Petition for Writ of Certiorari — Josiah Daniel Porter, Petitioner v. Illinois

No. _____

IN THE SUPREME COURT OF THE UNITED STATES

______________________________________

JOSIAH DANIEL PORTER,

Petitioner,

v.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

______________________________________

On Petition for Writ of Certiorari

to the Appellate Court of Illinois, Fourth District

______________________________________

PETITION FOR WRIT OF CERTIORARI

______________________________________

ELLEN J. CURRY

Counsel of Record

Deputy Defender

Office of the State Appellate Defender

Fifth Judicial District

909 Water Tower Circle

Mt. Vernon, IL 62864

ellen.curry@osad.state.il.us

(618) 244-3466

AMY J. KEMP

Assistant Appellate Defender

Office of the State Appellate Defender

Fourth Judicial District

400 West Monroe Street, Suite 303

Springfield, IL 62704

COUNSEL FOR PETITIONER

QUESTION PRESENTED

To establish prejudice from defense counsel’s deficiency at the plea stage, a defendant

who has pleaded guilty must demonstrate a reasonable probability that, but for counsel’s

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

The courts below upheld a guilty plea that would not have been entered but for defense

counsel’s errors, reasoning that the ill effects of counsel’s poor performance were “cured”

by routine plea admonitions given by the trial court at the plea hearing. Shared by a

great and growing number of appellate courts, this notion of judicial cure appears to

equate satisfaction of the due process right to a knowing and voluntary plea with

satisfaction of the Sixth Amendment right to adequate aid and advice of counsel throughout

the plea process.

The question presented is: Whether a but-for causal relationship between the

defendant’s guilty plea and his counsel’s deficiency is nullified by judicial plea admonitions

addressing the subject but not the fact of the deficiency where the admonitions are

understood by the defendant and are not specifically undermined by counsel at the pleaentry proceeding.

i

PARTIES TO THE PROCEEDING

The caption of the case contains the names of all the parties to the proceeding

in the court whose judgment is sought to be reviewed.

RELATED PROCEEDINGS

•

People v. Porter, No. 15-CF-103, Circuit Court of the Eleventh Judicial Circuit,

McLean County, Illinois. Judgment of conviction entered July 15, 2016. Judgment

of sentence entered Sept. 28, 2016. Order denying motion to withdraw guilty plea

entered July 26, 2017.

•

People v. Porter, No. 4-17-0546, Appellate Court of Illinois, Fourth District. Opinion

and order affirming judgment below entered Nov. 12, 2019. Order denying petition

for rehearing entered Dec. 3, 2019.

•

People v. Porter, No. 125618, Supreme Court of Illinois. Order denying petition

for leave to appeal entered Mar. 25, 2020.

ii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL PROVISION AND COURT RULE INVOLVED . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE PETITION . . . . . . . . . . . . . . . . . . 6

I.

Dicta from this Court has left the door open to judicial

cure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II.

Judicial cure is widely accepted in federal circuit and

state courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

III.

Judicial cure collapses distinct constitutional guarantees

of due process and effective assistance of counsel at the

plea stage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

IV.

The facts and procedural history of this case cleanly

present the question underlying judicial cure. . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

APPENDIX

Opinion and order affirming judgment below, Appellate Court

of Illinois, Fourth District, People v. Porter, No. 4-17-0546

(Nov. 12, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

Order denying motion to withdraw guilty plea, Circuit Court

of the Eleventh Judicial Circuit, McLean County, Illinois,

People v. Porter, No. 15-CF-103 (July 26, 2017). . . . . . . . . . . 26a

iii

TABLE OF CONTENTS

(continued)

Order denying petition for leave to appeal, Supreme Court

of Illinois, People v. Porter, No. 125618 (Mar. 25, 2020) . . . . 36a

Judgment of conviction, Circuit Court of the Eleventh

Judicial Circuit, McLean County, Illinois, People v. Porter,

No. 15-CF-103 (July 15, 2016) . . . . . . . . . . . . . . . . . . . . . . . . 37a

Judgment of sentence, Circuit Court of the Eleventh

Judicial Circuit, McLean County, Illinois, People v. Porter,

No. 15-CF-103 (Sept. 28, 2016) . . . . . . . . . . . . . . . . . . . . . . . . 38a

Order denying petition for rehearing, Appellate Court of

Illinois, Fourth District, People v. Porter, No. 4-17-0546

(Dec. 3, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39a

Illinois Supreme Court Rule 402 (eff. July 1, 2012) . . . . . . . 40a

Transcript of plea hearing, Circuit Court of the Eleventh

Judicial Circuit, McLean County, Illinois, People v. Porter,

No. 15-CF-103 (July 15, 2016) . . . . . . . . . . . . . . . . . . . . . . . . 43a

