The opinion
2023 IL App (1st) 221358
FIFTH DIVISION
December 29, 2023
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
No. 1-22-1358
THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 10 CR 13778
)
ANGELO SHAW, ) Honorable
) Alfredo Maldonado,
Defendant-Appellant. ) Judge Presiding.
JUSTICE MIKVA delivered the judgment of the court, with opinion.
Presiding Justice Mitchell and Justice Lyle concurred in the judgment and opinion.
OPINION
¶1 Defendant Angelo Shaw appeals from the second-stage dismissal of his postconviction
petition alleging due process and sixth amendment right to counsel violations in connection with
his guilty plea. See U.S. Const., amend. VI. In exchange for a recommended sentence of five years
in prison, Mr. Shaw pleaded guilty in 2013 to one count of criminal sexual assault. By statute, his
sentence included a term of mandatory supervised release (MSR) of three years to natural life. 730
ILCS 5/5-8-1(d)(4) (West 2012). Mr. Shaw alleged in his petition that he served his five-year
sentence but was unable to secure a host site meeting the many conditions of release imposed on
him as a convicted sex offender. He was accordingly “violated at the door” for failing to comply
with the terms of his release and returned to custody. Mr. Shaw ultimately served over 4 ½
additional years in prison as a result of that practice.
No. 1-22-1358
¶2 Mr. Shaw alleged in his petition that he had a viable defense of consent and would not have
pleaded guilty if he had known that this could happen. Mr. Shaw argues on appeal that he made a
substantial showing in his petition that both the circuit court judge and his counsel failed to inform
him of this serious consequence of his guilty plea and that this violated his rights to due process
and effective assistance of counsel. For the reasons below, we agree that Mr. Shaw made a
substantial showing of these constitutional violations. We reverse the circuit court’s dismissal of
his petition and remand for a third-stage hearing on both of his claims.
¶3 I. BACKGROUND
¶4 A. Mr. Shaw’s Guilty Plea
¶5 Mr. Shaw was charged by indictment with five counts each of criminal sexual assault and
aggravated criminal sexual assault. On April 29, 2013, he pleaded guilty to a single count of
criminal sexual assault. As a factual basis for the plea, the parties stipulated that the State’s
evidence at trial would establish the following. On June 12, 2010, the victim, A.G., spoke with
Mr. Shaw by telephone and text message before meeting with him and ultimately agreeing to go
with him to his house. While there, Mr. Shaw forced A.G. to have nonconsensual vaginal
intercourse. Mr. Shaw falsely claimed that he was a police officer and told A.G. that she would be
“in trouble” if she told anyone about the encounter. The following day, A.G. called the police and
told them what happened. She also told several friends and family members about the sexual
assault. A sexual assault kit was administered, and semen from the vaginal swabs matched Mr.
Shaw’s DNA profile.
¶6 At the plea hearing, the circuit court admonished Mr. Shaw that he would be pleading
guilty to a Class 1 felony punishable by 4 to 15 years in prison, to be served at 85%, and/or a fine
of up to $25,000. The court explained that Mr. Shaw would serve two years of MSR following his
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prison term and that he would have to register as a sex offender for life. Mr. Shaw said that he
understood all of this and still wanted to plead guilty. He stated that no one was forcing,
threatening, or telling him to plead guilty but that he was doing so of his own free will. The court
advised Mr. Shaw that if he was not a citizen of the United States, his plea could result in
deportation, and Mr. Shaw said he understood that too.
¶7 The circuit court concluded that there was a sufficient factual basis for the plea, that Mr.
Shaw understood the nature and consequences of the plea, and that the plea was knowingly and
intelligently made. The court agreed with the parties that a sentence of five years in prison, to be
served at 85% and with a credit of 1024 days for time served, followed by two years of MSR, was
appropriate. The court asked Mr. Shaw if he had any questions about his sentence before informing
him of his right to appeal and the requirement that he first move to withdraw his plea.
¶8 Mr. Shaw’s case was passed and then recalled a short while later, when it was discovered
that the circuit court had imposed the wrong term of MSR. The court explained the mistake, telling
Mr. Shaw that he would serve an MSR term not of two years but of three years to life, with his
eventual release from MSR to be determined by the Prisoner Review Board (PRB). Mr. Shaw
indicated that he had already discussed this with his counsel. The following exchange then took
place:
“THE COURT: So based on the count you [pled] guilty to, it is mandatory
supervised release determined not by me but by the parole board of three years to life.
Okay. Do you understand that?
THE DEFENDANT: Yeah.
THE COURT: Does that change your plea in any way, shape or form?
THE DEFENDANT: Is that determined through good behavior or is that—I
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mean—
THE COURT: You would have to go in front of the parole board. It is determined
by them. And it would be a minimum of three years but it could be all the way up to for
the rest of your life.
THE DEFENDANT: So is that saying that my—that change my out date?
MS. STEINER [(THE ASSISTANT PUBLIC DEFENDER)]: He is just wondering
if it changes his time served in custody.
