Order filed July 12, 2017

Opinion Modified upon denial of NO. 4-16-0586 rehearing September 27, 2017

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County MICHAEL A. GLOVER, ) No. 12CF1913 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion. Justices Harris and Steigmann concurred in the judgment and opinion.

OPINION ¶1 In November 2012, the State charged defendant, Michael A. Glover, with nine

felony offenses allegedly committed while he was released on bond from Coles County. In

December 2013, defendant pleaded guilty to one count of unlawful possession of a stolen

vehicle, a Class 2 felony (625 ILCS 5/4-103(a)(1), (b) (West 2010)). In January 2014, defendant

filed a motion to withdraw his guilty plea. After this court twice remanded the cause for strict

compliance with Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016), newly appointed

counsel filed another motion to withdraw defendant’s guilty plea. In August 2016, the trial court

denied the motion to withdraw the guilty plea.

¶2 Defendant appeals, arguing (1) this court should allow him to withdraw his guilty

plea because (a) his erroneous belief that he faced 60 years’ imprisonment was objectively

reasonable and (b) trial counsel erroneously advised him that he faced 60 years’ imprisonment, thereby rendering ineffective assistance of counsel and precluding a knowing and voluntary plea;

and (2) the circuit clerk improperly imposed numerous fines.

¶3 We affirmed in part and vacated in part. On August 2, 2017, defendant filed a

petition for rehearing pursuant to Illinois Supreme Court Rule 367 (eff. July 1, 2017), asking this

court to reconsider in light of Lee v. United States,

,

(2017), which

was issued after the completion of briefing in this case. We now modify our decision upon denial

of defendant’s petition for rehearing to address Lee. For the reasons set forth below, we affirm in

part and vacate in part.

¶4 I. BACKGROUND

¶5 In November 2012, the State charged defendant with the following felony

offenses allegedly committed while out on bond from Coles County: (1) home invasion with

injury intentionally caused to Sara Stephenson (count I) and Steve Martin (count II), Class X

felonies (720 ILCS 5/12-11(a)(2), (c) (West 2010)); (2) criminal damage to property, a Class 4

felony (720 ILCS 5/21-1(1)(a), (2) (West 2010)) (count III); stalking where he knew or should

have known his course of conduct would cause a reasonable person to fear for his or her safety, a

Class 4 felony (720 ILCS 5/12-7.3(a), (b) (West 2010)) (count IV); (3) stalking where on at least

two occasions he followed or placed Stephenson under surveillance and transmitted a threat of

bodily harm, Class 4 felonies (720 ILCS 5/12-7.3(a-3), (b) (West 2010)) (counts V and VI); (4)

aggravated stalking where he knew or should have known his course of conduct would cause a

reasonable person to fear for his or her safety and he caused Stephenson bodily harm, a Class 3

felony (720 ILCS 5/12-7.4(a)(1), (b) (West 2010)) (count VII); (5) aggravated fleeing, a Class 4

felony (625 ILCS 5/11-204.1(a)(4), (b) (West 2010)) (count VIII); and (6) unlawful possession

of a stolen vehicle, a Class 2 felony (625 ILCS 5/4-103(a)(1), (b) (West 2010)) (count IX). In

-2- each count, the State alleged that any sentence imposed would be mandatorily consecutive to any

sentences imposed in Coles County case Nos. 12-CF-236, 12-CF-329, and 12-CF-355.

Defendant was eligible for extended-term sentencing on counts III through IX based on his 2008

conviction of a Class 2 felony. The record shows defendant was also charged with domestic

battery, a Class A misdemeanor (720 ILCS 5/12-3.2(a)(1), (b) (West 2010)) (count X), and

battery, a Class A misdemeanor (720 ILCS 5/12-3(a)(1), (b) (West 2010)) (count XI).

¶6 In January 2013, the trial court held a hearing on defendant’s desire to proceed

pro se. The court admonished defendant regarding the charges against him and the minimum and

maximum penalties he faced. With respect to counts I and II, the court informed defendant that

the Class X felonies required a mandatory period of incarceration of 6 to 30 years, which would

be served mandatorily consecutively to any sentences of incarceration imposed in Coles County

case Nos. 12-CF-236, 12-CF-329, and 12-CF-355, and a 3-year period of mandatory supervised

release. Upon inquiry, the State indicated it believed sentences on counts I and II were

mandatorily consecutive to each other. Accordingly, the court informed defendant, if he were

convicted of both counts I and II, the sentences imposed would be mandatorily consecutive.