Affidavit of plea-stage defense counsel, filed as Exhibit B to

the defendant’s Motion to Withdraw Guilty Plea, Circuit Court

of the Eleventh Judicial Circuit, McLean County, Illinois,

People v. Porter, No. 15-CF-103 (Mar. 27, 2017) . . . . . . . . . . 55a

Affidavit of state’s attorney, filed as Exhibit A to the People’s

Response to Defendant’s Motion to Withdraw Guilty Plea,

Circuit Court of the Eleventh Judicial Circuit, McLean County,

Illinois, People v. Porter, No. 15-CF-103 (May 12, 2017) . . . . 57a

iv

TABLE OF AUTHORITIES

CASES

Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020) . . . . . . . 6-7, 12, 16

Boyd v. Yukins, 99 Fed.Appx. 699 (C.A.6 2004) . . . . . . . . . . . . . . . . . . . . 9, 13

Frazier v. United States, 17-12151-G, 2018 WL 6046417 (C.A.11

Oct. 31, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Hill v. Lockhart, 474 U.S. 52 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12, 17

Lafler v. Cooper, 566 U.S. 156 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12

Lee v. United States, 137 S.Ct. 1958 (2017) . . . . . . . . . . . . . . . . . . . 6-8, 12, 17

McMann v. Richardson, 397 U.S. 759 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Missouri v. Frye, 566 U.S. 134 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 11-12

Padilla v. Kentucky, 559 U.S. 356 (2010) . . . . . . . . . . . . . . . . . . . . . 7, 11-12, 16

People v. Valdez, 2016 IL 119860, 67 N.E.3d 233 . . . . . . . . . . . . . . . . . . . . . 10

Robinson v. State, 422 S.C. 78, 810 S.E.2d 32 (2018) . . . . . . . . . . . . . . . . . . 10

State v. Martinez, 291 Ga. 455, 729 S.E.2d 390 (2012) . . . . . . . . . . . . . . . . . 10

Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Akande, 956 F.3d 257 (C.A.4 2020) . . . . . . . . . . . . . . . 10, 18

United States v. Akinsade, 686 F.3d 248 (C.A.4 2012) . . . . . . . . . . 9-10, 13-14

United States v. Bui, 795 F.3d 363 (C.A.3 2015) . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Kayode, 777 F.3d 719 (C.A.5 2014) . . . . . . . . . . . . . . . 9, 13-14

United States v. Newman, 805 F.3d 1143 (C.A.D.C. 2015) . . . . . . . . . . . . . . . 8

United States v. Pola, 703 Fed.Appx. 414 (C.A.6 2017) . . . . . . . . . . 10, 12, 18

v

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATUTES AND COURT RULES

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

720 ILCS 5/11-1.20(b)(1) (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

730 ILCS 5/5-4.5-30(a) (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

730 ILCS 5/5-8-4(d)(2) (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ill. Sup. Ct. R. 402 (eff. July 1, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

OTHER AUTHORITIES

ABA Standards for Criminal Justice, Defense Function, Standard

4-5.1(f), p. 45 (4th ed. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ABA Standards for Criminal Justice, Pleas of Guilty, Commentary to

Standard 14-3.2, p. 118 (3d. ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ABA Standards for Criminal Justice, Pleas of Guilty, Standard

14-3.2(b), p. 116 (3d. ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Jenny Roberts, Ignorance Is Effectively Bliss: Collateral Consequences,

Silence, and Misinformation in the Guilty-Plea Process, 95 Iowa L. Rev.

119 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

vi

No.

IN THE SUPREME COURT OF THE UNITED STATES

______________________________________

JOSIAH DANIEL PORTER,

Petitioner,

v.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

______________________________________

On Petition for Writ of Certiorari

to the Appellate Court of Illinois, Fourth District

______________________________________

PETITION FOR WRIT OF CERTIORARI

______________________________________

Josiah Daniel Porter respectfully petitions for a writ of certiorari to review the

judgment of the Appellate Court of Illinois, Fourth District, affirming the denial of his

motion to withdraw guilty plea.

OPINIONS BELOW

The unpublished opinion and order of the Appellate Court of Illinois, Fourth District

(Pet. App. 1a-25a), is reported at 2019 IL App (4th) 170546-U. The order of the Circuit

Court of the Eleventh Judicial Circuit, McLean County, Illinois (Pet. App. 26a-35a), is

not reported. The summary order of the Supreme Court of Illinois (Pet. App. 36a) is reported

at 144 N.E.3d 1171 (Table), 437 Ill.Dec. 581 (Table).

-1-

JURISDICTION

The Appellate Court of Illinois, Fourth District, affirmed the judgment below

on November 12, 2019. The appellate court denied a timely petition for rehearing on

December 3, 2019. On March 25, 2020, the Supreme Court of Illinois denied a timely

petition for leave to appeal. By order dated March 19, 2020, this Court extended the

deadline to file any petition for a writ of certiorari due on or after March 19, 2020, to

150 days from the date of the order denying discretionary review. Petitioner invokes

this Court’s jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION AND COURT RULE INVOLVED

The Sixth Amendment to the Constitution of the United States provides: “In all

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of

Counsel for his defence.”

The text of Illinois Supreme Court Rule 402 is set out in the appendix to the petition

(Pet. App. 40a-42a).

