SIXTH DIVISION May 14, 2021

No. 1-18-1400

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

) Appeal from the ) Circuit Court of THE PEOPLE OF THE STATE OF ILLINOIS, ) Cook County. ) Plaintiff-Appellee, ) Nos. 13 CR 1113001, ) 13 CR 1119501, v. ) 15 CR 2018001, ) 15 CR 2018101, & VICTOR PEREZ, ) 15 CR 2018201 ) Defendant-Appellant. ) Honorable ) Charles P. Burns, ) Judge Presiding.

PRESIDING JUSTICE MIKVA delivered the judgment of the court. Justices Connors and Harris concurred in the judgment.

ORDER

¶1 Held: First-stage dismissal of defendant’s postconviction petition alleging ineffective assistance of counsel during the plea process is affirmed. Defendant failed to state the gist of a constitutional claim.

¶2 Defendant Victor Perez was charged with multiple counts of possession of a stolen firearm,

possession of a controlled substance with intent to deliver, and delivery of a controlled substance

in five cases—two brought in 2013 and three brought in 2015. Mr. Perez pleaded guilty to the No. 1-18-1400

charges at an omnibus proceeding in May 2016 and was sentenced to 13 years in prison.

¶3 A little over a year after sentencing, Mr. Perez filed a pro se postconviction petition

alleging that his counsel was ineffective during the plea negotiation process. The circuit court

dismissed the petition at the first stage. Mr. Perez now appeals, arguing that he sufficiently alleged

claims that his trial counsel was ineffective for (1) failing to advise him that the State was required

to prove each element of the crime, including that he knew the firearms he possessed were stolen,

(2) failing to object when the State provided no factual basis for Mr. Perez’s plea of guilty for the

two counts of possession of a stolen firearm, (3) incorrectly advising him that he would be eligible

for sentencing credits, and (4) failing to file a motion to quash his November 14, 2015, arrest and

suppress the evidence seized as a result of that arrest. After reviewing each of these claims, we

agree with the circuit court that Mr. Perez failed to raise an arguable constitutional claim and affirm

the summary dismissal of his postconviction petition.

¶4 I. BACKGROUND

¶5 Mr. Perez was arrested on May 20, 2013. On June 13, 2013, he was indicted on three counts

of armed violence, three counts of possession of a controlled substance with the intent to deliver,

and one count of possession of a stolen firearm in case No. 13 CR 11130. He was also indicted

that same day in case No. 13 CR 11195 on possession of a stolen firearm. Mr. Perez was released

on bail pending trial but was arrested again while released on bail on November 14, 2015.

Following this arrest, he was indicted on two additional counts of delivery of a controlled substance

in case No. 15 CR 20180; two additional counts of delivery of a controlled substance in case No.

15 CR 20181; and two additional counts of possession of a controlled substance with the intent to

deliver in case No. 15 CR 20182.

¶6 At a hearing on May 25, 2016, Mr. Perez pleaded guilty to the following counts: possession

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of a controlled substance with intent to deliver and possession of a stolen firearm in case No. 13

CR 11130; possession of a stolen firearm in case No. 13 CR 11195; delivery of a controlled

substance in case Nos. 15 CR 20180 and 15 CR 20181; and possession of a controlled substance

with the intent to deliver in case No. 15 CR 20182. The State nol-prossed the remaining counts.

¶7 A lengthy exchange between Mr. Perez and the judge—which included the court’s reading

of the charging document—occurred prior to Mr. Perez entering his guilty plea. This included the

following:

“THE COURT: *** [O]n Case Number 13 CR 11130 *** Count 7 reads as follows:

*** On or about the date of February 20, 2013, that you, being in possession of a firearm,

you possessed a firearm knowing it to be stolen or converted. In Case Number 13 CR

11195, you’re charged with a count of possession of a stolen firearm from May, 2013[,] in

that you, not being entitled to possession of a firearm, you possessed a firearm knowing it

to be stolen.

***

Do you understand the charges against you in all these cases, sir?

[MR. PEREZ]: Yes, sir.

THE COURT: How do you plead on these charges, guilty or not guilty?

