No. 1-18-0014 Order filed April 15, 2020 Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the ILLINOIS, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 16 CR 60199 ) DENZAL STEWART, ) Honorable ) Joseph M. Claps, Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court. Justices McBride and Howse concurred in the judgment.

ORDER

¶1 Held: Defendant’s sentence is vacated and the cause remanded for resentencing where the trial court committed plain error by imposing a Class X sentence based on a prior conviction that did not constitute a qualifying offense.

¶2 Following a jury trial, defendant Denzal Stewart was found guilty of possession of a

stolen motor vehicle (PSMV)(625 ILCS 5/4-103(a)(1)(West 2016)) and based on his criminal

history, sentenced as a Class X offender (730 ILCS 5/5-4.5-95(b)(West 2016)) to the statutory

minimum of six years’ imprisonment with recommendation for boot camp. After pleading No. 1-18-0014

guilty to a charge of escape, defendant was further sentenced to a two-year term of

imprisonment, to be served consecutively to his six-year PSMV sentence. On appeal, defendant

contends that his criminal history did not qualify him for Class X sentencing. Defendant also

contends that defense counsel rendered ineffective assistance by misadvising him of his

eligibility for probation and Class X sentencing. For the reasons that follow, we vacate

defendant’s sentence and remand the cause for resentencing.

¶3 I. BACKGROUND

¶4 Defendant was charged by information with one count of PSMV under case no. 16 CR

6019901, and placed on electronic home monitoring pending trial. During proceedings on the

PSMV charge, the State charged defendant with escape under case no. 16 CR 1601401. The

PSMV case proceeded to jury trial. The relevant facts from the pre-trial proceedings and jury

trial are as follows.

¶5 A. Pre-Trial Proceedings

¶6 On October 28, 2016, defense counsel Debra Gassman informed the court that defendant

was “on medication” as part of his drug treatment program in the Cook County Jail. Defense

counsel then requested that defendant be evaluated for boot camp, which the trial court granted.

On November 2, 2016, the trial court explained to defendant that the State had charged him

with escape in case no. 16 CR 1601401 for allegedly violating the conditions of his electronic

monitoring on or about September 1, 2016.

¶7 On December 8, 2016, defense counsel informed the court that, despite the pending boot

camp evaluation, defendant wanted to instead “resolve the matter with probation.” Defense

counsel stated that she informed defendant that he was not eligible for “any kind of probation”

because he had prior Class 1 and Class 2 felony convictions in his background. Defense counsel

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further stated that defendant was previously given TASC probation, 1 which he did not

complete. The court explained to defendant that he was not eligible for probation and the matter

was continued pending boot camp evaluation and screening of defendant’s mental health.

¶8 On February 2, 2017, defense counsel Michael Biel entered his appearance. The State

tendered a plea offer, and held it open until the following court date. On February 27, 2017,

the State informed the court that it “extended an offer earlier on a less than a Class X, and

[defendant] refused it, or he rejected” it. Prior to setting the case for trial, defense counsel

informed the court that defendant was “asking for a TASC evaluation” and also “asking to be

evaluated for the possibility of being transferred to drug court.” Accordingly, defense counsel

requested “a 30 day date to see if he qualifies for either one of those.” Defense counsel also

acknowledged that defendant was evaluated for “Mental Health Probation,” but did not qualify.

¶9 On the next court date, defense counsel reported that defendant was evaluated for TASC

probation and was found acceptable. The State responded that defendant was ineligible for

TASC probation because he had previously received TASC that was terminated

unsatisfactorily. Defense counsel agreed that a defendant may only get TASC once and had

communicated this to the defendant. Additionally, defense counsel noted that as charged,

defendant did not qualify for Adult Re-Deploy, drug court, or mental health probation. Later

in the proceeding, defense counsel stated:

“I would want to make a clear record in this case. When my client was arrested and

charged with the possession of stolen vehicle, he was 20 years old. Because he was only

1 TASC probation, also known as “Treatment Alternatives for Criminal Justice Clients” probation is governed by Article 40 of the Alcoholism and Other Drug Abuse and Dependency Act, which provides that an individual with a substance use disorder “may elect treatment under the supervision of a [designated] program.” 20 ILCS 301/40-5 et seq. (West 2016).