STATEMENT OF THE CASE

In January 2015, 23-year-old Josiah Daniel Porter was charged with two counts

of criminal sexual assault of complainant P.H. Co-defendants including G’Elente Collins

were similarly charged. Mr. Porter’s counsel Derrick Reese and Assistant State’s Attorney

Kristin Alferink tried to negotiate a plea, and Mr. Porter waived his right to a jury trial.

But plea negotiations had failed by March 2016, when Mr. Reese and ASA Alferink jointly

informed the court on the record that Mr. Porter’s case would be tried. About two months

later, Mr. Porter filed a motion to suppress evidence, a petition seeking production of

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subpoenaed police records, and a petition for substitution of judge. Mr. Porter’s substitution

petition was granted, and his suppression motion was to be set for hearing before the

newly assigned judge.

Instead of scheduling a suppression hearing, Mr. Reese and ASA Alferink scheduled

a mid-July 2016 hearing for Mr. Porter’s entry of an “open plea.” In so doing, ASA Alferink

understood that Mr. Porter would enter an open guilty plea to two counts of criminal

sexual assault; Mr. Reese understood that Mr. Porter would enter an open guilty plea

to one count of criminal sexual assault. Pet. App. 55a-58a. The record is silent as to how

Mr. Reese came to believe that ASA Alferink would dismiss one count of criminal sexual

assault if Mr. Porter entered an open guilty plea to the other count. See Pet. App. 55a-56a.

ASA Alferink neither conveyed such an offer to Mr. Reese nor accepted such an offer

from Mr. Reese. Pet. App. 57a. Yet in a meeting with Mr. Porter and his parents in late

June 2016—and again as Mr. Reese drove Mr. Porter some 120 miles to the courthouse

on the morning of the scheduled plea hearing—Mr. Reese told Mr. Porter that he could

plead guilty to one count of criminal sexual assault in exchange for dismissal of the other

count. Pet. App. 55a. The promised plea was to halve Mr. Porter’s prison exposure from

a minimum of 8 years and a maximum of 30 years to a minimum of 4 years and a maximum

of 15 years. 720 ILCS 5/11-1.20(b)(1) (2014); 730 ILCS 5/5-4.5-30(a), 5/5-8-4(d)(2) (2014).

Just before the plea hearing began, Mr. Reese reviewed the plea paperwork,

spoke with ASA Alferink, and realized that they had no plea agreement whatsoever.

Pet. App. 55a-56a. Mr. Reese “informed this” to Mr. Porter in the courthouse hallway,

where Mr. Porter’s parents were waiting for the hearing. Pet. App. 56a, 58a.

-3-

The record suggests that Mr. Porter had reason to believe that complainant P.H. was

present at the courthouse as well. As Mr. Porter stood in the hallway with ASA Alferink,

Mr. Reese, and his parents, he agreed to go through with the plea in exchange for nothing

from the state. Pet. App. 56a, 58a. Moments later, after a colloquy with the trial court

as required by Illinois Supreme Court Rule 402, Mr. Porter entered an open guilty plea

to two counts of criminal sexual assault. Pet. App. 37a, 43a-54a; see Pet. App. 40a. The

court found “an understanding and voluntary waiver” and a factual basis and accepted

the plea. Pet. App. 37a, 53a. Mr. Porter later was sentenced to a total of 14 years in prison.

Pet. App. 38a. Through Mr. Reese, Mr. Porter timely filed a motion to reconsider sentence.

While that motion was pending, one of Mr. Porter’s co-defendants, Mr. Collins,

was tried and acquitted of criminal sexual assault of P.H., who admitted on the witness

stand to telling a number of lies about her alleged assault by Mr. Collins, Mr. Porter,

and another. Mr. Porter hired new counsel through whom, with the trial court’s leave,

he filed a motion to withdraw guilty plea, arguing that he was deprived of his Sixth

Amendment right to effective assistance of counsel at the plea stage. Mr. Porter alleged

in his plea-withdrawal motion that Mr. Reese “communicated an apparently non-existent

[plea] offer” to Mr. Porter and his parents, “re-iterated it to him on the drive to court,”

and—upon learning that no plea offer existed—made no attempt “to delay the plea or

set the matter for trial” or otherwise to give Mr. Porter “a meaningful opportunity to

understand his options.” Mr. Porter also alleged in his plea-withdrawal motion that,

but for those deficiencies, he would not have pleaded guilty. The trial court denied the

motion, reasoning that Mr. Porter’s ineffective-assistance claim must fail because any

“misinformation” given to him by Mr. Reese was “corrected” or “cured” by the court’s

admonitions at the plea hearing. Pet. App. 28a-30a, 35a.

-4-

Mr. Porter timely appealed, arguing that he was deprived of his Sixth Amendment

right to effective assistance of counsel at the plea stage. Mr. Porter alleged in his opening

brief that Mr. Reese “induc[ed] [him] to act in reliance on a plea offer that never existed”

and then “fail[ed] to secure time and space to advise [him] after the zero-hour revelation

that, despite what [Mr.] Reese told him repeatedly, there was no plea agreement.”