[MR. PEREZ]: Guilty.”

¶8 The court admonished Mr. Perez that he was giving up his rights to plead not guilty, to a

bench trial, to a jury trial, and to have the State prove the charges against him beyond a reasonable

doubt. Mr. Perez said he understood. The court further admonished Mr. Perez regarding the

sentencing range for the charges, which he again stated he understood. Mr. Perez also stated that

he was not pleading guilty as the result of any force, threats, or promises, but of his own free will.

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Finally, the court asked if Mr. Perez had discussed his plea with his counsel and was satisfied with

his counsel’s representation. Mr. Perez replied yes to both questions.

¶9 The State then provided a factual basis for the possession of a controlled substance with

the intent to deliver and delivery of a controlled substance counts. The State did not present a

factual basis for the possession of a stolen firearm counts during the hearing.

¶ 10 Mr. Perez waived his right to a presentence investigation. The court sentenced him to nine

years in prison on both of the charges in case No. 13 CR 11130 and three years in prison in case

No.13 CR 11195, with all three sentences to run concurrently. The court sentenced Mr. Perez to

four years in prison on each count in the 2015 cases, to be served concurrently with each other but

consecutively with the convictions in the 2013 cases. Altogether, Mr. Perez was sentenced to 13

years in prison.

¶ 11 Mr. Perez filed a pro se motion to reconsider his sentence on October 11, 2016, which is

not included in the record on appeal. According to the circuit court order responding to that motion,

Mr. Perez argued that his sentence was excessive, he received ineffective assistance of counsel,

and he did not receive the benefit of his plea bargain. Because Mr. Perez invoked section 2-1401

of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)), a civil remedy that is also

available in criminal cases (People v. Vincent,

(2007)), the court treated his motion

as a petition under that section. The court denied the petition but, based on what appears to be the

circuit court’s recognition that a nine-year sentence was not within the sentencing range for

possession of a stolen firearm, the court ordered a corrected mittimus reflecting a sentence of seven

years—rather than nine—for the conviction in case No. 13 CR 11130. That sentence remained

concurrent with the longer nine-year sentence on the possession of a controlled substance with

intent to deliver.

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¶ 12 Mr. Perez did not directly appeal his conviction. On September 27, 2017, he filed the pro se

postconviction petition that is the subject of this appeal, alleging that his trial counsel provided

ineffective assistance by (1) failing to file a motion to suppress evidence following an investigative

alert, (2) failing to advise him that the State had to prove beyond a reasonable doubt that he knew

the firearms he possessed were stolen, and (3) incorrectly advising him that he would qualify for

early release. On November 2, 2017, the circuit court entered its written order summarily

dismissing Mr. Perez’s petition.

¶ 13 Mr. Perez now appeals.

¶ 14 II. JURISDICTION

¶ 15 The circuit court dismissed Mr. Perez’s postconviction petition on November 2, 2017, and

Mr. Perez’s late notice of appeal was allowed on July 9, 2018. We have jurisdiction pursuant to

article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Supreme Court

Rules 606 and 651, governing criminal appeals and appeals from final judgments in postconviction

proceedings (Ill. S. Ct. R. 606 (eff. Mar. 20, 2009); R. 651(a) (eff. Dec. 1, 1984)).

¶ 16 III. ANALYSIS

¶ 17 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) provides

an avenue for an incarcerated person to assert that a conviction was the result of a substantial denial

of his or her rights under the Constitution of the United States or of the State of Illinois or both.

People v. Tate,

. There are three stages to a noncapital postconviction

proceeding. Id. ¶ 9.

¶ 18 Mr. Perez’s petition is before us after dismissal at the first stage. “At the first stage, the

circuit court must, within 90 days of the petition’s filing, independently review the petition, taking

the allegations as true, and determine whether the petition is frivolous or is patently without merit.”

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(Internal quotations omitted.) People v. Hodges,

(2009). A petition is frivolous or

patently without merit if it contains no arguable basis in law or in fact.