Ultimately, defendant did not waive his right to counsel and proceeded to a guilty plea hearing

represented by Diana Lenik.

¶7 A. Guilty Plea

¶8 On December 23, 2013, defendant pleaded guilty to count IX—unlawful

possession of a stolen vehicle. Prior to hearing the factual basis and accepting defendant’s guilty

plea, the trial court informed defendant unlawful possession of a stolen vehicle was a Class 2

felony and, because of defendant’s prior Class 2 felony conviction, the charge carried a

minimum sentence of 3 years’ imprisonment and a maximum sentence of 14 years’

-3- imprisonment, followed by a 2-year period of mandatory supervised release. The court also

asked defendant, “Is your plea of guilty today voluntary? Is this of your own free will?”

Defendant responded, “Yes, it is.”

¶9 The plea agreement provided defendant would be sentenced to an extended term

of 9 years’ imprisonment, with credit for 399 days previously served in custody, and a 2-year

term of mandatory supervised release. Defendant also agreed to pay a Violent Crime Victims

Assistance Act fee and the deoxyribonucleic acid (DNA) analysis fee, if applicable, and he had a

credit of $1995 for time spent in custody. At the hearing, counsel informed the court defendant

had already submitted his DNA to the Illinois State Police.

¶ 10 After the trial court heard the terms of the plea agreement, the following colloquy

occurred:

“THE COURT: All right. Mr. Glover, you heard what the

lawyers have said. Is that the agreement that you have?

MR. GLOVER: Yes, it is, your Honor.

THE COURT: Has anybody promised you anything else?

MR. GLOVER: No, your Honor.

THE COURT: Has anyone forced you or threatened you?

MR. GLOVER: No, your Honor.”

The court then asked for the factual basis for the plea, which we summarize briefly. In November

2012, police were summoned to a reported domestic violence incident. Defendant was reportedly

on a roof, confronting his girlfriend through a window. When officers arrived, defendant was

back on the ground. Although police ordered him to stay put, defendant left the scene in a

Cadillac. He later hit a fire hydrant before leaving the vehicle and hiding in a nearby apartment.

-4- Later, the police identified the Cadillac as stolen the day before in Charleston, Illinois,

defendant’s admitted location before coming to Champaign. After hearing the factual basis, the

court accepted defendant’s plea of guilty to count IX and dismissed the remaining charges. The

court did not address fines or fees at the hearing.

¶ 11 The written sentencing order imposed (1) a Violent Crime Victims Assistance Act

fee (with no amount specified) and (2) a DNA analysis fee if not previously paid. The order also

included the following language: “The Defendant shall pay all fines, fees[,] and costs as

authorized by statute.” The certified fines and fees sheet indicates the circuit clerk assessed, in

part, the following: (1) $50 “court finance fee,” (2) $40 “State’s attorney,” (3) $2 “State’s

attorney au[tomation],” (4) $10 “arrestee’s medical,” (5) $10 “probation oper[ations]

ass[istance],” (6) $250 “state offender DN[A],” (7) $10 “tr[affic]/cr[iminal] sur[charge],” (8)

$100 “violent crime vict[ims assistance],” (9) $10 St[ate] Police services,” (10) $10 “St[ate]

Police operatio[ns],” and (11) $10 “clerk op & admin f[ee].”

¶ 12 B. Motion To Withdraw Guilty Plea

¶ 13 On January 17, 2014, defendant filed a motion to withdraw his guilty plea,

alleging (1) he did not understand the consequences of his plea due to being under the influence

of trazodone, a medication for depression and (2) his plea was involuntary because his Coles

County attorney said the assistant State’s Attorney would cause him to receive a sentence of 30

years’ imprisonment on the Coles County charges if he did not plead guilty in Champaign

County case No. 12-CF-1913.

¶ 14 In March 2014, the trial court denied defendant’s motion to withdraw his guilty

plea. Defendant appealed, and this court docketed the case as No. 4-14-0203. In August 2014,

this court summarily remanded the cause for strict compliance with Illinois Supreme Court Rule

-5- 604(d) (eff. Feb. 6, 2013). People v. Glover, No. 4-14-0203 (Aug. 18, 2014) (summary order).

That same month, counsel for defendant filed an amended Rule 604(d) certificate. Following a

September 2014 hearing, the court again denied defendant’s motion to withdraw his guilty plea.

Defendant again appealed, and this court docketed the case as No. 4-14-0816. In June 2016, this

court again remanded for strict compliance with Rule 604(d). People v. Glover, No. 4-14-0816

(June 3, 2016) (summary order).