Mr. Porter also alleged in his opening brief that he would not have pleaded guilty but

for those deficiencies, citing record evidence that “the defense went into ‘trial mode’ when

negotiations had not resulted in a plea agreement by the spring of 2016, making various

filings in anticipation of trial”; that “ ‘he was confused and felt pressured’ ” to go through

with the plea even though the believed bargain had evaporated in the courthouse hallway;

and that going to trial rather pleading guilty as charged “would have been virtually riskless,

as he faced 8 to 30 years’ imprisonment either way.” The appellate court affirmed the

denial of Mr. Porter’s plea-withdrawal motion, reasoning that he was not deprived of

effective assistance of counsel at the plea stage because, by the time he entered his plea,

he knew that he was pleading to two counts of criminal sexual assault:

[T]he thorough admonishments given to defendant and the inquiry of

defendant by the trial court dispelled any error in the attorney’s initial

misunderstanding of the plea or the manner in which the plea agreement

was reached, thereby ensuring the plea was voluntarily and intelligently

made. There is no dispute, and the record is clear, the trial court advised

defendant, and reiterated several times, he was pleading to two counts of

criminal sexual assault. . . . Defendant makes no claim the trial court’s

admonishments, given pursuant to Rule 402 (Ill. S. Ct. R. 402 (eff. July

1, 2012)) before his plea, were in any way misleading or incomplete. . . .

. . . [T]he issue . . . is whether his attorney’s misrepresentations were

the determinative factor causing him to plead guilty. The record shows

they were not. It is plausible the miscommunication regarding the terms

of the plea got defendant to the courthouse and through the door, but it

did not get him to plead guilty. By the time defendant pleaded guilty, he

-5-

knew the offer, as his attorney initially understood it, never existed. . . . Any

mistake was corrected and cured by the admonishments and comments

of the court . . . .

Pet. App. 1a, 15a-17a.

Mr. Porter’s timely petition for rehearing was denied summarily by the appellate

court, and his timely petition for leave to appeal to the Supreme Court of Illinois also

was denied summarily. Pet. App. 36a, 39a. Mr. Porter now respectfully petitions this

Court for a writ of certiorari.

REASONS FOR GRANTING THE PETITION

I.

Dicta from this Court has left the door open to judicial cure.

Time and again, this Court has articulated a but-for causation standard to establish

prejudice from defense counsel’s deficiency at the plea stage. Lee v. United States, 137

S.Ct. 1958, 1965 (2017) (“[W]hen 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.’ ” (quoting Hill v. Lockhart,

474 U.S. 52, 59 (1985))); Missouri v. Frye, 566 U.S. 134, 148 (2012) (“In cases where a

defendant complains that ineffective assistance led him to accept a plea offer as opposed

to proceeding to trial, the defendant will have to show ‘a reasonable probability that,

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

going to trial.’ ” (quoting Hill, 474 U.S. at 59)). A but-for causation standard is “simple”

and “traditional”: it is satisfied “whenever a particular outcome would not have happened

‘but for’ the purported cause.” Bostock v. Clayton County, Georgia, 140 S.Ct. 1731, 1739

(2020) (internal quotations omitted) (addressing causation in the Title VII context).

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“In other words, a but-for test directs us to change one thing at a time and see if the

outcome changes. If it does, we have found a but-for cause.” Bostock, 140 S.Ct. at 1739.

The prejudice inquiry therefore turns on “what an individual defendant would

have done” were it not for his counsel’s deficiency at the plea stage. Lee, 137 S.Ct. at 1967.

Is there a reasonable probability that the defendant would have gone to trial rather than

pleading guilty if his counsel’s performance had met “the prevailing professional norms

of effective representation” at the plea stage? Padilla v. Kentucky, 559 U.S. 356, 367 (2010).

If so, counsel’s failure to meet those norms is a but-for cause of the defendant’s guilty

plea, even if counsel’s failure is not the sole cause—or even the primary cause—of the

defendant’s plea. Cf. Bostock, 140 S.Ct. at 1739-40 (stating in the Title VII context that

a but-for causation standard is “sweeping” and contrasting it with “more parsimonious”

standards of causation, such as a standard that declines to treat a factor as a cause if

the factor is one of a “confluence of multiple factors” that led to a result, or a standard

that treats one of multiple factors as a cause only if that factor is the “main cause” of

a result).

Yet this Court once suggested that prejudice from defense counsel’s deficiency

may be cured at the plea-entry proceeding with information provided by the trial court

or even by a representative of the state:

Before a guilty plea is entered the defendant’s understanding of the plea

and its consequences can be established on the record. This affords the State

substantial protection against later claims that the plea was the result

of inadequate advice. At the plea entry proceedings the trial court and all

counsel have the opportunity to establish on the record that the defendant

understands the process that led to any offer, the advantages and

disadvantages of accepting it, and the sentencing consequences or possibilities

that will ensue once a conviction is entered based upon the plea. . . . [T]here

may be instances when claims of ineffective assistance can arise after the

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conviction is entered. Still, the State, and the trial court itself, have had

a substantial opportunity to guard against this contingency by establishing

at the plea entry proceeding that the defendant has been given proper advice

or, if the advice received appears to have been inadequate, to remedy that

deficiency before the plea is accepted and the conviction entered.