THE COURT: No. It does not. But it will change your reporting after you get out.
It will change that. It changes your parole period. Before I told you it was two years
mandatory supervised release. Now it is three years to life. Okay. What I need to know, are
you agreeable to that?
THE DEFENDANT: Yes, I am.
THE COURT: All right. Does that make you want to change your plea? Does that
change anything in your mind that would make you want to withdraw your plea, or do you
want to stay with your plea? Because it does not change your out date. But that part, your
mandatory supervised release, is changing.
THE DEFENDANT: Okay. So I don’t have to go to the parole board in order to get
out, do I?
THE COURT: I am not sure of the process. And I am not going to advise you as to
the process because I don’t know exactly what it is. But it is not determined by me. That’s
all I can tell you. It is three years to life.
THE DEFENDANT: I am baffled as to do I have to go to the parole board and ask
to get out? Like I don’t know if that change my out date.
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THE COURT: It won’t change your out date. It will change your reporting
requirements after you get out.
THE DEFENDANT: Oh, okay. All right. I understand.
THE COURT: You understand?
THE DEFENDANT: Yes, I do.
THE COURT: You want to remain firm in your plea?
THE DEFENDANT: Yes, I do.
THE COURT: The record will reflect that, first of all, Ms. Steiner went and
explained this to him. Is that correct?
MS. STEINER: Yes, Judge.
THE COURT: I have explained it to him as well. And he does not wish to change
his plea or withdraw his plea based on my previous erroneous instructions of telling him it
was two years. And that does not change his plea. It is three years to life. And he is fully
apprised. And do you understand it completely? Any other questions?
THE DEFENDANT: No.”
¶9 Mr. Shaw’s sentence was accordingly modified to include an MSR term of three years to
life.
¶ 10 B. Mandatory Supervised Release and “Turnaround Practice” in Illinois
¶ 11 Mr. Shaw’s postconviction claims rest on the process in Illinois by which individuals who
have completed their terms of incarceration are released from prison to serve their terms of MSR.
The Unified Code of Corrections (Code) provides that a term of MSR must follow every sentence
of imprisonment and specifies the length of that term in section 5-8-1(d) of the Code (730 ILCS
5/5-8-1(d) (West 2012)). For individuals convicted of certain sex offenses, including criminal
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sexual assault, the term of MSR is “a minimum of 3 years” and “a maximum of the natural life of
the defendant.” Id. § 5-8-1(d)(4). Section 3-14-2.5 of the Code, governing the “[e]xtended
supervision of sex offenders,” also makes clear that a term of MSR imposed in connection with
one of these offenses does not begin to run until the defendant has been released from prison. Id.
§ 3-14-2.5(e) (providing that “the term of extended mandatory supervised release pursuant to
paragraph (4) of subsection (d) of Section 5-8-1 of this Code shall toll during any period of
incarceration” (emphasis added)). There is no similar provision for any of the other offenses listed
in section 5-8-1(d).
¶ 12 Conditions of release while on MSR are determined by the PRB, and compliance with
those conditions is monitored by the Illinois Department of Corrections (IDOC). Id. §§ 3-3-1(a)(5),
3-3-7(a), 3-14-2(a). Some statutory conditions of release—like refraining from possessing a
firearm or other dangerous weapon, refraining from violating any criminal statute, and regularly
reporting to an agent of the IDOC—apply to everyone on MSR. Id. § 3-3-7(a). Individuals, like
Mr. Shaw, who are required to register as sex offenders, are subject to a variety of other statutorily
mandated conditions. The Code provides, for example, that they may not reside with other
convicted sex offenders and must refrain from accessing social networking websites Id. § 3-3-
7(a)(7.6), (7.12). If convicted of offenses, like criminal sexual assault, that qualify them as sexual
predators, they must also wear an approved electronic monitoring device while on MSR. Id. § 3-
3-7(a)(7.7).
¶ 13 The statutory scheme gives the PRB and IDOC significant discretion to impose and enforce
additional conditions of release on convicted sex offenders. The PRB, for example, may prohibit
a sex offender from using a computer or other device with Internet capability without the IDOC’s
prior written approval. Id. § 3-3-7(b)(7.6)(i). It may also require sex offenders to reside only at
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IDOC-approved locations, forbid them from residing near parks, schools, day cares, swimming
pools, beaches, theaters, “or any other places where minor children congregate,” and require them
to “comply with all other special conditions that the [IDOC] may impose that restrict [them] from
high-risk situations and limit [their] access to potential victims.” Id. § 3-3-7(b-1)(1), (12), (15).
¶ 14 Inmates serving time for sex offenses in Illinois may be “violated at the door” if, upon the
completion of their prison terms, they are unable to secure host sites that comply with their terms
of release. The United States District Court for the Northern District of Illinois explained this
practice in Murdock v. Walker, No. 08 C 1142, 2014 WL 916992, at *2 (N.D. Ill. Mar. 10, 2014).