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20 years old, Judge, he is not X mandatory. On June first of this year, he turns 21 years

old. As a result of that birthday, he will then be X mandatory by law, by statute. I did let

my client know that. I just wanted to make that record.

Judge, my client is asking for [a] 402 conference. The State has offered the minimum.”

¶ 10 The court explained the 402 conference to defendant as well as the court’s role and

participation in the conference. Defendant agreed to the court’s participation and the court

proceeded to conduct a 402 conference. The State offered the minimum sentence on both

charges: three years for the PSMV charge and two years for the escape charge, to be served

consecutively. The court agreed with the State’s recommendation and continued the matter to

April 17, 2017 for defendant to consider the offer. Before adjourning, the court noted for the

record that “defendant was advised that his birthday will change the sentencing mandatory

minimum significantly which is in June.”

¶ 11 On April 17, 2017, defense counsel was not present in court. Defendant asked for and was

granted a continuance until May 3, 2017 to speak with his counsel regarding the State’s 402

offer. On May 3, 2017, defense counsel informed the court that defendant rejected the 402

offer. Defense counsel also stated:

“If I can just also put on the record that when we did the 402, I stated that it was

my belief that based on the law, as of June 1st, when he turned 21 years of age, he

would then be X mandatory, Judge, I do not believe that is the case. I believe that the

X mandatory — the age of when someone is X mandatory is when they are — when

the crime is charged. So that’s my position with that.

But, nevertheless, Judge, he is rejecting the offer. He has indicated to me that there

is [sic] a couple of witnesses he would like me to interview.”

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¶ 12 The matter was then continued until June 6, 2017 for a final status date. On June 6, 2017,

defense counsel requested a Behavioral Clinic Exam (BCX) because defendant “indicated he

spent some time in some mental health institutions.” The court agreed and the matter was

continued. On July 7, 2017, the parties informed the court that they had received a

“psychologist’s report that said that [defendant] wouldn’t cooperate but ***is fit for trial.” The

court instructed defendant to cooperate with the doctors and continued the matter until August

7, 2017. On that date, the court noted that the report came back indicating that defendant was

fit for trial. Defense counsel requested the court “re-open” the 402 conference to consider

sentencing defendant to TASC probation. Defense counsel acknowledged that defendant had

received TASC probation once before, but argued that he was nevertheless eligible because

the prior TASC was terminated unsatisfactorily and the charge was not vacated. In response,

the court noted that defendant was ineligible for TASC probation because he had been

convicted of residential burglary and had the pending escape charge.

¶ 13 The State then argued that defendant was Class X mandatory because he was no longer 20

years old, which meant that the original plea offer of three years’ imprisonment on the PSMV

followed by two years’ imprisonment on the escape charge was invalid, and that the offer

would have to be at least six years and two years. Defense counsel disagreed, arguing that the

defendant’s age at the time of the offense triggered the statute, meaning that defendant would

“never be Class X mandatory” because he was only 20 years old when the offense was

allegedly committed. The court asked the parties to tender cases in support of their respective

interpretations of the statute. The matter was continued until August 9, 2017.

¶ 14 On August 9, 2017, defense counsel argued that, pursuant to People v. Brown,

, defendant was ineligible for a Class X sentence because he was under the

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age of 21 at the time the offense was committed. In response, the State contended that in People

v. Smith,

, our supreme court overruled Brown and held that it is the defendant’s

age at the time of conviction which controls under the Class X sentencing statute. The court

agreed with the State that the defendant’s age at the time of conviction is the deciding factor

in determining whether defendant was Class X mandatory. In response, defense counsel noted

that prior to the Smith decision in March 2017, the date of the offense or charge was the

determining factor. However, defense counsel agreed that because defendant had turned 21

years old, he was Class X mandatory. Defense counsel stated that this was explained to

defendant prior to the 402 conference. The court noted that the prior offer of consecutive

sentences of three years and two years was no longer valid given defendant’s age, and that the

minimum sentences were now six years and two years. The court then asked whether defense

counsel had explored with the State the possibility of a plea for six years on the PSMV charge,

and a nolle on the escape charge. The State responded that it did not discuss any offers and

defense counsel stated that “Mr. Stewart has never at any point in time expressed any interest

in pleading guilty.” The matter was continued for jury trial.

