging

ineffective assistance of guilty plea counsel must go beyond what Hill v. Lockhart

requires.” Citing Hall, 217 Ill. 2d at 335, and Rissley, 206 Ill. 2d at 459-60,

defendant notes that this court has also required a guilty-plea defendant to raise a

claim of innocence or state a plausible defense that could have been raised at trial to

satisfy the prejudice prong.

¶ 30 Defendant contends that our holdings in Hall and Rissley, requiring a claim of

actual innocence or a plausible trial defense, should be limited to ineffective

assistance claims related to trial strategy but should not apply to a case like his,

when a defendant pleads guilty based on counsel’s affirmative misrepresentation

on the consequences of the plea. He further argues that an evidentiary hearing is

necessary because his claim depends on matters outside the record, specifically his

counsel’s sentencing advice. For support, defendant cites the appellate court’s

decisions in Stewart and Kitchell. He also relies heavily on a decision issued by the

United States Supreme Court while this appeal was pending, Lee v. United States,

582 U.S. ___, 137 S. Ct. 1958 (2017). 2 Defendant argues that Lee “strongly

2

Lee was issued after defendant filed his opening brief in this appeal but before the State filed its

appellee brief. The State addresses Lee in its brief. Defendant’s reply brief is devoted almost entirely

to discussing the impact of Lee on his claims here.

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supports his argument that a static prejudice standard cannot be used to adjudicate

all claims of ineffective assistance of guilty plea counsel.”

¶ 31 The State argues that Lee provides no basis for overturning this court’s

precedent or reversing the appellate court’s judgment in this case. Instead, the State

maintains that Lee reaffirms this court’s “bare allegation rule” but otherwise should

be limited to cases involving deportation that include sufficient factual allegations

that the possibility of deportation was the determinative factor in the defendant’s

guilty plea.

¶ 32 Lee represents the Supreme Court’s most recent discussion of whether

guilty-plea counsel’s allegedly deficient performance prejudiced a defendant for

purposes of an ineffective assistance claim. Necessarily, Lee instructs our analysis

of the issue presented here.

¶ 33 In Lee, the United States Supreme Court reviewed the ineffective assistance

claim of a defendant who pleaded guilty to an aggravated felony that subjected him

to mandatory deportation. Lee’s counsel erroneously informed him that his plea

would not result in his deportation. Reaffirming the Hill standard for guilty-plea

cases, the Court explained that “when a defendant claims that his counsel’s

deficient performance deprived him of a trial by causing him to accept a plea, the

defendant can show prejudice by demonstrating a ‘reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.’ ” Lee, 582 U.S. at ___, 137 S. Ct. at 1965 (quoting Hill, 474 U.S. at

59).

¶ 34 Especially relevant to this case, Lee distinguished an ineffective assistance

claim involving a matter of trial strategy related to a defendant’s acquittal prospects

from a claim involving a defendant’s understanding of the consequences of

pleading guilty. The first category requires a showing that a defendant would be

“better off going to trial” absent his counsel’s deficient performance by

establishing that he would have been acquitted or had a viable defense. Lee, 582

U.S. at ___, 137 S. Ct. at 1965-66.

¶ 35 In contrast, Lee rejected the acquittal or viable defense requirements for the

second category—an ineffective assistance claim related to a defendant’s

understanding of the consequences of pleading guilty. As the Court instructed:

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“Not all errors, however, are [related to a defendant’s prospects of

acquittal]. Here Lee knew, correctly, that his prospects of acquittal at trial were

grim, and his attorney’s error had nothing to do with that. The error was instead

one that affected Lee’s understanding of the consequences of pleading guilty.

The Court confronted precisely this kind of error in Hill. [Citation.] Rather than

asking how a hypothetical trial would have played out absent the error, the

Court considered whether there was an adequate showing that the defendant,

properly advised, would have opted to go to trial. The Court rejected the

defendant’s claim because he had ‘alleged no special circumstances that might

support the conclusion that he placed particular emphasis on his parole

eligibility in deciding whether or not to plead guilty.’ [Citation.]” Lee, 582 U.S.

at ___, 137 S. Ct. at 1965.

Although a defendant without a viable defense is highly likely to lose at trial and

rarely could establish prejudice from accepting a favorable plea deal, the Court

concluded that the probability of success at trial should not be the dispositive

factor. Lee, 582 U.S. at ___, 137 S. Ct. at 1966.