Frye, 566 U.S. at 142. Perhaps because Frye did not involve any argument that prejudice

from counsel’s deficiency was cured at the plea-entry proceeding, this Court did not explore

or explain the causal mechanism of the cure it posited in dicta. See id. at 138-39, 142.

About five years after Frye, this Court observed in a footnote the pronouncement

by several federal circuit courts that prejudice from defense counsel’s deficiency may

be cured by the trial court’s statements or warnings at the plea-entry proceeding.

Lee, 137 S.Ct. at 1968 n.4. The footnote did not mention this Court’s own cure-related

dicta from Frye. See id. In any event, Lee was no occasion to approve or disapprove the

circuits’ notion of judicial cure: that case “involve[d] a claim of ineffectiveness of counsel

extending to advice specifically undermining the judge’s warnings themselves, which

the defendant contemporaneously stated on the record he did not understand.” Id.

Consequently, “no suggestion” was made that the “judge’s statements at the plea colloquy

cured any prejudice from the erroneous advice of Lee’s counsel,” and this Court could

do no more than flag the issue of judicial cure for future analysis and resolution. Id.

II.

Judicial cure is widely accepted in federal circuit and state courts.

The Lee footnote cited four cases exhibiting the circuits’ notion of judicial cure

of prejudice from defense counsel’s deficiency. Lee, 137 S.Ct. at 1968 n.4. In each of those

cases is an unstated proposition that judicial plea admonitions may disrupt the causal

relationship between counsel’s deficiency and the defendant’s guilty plea. See United

States v. Newman, 805 F.3d 1143, 1147 (C.A.D.C. 2015) (hinting that petitioner might

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struggle to establish prejudice from counsel’s misadvice about immigration consequences

because the trial court “expressly warned him that his plea could affect his immigration

status”); United States v. Kayode, 777 F.3d 719, 728-29 (C.A.5 2014) (concluding that

petitioner failed to establish prejudice from counsel’s failure to advise him of immigration

consequences because the trial court repeatedly informed him that “he could face

deportation as a result of pleading guilty” (internal quotation omitted)); United States

v. Akinsade, 686 F.3d 248, 253, 255 (C.A.4 2012) (stating that plea admonitions given

by the trial court are “curative” as to prejudice from counsel’s affirmative misadvice where

they “address [and correct] the particular issue underlying” the misadvice); Boyd v. Yukins,

99 Fed.Appx. 699, 704-05 (C.A.6 2004) (concluding that petitioner failed to establish

prejudice from counsel’s alleged misadvice about sentencing because the misadvice

“was remedied by the plea colloquy, which made it clear that she could face a sentence

up to and including life imprisonment”).

So too have other federal cases embraced judicial cure without exploring, or even

touching on, just how plea admonitions interact with the but-for causation standard

to establish prejudice. See, e.g., Frazier v. United States, 17-12151-G, 2018 WL 6046417,

at *3-*4 (C.A.11 Oct. 31, 2018) (concluding that petitioner “cannot establish prejudice”

from counsel’s alleged misadvice about sentencing because a written plea agreement

and a plea colloquy with the trial court contradicted the misadvice), cert. denied,

139 S.Ct. 1399 (2019); United States v. Bui, 795 F.3d 363, 367 (C.A.3 2015) (indicating

that a plea colloquy with the trial court “serve[s] to remedy” counsel’s misadvice in “the

majority of guilty plea cases”). In fact, the Fourth Circuit seems to have hardened its

position on judicial cure, recently stating that “a defendant cannot prevail on a claim

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of ineffective assistance of counsel that arises from counsel’s misadvice if, before accepting

the plea, ‘the district court provides an admonishment that corrects the misadvice and

the defendant expresses that he understands the admonishment.’ ” United States v. Akande,

956 F.3d 257, 262 (C.A.4 2020) (emphasis added) (quoting Akinsade, 686 F.3d at 253).

The Sixth Circuit likewise has articulated a rigid rule of judicial cure: “The court’s proper

advisement of rights is . . . deemed to foreclose any showing of actual prejudice attributed

to counsel’s erroneous advice, because the defendant is deemed bound by his statements in

response to the court’s inquiry.” United States v. Pola, 703 Fed.Appx. 414, 423 (C.A.6 2017)

(emphasis added) (internal quotation omitted).