It noted that as a prisoner’s projected release date approaches, he or she must submit a release plan
to the PRB. Id. The PRB then determines whether the prisoner is eligible for release and on what
conditions, issuing a release order with a specific release date for the prisoner. Id.; 730 ILCS 5/3-3-
1(a)(5), 3-3-7(a) (West 2012). The IDOC then investigates the terms of the prisoner’s release plan
and determines if they will comply with the prisoner’s conditions of release. Murdock, 2014 WL
916992, at *2. Inmates without an approved host site are not released from prison. Id. at *3.
Instead, in what has become known as “ ‘turnaround practice,’ ” they are “violated at the door”
and returned to the general prison population. Id. Such inmates are given new release dates but,
because they are often unable to rectify their lack of suitable housing, are subject to—in the
Murdock court’s words—a “Kafkaesque loop” ending only when the inmate “either [finds] a
suitable housing location or serve[s] out the remainder of his parole time in prison.” Id. at *4.
¶ 15 Challenges to these practices have met with some success in recent years. In 2019, for
example, the Northern District of Illinois concluded that the way the IDOC was enforcing its host-
site policies “create[d] an illegal classification based on wealth” that, in violation of their right to
equal protection, “indefinitely deprive[d] [indigent sex offenders] of their liberty” as a result of
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their inability to afford qualifying housing. Murphy v. Raoul, 380 F. Supp. 3d 731, 759 (N.D. Ill.
2019). Last year, the same court granted a preliminary injunction enjoining the IDOC’s host-site
policies. Stone v. Jeffreys, No. 21 C 5616, 2022 WL 4596379 (N.D. Ill. Aug. 30, 2022).
¶ 16 C. Postconviction Proceedings
¶ 17 In the pro se postconviction petition he filed on May 6, 2018, Mr. Shaw alleged that his
guilty plea “was not intelligently entered [into] with full knowledge of the consequences” because,
although the circuit court advised him that his new plea “[would] not change his out date,” it
“clearly did.” Mr. Shaw explained that, as of the filing of his petition, he was still in prison 17
months after his initial release date of September 24, 2014. Mr. Shaw would remain in prison for
over 4½ years beyond that date, or until May 8, 2019, a fact that he asserts in his appellate brief,
that the State does not contradict, and that we have confirmed by our own review of the IDOC
website. See People v. Ware, 2014 IL App (1st) 120485, ¶ 29 (noting that this court may take
judicial notice of information appearing on the IDOC website).
¶ 18 Mr. Shaw explained in his petition that on the date he completed his agreed-to prison term,
he was “violated upon release” by the IDOC for not having an approved host site. He contended
that the two-year MSR term he had initially received “would have allowed him to be released from
I.D.O.C. custody when [the] M.S.R. expire[d].” The open-ended term of three years to life that he
ultimately received, however, meant that he could be held indefinitely. Mr. Shaw alleged that the
circuit court judge had failed to properly admonish him and had in fact provided him with incorrect
responses to his questions.
¶ 19 Mr. Shaw claimed that his plea counsel was also ineffective for failing to understand or
explain to him that he could remain in prison indefinitely. He alleged that when he told his lawyer
that he was concerned about the possibility of serving a term of MSR that was “for life,” she told
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him that that would only apply if he “[caught] violent offenses *** while on parole or [caught]
more cases in custody before [he] reach[ed] his out date.” Because he was “no serial rapist,” she
assured him that he would “only do the 3 years of the M.S.R.”
¶ 20 Mr. Shaw also alleged that his counsel downplayed the onerous nature of the restrictions
that would apply to him as a sex offender, “lead[ing] [him] to believe it wasn’t a difficult process”
and that he would only be required to go to the police station once a year and avoid children with
whom he was not related. He did not understand that he would not be allowed to reside anywhere
there was Internet or a smartphone and, since his case had nothing to do with a child, he did not
think he would be subjected to the rules involving proximity to minors. Mr. Shaw explained that
his counsel was reluctant to discuss the fact that he was charged with a sex offense while they were
in the holding area because it could provoke other inmates to become hostile with him, but he
faulted her for not furnishing him with a copy of the applicable rules “and let[ting] him decide if
that’s something he would want to plea to for the rest of his life.”
¶ 21 Mr. Shaw alleged that he had no family member to live with upon release from prison and
had planned instead to “start clean from a shelter [or] halfway house.” He alleged in his petition
that the evidence against him was not strong because he had a plausible defense of consent and
maintained that he would never have pleaded guilty if he had known that he would be subject to
requirements that were “impossible to follow” and that he could be held indefinitely while his
proposed MSR host sites were considered and rejected by the IDOC.
¶ 22 The circuit court summarily dismissed Mr. Shaw’s petition on June 10, 2016. The court
stated that the record rebutted Mr. Shaw’s claim that he was not properly admonished regarding
his term of MSR. The court acknowledged that it had initially given Mr. Shaw an incorrect term
of two years of MSR but concluded the hearing transcript showed that a correction was made, Mr.