. Courts are

required to consider the fact that most original petitions are drafted by petitioners with little legal

knowledge. People v. Torres,

(2008). Thus, at the first stage, a petitioner is

not required to set out his claim in its entirety. Rather, he need only state the “gist” of a

constitutional claim, which requires only a “limited amount of detail.”

However, to survive

even first-stage review, the petition must have an arguable basis in law and must not be barred by

res judicata or waiver. Hodges,

. A meritless claim includes one that is

contradicted by the record.

; see also People v. Williams,

(finding where “the record rebuts any potential claim of ineffective assistance of appellate counsel”

that “the claim has no arguable basis in law”).

¶ 19 If any claim in the petition survives first-stage scrutiny, the entire petition is docketed for

second-stage review. People v. Rivera,

(2001). We review the summary

dismissal of a postconviction petition de novo. People v. Coleman,

(1998).

¶ 20 Mr. Perez argues on appeal that his postconviction petition raised an arguable claim of

ineffective assistance of counsel by alleging that his counsel (1) failed to inform him that, if the

case went to trial, the State would be required to prove beyond a reasonable doubt that he knew

the firearms were stolen, (2) failed to object to the lack of a factual basis for the counts alleging

possession of a stolen firearm, (3) incorrectly advised him that he would be eligible for sentencing

credits, and (4) failed to file a motion to quash his November 14, 2015, arrest and suppress the

evidence seized as a result of that arrest.

¶ 21 Defendants have the right to effective assistance of counsel during their criminal

proceedings. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8; see also Strickland v. Washington,

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(1984) (the right to counsel means the right to effective assistance of counsel).

This right extends to all critical stages of the criminal proceedings (Montejo v. Louisiana,

(2009)), including the plea process (People v. Hale,

, ¶ 15).

¶ 22 Counsel is ineffective when he or she performs deficiently and that deficient performance

results in prejudice to the defendant. Strickland,

(1984); People v. Albanese,

(1984) (adopting the Strickland standard in Illinois); Hill v. Lockhart,

(1985) (Strickland governs claims of ineffective assistance during plea negotiations). To prevail

at the first stage of a postconviction petition proceeding, the defendant must present a legally

cognizable claim that his counsel performed deficiently and that it is arguable that, as a result, the

defendant was prejudiced. Hodges,

.

¶ 23 Counsel performs deficiently where his or her representation falls “below an objective

standard of reasonableness,” and a defendant is prejudiced when there is a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland,

. “Because a defendant must satisfy both prongs of the

Strickland test to prevail, the failure to establish either precludes a finding of ineffective assistance

of counsel.” People v. Cherry,

.

¶ 24 In the specific context of a guilty plea, trial counsel performs deficiently where he or she

fails to ensure the defendant’s plea is entered voluntarily and intelligently (People v. Hall,

(2005)), and a defendant is prejudiced by that deficient performance where “there is

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

have insisted on going to trial” (internal quotation marks omitted) (People v. Brown,

). We address each of Mr. Perez’s claims of ineffective assistance relative to his guilty

plea in turn.

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¶ 25 A. Failure to Inform that State Was Required to Prove that He Knew Guns Were Stolen

¶ 26 Mr. Perez argues that his counsel was ineffective for failing to explain that the State was

required to prove that he knew the guns were stolen. Mr. Perez alleges that he did not know the

guns he possessed were stolen and argues that, because his counsel failed to advise him on the

knowledge element, he was unaware that he had a viable defense to the charges he pleaded guilty

to. He further argues that he would have insisted on going to trial if he were advised that he had a

defense to the charges of possession of a stolen firearm.

¶ 27 A “bare allegation” that a defendant would have insisted on going to trial but for counsel’s

deficient performance is not sufficient to establish prejudice. People v. Rissley,

(2003). A defendant must allege either actual innocence or a plausible defense he could have

raised at trial.

. Here, there is a plausible defense, if in fact there was insufficient

evidence, direct or circumstantial, that Mr. Perez knew the guns were stolen. See People v.

Siguenza-Brito,

(2009) (stating “the State carries the burden of proving beyond

a reasonable doubt each element of an offense”); 720 ILCS 5/24-3.8(a) (West 2016) (possession

of a stolen firearm includes the element, “knowing [the firearm] to have been stolen or converted”).