¶ 15 B. Jury Trial

¶ 16 At the jury trial, Franklin Tyler testified that he owned a 1997 Chrysler Sebring convertible

in good condition. On August 11, 2016, he parked the Sebring in the driveaway of his house

on the South Side of Chicago. The following morning, the car was missing. Tyler still had the

car keys and did not give anyone permission to take his car. He reported the car stolen and the

police located the car a few days later. When Tyler went to retrieve his car, he noticed wires

hanging down from the car’s steering column. Tyler also testified that he did not know

defendant.

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¶ 17 Chicago police officer Ronald Cavanaugh testified that on August 13, 2016, at

approximately 8:45 p.m, he was on patrol with his partner Officer Ramirez near 11103 South

Michigan Avenue in Chicago, Illinois. They observed a 1997 Chrysler Sebring parked in a no-

parking zone, which they discovered to be stolen upon running the plates through an on-board

system. The Sebring started to drive northbound on Michigan Avenue and the officers followed

for a few blocks until the vehicle came to a stop near 10924 South Wabash Avenue. Cavanaugh

then received confirmation via radio that the car was stolen. The officers pulled behind the

Sebring, activated their emergency lights, and approached the driver’s side on foot. Cavanaugh

observed defendant sitting in the driver’s seat and saw no one else inside the vehicle. He also

observed that a “plastic fortification” behind the steering wheel was cracked and damaged with

wires hanging out of the column.

¶ 18 Defendant was ordered out of the vehicle and handcuffed. Cavanaugh testified that

defendant “freely admitted” or stated that, “This is my uncle’s car. It was stolen earlier. And I

just got it back.” Cavanaugh returned to the Sebring and drove it to the police station.

Cavanaugh saw the ignition had been destroyed and that a flat head screwdriver was on the

seat which, based on his experience, was used to start the vehicle. There were no keys in the

vehicle and the brakes did not fully engage. After he drove the Sebring to the police station,

Cavanaugh notified Tyler who then came to the police station.

¶ 19 On cross-examination, Cavanaugh testified that he nor his partner asked defendant to give

a signed statement. There was no video or tape recording of the statement, only what

Cavanaugh had stated in his police report.

¶ 20 The defense then moved for a directed verdict, which the court denied. Defendant elected

not to testify.

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¶ 21 The jury found defendant guilty of PSMV. The State presented information at sentencing

that defendant was convicted of residential burglary in 2013 when he was 17 years old and of

PSMV in 2014 when he was 18 years old. The trial court found that defendant was subject to

mandatory sentencing as a Class X offender based on his prior convictions for residential

burglary and PSMV. Accordingly, the court sentenced defendant to the statutory minimum

term of six years in the Illinois Department of Corrections, noting that “except for the change

in the law” defendant could have received less than a six-year term due to his age at the time

of the offense. The court also recommended boot camp but noted that it was unlikely the camp

would accept him as he was on psychotropic medication and had a pending escape charge. The

court also ordered a three-year term of MSR, and 433 days credit for time served. Defendant

then pled guilty to the additional charge of escape in exchange for a minimum two-year

sentence, to be served consecutively to the PSMV sentence.

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 On appeal, defendant contends that the trial court improperly sentenced him as a Class X

offender based on an ineligible prior felony conviction. Defendant further argues that his

counsel rendered ineffective assistance by misadvising him regarding his eligibility for

probation and whether he would be subject to the mandatory Class X sentencing on the PSMV

charge after he turned 21 years old.