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Shaw was told his term of MSR would instead be three years to life, with release determined by
the PBR, and Mr. Shaw had clearly agreed to plead guilty on those modified terms. The court did
not address Mr. Shaw’s argument that its admonishments should have included some explanation
of the possibility that he could be incarcerated beyond the five-year prison term he agreed to if he
could not find an approved host site.
¶ 23 Mr. Shaw appealed that ruling, and on January 18, 2019, we granted the State’s motion for
summary disposition of the appeal and to remand for second-stage proceedings. People v. Shaw,
No. 1-16-2057 (2019) (unpublished summary order under Illinois Supreme Court Rule 23(c)). The
public defender was appointed to represent Mr. Shaw and filed a supplemental petition on his
behalf.
¶ 24 The State moved to dismiss the petition, as supplemented, arguing that due process required
no admonishments beyond those found in Illinois Supreme Court Rule 402 (eff. July 1, 2012),
with which the circuit court had substantially complied. And even if counsel had failed to inform
Mr. Shaw that he would need to have an approved host site to be released on MSR, the State argued
that Mr. Shaw’s bare assertion that he would not have pleaded guilty if so informed was
insufficient to establish prejudice.
¶ 25 The circuit court granted the State’s motion to dismiss Mr. Shaw’s petition in a written
order entered on August 12, 2022. The court again noted both that the mistake in the
admonishments concerning the length of Mr. Shaw’s MSR period had been corrected and that Mr.
Shaw had agreed to continue with his guilty plea in light of that correction. The court concluded
that Mr. Shaw’s guilty plea was made knowingly and voluntarily, and it rejected as conclusory his
argument that his counsel had failed to properly advise him.
¶ 26 This appeal followed.
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¶ 27 II. JURISDICTION
¶ 28 The circuit court dismissed Mr. Shaw’s postconviction petition at the second stage on
August 12, 2022, and Mr. Shaw filed a timely notice of appeal from that ruling on August 26,
2022. We have jurisdiction over this appeal, pursuant to article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 606 (eff. Mar. 12,
2021) and 651(a) (eff. July 1, 2017), governing appeals from final judgments in postconviction
proceedings.
¶ 29 III. ANALYSIS
¶ 30 Mr. Shaw contends, and the State does not argue otherwise, that the IDOC would only
approve a host site for him to serve his term of MSR if that location “(1) ha[d] no other sex
offenders living on the premises; (2) ha[d] a working telephone land line to comply with electronic
monitoring; (3) [was] not within 500 feet of a school, park, playground, or day care center; and
(4) [did] not have a computer or smart phone with internet capabilities.” Mr. Shaw asserts that
with no money or home of his own, no family member willing to forego Internet access, and no
halfway house or transitional housing facility willing to take in a convicted sex offender, he was
unable to secure a compliant host site at which to serve out his term of MSR. He alleged that this
led him to be violated at the door and, ultimately, to serve over 4½ additional years beyond his
prison sentence. Mr. Shaw alleged that neither the circuit court nor his counsel advised him that
he could be incarcerated indefinitely if he was unable to find an approved host site and that he
would have elected to go to trial if he had been made aware of that possible consequence of his
plea because he had a viable defense of consent. He argues on appeal that his petition should not
have been dismissed because he made a substantial showing that he was denied due process and
received ineffective assistance of counsel.
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¶ 31 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(a)(1) (West 2020)) allows a
criminal defendant to attack a prior conviction by establishing that it was the result of a substantial
deprivation of rights afforded by the United States or Illinois constitutions. The Act establishes a
three-stage process for the adjudication of postconviction petitions. People v. Boclair, 202 Ill. 2d
89, 99 (2002). At the first stage, the circuit court independently assesses the petition to determine
whether the allegations contained in it, when liberally construed and taken as true, present the gist
of a constitutional claim. Id. If so, the petition advances to the second stage, where counsel is
appointed to represent the defendant and, if necessary, to file an amended petition. People v.
Gaultney, 174 Ill. 2d 410, 418 (1996); 725 ILCS 5/122-4, 122-5 (West 2020).
¶ 32 At the second stage, the State must either move to dismiss or answer the claims in the
petition. Gaultney, 174 Ill. 2d at 418. Only if the petition and accompanying documentation make
a substantial showing of a constitutional violation will that claim proceed to the third stage, an
evidentiary hearing on the merits. People v. Silagy, 116 Ill. 2d 357, 365 (1987); 725 ILCS 5/122-
6 (West 2020). The court engages in no fact-finding or credibility determinations at the second
stage but takes as true all allegations not affirmatively rebutted by the record. People v. Dupree,
2018 IL 122307, ¶ 29. It is concerned with “the legal sufficiency of the petition’s well-pled
allegations of a constitutional violation”—i.e., whether the allegations “if proven at an evidentiary
hearing, would entitle [the] petitioner to relief.” (Internal quotation marks omitted.) Id. Our review
of the dismissal of a postconviction petition at the second stage is de novo. Id.