And a number of state cases have followed suit with unexamined endorsements

of judicial cure. See, e.g., State v. Martinez, 291 Ga. 455, 456, 729 S.E.2d 390, 392 (2012)

(“A trial court’s plea colloquy warnings of adverse immigration consequences, especially

where . . . the defendant affirmatively acknowledges his understanding that he is certain

or almost certain to face deportation, generally shows that the defendant cannot

demonstrate prejudice or that any prejudice was cured, regardless of whether plea counsel

had previously given affirmative misadvice or failed to give any advice.”); People v. Valdez,

2016 IL 119860, ¶¶ 31-32, 67 N.E.3d 233, 242 (stating that “[i]t is well established

that admonishments by the circuit court can cure prejudice to a defendant resulting

from counsel’s incorrect advice” and concluding that “[a]ny prejudice suffered by

defendant as a result of counsel’s failure [to advise him of immigration consequences]

was cured by the circuit court’s” warning about the possibility of such consequences);

Robinson v. State, 422 S.C. 78, 88, 810 S.E.2d 32, 37-38 (2018) (stating that “a proper

guilty plea colloquy may serve to cure the deficiency of plea counsel and remove any

prejudice” where the colloquy “unambiguously address[es] and resolve[s] the incorrect

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advice” given by counsel). This case is among them: here, the appellate court all but

agreed that Mr. Reese’s “miscommunication regarding the terms of the plea got [Mr. Porter]

to the courthouse and through the door” but concluded that the miscommunication was

“corrected and cured” during the ensuing plea hearing “by the admonishments and

comments of the court.” Pet. App. 16a-17a.

III.

Judicial cure collapses distinct constitutional guarantees of due process

and effective assistance of counsel at the plea stage.

Although this Court has yet to squarely address judicial cure, its relevant decisions

cast doubt on the widely accepted proposition that plea admonitions may cancel the but-for

causal effect of counsel’s deficiency. In Padilla, this Court rejected the state’s argument

that “a knowing and voluntary plea supercedes errors by defense counsel.” Frye, 566

U.S. at 141. In so doing, this Court implicitly but necessarily distinguished between

(1) the due process requirement that a guilty plea be entered voluntarily by a defendant

who had sufficient knowledge, from whatever source, of the plea’s relevant circumstances

and likely consequences; and (2) the Sixth Amendment requirement that a guilty plea

be entered by a defendant who had objectively reasonable representation by counsel

“[b]efore deciding whether to plead guilty.” Padilla, 559 U.S. at 364-66; see id. at 390-92

& n.1 (Scalia, J., dissenting) (arguing that petitioner’s claim should have been analyzed

under the Due Process Clause rather than the Sixth Amendment).

The Padilla distinction between due process and effective assistance was then

underscored by this Court’s persistent refusal to treat plea-stage defense counsel as no

more than a conduit for information about a guilty plea’s circumstances and consequences.

See Frye, 566 U.S. at 145 (holding that counsel has a Sixth Amendment “duty to

communicate formal offers from the prosecution to accept a plea on terms and conditions

that may be favorable to the accused”); Lafler v. Cooper, 566 U.S. 156, 163, 173-74 (2012)

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(concluding that respondent was entitled to Sixth Amendment remedy where counsel

misadvised him to reject a favorable plea offer “on the grounds he could not be convicted

at trial” and noting that “[a]n inquiry into whether the rejection of a plea is knowing

and voluntary . . . is not the correct means by which to address a claim of ineffective

assistance of counsel”). Recognizing that criminal justice in the United States “is for

the most part a system of pleas, not a system of trials,” this Court has enforced a Sixth

Amendment right to adequate aid and advice of counsel throughout the plea

process—separate and apart from the due process right to a knowing and voluntary plea.

Frye, 566 U.S. at 143-44 (internal quotation omitted); Lafler, 566 U.S. at 169-70.

And again, this Court has stated consistently and unequivocally that a defendant

suffers Sixth Amendment prejudice from his counsel’s deficiency at the plea stage if that

deficiency is a but-for cause of the defendant’s guilty plea. Lee, 137 S.Ct. at 1965;

Frye, 566 U.S. at 148; Hill, 474 U.S. at 59. The but-for causation standard asks whether

the defendant would have pleaded guilty if he had not been “left to the ‘mercies of

incompetent counsel’ ” in “deciding whether to plead guilty.” Padilla, 559 U.S. at 364, 374

(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)); cf. Bostock, 140 S.Ct. at 1739

(stating in the Title VII context that “a but-for test directs us to change one thing at

a time and see if the outcome changes[;] [i]f it does, we have found a but-for cause”).

The focus is on the “defendant’s decisionmaking” about a possible guilty plea and how

that decisionmaking was influenced by what his counsel did or did not do during the

plea process. Lee, 137 S.Ct. at 1966.

Judicial cure, by contrast, asks whether the defendant knew the circumstances

and consequences of his guilty plea at the moment he entered it. See, e.g., Pola, 703

Fed.Appx. at 423 (reasoning that petitioner knew the possible sentencing consequences

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of his guilty plea when he entered it, notwithstanding counsel’s alleged misadvice about

sentencing consequences, because he was “deemed bound” by his statement of

understanding during the plea colloquy); Kayode, 777 F.3d at 729 (reasoning that petitioner

knew the possible immigration consequences of his guilty plea when he entered it,

notwithstanding counsel’s failure to advise him of immigration consequences, because

his statements of understanding during the plea colloquy “carr[ied] a strong presumption

of verity” (internal quotation omitted)). The focus is on the trial court as an alternative

source of accurate information about the guilty plea to be entered. See, e.g., Akinsade,

686 F.3d at 254 (considering whether judicial admonitions “properly inform[ed]” petitioner

“of the [immigration] consequence he faced by pleading guilty” where counsel had previously

misadvised him about that consequence (internal quotation omitted)); Boyd, 99 Fed.Appx.

at 704-05 (concluding that “[a]ny misleading information” about sentencing “imparted”

to petitioner by counsel “was remedied by the plea colloquy,” which included accurate

information about sentencing).