¶ 36 Instead, Lee instructs that when a defendant’s claim of ineffective assistance of

plea counsel involves a consequence of pleading guilty, it is appropriate to compare

the consequences of a defendant’s conviction following a trial to the consequences

of the defendant entering the guilty plea. Lee, 582 U.S. at ___, 137 S. Ct. at 1966.

As the Court explained:

“When those consequences are, from the defendant’s perspective, similarly

dire, even the smallest chance of success at trial may look attractive. For

example, a defendant with no realistic defense to a charge carrying a 20-year

sentence may nevertheless choose trial, if the prosecution’s plea offer is 18

years.” Lee, 582 U.S. at ___, 137 S. Ct. at 1966-67.

Applying those considerations to Lee’s case, the Court concluded that Lee

adequately demonstrated a reasonable probability that he would have rejected the

plea if he had been properly advised that his plea would lead to his mandatory

deportation. Lee, 582 U.S. at ___, 137 S. Ct. at 1967.

¶ 37 In reaching that conclusion, the Court recognized that Lee’s case presented

“unusual circumstances.” Lee, 582 U.S. at ___, 137 S. Ct. at 1967. The Court

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observed that Lee and his trial counsel testified at the evidentiary hearing that Lee

would have proceeded to trial if he had known about the deportation consequences.

During the plea colloquy, Lee replied affirmatively when the trial court asked

whether his decision to plead guilty was affected by the possibility that his

conviction could result in his deportation. When the court asked how it affected his

decision to plead, Lee responded “ ‘I don’t understand.’ ” Lee, 582 U.S. at ___, 137

S. Ct. at 1968. Only after Lee’s counsel assured Lee that the judge’s statement was

a “ ‘standard warning’ ” was Lee willing to proceed with his guilty plea. Lee, 582

U.S. at ___, 137 S. Ct. at 1967-68.

¶ 38 The Court emphasized the severity of the consequences of deportation. These

consequences were especially true for Lee, who had lived in the United States for

almost three decades, had two established businesses in Tennessee, and was the

only family member in the United States who could care for his elderly

parents—both naturalized American citizens. There was no evidence that Lee had

any connections to South Korea, his native country, or that he had ever returned

there since leaving as a child. Lee, 582 U.S. at ___, 137 S. Ct. at 1968.

¶ 39 The Court in Lee also addressed the government’s claim that Padilla, 559 U.S.

at 372, required Lee to show that a decision to reject the plea “would have been

rational under the circumstances.” The government argued that Lee could not make

that showing because going to trial would have only delayed the inevitable

consequence of mandatory deportation. Rejecting the government’s argument, the

Court concluded it would not be irrational for Lee to reject the plea because he still

had a chance, however remote, to avoid deportation by going to trial. The Court

explained that Lee had strong connections to the United States, the consequence of

taking a chance at trial was not markedly harsher than pleading guilty, and it was

apparent that deportation was the determinative issue for Lee. Lee, 582 U.S. at ___,

137 S. Ct. at 1968-69.

¶ 40 This court’s jurisprudence is consistent with Lee. We similarly follow Hill’s

application of the Strickland test to claims of ineffective assistance of guilty-plea

counsel. Valdez, 2016 IL 119860, ¶ 29; Hughes, 2012 IL 112817, ¶ 63; Hall, 217

Ill. 2d at 335; Rissley, 206 Ill. 2d at 457. Recently, we held that “ ‘a petitioner must

convince the court that a decision to reject the plea bargain would have been

rational under the circumstances’ ” when the claim involved counsel’s alleged

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failure to advise a defendant on the deportation consequences of pleading guilty.

Valdez, 2016 IL 119860, ¶ 29 (quoting Padilla, 559 U.S. at 372); see also Hughes,

2012 IL 112817, ¶ 65 (applying same Padilla standard).

¶ 41 Lee similarly considered Padilla’s “rational under the circumstances” standard.

See Lee, 582 U.S. at ___, 137 S. Ct. at 1968-69 (discussing and rejecting the

government’s claim that Lee failed to satisfy Padilla). As Lee explained, when a

defendant does not have a viable defense strategy or chance of acquittal, “[t]he

decision whether to plead guilty also involves assessing the respective

consequences of a conviction after trial and by plea.” Lee, 582 U.S. at ___, 137 S.