¶ 33 A. Due Process
¶ 34 We first consider Mr. Shaw’s claim that the circuit court’s admonishments at his plea
hearing caused him to enter a plea of guilty that was not made knowingly and intelligently, thus
denying him due process. Our supreme court has noted that “[f]undamentally, plea agreements are
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contracts, and principles of waiver apply equally to them.” People v. Jones, 2021 IL 126432, ¶ 21.
A defendant who pleads guilty to a criminal offense “waives several constitutional rights,
including his privilege against compulsory self-incrimination, his right to a trial by jury, and his
right to confront his accusers.” McCarthy v. United States, 394 U.S. 459, 466 (1969). To be valid,
such a waiver must be the “intentional relinquishment or abandonment of a known right or
privilege.” (Internal quotation marks omitted.) Id. If a defendant’s guilty plea is not both voluntary
and knowing, “it has been obtained in violation of due process and is therefore void.” Id.
¶ 35 Rule 402, adopted to ensure compliance with these due process requirements, provides that
a court shall not accept a guilty plea without first addressing the defendant in open court and
informing him of and determining that he understands “the nature of the charge,” the “minimum
and maximum sentences prescribed by law,” that he has the right to plead not guilty, and that by
pleading guilty he will be waiving his rights to a trial by jury and to be confronted by the witnesses
against him. Ill. S. Ct. R. 402(a)(1)-(4) (eff. July 1, 2012). Our supreme court has made clear that
“substantial compliance with [Rule 402(a)] is sufficient to satisfy due process.” People v. Burt,
168 Ill. 2d 49, 64 (1995).
¶ 36 Mr. Shaw does not dispute that the circuit court in this case gave him the admonishments
set out in Rule 402(a). He argues that the court should additionally have explained to him that once
he finished his five-year prison term, he could be “violated at the door” and remain in prison
indefinitely if he was unable to secure an approved host site at which to serve his term of MSR.
¶ 37 The State argues that the court has no obligation to inform a defendant pleading guilty of
the collateral, as opposed to the direct, consequences of that plea. Our supreme court has explained
the difference between the two. “[A] direct consequence of a guilty plea is one which has a definite,
immediate and largely automatic effect on the range of a defendant’s sentence.” People v. Hughes,
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2012 IL 112817, ¶ 35. A collateral consequence, by contrast, is one that “ ‘results from an action
that may or may not be taken by an agency that the trial court does not control.’ ” Id. ¶ 36 (quoting
People v. Delvillar, 235 Ill. 2d 507, 520 (2009)). Examples of collateral consequences include
“loss of employment, loss of voting rights, license suspension, and dishonorable discharge from
the military.” Id.
¶ 38 The State is correct. The IDOC’s turnaround practice was a collateral consequence of Mr.
Shaw’s guilty plea. And as our supreme court made clear in Hughes, the circuit court is simply not
required to independently advise a defendant of the “numerous and unfor[e]seeable” collateral
consequences of a guilty plea before accepting that plea. Id. ¶ 36. At argument in this court, counsel
for Mr. Shaw did not dispute either of these points.
¶ 39 Instead, counsel argued that Mr. Shaw was denied due process because the circuit court
judge not only failed to inform him of this serious collateral consequence of his plea, but
“affirmatively misadvised” him of it in response to his repeated questioning. Our supreme court
has recognized, albeit in a different context, that failing to advise a defendant of the collateral
consequences of a guilty plea and affirmatively misleading him regarding the nature of those
consequences are different.
¶ 40 In People v. Correa, 108 Ill. 2d 541, 544 (1985), the defendant pleaded guilty to a drug
charge, served his prison sentence, and was thereafter taken into custody by federal immigration
agents. He filed a postconviction petition seeking to set aside his guilty plea, on the grounds that
his counsel had misinformed him of the immigration consequences of his plea, and he was granted
that relief. Id. The State appealed, and both this court and our supreme court affirmed. Id. at 544,
553. Correa was, in our supreme court’s words, “not [a case] in which counsel simply failed to
advise the defendant of the collateral consequence of deportation” but one where “the defendant
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specifically asked counsel’s advice on the question” (id. at 550) and received “unequivocal,
erroneous, misleading representations” in response (id. at 552). Although plea counsel had said he
“ ‘didn’t know’ ” what federal immigration authorities would do in response to a guilty plea and
he “ ‘[didn’t] think’ ” the defendant had anything to worry about, when the defendant explained
that his wife was an American citizen, counsel affirmatively told him that a plea of guilty would
not affect his immigration status. Id. at 547-48. That advice was “erroneous and misleading,” and
it was obvious to the Correa court from the defendant’s repeated questions that his immigration
status was “a prime factor in making his decision whether to plead guilty.” Id. at 553.