¶ 25 A. Class X Sentencing

¶ 26 Defendant concedes that his 2014 PSMV conviction is a qualifying prior offense under the

statute, however, he argues that his 2013 burglary conviction is not a qualifying offense as it

was entered when he was 17 years old. Defendant contends that due to subsequent amendments

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to the Juvenile Court Act raising the age for exclusive juvenile court jurisdiction to 17 years

(see Pub. Act 98-61 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-120)), his 2013 burglary

conviction is not “an offense classified [on August 13, 2016] in Illinois as a Class 2 or greater

Class felony.” Rather, it is an offense that on August 13, 2016, would have been resolved with

delinquency proceedings in juvenile court. As such, defendant argues that his Class X sentence

was improper based on the plain language of subsection 95(b) of the Unified Code of

Corrections (Code) (730 ILCS 5/5-4.5-95(b) (West 2016)). Defendant further contends that

even if this court were to find subsection 95(b) of the Code to be ambiguous, the legislative

history, the emerging brain science regarding criminal conduct of juveniles, and the rule of

lenity warrants a finding that defendant is not subject to Class X sentencing based on a prior

conviction at the age of 17.

¶ 27 As an initial matter, defendant acknowledges that he has waived this issue by not objecting

to it in the trial court, but maintains that we may review the issue under the second prong of

the plain error doctrine. Generally, sentencing issues are forfeited for review unless the

defendant both objects to the error at the sentencing hearing and raises the objection in a post-

sentencing motion. People v. Powell,

. Nevertheless, forfeited

sentencing issues may be reviewed for plain error where (1) the evidence was closely balanced;

or (2) the error was so egregious that the defendant was deprived of a substantial right and thus

a fair trial. People v. Herron,

, 178–79 (2005). The first step in a plain error

analysis is to determine whether any error occurred. People v. Lewis,

(2009).

This is because “‘without error, there can be no plain error.’” People v. Wooden,

. As such, our inquiry turns to whether the trial court erred in finding

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defendant’s 2013 burglary conviction to be a qualifying prior offense under the Class X

sentencing statute.

¶ 28 The interpretation of a statute involves a question of law which we review de novo. People

v. Simpson,

. The fundamental rule of statutory interpretation is to

ascertain and give effect to the legislature’s intent.

The most reliable indicator of the

legislature’s intent is the statutory language, given its plain and ordinary meaning.

In

determining the plain and ordinary meaning, a court must analyze a statute in its entirety,

construing words and phrases in light of other relevant provisions rather than in isolation.

People v. Smith,

. Each word, clause and sentence of a statute must be

given reasonable meaning and should not be rendered superfluous.

We will not depart from

the plain language by reading in limitations, exceptions, or conditions which the legislature did

not express.

When the language of the statute is clear and unambiguous, it must be applied

as written, without resorting to extrinsic aids of statutory construction.

¶ 29 Here, the statute at issue is subsection 95(b) of the Code, which provides in relevant part

as follows:

“(b) When a defendant, over the age of 21 years, is convicted of a Class 1 or Class

2 felony, except for an offense listed in subsection (c) of this Section, after having

twice been convicted in any state or federal court of an offense that contains the

same elements as an offense now (the date the Class 1 or Class 2 felony was

committed) classified in Illinois as a Class 2 or greater Class felony, except for an

offenses listed in subsection (c) of this Section, and those charges are separately

brought and tried and arise out of different series of acts, that defendant shall be

sentenced as a Class X offender.” 730 ILCS 5/5-4.5-95(b) (West 2016).

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¶ 30 In People v. Foreman, this court found the language of subsection 95(b) of the Code to be

“clear and unambiguous.”

. We emphasized that under

subsection 95(b), “a trial court must sentence a defendant as a Class X offender if the defendant

has prior qualifying felony convictions that satisfy the requirements of the statute.” Id. ¶ 44.

The court noted that the “focus is on the elements of the prior offense” as the plain language

of the statute provides that an offense is a qualifying offense if it “contain[s] the same elements

as an offense now classified in Illinois as a Class 2 or greater Class felony.” Id. ¶ 46. The

statutory language is also clear that the relevant question is whether the prior offense would

have been a Class 2 or greater felony if committed on the date of the present offense. Because

the statute is unambiguous in this regard, we need not consider its legislative history, resort to

other extrinsic aids of statutory construction, or rely on the rule of lenity. See People v. Miles,

(holding that the legislative history need not be considered as

the Class X statute is unambiguous); see also People v. Fiveash,

(stating

that “the rule of lenity applies only to statutes containing ‘grievous ambiguities’”).