¶ 15 On remand, newly appointed counsel for defendant filed a new motion to

withdraw his guilty plea. The motion, in pertinent part, alleged (1) defendant’s plea was not

knowingly, intelligently, and voluntarily entered into because, at the time of the plea, (a) he was

under the influence of trazodone and did not understand what was said to him by his lawyer or

the judge and (b) he misunderstood the law and facts applicable to his case and believed he could

be convicted of both counts of home invasion and faced 60 years’ imprisonment; and (2)

defendant’s prior counsel, Lenik, rendered ineffective assistance by erroneously advising him he

could be convicted of both home invasion counts, despite the one-act, one-crime rule. The

motion further alleged Lenik erroneously advised defendant he could be convicted of (1) home

invasion at all, because he had an interest in possessing the residence, and (2) stalking because

the victim contacted him.

¶ 16 In August 2016, the trial court held a hearing on defendant’s motion to withdraw

his guilty plea. Defendant testified that, in November 2012, the State charged him with multiple

counts, including two counts of home invasion and several stalking counts. In December 2013,

defendant pleaded guilty to possession of a stolen vehicle and, shortly thereafter, was transferred

to Coles County, where he had several other felony charges pending. Prior to his December 2013

plea, Lenik advised defendant he had the right to go to trial. According to defendant, Lenik told

-6- him he could be convicted of both counts of home invasion if he went to trial and never

discussed the one-act, one-crime rule with him.

¶ 17 When asked what Lenik told him would happen if he did not take the nine-year

plea agreement in this case, defendant stated, “If I didn’t take it, we go to trial and I would most

likely lose on the—on the home invasion charges and that they would give me 60 years, 30,

something about an enhancement and that would get me 60 years.” According to defendant, the

assistant State’s Attorney in Coles County told him he would get 30 years’ imprisonment on

those charges if he did not plead guilty in this case. Defendant further testified that counsel

advised him he was facing 60 years’ imprisonment for just the Champaign County case because

“[t]hey said the charge would be enhanced.” When asked why the charge was enhanced,

defendant stated, “I think because he said my background.”

¶ 18 Lenik testified she had practiced law for 39 years and represented thousands of

clients charged with felonies. According to Lenik, she spoke with defendant approximately 20

times prior to the guilty plea. Lenik did not recall defendant having any apparent difficulty

understanding anything she said. Lenik unsuccessfully tried to negotiate a “global resolution,”

where one sentence would resolve all the pending charges in both Champaign County and Coles

County. According to Lenik, she specifically informed defendant there was no resolution to the

Coles County charges at the time of the plea in Champaign County. Lenik told defendant he

would be transferred to Coles County to resolve the pending charges with his attorney and the

prosecutor there.

¶ 19 When asked if she recalled a conversation with defendant regarding any enhanced

sentence he would face because of his prior record, Lenik stated, “I don’t recall.” Lenik also did

not recall discussing the one-act, one-crime rule with defendant. When asked if she advised

-7- defendant he faced 60 years’ imprisonment if he lost at trial, Lenik testified, “I don’t believe we

ever had a conversation with 60.” Finally, when asked what she advised defendant the sentence

might be, Lenik said, “first of all[,] we spent a lot of time talking about trial and our defenses and

then we spent time talking about global resolution if we could do it with Coles [County] and he

would ask me repeatedly to see if I could get a little bit less and a little bit less and all of that. In

terms of specific penalties for specific offenses, I don’t remember but it probably was 30.”

¶ 20 The trial court denied the motion to withdraw defendant’s guilty plea. In so doing,

the court rejected defendant’s claim that he had a defense to the home-invasion charges because

he had an interest in possessing the property. The court further rejected defendant’s claim his

plea was not knowing and voluntary due to medication, stating, “this [c]ourt is very careful when

taking pleas of guilty and if there is any indication, the slightest indication, that a defendant

doesn’t understand[,] the [c]ourt concludes the hearing without a plea and sets it over to make

sure that everyone is on the same page.” The court concluded, “I don’t believe there is anything

in this [m]otion to [w]ithdraw [g]uilty [p]lea that would allow the [c]ourt to grant this motion.

I’m going to deny it.”

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 Defendant appeals, arguing (1) this court should allow him to withdraw his guilty

plea because (a) his erroneous belief that he faced 60 years’ imprisonment was objectively

reasonable, and (b) trial counsel erroneously advised him that he faced 60 years’ imprisonment,

thereby rendering ineffective assistance of counsel and precluding a knowing and voluntary plea;

and (2) the circuit clerk improperly imposed numerous fines. We turn first to defendant’s claim

regarding the withdrawal of his guilty plea.