¶ 41 Although Correa involved the advice of counsel rather than admonishments by the court,
the court’s analysis supports Mr. Shaw’s due process claim here. At the time Correa was decided,
the United States Supreme Court had not yet decided Padilla v. Kentucky, 559 U.S. 356, 360
(2010), which, as discussed in more detail below, held that lawyers have a sixth amendment
responsibility to advise their non-citizen clients of the deportation consequences of a guilty plea.
Thus, the court recognized in Correa that a claim that a guilty plea is involuntary can rest on
erroneous and misleading advice, even where there would be no independent duty to advise the
defendant of that consequence.
¶ 42 Here, Mr. Shaw maintains that the circuit court judge repeatedly and erroneously assured
him that the change to his MSR term—from two years to three years to life—would have no effect
on his “out date.” When Mr. Shaw’s counsel interjected, explaining that Mr. Shaw was in fact
asking if the change to his MSR term would “change[ ] his time served in custody,” the court
unequivocally responded “No. It does not. *** It changes your parole period.” That was not true.
Under the finite, two-year term of MSR Mr. Shaw originally received, even if he was violated at
the door, the longest he could have remained incarcerated following his prison term would have
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been two years. The change from a two-year term of MSR to one of three years to life opened up
the possibility that Mr. Shaw could instead be held indefinitely. In fact, because of the modification
to an open-ended MSR term, Mr. Shaw spent over 4 ½ additional years in custody after serving
his five-year sentence. The amount of time he could spend in prison was a fact that Mr. Shaw was
clearly concerned with, on which he repeatedly sought clarification from the court, and on which
he was affirmatively given wrong information.
¶ 43 The State does not dispute that this exchange took place. Nor does it argue that a direct
misrepresentation by the court regarding a collateral consequence of a guilty plea can never render
such a plea involuntary. The State’s position is that the circuit court’s answer to Mr. Shaw’s
question was not a misrepresentation at all; that it should be read narrowly to relate only to the
five-year prison term the court itself was authorized to impose. That cannot be, however, because
the entire discussion was prompted by the change from a finite to an open-ended term of MSR and
Mr. Shaw’s specific question about whether that could impact the amount of time he spent in
custody. Mr. Shaw’s understanding of that change was clearly the focus of the discussion.
¶ 44 We likewise reject the State’s suggestion that Mr. Shaw’s guilty plea was still voluntary
because he did not independently research the issue and file a timely motion to withdraw his plea.
Mr. Shaw alleged in his petition that he had no reason to believe he would not be released at the
end of his prison term until the conclusion of that term drew near.
¶ 45 We find that Mr. Shaw has made a substantial showing that his guilty plea cannot be
considered voluntary under these circumstances. His claim that he was denied due process should
proceed to a third-stage evidentiary hearing.
¶ 46 B. Ineffective Assistance of Counsel
¶ 47 Having determined that a third-stage evidentiary hearing is necessary, we consider next
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whether Mr. Shaw’s claim of ineffective assistance of counsel should also be a subject of that
hearing. See People v. Upshaw, 2017 IL App (1st) 151405, ¶ 34 (noting that “[t]he circuit court
must consider, at a third-stage evidentiary hearing, the merits only of those claims on which a
petitioner has made a substantial showing of constitutional error at the second stage”).
¶ 48 The sixth amendment to the United States Constitution “guarantees a defendant the right
to effective assistance of counsel at all critical stages of the criminal proceedings, including the
entry of a guilty plea.” Hughes, 2012 IL 112817, ¶ 44. To prevail on a claim of ineffective
assistance of counsel, a petitioner must establish both that (1) his “counsel’s performance fell
below an objective standard of reasonableness” and (2) “that he was prejudiced as a result of [that]
deficient performance.” (Internal quotation marks omitted.) People v. Valdez, 2016 IL
119860, ¶ 14 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). “A showing of
prejudice requires proof of a reasonable probability that, but for counsel’s errors, the result of the
proceedings would have been different.” Id. (citing Strickland, 466 U.S. at 694).
¶ 49 Until recently, many state and federal courts examining postconviction claims regarding
the validity of guilty pleas, including those in Illinois, applied the same test for ineffective
assistance of counsel claims as for due process claims, holding that plea counsel was simply not
required to advise a client of the collateral consequences of a guilty plea. Hughes, 2012 IL
112817, ¶ 45. Mr. Shaw is correct, however, that narrow exceptions to this general rule have
recently been recognized.
¶ 50 In Padilla, 559 U.S. at 360, the United States Supreme Court held that a postconviction
petitioner sufficiently alleged that his counsel was constitutionally deficient for failing to advise
him that, as a noncitizen, he would face deportation if he pleaded guilty to drug-related charges.
Declining to either endorse or reject the distinction relied on by the lower courts in that case
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between direct and indirect consequences of a guilty plea, the Padilla court concluded that counsel
had a duty to advise the petitioner that he would be subject to automatic deportation if he pleaded
guilty to the offense charged. Id. at 365-66. Although deportation was not a criminal sanction but
an indirect civil consequence of the petitioner’s guilty plea, the court noted that it was “a
particularly severe ‘penalty’ ” that could not easily be divorced from the conviction itself. Id.