¶ 28 The State argues that any alleged deficiency in counsel’s performance was cured when the

circuit court informed Mr. Perez of the elements that the State would have had to prove beyond a

reasonable doubt. The court’s admonishments regarding the possession of a stolen firearm charges

are outlined above and specifically advised Mr. Perez that the counts he was pleading guilty to

included the element that he “possessed a firearm knowing it to be stolen.” Mr. Perez contends,

however, that the court’s admonishment was not sufficient to cure his lawyer’s alleged deficiency

in this case.

¶ 29 The State relies on People v. Valdez, where our supreme court found the circuit court’s

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admonishment that there could be immigration consequences cured any resulting prejudice from

counsel’s failure to advise a defendant about immigration consequences. Valdez,

. The court reasoned that “the circuit court conveyed the same information to him, and [the]

defendant still chose to plead guilty.”

¶ 30 Mr. Perez relies instead on Hall, where the defendant alleged in a postconviction petition

that his guilty plea to a charge of aggravated kidnapping was involuntary because his counsel

incorrectly and repeatedly misadvised him that his lack of knowledge that he confined a child was

not a defense. Hall, 217 Ill. 2d. at 327-29. In that case, our supreme court found the postconviction

petition established a substantial showing of a constitutional claim where, in words that Mr. Perez

argues are very similar to the words used here, the circuit court read to the defendant the charges

against him, including that the aggravated kidnapping charge required “knowingly” confining a

child. Id. at 341, 327. Our supreme court opined that the fact that the circuit court’s admonition

“ensured [the] defendant was aware of the language of the charge” did not mean the defendant had

an “understanding of the knowledge element of the offense.” Id. at 340.

¶ 31 A critical difference between Valdez and Hall is that, in the former, the attorney allegedly

failed to advise the defendant (Valdez,

) and, in the latter, the attorney allegedly

repeatedly gave patently false advice (Hall, 217 Ill. 2d. at 329). The court held in Valdez that a

failure to provide information, even where it clearly should have been provided by the attorney, is

cured where the court’s admonitions fill the void. Valdez,

. The court in Hall,

in contrast, focused on what the court repeatedly referred to as “erroneous” advice (Hall,

), and found the circuit court’s reading of the charge that

included the knowledge element insufficient to avoid prejudice (id. at 341).

¶ 32 Mr. Perez is correct that erroneous advice is not a prerequisite to ineffective assistance in

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a guilty plea, and that the failure to advise alone may be ineffective assistance in a guilty plea. See,

e.g., People v. Mendez,

(2003) (finding the defendant “alleged the gist

of a constitutional claim that his plea was involuntary because his attorney was ineffective in

failing to inform him of the defense of entrapment”). However, in Mendez, the court would not

have admonished the defendant that entrapment was a defense. This court has found no case, and

Mr. Perez has provided no precedent, in which a court’s admonition was insufficient to negate

prejudice from a lawyer’s failure to advise his client on the specific point that was the subject of

the admonishment. Indeed, when this court in Valdez vacated a guilty plea because it found the

admonitions from the trial court differed from the information that the attorney should have

provided on immigration consequences (People v. Valdez,

, rev’d,

), our supreme court reversed, emphasizing that the circuit court

informed the defendant of the very information his attorney allegedly failed to (Valdez,

).

¶ 33 Thus, our supreme court has made clear that, where, as in this case, the record reflects that

court admonitions filled in the missing information, a defendant who pleaded guilty has no claim

for ineffective assistance. Because the record in Mr. Perez’s case demonstrates that the circuit

court’s admonition provided the information that Mr. Perez’s lawyer allegedly failed to provide,

Mr. Perez cannot proceed to the second stage on a claim for ineffective assistance on this basis.

¶ 34 B. Factual Basis

¶ 35 Mr. Perez next argues that counsel was ineffective for “standing idly by while Mr. Perez

purported to plead guilty to two counts of possession of a stolen firearm for which there was no

factual basis in the record.”