-8- ¶ 24 A. Withdrawal of Guilty Plea

¶ 25 1. Standard of Review

¶ 26 In his opening brief, defendant asserts that we should review for an abuse of

discretion the trial court’s decision not to allow the withdrawal of his guilty plea. However, in his

reply brief, defendant contends (1) the court made no credibility determinations and (2) “[w]here

the trial court makes no determination on the merits, the standard of review is de novo and the

reviewing court will perform the same analysis that a trial judge would perform.” In support,

defendant cites People v. Tolefree,

,

(citing People

v. Moore,

,

(2003)). Tolefree and Moore addressed the

de novo standard of review in the context of a trial court’s dismissal of ineffective assistance

claims without a determination of the merits. Where “a trial court has reached a determination on

the merits of a defendant’s ineffective assistance of counsel claim, we will reverse only if the

trial court’s action was manifestly erroneous.” Id. ¶¶ 25, 29 (finding court’s failure to conduct

further inquiry into the defendant’s posttrial ineffective assistance allegations was harmless error

and its ruling was not manifestly erroneous).

¶ 27 Defendant contends the trial court made no credibility determinations and,

therefore, no determination on the merits. We disagree. Although the court did not explicitly lay

out its credibility determinations, it does not follow the court made no determination of the

merits of defendant’s allegations. Defendant had newly appointed counsel for the hearing on the

motion to withdraw his guilty plea. Newly appointed counsel raised claims regarding (1)

defendant’s erroneous belief that he faced 60 years’ imprisonment and (2) plea counsel’s

ineffective assistance for erroneously advising him he faced 60 years’ imprisonment. The court

held an evidentiary hearing, during which defendant and plea counsel both testified. The court

-9- then denied the motion to withdraw the plea. Although the court did not make a specific finding

that it found plea counsel’s testimony credible and defendant’s testimony incredible, the court

necessarily made credibility determinations in denying the motion to withdraw on the merits.

¶ 28 The trial court, by virtue of its ability to observe the conduct and demeanor of the

witnesses, is in the best position to make credibility determinations. In re Abel C.,

,

. “A trial court’s credibility determinations are entitled to

great deference, and they will rarely be disturbed on appeal.” People v. Clark,

, ¶ 26,

. Absent manifest error, we defer to the court’s credibility

determinations. People v. Jacobazzi,

,

(2009).

¶ 29 We conclude that the trial court reached the merits of defendant’s motion to

withdraw his guilty plea and determined the credibility of the witnesses in so doing. When a trial

court reaches the merits of a motion to withdraw a guilty plea, the decision to grant or deny that

motion “rests in the sound discretion of the circuit court and, as such, is reviewed for an abuse of

discretion.” People v. Hughes,

,

.

¶ 30 2. Misapprehension of the Law

¶ 31 There is no absolute right to withdraw a guilty plea; rather, a defendant must

show a manifest injustice in his or her circumstances. Id. “The decision of the trial court will not

be disturbed unless the plea was entered through a misapprehension of the facts or of the law, or

if there is doubt as to the guilt of the accused and justice would be better served by conducting a

trial.” People v. Delvillar,

,

(2009). The defendant must

show a misapprehension of the law or facts.

“[T]he failure to properly admonish a defendant,

standing alone, does not automatically establish grounds for reversing the judgment or vacating

- 10 - the plea.”

Instead, we focus on whether the plea was affirmatively shown to be voluntarily

and intelligently made.

¶ 32 Defendant contends his plea should be withdrawn because it was entered on the

misapprehension of law that he faced as much as 60 years’ imprisonment on counts I and II.

According to defendant, objective proof shows his misapprehension was reasonably justified

because (1) the trial court, at the January 2013 hearing on waiver of counsel, incorrectly stated

any sentences on the two charges would run consecutively and (2) the trial counsel incorrectly

advised him he faced 60 years’ imprisonment on the two charges, either because the sentences

would be consecutive or because defendant was extended-term eligible.

¶ 33 The State contends that the trial court found plea counsel’s testimony at the

hearing on the motion to withdraw defendant’s guilty plea credible. The State also contends the

court informed defendant on at least two occasions that counts I and II carried possible sentences

of 30 years’ imprisonment. Defendant notes in his reply brief that one of these instances was

during the waiver-of-counsel hearing, when the court told defendant any sentences on counts I

and II were mandatorily consecutive to each other, which would carry an aggregate maximum

sentence of 60 years. The State does not address the court’s improper admonishment at the

waiver-of-counsel hearing. We first turn to the court’s erroneous admonishment at the waiver-of-

counsel hearing.