Acknowledging that in some cases the risk of deportation would not be so clear, and the duty of
counsel would thus be more limited, the court concluded that plea counsel in that case could easily
have determined that the petitioner’s plea would make him eligible for automatic deportation by
reading the text of the statute. Id. at 369. And counsel should have known that preserving the
petitioner’s right to remain in the United States might be more important to him than any potential
prison sentence. Id. at 368.
¶ 51 Not long after Padilla was decided, our own supreme court considered in Hughes whether
plea counsel had a duty to advise the defendant in that case of the possibility that, at the conclusion
of his prison term, he could be civilly committed for an indeterminate period of time if the State
elected to file a petition under the Sexually Violent Persons Commitment Act (725 ILCS 207/1
et seq. (West 2006)). Hughes, 2012 IL 112817, ¶ 33. The Hughes court summarized the holding
in Padilla as follows: “Padilla commands that where consequences are severe, certain to occur,
‘enmeshed’ in the criminal process, and are of predictable importance to a defendant’s calculus,
they are not categorically excluded from Strickland’s purview despite being traditionally
categorized as collateral.” Id. ¶ 49. Recognizing that the possibility of involuntary commitment
was “not immediate, automatic, or mandatory in the same way that deportation would be,” the
court nevertheless concluded that the consequence was “ ‘enmeshed’ in the criminal process.”
Id. ¶ 50. And like deportation, the prospect of indefinite involuntary commitment was also a
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“uniquely severe” penalty that would be of material importance to a criminal defendant deciding
whether to plead guilty. Id. ¶¶ 51-52.
¶ 52 We agree with Mr. Shaw that, following these cases, certain consequences of guilty pleas
are so severe, so certain, and so intimately related to the criminal proceedings that defense
attorneys must advise their clients about them, regardless of whether they could be considered
collateral as opposed to direct consequences of a conviction. We also agree that the risk of being
“violated at the door” and held indefinitely beyond the conclusion of one’s prison term is one such
consequence.
¶ 53 The State points out that what happened to Mr. Shaw is not something that will necessarily
happen to all sex offenders. Counsel here had no duty, the State argues, to advise Mr. Shaw of the
mere possibility that the IDOC could, in its discretion, subject him to onerous conditions that
would cause him to be violated at the door. While the State is correct that the Padilla court focused
on deportation being an automatic consequence of the guilty plea in that case, Hughes expanded
the scope of consequences falling within that category. Our supreme court recognized in Hughes
that, although it was far from certain in a particular case that the State would exercise its discretion
and petition for the defendant’s involuntary commitment under the Sexually Violent Persons
Commitment Act or that, if so, the petition would be granted, every person convicted of a sexually
violent offense was statutorily eligible for commitment and would as a matter of course be subject
to a mandatory comprehensive evaluation for commitment near the end of his or her prison term.
Id. ¶ 50. It was thus not the certainty of the harsh penalty itself that the Hughes court found
significant, but the certainty that the defendant would be subjected to a process that could lead to
that result.
¶ 54 Here, Mr. Shaw alleged that, as a sex offender nearing the end of his prison term, he was
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required to submit a release plan that included a proposed host site for his MSR term and that the
IDOC, as part of its routine investigation into the compliance of such plans with a prisoner’s terms
of release, violated him at the door and returned him to custody, a practice that resulted in him
serving almost double the prison term the court sentenced him to. It was certain, given the nature
of Mr. Shaw’s offense, that stringent criteria would apply to his release, that his proposed release
plan would be subjected to scrutiny by the IDOC to ensure compliance with those criteria, and that
his indefinite term of MSR meant there was no cap on the length of time that he could remain in
prison absent an approved host site. Just as in Hughes, Mr. Shaw’s conviction automatically
subjected him to a process that could result in a truly severe penalty—an indefinite denial of his
liberty. This is a consequence that, under Padilla and Hughes, was “certain to occur, ‘enmeshed’
in the criminal process, and *** of predictable importance to [Mr. Shaw’s] calculus.” Id. ¶ 49.
Counsel’s failure to warn of that consequence, though it be collateral to his conviction, is thus not
categorically excluded from Strickland’s purview. Id.
¶ 55 We note also that there was something more than a bare failure to warn here. Although the
record does not establish that plea counsel affirmatively misled Mr. Shaw, his lawyer did stand by
and fail to correct the circuit court’s misstatement when Mr. Shaw asked, quite clearly, whether
the change to his MSR term would affect the amount of time he spent in prison. The court’s answer,
“No. It does not,” was wrong because the change from two years to three years to life meant that
there was no longer any cap on the time Mr. Shaw could be held in prison.