¶ 36 The State argues that Mr. Perez raised this issue for the first time on appeal and has

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therefore forfeited it. Mr. Perez admits in his opening brief that he “did not raise this issue in his

pro se post-conviction petition,” but argues that we should nevertheless consider this issue based

on the principles permitting lower pleading standards for pro se postconviction petitions. See, e.g.,

Hodges,

(stating the “threshold for survival [is] low” for pro se postconviction

petitioners due to their limited legal knowledge and training). Despite this low threshold, it is clear

that the failure to raise an issue in a pro se petition results in forfeiture. 725 ILCS 5/122-3 (West

2016) (“Any claim of substantial denial of constitutional rights not raised in the original or an

amended petition is waived.”); see also People v. Pendleton,

(2006) (finding

the defendant forfeited an issue he failed to raise in either his pro se petition or his amended

petition). And our supreme court has specifically admonished this court on our “inappropriate

propensity” to overlook the forfeiture language of the Act.

(citing People v. Jones,

(2004)).

¶ 37 Mr. Perez argues that, “to the extent this Court declines to consider this claim as an

independent claim pursuant to Pendleton,” we should still consider it in the context of his claim,

discussed above, that his counsel was ineffective for failing to advise him of his defense against

the charges of possession of a stolen firearm. According to Mr. Perez, his allegation that he had no

knowledge the guns he possessed were stolen was unrebutted by the record, further demonstrated

by the fact that there is no factual basis in the record to support his guilty plea.

¶ 38 We agree with Mr. Perez that these two claims have some connection, but not in a way that

would allow Mr. Perez to proceed on this claim when it was not raised in his petition. The absence

of anything in the record—other than Mr. Perez’s admission in his guilty plea—that he had

knowledge the guns were stolen was a necessary prerequisite for his ineffective assistance claim.

If the record clearly demonstrated his knowledge through extrinsic evidence, such as a witness

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who would testify that he told Mr. Perez this fact, this would have been another reason to deny his

first claim. As noted above, to proceed on that claim, Mr. Perez would have to allege either actual

innocence or a plausible defense he could have raised at trial that was not rebutted by the record.

Rissley,

. However, his trial counsel’s failure to insist, in open court, on a

factual basis for the plea is quite different than counsel’s alleged failure to advise him that he might

have had a defense based on his alleged lack of knowledge that the guns were stolen. This claim

is simply not a part of his petition and cannot be a basis upon which this court could reverse the

dismissal.

¶ 39 C. Sentencing Credits

¶ 40 Mr. Perez next argues that he stated the gist of a claim of ineffective assistance of counsel

where his counsel incorrectly advised him that he would be able to obtain “a plethora of assured

benefits ranging from the awarding of good time to work release” and “Inmate Behavior

Modification” or IBM sentencing credits, none of which were available to him because he had

pleaded guilty to a Class X felony. Because we find no prejudice, we need only analyze that prong

of Strickland. Cherry,

.

¶ 41 As noted previously, a bare allegation that a defendant would not have pleaded guilty, but

for counsel’s deficient performance, is insufficient to establish prejudice. Brown,

. Rather, “the defendant must convince the court that a decision to reject the plea bargain

would have been rational under the circumstances.” (Internal quotation marks omitted.) Id. ¶ 48.

Our supreme court explained specifically what this means in the context of a claim that a defendant

was not fully advised or was incorrectly advised about his sentence in Brown. In that case, our

supreme court found that the defendant could not demonstrate prejudice where his counsel

misinformed him that he would serve only 50% of his 18-year sentence, rather than the actual 85%

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he was required to serve. Id. ¶ 49. The court “examine[d] the circumstances surrounding [the

defendant’s] plea” and determined that (1) if he went to trial he would likely be convicted and

could receive a much greater sentence and face more convictions (id. ¶¶ 49-50), (2) “nothing in

[the] defendant’s plea colloquy demonstrate[d] that his primary focus when pleading guilty was

serving 50% of his sentence” (id. ¶ 51), and (3) the defendant denied he was promised anything

during the plea negotiations (id.). The court concluded that “a decision to reject his plea bargain

would not have been rational under the circumstances of his case.” Id. ¶ 52.