Ct. at 1966. In other words, Lee requires a consideration of the specific

circumstances of each case when assessing a guilty-plea defendant’s ineffective

assistance claim based on his understanding of the consequences of pleading guilty.

¶ 42 This comports with our approach in Valdez and Hughes. Like Lee, both Valdez

and Hughes involve ineffective assistance claims related to a defendant’s

understanding of the consequences of pleading guilty.

¶ 43 Valdez addressed a defendant’s claim that he was prejudiced by his counsel’s

failure to advise him properly on the deportation consequences of pleading guilty.

Valdez, 2016 IL 119860, ¶¶ 29-32. We determined that Valdez was not prejudiced

by his counsel’s deficient advice because the record established that the trial court

provided the relevant information under section 113-8 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/113-8 (West 2012)). Valdez, 2016 IL 119860,

¶¶ 31-32.

¶ 44 Similarly, Hughes addressed a defendant’s claim that he was prejudiced by his

counsel’s failure to advise him properly on the potential for the State to seek his

commitment as a sexually violent person if he pleaded guilty. Hughes, 2012 IL

112817, ¶¶ 63-66. After explaining that resolution of the prejudice inquiry “will

turn on the facts of a particular case,” we concluded that Hughes’s “mere assertion”

that he would not have pleaded guilty if properly advised by counsel was

insufficient to establish prejudice. Hughes, 2012 IL 112817, ¶¶ 65-66.

¶ 45 In comparison to Valdez and Hughes, this court has taken a different approach

when reviewing an ineffective assistance claim related to a defendant’s defense

strategy or chance of acquittal, i.e., a defendant’s prospects at trial. In that type of

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case, this court requires a claim of innocence or a plausible defense to establish

prejudice. See Hall, 217 Ill. 2d at 335-36 (requiring claim of innocence or plausible

defense to support an ineffectiveness claim based on plea counsel’s allegedly

erroneous advice that the defendant had no defense to the charge of aggravated

kidnapping); Rissley, 206 Ill. 2d at 459-62 (requiring claim of innocence or

plausible defense to support an ineffectiveness claim based on plea counsel’s

alleged failure to investigate a potential insanity defense and counsel’s

misunderstanding of the procedures used in a capital case).

¶ 46 We agree with defendant that the innocence or plausible defense standard from

Hall and Rissley is inapplicable here. See Lee, 582 U.S. at ___, 137 S. Ct. at 1965

(distinguishing guilty-plea counsel’s error related to a defendant’s chance of

acquittal or prospects at trial with plea counsel’s error related to a defendant’s

understanding of the consequences of pleading guilty). Defendant alleges that he

was prejudiced by his counsel’s failure to advise him correctly that he was required

to serve 85% of his sentence. His allegation involves his understanding of the

consequence of his guilty plea, the type of claim considered in Lee and this court’s

decisions in Valdez and Hughes.

¶ 47 While we agree with defendant that Hall and Rissley do not apply to his claim,

our inquiry is not over. Neither Lee nor any decision from this court allows an

ineffective assistance claim to satisfy the requisite prejudice prong based solely on

the bare allegation that the defendant would have rejected the plea if his guilty-plea

counsel had provided accurate advice. Indeed, this court recently reaffirmed our

prior consistent holdings that “[a] conclusory allegation that a defendant would not

have pleaded guilty and would have demanded a trial is insufficient to establish

prejudice” for purposes of the Strickland analysis. Valdez, 2016 IL 119860, ¶ 29

(citing Hughes, 2012 IL 112817, ¶ 64, and Hall, 217 Ill. 2d at 335). Lee similarly

concluded that “[c]ourts should not upset a plea solely because of post hoc

assertions from a defendant about how he would have pleaded but for his attorney’s

deficiencies.” Lee, 582 U.S. at ___, 137 S. Ct. at 1967. To the extent the appellate

court’s decisions in Stewart and Kitchell conflict with these decisions, they are

overruled.