¶ 56 As both the Padilla and Hughes courts recognized, whether counsel’s representation in a
particular case should be deemed deficient “is a question of reasonableness” that is “ ‘necessarily
linked to the practice and expectations of the legal community.’ ” Id. ¶ 54 (quoting Padilla, 559
U.S. at 366). It is also one that must be “ ‘viewed as of the time of counsel’s conduct.’ ” Id. ¶ 61
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(quoting Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)).
¶ 57 Defense counsel oversimplified the matter, we believe, when she suggested at argument in
this court that any competent counsel in 2013 could tell, simply from looking at the applicable
statutes, that a client like Mr. Shaw would be subject to such onerous restrictions on where he
could reside during his MSR term that he might well never be released from prison. Nowhere in
the many statutory conditions imposed on sex offenders that counsel cites are those conditions
framed as residency requirements that will cause the IDOC to violate an inmate at the door. Other
inferences are required as well. Although the Code makes clear, for example, that sex offenders
convicted of crimes qualifying them as sexual predators are subject to electronic monitoring while
on MSR, it does not specify that an individual’s residence must have a landline telephone for the
electronic monitoring to be installed. 730 ILCS 5/3-3-7(a)(7.7) (West 2012). The Code provides
that the PRB “may” require a sex offender to reside only at an IDOC-approved location while on
MSR but does not expressly state that release from prison can be denied indefinitely if this
condition is not met. Id. § 3-3-7(b-1)(1). Even the requirement that a released defendant not access
or use a computer with Internet capability, which was alleged to have been imposed on any
approved site for Mr. Shaw, is phrased in the statute as a restriction that the PRB can impose on
sex offenders. Id. §3-3-7(b)(7.6)(i).
¶ 58 Nor are we convinced, however, by the State’s insistence that plea counsel would have to
be “clairvoyant” to understand that at least some inquiry and disclosure might be required in this
area before an informed decision could be made on an offer to plead guilty to a sex offense. The
State argues that it would be unreasonable to expect plea counsel to accurately predict what a
particular defendant’s financial or familial situation and ability to obtain an approved host site will
be at the conclusion of his prison term. We agree. But that does not prevent an attorney from
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advising her client about the impact of an indefinite term of MSR and the potential difficulties in
obtaining a host site. Whether prevailing professional norms in 2013 would have required plea
counsel to appreciate and explain turnaround practice as a serious collateral consequence of Mr.
Shaw’s guilty plea is ultimately a question of fact for a third-stage evidentiary hearing, but Mr.
Shaw has made the substantial showing required for this claim to advance to that stage.
¶ 59 The State also argues that Mr. Shaw cannot establish the second prong of the Strickland
test—that he was prejudiced by his counsel’s failure. In the context of a guilty plea, prejudice is
established where a defendant shows a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty but would instead have insisted on going to trial. People v. Rissley,
206 Ill. 2d 403, 457 (2003). A “bare allegation” is insufficient to establish this. Id. at 458. Rather,
the defendant must present “ ‘either a claim of innocence or the articulation of [a] plausible
defense’ ” that could have been raised at trial. (Emphasis omitted.) Id. at 460 (quoting United
States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 1995)). The State urges us to conclude that here,
as in People v. Tucek, 2019 IL App (2d) 160788, a case where the same due process and ineffective
assistance claims were made, prejudice has not been established.
¶ 60 Mr. Shaw’s petition contained more than a bare assertion that he would have gone to trial
if properly advised, however. He asserted, over approximately four to five pages of his petition, a
number of facts that, if proved, would support a defense of consent. He alleged that he met A.G.
at a local liquor store, that they exchanged telephone numbers, and that she texted him later that
night, asking if he wanted “some real goodies” and telling him “u no wat I like, make it happen.”
When he asked what she meant by that she responded: “money.” Mr. Shaw further alleged that
A.G. agreed to let him pick her up “in the wee hours of the morning,” never attempted to leave his
vehicle, had access to her phone all night but never called the police or anyone for help, and
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willingly got back into his vehicle with him after their encounter. He alleged that only when he
paid A.G. less than she had asked for did she contact the police to say she had been assaulted. Mr.
Shaw alleged that text message records would support his version of events. In contrast to the
defendant in Tucek, who merely attacked the credibility of the complaining witness in that case,
we find that Mr. Shaw has asserted a plausible defense of consent.
¶ 61 Mr. Shaw has thus made a substantial showing that his counsel’s performance fell below
an objective standard of reasonableness and that he was prejudiced as a result.
¶ 62 IV. CONCLUSION
¶ 63 For all of the above reasons, we reverse the circuit court’s dismissal at the second stage of
Mr. Shaw’s petition and remand for a third-stage evidentiary hearing on his due process and
ineffective assistance of counsel claims.
¶ 64 Reversed and remanded.
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No. 1-22-1358
People v. Shaw, 2023 IL App (1st) 221358
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 10-CR-
13778, the Hon. Alfredo Maldonado, Judge presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Brett C. Zeeb, of the State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Erin K. Slattery, and Kimberly C. Reeve, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
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