¶ 42 Similarly, the record belies any claim that it would have been rational for Mr. Perez to

reject the plea bargain based on sentencing credits. In the 2013 incident, officers found heroin and

a gun in Mr. Perez’s car and a second gun in his home while executing an arrest warrant. In the

2015 incident, the officers found heroin on his person and marijuana in his car and on his person.

The State nol-prossed five Class X felony counts, including three counts of armed violence and

two counts of possession of a controlled substance with intent to deliver, in case No. 13 CR 11130;

one count, a Class X felony of delivery of a controlled substance within 1000 feet of a school, in

both case Nos. 15 CR 20180 and 15 CR 20181; and one Class X count of possession of a controlled

substance with intent to deliver in case No. 15 CR 20182. Mr. Perez faced sentencing ranges of 6

to 30 years on each of his Class X charges, 4 to 15 on his Class 1 charges, and 3 to 7 on his Class

2 charges. And, also, as in Brown, there was no indication in the record that Mr. Perez was

motivated to take the plea based on any potential sentencing credits.

¶ 43 The cases that Mr. Perez relies on are distinguishable. In both People v. Young,

(2005), and People v. Boyd,

, the record

demonstrated the misinformation about the sentence was a key factor in the decision to plead

guilty. In Young for example, “[t]he record ma[de] clear that, before pleading guilty to a Class 1

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felony and accepting a 12-year sentence, [the] defendant repeatedly rejected offers to plead guilty

to a Class X felony in exchange for a 10-year sentence.” Id. at 322. The record was also clear that

the defendant in Young only pleaded guilty because his counsel misinformed him that he could get

much better sentencing credits on the longer sentence. Id. In Boyd, where the court considered the

denial of a motion to withdraw a guilty plea rather than the dismissal of a postconviction petition,

there was unrebutted evidence that the defendant’s lawyer had specifically advised him he would

be eligible for good time credit and that had he known he was statutorily ineligible, he would not

have pleaded guilty. Boyd,

.

¶ 44 D. Motion to Quash Arrest and Suppress the Evidence

¶ 45 Finally, Mr. Perez argues that he stated the gist of a claim that his counsel was ineffective

in failing to move to quash his arrest and suppress the evidence. To state a claim for ineffective

assistance of counsel based on the failure to file a motion to suppress, the defendant must

demonstrate that the underlying motion is meritorious and that there is a reasonable probability the

trial outcome would have been different had the evidence been suppressed. People v. Gayden,

. Mr. Perez cannot show that here because it is clear the officers had probable

cause—separate from any investigative alert—to arrest him because of the presence of suspected

drugs in plain view next to Mr. Perez in his car.

¶ 46 Mr. Perez alleges in his petition that his arrest on November 14, 2015, was the result of an

illegal investigative alert, and there was no probable cause to detain or arrest him. According to

the arrest report, the arresting officers approached Mr. Perez’s vehicle after he was “positively

identified as the person that delivered suspect heroin” to an undercover officer on “two previous

and separate occasions.” Upon approaching Mr. Perez’s car, the officers “observed a rolled brown

cigarette suspect cannabis and a clear plastic bag containing a green leafy substance suspect

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cannabis on the center co[nsole] (in plain view).” Mr. Perez was then arrested.

¶ 47 Here, Mr. Perez was placed in custody not based on the investigative alert but based on the

suspected drugs the officers saw in plain view after they approached his car. “In general, when an

officer observes illegal drugs in plain view, the officer has probable cause to seize the contraband

and arrest the vehicle’s occupants.” People v. Teper,

. Therefore,

the State would have been able to show that the officers had probable cause to arrest, and Mr.

Perez cannot state the gist of a claim of ineffective assistance of counsel based on a failure to move

to quash his arrest and suppress the evidence.

¶ 48 IV. CONCLUSION

¶ 49 In short, none of Mr. Perez’s ineffective assistance claims have legal merit. Each claim is

either not a part of his petition or is belied by the record. Accordingly, for the foregoing reasons,

we affirm the decision of the circuit court.

¶ 50 Affirmed.

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