¶ 48 Although Lee was not decided when we issued our decision in Valdez, nothing

in Lee suggests that we should reconsider our analysis. If anything, Lee bolsters our

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determination in Valdez that we must consider the relevant surrounding

circumstances to assess prejudice. See Lee, 582 U.S. at ___, 137 S. Ct. at 1966 (for

purposes of analyzing an ineffective assistance claim, a defendant’s decision

whether to plead guilty “involves assessing the respective consequences of a

conviction after trial and by plea”). As we explained in Valdez, for a guilty-plea

defendant to obtain relief on a claim that he relied on his counsel’s erroneous

advice about a consequence of his plea, the defendant “ ‘must convince the court

that a decision to reject the plea bargain would have been rational under the

circumstances.’ ” Valdez, 2016 IL 119860, ¶ 29 (quoting Padilla, 559 U.S. at 372).

¶ 49 Here, defendant’s allegation in his petition, standing alone, is insufficient to

establish prejudice. Pursuant to Lee and this court’s decisions in Valdez and

Hughes, we must examine the circumstances surrounding his plea. Defendant was

charged with (1) being an armed habitual criminal, a Class X felony with a

sentencing range of 6 to 30 years’ imprisonment (720 ILCS 5/24-1.7(b) (West

2012); 730 ILCS 5/5-4.5-25 (West 2012)), and (2) home invasion, a Class X felony

that included a mandatory 15-year firearm enhancement for a total sentencing

range of 21 to 45 years’ imprisonment (720 ILCS 5/19-6(c) (West 2012)). With

defendant’s significant criminal history, it is entirely possible that he would have

received sentences on the higher end of those ranges. And there is little doubt that

defendant would have been convicted of both offenses—defendant, a convicted

felon, was apprehended by police officers inside the victims’ home after he pointed

a handgun at the officers.

¶ 50 By pleading guilty, however, defendant received only a single Class X felony

conviction for armed habitual criminal with a mid-range sentence of 18 years’

imprisonment. Most critically, in exchange for defendant’s pleading guilty, the

State agreed to nol-pros the home invasion charge. Defendant, therefore, avoided a

conviction for home invasion, a Class X felony that included a mandatory 15-year

firearm enhancement, for a sentencing range of 21 to 45 years’ imprisonment.

Given the nature of his crime and his criminal history, defendant most likely would

have received a sentence on the higher end of that range. Indisputably, any sentence

on an armed violence conviction would have been greater than the 18-year sentence

defendant received for armed habitual criminal by pleading guilty. See Lee, 582

U.S. at ___, 137 S. Ct. at 1966 (explaining that a defendant’s decision to plead

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guilty “involves assessing the respective consequences of a conviction after trial

and by plea”).

¶ 51 Moreover, unlike the defendant in Lee, nothing in defendant’s plea colloquy

demonstrates that his primary focus when pleading guilty was serving 50% of his

sentence. See Lee, 582 U.S. at ___, 137 S. Ct. at 1968 (concluding, in relevant part,

that Lee’s responses on deportation consequences during the plea colloquy

demonstrated that he placed paramount importance on avoiding deportation). In

addition, defendant denied on the record that he was promised anything during the

plea negotiations.

¶ 52 Based on these circumstances, we conclude that defendant has failed to

establish the requisite showing of prejudice because he has not shown that a

decision to reject his plea bargain would have been rational under the

circumstances of his case. Valdez, 2016 IL 119860, ¶ 29; Hughes, 2012 IL 112817,

¶¶ 65-66. Without the requisite substantial showing of a constitutional violation,

defendant’s postconviction petition is not entitled to an evidentiary hearing.

¶ 53 In closing, we acknowledge the inherent challenge of successfully raising a

claim of ineffective assistance of guilty-plea counsel. But we necessarily reject

defendant’s implicit assertion that Lee lowered the threshold for establishing

prejudice when the ineffective assistance claim involves a consequence of pleading

guilty. Lee expressly reaffirmed “Strickland’s high bar” and recognized society’s

strong interest in the finality of convictions based on guilty pleas. Lee, 582 U.S. at

___, 137 S. Ct. at 1967. Our holding in this case is consistent with those principles.

¶ 54 CONCLUSION

¶ 55 For these reasons, we affirm the judgments of the appellate and circuit courts.

Defendant’s allegations in his postconviction petition failed to establish a

substantial showing of a constitutional violation, and his petition was properly

dismissed without an evidentiary hearing.

¶ 56 Affirmed.

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