It is far from evident that bare information provided by a neutral judge in a formal

courtroom setting, and after the defendant has already decided to plead guilty, is

functionally equivalent to aid and advice provided by the defendant’s own counsel in

a private and more colloquial setting, and at a time when he had yet to decide whether

to plead guilty. The American Bar Association has observed:

Although the court must inquire into the defendant’s understanding

of the possible consequences at the time the plea is received . . . , this inquiry

is not, of course, any substitute for advice by counsel. The court’s warning

comes just before the plea is taken, and may not afford time for mature

reflection. The defendant cannot, without risk of making damaging

admissions, discuss candidly with the court the questions he or she may have.

Moreover, there are relevant considerations which will not be covered by

the judge in his or her admonition. A defendant needs to know, for example,

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the probability of conviction in the event of trial. Because this requires a

careful evaluation of problems of proof and of possible defenses, few

defendants can make this appraisal without the aid of counsel.

ABA Standards for Criminal Justice, Pleas of Guilty, Commentary to Standard 14-3.2,

p. 118 (3d. ed. 1999); see also Kayode, 777 F.3d at 731 (Dennis, J., dissenting) (opining

that “a perfunctory judicial warning, coming only after the defendant has taken all but

the final prejudicial step toward his conviction, affords such a defendant no genuine

protection against his counsel’s wrongful acts or omissions, and therefore does not offset

or weigh against the prejudice caused the defendant by the derelictions of his counsel”);

Jenny Roberts, Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and

Misinformation in the Guilty-Plea Process, 95 Iowa L. Rev. 119, 149-50 (2009) (“A pro forma

warning from a judge in court . . . comes too late in the process of a criminal case—namely

as a defendant is actually entering the guilty plea—to realistically allow for the individual

to integrate this critical new information into his decision.”). Indeed, the cases espousing

judicial cure do not even explicitly assert functional equivalence between aid and advice

of counsel and information from the trial court. Instead, they subtly shift the prejudice

inquiry from the causal effect of counsel’s deficiency on the defendant’s decisionmaking

to the causal effect of judicial plea admonitions on the defendant’s knowledge.

The cases thus conflate satisfaction of the due process requirement of sufficient

knowledge of a guilty plea’s relevant circumstances and likely consequences with

satisfaction of the Sixth Amendment requirement of adequate aid and advice of counsel

throughout the plea process. Some do so while claiming to distinguish between the two.

See, e.g., Akinsade, 686 F.3d at 255 (acknowledging that “[a] district court’s duty to ensure

a knowing and voluntary plea arises from the Fifth Amendment’s guarantee of due process

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and thus affords defendants a right distinct from the Sixth Amendment right to effective

assistance of counsel” but going on to indicate that the satisfaction of the former is

satisfaction of the latter “[i]f a district court’s admonishment so happens to correct

[counsel’s] deficient performance”). Others, such as this case, expressly mix due process

principles into the Sixth Amendment analysis: “[T]he thorough admonishments given

to defendant and the inquiry of defendant by the trial court dispelled any error in the

attorney’s initial misunderstanding of the plea or the manner in which the plea

agreement was reached, thereby ensuring the plea was voluntarily and intelligently

made.” Pet. App. 15a.

IV.

The facts and procedural history of this case cleanly present the question

underlying judicial cure.

Mr. Porter’s case invites this Court to redirect a widely accepted and badly misguided

approach to judicial cure. The record shows that so long as Mr. Reese failed to negotiate

a sufficiently favorable plea agreement, Mr. Porter insisted on going to trial. Then Mr. Reese

approached Mr. Porter and his parents with a proposed plea agreement—an agreement

designed to cut young Mr. Porter’s prison exposure in half—an agreement that did not

exist. And everything changed. If Mr. Reese had not invented the non-existent plea

agreement, a plea hearing would not have been scheduled. Mr. Porter would not have

been driven some 120 miles to a courthouse on the morning of the scheduled plea hearing,

believing all the way that the agreement was real. Mr. Porter would not have learned

in a courthouse hallway, surrounded by people who expected him to plead guilty, that

the agreement was not real. Mr. Porter would not have walked into a courtroom for the

plea hearing. And Mr. Porter would not have engaged in a plea colloquy with the trial

court, which correctly informed him that he was pleading guilty to two counts of criminal

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sexual assault but in no way addressed how Mr. Reese had led him to where he stood

by promising a plea to a single count of criminal sexual assault.