¶ 31 Having found that the statute is unambiguous, we must now determine whether defendant’s

2013 burglary conviction constitutes a qualifying prior offense. We find that it does not. The

State contends that it is irrelevant that a 17-year-old who commits residential burglary would

now be subject to delinquency proceedings pursuant to an amendment to section 5-120 of the

Juvenile Court Act. According to the State, the “amendment to section 5-120 of the Juvenile

Court Act, raising the age to 18 years for ‘jurisdiction’ over felony offenses only applie[s]

prospectively.” Essentially, the State is arguing that the amendment applies only to violations

committed on or after the effective date of January 1, 2014 and not to a 2013 conviction.

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¶ 32 Although we are mindful of the effective date of the Act, we also note that for purposes of

Class X sentencing, defendant’s 2013 burglary is not “an offense now *** classified in Illinois

as a Class 2 or greater Class felony.” Rather, defendant’s prior 2013 burglary conviction, had

it been committed under the laws in effect on August 13, 2016, would have been resolved

through delinquency proceedings. See People v. Miles,

(holding that a defendant’s 2006 conviction, had it been committed in 2016, would have been

resolved with delinquency proceedings and therefore, is not a qualifying offense for Class X

sentencing). The offense would have led to a juvenile adjudication rather than a felony

conviction. As such, defendant’s 2013 conviction is not a qualifying prior offense for Class X

sentencing.

¶ 33 In arguing against this conclusion, the State asserts that even if defendant’s 2013 conviction

would have been adjudicated by juvenile court, his conviction could still be used to sentence

him as a Class X offender. The State relies on People v. Jones,

, Fitzsimmons

v. Norgle,

(1984), People v. Banks,

(1991), and People v.

Bryant,

(1996) for the proposition that juvenile adjudications can also be

used as convictions under subsection 95(b). However, the State’s reliance on these cases is

misplaced. None of these cases stand for the proposition that a juvenile adjudication is

tantamount to a “conviction.”

¶ 34 Jones involved a different issue than one presented here. In Jones, the statute at issue

specifically authorized the use of prior juvenile adjudications in imposing an extended-term

sentence (730 ILCS 5/5-5-3.2(b)(7) (West 2016)), whereas the statute here is simply limited

by its plain language to prior “convictions” and is silent regarding the use of delinquency

adjudications (730 ILCS 5/5-4.5-95(b) (West 2016). “When the legislature decides to authorize

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certain sentencing enhancement provisions in some cases, while declining to impose similar

limits in other provisions within the same sentencing code, it indicates that different results

were intended.” People v. Bailey,

.

¶ 35 The State’s reliance on Fitzsimmons, Banks, and Bryant is also misplaced. Citing to

Fitzsimmons¸ the State argues that “no distinction is drawn between convictions rendered while

the defendant was a juvenile and those which occur after the defendant is no longer subject to

the authority of the juvenile court.” Fitzsimmons,

. The statute at issue in

Fitzsimmons was section 5-5-3(c)(2)(F) of the Code, which precludes a defendant from

receiving probation if he is convicted of a Class 2 felony or greater within 10 years of a prior

conviction. Fitzsimmons,

. There, our supreme court addressed whether a prior

conviction required to trigger section 5-5-3(c)(2)(F) encompasses a conviction under the

criminal code when an offender was a juvenile.

. The court found that “conviction”

was defined in the same manner under both the Code and the Criminal Code of 1961.

Thus,

our supreme court held that there was no distinction between convictions rendered while

defendant was a minor and convictions which occur after the defendant is no longer subject to

juvenile court’s authority.