¶ 34 As an initial matter, we note the trial court did inaccurately admonish defendant

as to the possible maximum sentence on counts I and II. Both counts were predicated on the

same act of entry into a home. The only difference between the two counts was that count I

charged defendant with injuring Stephenson and count II charged defendant with injuring

Martin. The supreme court has held that “a single entry will support only a single conviction” of

- 11 - home invasion even if the defendant inflicted injury on two people in a dwelling. People v. Cole,

,

(1996). Therefore, defendant could not have been

convicted of, and sentenced consecutively on, both counts of home invasion. Defendant contends

this erroneous admonishment is objective evidence that his misapprehension of the law was

reasonably justified. The problem with defendant’s argument is that it does not address the fact

that defendant did not plead guilty to home invasion. He pleaded guilty to unlawful possession of

a stolen vehicle—a charge completely unrelated to the home invasion charges and a charge he

was properly admonished on at the guilty plea hearing.

¶ 35 It has long been established that, with respect to voluntariness, “the pertinent

knowledge to be provided by the court prior to accepting a guilty plea includes only the direct

consequences of the defendant’s plea.” Delvillar,

,

. Here,

defendant pleaded guilty to unlawful possession of a stolen vehicle and the trial court properly

admonished him as to the consequences of his plea. Defendant does not suggest any error in the

admonishment on the charge of unlawful possession of a stolen vehicle at the guilty plea hearing.

As such, we are unconvinced by defendant’s claim that his misapprehension of the law as to

charges he did not plead guilty to—charges which were dismissed—operated to show real justice

had been denied. See People v. Fuller,

,

(2002)

(“[W]hether reversal is required for an imperfect admonishment depends on whether real justice

has been denied or whether the defendant has been prejudiced by the inadequate

admonishment.”).

¶ 36 The trial court specifically asked defendant (1) if the plea was voluntary and

entered of his own free will, (2) whether anybody promised him anything else, and (3) whether

anyone forced or threatened him to induce the plea. Defendant expressly stated that the plea was

- 12 - voluntary and he had received no threats or additional promises. Thus, real justice has not been

denied. We note, aside from the two counts of home invasion, defendant faced multiple charges

with extensive possible penalties that he would be required to serve consecutively to any

sentence in Coles County. Also, a sentence of nine years in this case supports the conclusion that

defendant suffered no prejudice. Considering what defendant faced, it seems highly unlikely he

would have refrained from entering a plea even if he knew he could only be convicted on one

count of home invasion. Defendant’s alleged misapprehension about the possible maximum

sentence for two dismissed charges does not render defendant’s plea to unlawful possession of a

stolen vehicle invalid.

¶ 37 Defendant also contends that his misapprehension of the law was reasonably

justified based on plea counsel’s erroneous advice. However, the trial court rejected defendant’s

self-serving testimony on this point at the hearing on his motion to withdraw his guilty plea.

Although the court did not make explicit findings as to credibility, it clearly rejected defendant’s

version of events and credited plea counsel’s account of events. Defendant suggests plea

counsel’s testimony was mere speculation and, therefore, insufficient to rebut defendant’s

testimony that counsel told him he faced 60 years’ imprisonment. We disagree. Plea counsel

testified, “I don’t believe we ever had a conversation with 60 [years].” She also stated, “In terms

of specific penalties for specific offenses, I don’t remember but it probably was 30 [years].” A

determination that plea counsel’s testimony was credible, particularly given her 39 years of

experience as a criminal defense attorney, was not against the manifest weight of the evidence.

Accordingly, we conclude the trial court did not abuse its discretion in denying defendant’s

motion to withdraw his guilty plea.

- 13 - ¶ 38 3. Ineffective Assistance of Counsel

¶ 39 One basis for the withdrawal of a guilty plea is where defense counsel gives the

defendant inadequate advice prior to entering the plea. People v. Manning,

,

(2007). “A defendant may enter a guilty plea because of some

erroneous advice by counsel, but that fact alone does not destroy the voluntary nature of the plea;

it must be shown that defendant was denied the effective assistance of counsel under the

Strickland test.” People v. Cunningham,

,

(1997). To prevail, the defendant must show (1) deficient performance (i.e., counsel’s

representation fell below an objective standard of reasonableness); and (2) prejudice (i.e., but for

counsel’s unprofessional errors, the result of the proceeding would have been different). People

v. Crenshaw,

, ¶ 13,

(citing Strickland v.