Prevailing norms of practice show that Mr. Reese acted unreasonably by inducing

Mr. Porter to rely on a plea agreement that never existed. See ABA Standards for Criminal

Justice, Pleas of Guilty, Standard 14-3.2(b), p. 116 (3d. ed. 1999) (providing that “defense

counsel, after appropriate investigation, should advise the defendant of the alternatives

available” and “should not recommend to a defendant acceptance of a plea unless

appropriate investigation and study of the case has been completed”); cf. ABA Standards

for Criminal Justice, Defense Function, Standard 4-5.1(f), p. 45 (4th ed. 2015),

https://www.americanbar.org/content/dam/aba/images/abanews/2015mm_hodres/107d.pdf

(“Defense counsel should not intentionally understate or overstate the risks, hazards,

or prospects of the case or exert undue influence on the client’s decisions regarding a

plea.”). Mr. Reese’s performance at the plea stage was therefore constitutionally deficient.

See Padilla, 559 U.S. at 366 (reaffirming that “ ‘[t]he proper measure of attorney

performance remains simply reasonableness under prevailing professional norms’ ” and

that “ ‘[p]revailing norms of practice as reflected in American Bar Association standards

and the like . . . are guides to determining what is reasonable’ ” (second alteration and

omission in original) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984))).

And prejudice from that deficiency is nearly as obvious on the sweeping standard

of but-for causation. Once again, “a but-for test directs us to change one thing at a time

and see if the outcome changes. If it does, we have found a but-for cause.” Bostock, 140

S.Ct. at 1739. In the context of a claim of ineffective assistance at the plea stage, the one

thing to be changed is defense counsel’s erroneous act or omission before the guilty plea

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was entered. See Lee, 137 S.Ct. at 1965 (stating that “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’ ” (quoting Hill, 474 U.S. at 59)).

Here, then, a reviewing court must hypothesize a world in which Mr. Reese continued

in his trial preparations rather than dreaming up the non-existent plea agreement.

In that world, it is probable indeed that Mr. Porter would not have pleaded guilty.

So Mr. Reese’s objectively unreasonable representation derailed Mr. Porter from

a trial track and set him barreling toward a wholly open guilty plea that threatened

the same 8 to 30 years in prison as did conviction after trial. Mr. Porter argued as much

in the trial and appellate courts. Yet the courts below found a total “cure[]” within routine

judicial admonitions at the plea hearing, even though that hearing would not have taken

place but for Mr. Reese’s errors before the hearing, because the admonitions confirmed

that Mr. Porter had sufficient knowledge of the relevant circumstances and likely

consequences of his guilty plea by the time he entered it. Pet. App. 15a-17a, 28a-30a;

see Pet. App. 40a, 44a-47a. In other words, the courts below falsely equated satisfaction

of the due process right to a knowing and voluntary plea with satisfaction of the Sixth

Amendment right to adequate aid and advice of counsel throughout the plea process.

Lurking in the background of this case, and so many like it, is an almost invisible

holding that the trial court’s plea admonitions severed the but-for causal relationship

between counsel’s deficiency and the defendant’s guilty plea. But just how is such severance

accomplished? What is the admonitions exception that lies atop the simple and traditional

but-for causation standard? By failing to show their work on judicial cure, the cases have

insulated cure from any real scrutiny of its causal logic. Such scrutiny is needed now,

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particularly in light of at least two circuits’ post-Lee affirmation of a bright-line rule

of judicial cure. See Akande, 956 F.3d at 262 (“Circuit precedent holds that a defendant

cannot prevail on a claim of ineffective assistance of counsel that arises from counsel’s

misadvice if, before accepting the plea, the district court provides an admonishment

that corrects the misadvice and the defendant expresses that he understands the

admonishment.” (internal quotation omitted)); Pola, 703 Fed.Appx. at 423 (“The court’s

proper advisement of rights is . . . deemed to foreclose any showing of actual prejudice

attributed to counsel’s erroneous advice . . . .” (internal quotation omitted)).

In sum, this case involves startlingly deficient representation by Mr. Reese, a

strong causal link between Mr. Reese’s deficiency and Mr. Porter’s guilty plea, and

admonitions from the trial court that leave no doubt as to Mr. Porter’s knowledge of

the relevant circumstances and likely consequences of his plea at the moment he entered

it. It follows that Mr. Porter was deprived of his Sixth Amendment right to effective

assistance of counsel at the plea stage unless the causal link was somehow broken by

the admonitions. An ineffective-assistance challenge to the plea was raised by Mr. Porter

and rejected by the courts below, which joined the chorus of poorly reasoned reliance

on judicial cure. The time has come for this Court to settle the issue of cure with its own

authoritative voice.

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CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

ELLEN J. CURRY

Counsel of Record

Deputy Defender

Office of the State Appellate Defender

Fifth Judicial District

909 Water Tower Circle

Mt. Vernon, IL 62864

ellen.curry@osad.state.il.us

(618) 244-3466

AMY J. KEMP

Assistant Appellate Defender

Office of the State Appellate Defender

Fourth Judicial District

400 West Monroe Street, Suite 303

Springfield, IL 62704

COUNSEL FOR PETITIONER

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