¶ 36 The Fitzsimmons court’s holding, however, no longer applies in light of our supreme

court’s decision in People v. Taylor,

(2006). In Taylor¸ our supreme court

distinguished the constitutional issue of using juvenile adjudications for enhancement purposes

under Apprendi from the issue of whether juvenile adjudications constitute “convictions” under

the Criminal Code of 1961. The supreme court observed that in the absence of a statute

expressly defining a juvenile adjudication as a conviction, Illinois courts have consistently held

that juvenile adjudications do not constitute convictions.

. The supreme court noted

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that “[i]t is readily apparent that the legislature understands the need for specifically defining

a juvenile adjudication as a conviction when that is its intention” and because the legislature

had not done so in the statutory sections at issue in that case, it was “constrained to find that

[the legislature] had no intent to do so.”

. Similarly, here, where the statute does not

provide that a prior conviction includes juvenile adjudications, we are constrained to find

otherwise.

¶ 37 Next, citing to Banks and Bryant, the State argues that “when construing the Habitual

Criminal Act (the HCA), this Court has repeatedly held that any prior [conviction] may be used

as a predicate under the statute” and that “no exception is made for convictions obtained while

defendant was a juvenile.’” 2 We find the State’s argument unavailing.

¶ 38 Both Banks and Bryant are distinguishable from the present case. There, the courts were

presented with arguments focusing solely on the defendants’ status as minors at the time they

committed their prior offenses. Banks,

; Bryant,

.

Additionally, the decisions in both cases rested on the Banks court’s finding that nothing in the

Juvenile Court Act or the Criminal Code of 1961 indicated that criminal convictions of minors

should be treated differently than criminal convictions of an adult.

Here, defendant’s

argument does not rest solely on his age but rather on the amendment to section 5-130 of the

Juvenile Court Act, which had the effect of vesting the juvenile court with exclusive

jurisdiction over minors. Given that Banks and Bryant predate this amendment, we find that

Banks and Bryant do not inform our decision.

2 Both Banks and Bryant involved the Habitual Criminal Statute which is now subsection 95(a) of the Code. See 730 ILCS 5/5-4.5-95(a) (West 2016)(formerly 720 ILCS 5/33B-1). - 14 - No. 1-18-0014

¶ 39 Having found error occurred, we may provide defendant relief under the second prong of

the plain-error doctrine since the unauthorized Class X sentence affected defendant’s

substantial rights. See People v. Fort,

(“[T]he imposition of an

unauthorized sentence affects substantial rights and, thus, may be considered by a reviewing

court even if not properly preserved in the trial court.”) Accordingly, we vacate defendant’s

Class X sentence and remand to the circuit court for resentencing as a Class 2 offender.

¶ 40 B. Ineffective Assistance of Counsel

¶ 41 Although we have found that defendant’s sentence should be vacated, it is still necessary

to address defendant’s claim of ineffective assistance of counsel because this claim cannot be

remedied by a new sentencing hearing. Defendant contends that he was denied effective

assistance of counsel because counsel “affirmatively misadvised him that he was eligible for

probation, and wrongly told him that he was not subject to mandatory Class X sentencing on

the PSMV charge after he turned 21.” As such, defendant requests this court to not only vacate

his conviction and remand for resentencing but to remand his case for “specific performance

of the initial plea [offer] of three years on the PSMV charge, followed by two years on the

escape charge.”

¶ 42 Both the United States and Illinois constitutions guarantee criminal defendants the right to

the effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8.

In People v. Curry,

(1997), our supreme court recognized a sixth

amendment right to effective assistance of counsel during plea negotiations, holding that a

“criminal defendant has the constitutional right to be reasonably informed with respect to the

direct consequences of accepting or rejecting a plea offer.” (Emphasis in original.) This right

“extends to the decision to reject a plea offer, even if the defendant subsequently receives a

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fair trial.”

. However, even where a defendant is misinformed by his attorney during

plea negotiations, no relief is available unless the defendant can establish the requisite

prejudice. People v. Hale,

, ¶ 18.