Washington,

(1984)). “In order to satisfy the ‘prejudice’ requirement

in a plea proceeding, the defendant must show that there is a reasonable probability that, but for

counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going

to trial.” People v. Pugh,

,

(1993).

¶ 40 Defendant contends there is a reasonable probability that, but for counsel’s

allegedly erroneous advice that he faced an enhanced sentence of 60 years’ imprisonment on the

home-invasion charges, he would have rejected the guilty plea and insisted on going to trial.

Defendant also argues the fact that he could be convicted on only one of the home-invasion

charges is “nothing if not a claim of actual innocence and an articulation of a plausible defense.”

We disagree.

¶ 41 If we ignore one of the Class X home-invasion charges, defendant was still facing

one Class X felony home-invasion charge, a Class 4 felony criminal-damage-to-property charge,

- 14 - three Class 4 felony stalking charges, a Class 3 aggravated-stalking charge, a Class 4 felony

aggravated-fleeing charge, a Class 2 felony unlawful-possession-of-a-stolen-vehicle charge, and

two Class A misdemeanor charges for battery. Defendant’s contention that he would not have

been convicted of one of the home-invasion charges hardly shows a “reasonable probability” that

he would not have pleaded guilty had he known the Class X charges carried a sentence of “only”

30 years’ imprisonment. The fact that defendant would likely have successfully “defended” one

of the home-invasion charges is fundamentally different from a showing of actual innocence or a

plausible defense to the remaining 10 felony and misdemeanor charges he faced. Defendant has

not shown actual innocence or a plausible defense to the remaining charges, and nothing in the

record indicates a reasonable probability that defendant would not have pleaded guilty but for

counsel’s allegedly erroneous advice.

¶ 42 In his petition for rehearing, defendant contends this court, in the foregoing

discussion, “treated the fact that [defendant] may not have been better off going to trial as

conclusive of the prejudice analysis.” In support, defendant cites the recent United States

Supreme Court decision in Lee,

,

.

¶ 43 In Lee, the defendant, who was not a United States citizen, feared a conviction on

one count of possession of ecstasy with intent to distribute might affect his status as a lawful

permanent resident.

at ___,

. His attorney incorrectly assured him the

government would not deport him if he pleaded guilty to the charge.

at ___,

. Based on this assurance, the defendant accepted a guilty plea and was sentenced to a term

of imprisonment.

at ___,

. The defendant later learned he had pleaded guilty

to an “ ‘aggravated felony’ ” and was subject to mandatory deportation after serving his

- 15 - sentence.

Upon making this discovery, the defendant filed a motion to vacate his conviction

and sentence, arguing he received ineffective assistance of counsel.

at ___,

.

¶ 44 At the hearing on the motion, both the defendant and his counsel testified

deportation was the determinative issue in deciding to accept the guilty plea.

The testimony

established that the defendant asked his attorney multiple times about the effect a guilty plea

would have on his immigration status, and the attorney repeatedly reassured him there was

nothing to worry about.

at ___,

. Counsel advised the defendant not to go to

trial because his defense to the charge was weak.

at ___,

. The trial court

denied the defendant’s motion, concluding he could not show prejudice because he would likely

have been convicted had he gone to trial and would have received a longer prison sentence and

subsequent deportation.

at ___,

. The Sixth Circuit Court of Appeals

affirmed, concluding the defendant had no defense to the charge and “ ‘stood to gain nothing

from going to trial but more prison time.’ ”

at ___,

(quoting Lee v. United

States,

(6th Cir. 2016)).

¶ 45 The Supreme Court addressed the question of whether the defendant could show

his attorney’s erroneous advice prejudiced him.

at ___,

. The Court noted,

“When a defendant alleges his counsel’s deficient performance led him to accept a guilty plea

rather than go to trial, we do not ask whether, had he gone to trial, the result of that trial ‘would

have been different’ than the result of the plea bargain.”

at ___,

. Rather,

“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.’ ”

at ___,

(quoting Hill v. Lockhart,

(1985)). That is, when

counsel’s errors affected a defendant’s understanding of the consequences of pleading guilty,

- 16 - prejudice may be shown by “an adequate showing that the defendant, properly advised, would

have opted to go to trial.”

at ___,

.