¶ 43 We review ineffective assistance of counsel claims under the two-prong test set forth in

Strickland v. Washington,

(1984). The failure to satisfy either prong of the

Strickland test precludes a finding of ineffective assistance of counsel. People v. Patterson,

(2000). To prevail on a claim of ineffective assistance of counsel, a

defendant must show: (1) counsel’s performance was objectively unreasonable under

prevailing professional norms; and (2) there is a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A

reasonable probability is a “probability sufficient to undermine confidence in the outcome.”

Hale,

. In other words, the “defendant must establish that there is a

reasonable probability that, absent his attorney’s deficient advice, he would have accepted the

plea offer.”

To show prejudice in the plea bargaining context where the defendant claims

he rejected an offer due to counsel’s deficient performance, “a defendant must show that he

would have accepted the plea offer but for counsel’s erroneous advice, that the State would not

have rescinded the offer, and that the trial court would have accepted it.” People v. Brown,

(citing Hale,

). This showing of prejudice

must “encompass more than a defendant’s own ‘subjective, self-serving’ testimony” and

instead there must be “independent, objective confirmation that defendant’s rejection of the

proffered plea was based upon counsel’s erroneous advice, and not on other considerations.”

Hale,

.

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¶ 44 Here, defendant clearly cannot meet his burden under the prejudice prong. See Hale,

(providing that the court may dispose of an ineffective assistance of counsel

claim by proceeding directly to the prejudice prong without addressing counsel’s

performance). First, defendant argues that counsel “affirmatively misadvised him that he was

not Class X mandatory, based on an interpretation of the recidivist statute that the Illinois

Supreme Court had rejected months before.” Defendant contends that this erroneous advice

led him to reject the State’s initial offer of three years on the PSMV charge and subjected him

to a longer Class X sentence which he would not have faced had counsel advised him correctly.

¶ 45 Defendant does not point to any statements by defense counsel indicating that he advised

defendant to reject the initial offer and instead points to counsel’s reliance on Brown,

. Defendant contends that counsel’s reliance on Brown, a case overruled by

our supreme court, supports his argument that defense counsel was misinformed of the law and

incorrectly advised him that he would never be subject to Class X sentencing as he was under

the age of 21 years at the time the offense was committed. However, the record is clear that

even prior to defense counsel’s reliance on Brown, defendant was correctly admonished by

both counsel and the trial court that a Class X sentence requires the offender to be 21 years old

at the time of conviction. Specifically, on March 29, 2017, defense counsel stated for the record

that when defendant was arrested and was charged with the possession of a stolen vehicle, he

was 20 years old and not subject to Class X mandatory. However, counsel also noted on record

that defendant would turn 21 years old on June 1st of that year which would subject him to

sentencing under Class X. Defense counsel stated that this was communicated to defendant.

Additionally, during the 402 conference that same day with defendant present, the trial court

noted that “defendant has been advised that his birthday will change the sentencing mandatory

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minimum significantly which is in June.” Despite being correctly admonished in this regard,

defendant rejected the State’s initial plea offer and defense counsel stated that defendant had

not shown any interest in pleading guilty. Any subsequent misinterpretation of the statute by

counsel did not prejudice defendant. As such, defendant cannot show that he would have

accepted the plea offer but for his counsel’s erroneous advice.

¶ 46 Next, defendant argues that defense counsel was ineffective because he pursued an

evaluation for boot camp and TASC probation for over a year despite his ineligibility due to

his background and mental health issues. Defendant contends that in the course of that one

year, he turned 21 years old which subjected him to sentencing under the Class X statute.

Defendant’s argument is unavailing. The record shows defendant had initially urged counsel

to pursue alternatives to sentencing even after being admonished that his twenty-first birthday

would raise the minimum available sentence. For instance, the record shows that on February

27, 2017, defense counsel acknowledged defendant’s ineligibility for mental health probation

but sought TASC evaluation and evaluation for drug court upon defendant’s request. In any

event, this argument is rendered moot by our conclusion that defendant never became eligible

for a Class X sentence.

¶ 47 III. CONCLUSION

¶ 48 For the reasons stated, we vacate defendant’s Class X sentence and remand to the circuit

court for resentencing as a Class 2 offender.

¶ 49 Sentence vacated; remanded.

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