¶ 46 The Supreme Court rejected adopting “a per se rule that a defendant with no

viable defense cannot show prejudice from the denial of his right to trial.”

at ___,

. The Court noted such a categorical rule was at odds with an inquiry that requires an

individual examination of the totality of the evidence.

at ___,

. Such a rule

also overlooks that the inquiry focuses on a defendant’s decision making, which may involve

concerns other than the likelihood of success at trial.

at ___,

. The Court

went on to write the following:

“A defendant without any viable defense will be highly

likely to lose at trial. And a defendant facing such long odds will

rarely be able to show prejudice from accepting a guilty plea that

offers him a better resolution than would be likely after trial. But

that is not because the prejudice inquiry in this context looks to the

probability of a conviction for its own sake. It is instead because

defendants obviously weigh their prospects at trial in deciding

whether to accept a plea. [Citation.] Where a defendant has no

plausible chance of an acquittal at trial, it is highly likely that he

will accept a plea if the Government offers one.

But common sense (not to mention our precedent)

recognizes that there is more to consider than simply the likelihood

of success at trial. The decision whether to plead guilty also

involves assessing the respective consequences of a conviction

- 17 - after trial and by plea. [Citation.] When those consequences are,

from the defendant’s perspective, similarly dire, even the smallest

chance of success at trial may look attractive. For example, a

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

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

offer is 18 years. Here [the defendant] alleges that avoiding

deportation was the determinative factor for him; deportation after

some time in prison was not meaningfully different from

deportation after somewhat less time. He says he accordingly

would have rejected any plea leading to deportation—even if it

shaved off prison time—in favor of throwing a ‘Hail Mary’ at

trial.” (Emphasis in original.)

at ___,

.

The Court cautioned post hoc assertions by a defendant about how he would have pleaded but for

his counsel’s deficient performance should not be the only basis for withdrawing a plea.

at

___,

. “Judges should instead look to contemporaneous evidence to

substantiate a defendant’s expressed preferences.”

at ___,

.

¶ 47 The Supreme Court determined the defendant made an adequate showing that,

had he known his guilty plea would result in mandatory deportation, he would have gone to trial.

The record showed the defendant repeatedly asked counsel about the effect his plea would have

on his immigration status, and the defendant and counsel both testified at the evidentiary hearing

that he would have gone to trial if he had known the deportation consequences of his plea.

at

___,

. Finally, the Court disagreed that it would be irrational for the

- 18 - defendant to reject the plea offer in favor of trial, even though going to trial would result in a

longer sentence and inevitable deportation. The Court reasoned as follows:

“But for his attorney’s incompetence, [the defendant] would have

known that accepting the plea agreement would certainly lead to

deportation. Going to trial? Almost certainly. If deportation were

the ‘determinative issue’ for an individual in plea discussions, as it

was for [the defendant]; if that individual had strong connections to

this country and no other, as did [the defendant]; and if the

consequences of taking a chance at trial were not markedly harsher

than pleading, as in this case, that ‘almost’ could make all the

difference. Balanced against holding on to some chance of

avoiding deportation was a year or two more of prison time.”

(Emphases in original.)

at ___,

.

The Court acknowledged not everyone in the defendant’s position would reject the plea, but it

would not be irrational to do so.

at ___,

.

¶ 48 In his petition for rehearing, defendant contends this court concluded he was not

prejudiced by his counsel’s erroneous advice that he faced 60 years’ imprisonment because he

would not have been better off going to trial. Defendant further asserts that this court, by

focusing on the numerous other charges defendant faced, improperly treated defendant’s chances

of success at trial as conclusive of the prejudice analysis.

¶ 49 This court’s reasoning in determining whether defendant had shown prejudice

was not premised on hypothesizing that defendant would likely be unsuccessful at trial. Even if

defendant had been properly advised as to the maximum sentence he faced, we concluded there

- 19 - was no reasonable probability that defendant would not have pleaded guilty. This is so because

defendant faced 10 other felony and misdemeanor charges, with the Class X charges carrying a

possible sentence of “only” 30 years’ imprisonment. A showing of actual innocence or a

plausible defense to these remaining charges could shed light on defendant’s mindset and

decision making—making it more plausible that he would not have pleaded guilty. The potential

likelihood of conviction following trial was irrelevant to our reasoning.

¶ 50 Defendant contends, “[h]ere, as in Lee, the consequences of taking a chance at

trial were markedly harsher than pleading. Indeed, [defendant] accepted a 9-year term of

imprisonment based on the erroneous belief that he faced a markedly harsher term of 60 years in

prison if he took a chance at trial.” Defendant misreads the Supreme Court’s decision in Lee. The

Court reasoned “the consequences of taking a chance at trial were not markedly harsher than

pleading.” (Emphasis added.)

at ___,

. For the defendant in Lee, the added

risk of holding on to a small chance of avoiding deportation was an additional year or two of

prison time if he was convicted after a trial.

at ___,

. That additional risk

was small enough to show that it would not have been irrational to reject the plea offer, had he

been properly advised of the consequences of his plea. As the Court noted, “[t]he decision

whether to plead guilty also involves assessing the respective consequences of a conviction after

trial and by plea.”

at ___,

. By way of illustration, the Court posited, “a

defendant with no realistic defense to a charge carrying a 20-year sentence may nevertheless

choose trial, if the prosecution’s plea offer is 18 years.”

at ___,

.

¶ 51 If defendant had been erroneously advised he faced a sentence of 60 years’

imprisonment when he actually faced a sentence of 10 years, his argument that he would not

have accepted a guilty plea of 9 years would be more persuasive. Here, the potential sentence

- 20 - defendant actually faced was 30 years, rather than 60 years. Although shorter than defendant was

advised, a possible 30-year sentence is still significantly longer than the guilty plea offer of 9

years, which does not support a reasonable probability that defendant would not have pleaded

guilty. Defendant points to no contemporaneous evidence he reasonably would have risked

facing a 30-year sentence at trial rather than accepting the 9-year guilty plea. Absent a realistic

defense or some evidence showing a very small risk in choosing to go to trial instead of entering

a plea, we conclude defendant has not made “an adequate showing that [he], properly advised,

would have opted to go to trial.”

at ___,

. Accordingly, we decline to “upset

[his] plea solely because of post hoc assertions from [this] defendant about how he would have

pleaded but for his attorney’s deficiencies.”

at ___,

.

¶ 52 Finally, defendant contends counsel’s advice induced him to plead guilty because

she erroneously informed defendant he faced a sentence double what he actually faced. As

discussed above, the trial court’s determination as to plea counsel’s credibility was not against

the manifest weight of the evidence, and her testimony showed she did not erroneously advise

defendant that he faced an enhanced 60-year sentence. Accordingly, we conclude defendant

failed to show deficient performance and the court did not abuse its discretion in denying his

motion to withdraw his guilty plea based on ineffective assistance of counsel.

¶ 53 B. Fines and Fees

¶ 54 Defendant contends the following are fines improperly assessed by the circuit

clerk and should be vacated: (1) a $2 State’s Attorney automation fee; (2) a $250 DNA analysis

fee; (3) a $50 “court finance fee”; (4) a $10 “Arrestee’s Medical” fee; (5) a $10 traffic criminal

surcharge fee; (6) a $10 “St[ate] Police Operatio[ns]” fee; (7) a $10 “Probation Oper[ations]

Ass[istance]” fee; (8) a $30 assessment that included a $10 “State’s Attorney” fine, a $10

- 21 - “St[ate] Police Services” fine, and a $10 “Clerk Op & Admin F[ee]”; and (9) a $100 Violent

Crime Victims Assistance Act fine. The State concedes all of these assessments are fines

improperly assessed by the circuit clerk except for the $2 State’s Attorney automation fee. The

State further concedes that all the fees that are actually fines should be vacated and the proper

recourse for the State is to seek a writ of mandamus. We accept the State’s concession and vacate

the above assessments (with the exception of the $2 State’s Attorney automation fee, which we

address below) improperly assessed by the circuit clerk.

¶ 55 The State contends the $2 State’s Attorney automation fee is, indeed, a fee and,

thus, it was properly assessed by the circuit clerk. The State relies on this court’s decision in

People v. Warren,

,

. Defendant asks this

court to reconsider our holding in Warren in light of the First District Appellate Court’s decision

in People v. Camacho,

,

. The Camacho court held

the State’s Attorney automation fee was not a “fee” because it did “not compensate the [S]tate

for the costs associated in prosecuting a particular defendant.”

We note other First District

decisions have expressly disagreed with Camacho and, instead, followed this court’s decision in

Warren. See, e.g., People v. Murphy,

,

(“[W]e

agree with the analysis in Warren and the numerous cases cited above that when a charge does

not include a punitive aspect, it is a fee, not a fine.”). We decline defendant’s invitation to

reconsider our holding in Warren and, thus, we conclude the $2 State’s Attorney automation

assessment was a fee properly assessed by the circuit clerk. Thus, we do not vacate the $2 State’s

Attorney automation fee. See People v. Daily,

,

.

- 22 - ¶ 56 III. CONCLUSION

¶ 57 For the reasons stated, we vacate the fines improperly imposed by the circuit

clerk. We otherwise affirm the trial court’s judgment. As part of our judgment, we award the

State its $50 statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002

(West 2016).

¶ 58 Affirmed in part and vacated in part.

- 23 -