Opinion filed January 29, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2021

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the Ninth Judicial Circuit, ) Knox County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-18-0010 v. ) Circuit No. 12-CF-24 ) STERLING M. NICHOLSON, ) The Honorable ) Paul L. Mangieri Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________

PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion. Justices O’BRIEN and WRIGHT concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 The State charged petitioner Sterling M. Nicholson with three counts of attempted first

degree murder (720 ILCS 5/8-4, 9-1(a)(1)-(3) (West 2012)), one count of aggravated domestic

battery (id. § 12-3.3(a)), and one count of aggravated battery (id. § 12-3.05(a)(1)). A jury

acquitted Nicholson on all counts of attempted first degree murder but found him guilty of

aggravated domestic battery and aggravated battery. The trial court entered convictions on each

of those counts and sentenced him to 25 years’ imprisonment for aggravated domestic battery

and 10 years’ imprisonment for aggravated battery, to be served consecutively. On direct appeal, we affirmed Nicholson’s conviction for aggravated domestic battery and vacated his conviction

for aggravated battery.

¶2 Nicholson now appeals the third-stage dismissal of his postconviction petition. He alleges

that his trial counsel was ineffective in failing to inform him that he was eligible for Class X

sentencing for his aggravated domestic battery conviction. For the following reasons, we reverse

the trial court’s decision and remand the matter with instructions for resentencing.

¶3 BACKGROUND

¶4 In this appeal, Nicholson challenges only the trial court’s decision following the third-

stage evidentiary hearing on his petition for postconviction relief. Therefore, we incorporate by

reference our prior decision, where we described the evidence in detail. People v. Nicholson,

, ¶¶ 9-21. We repeat those facts necessary to resolve the claim of

ineffective assistance of counsel. At trial, the State’s evidence established that Nicholson “beat

up” his then-girlfriend Mary Cannon, intentionally causing her great bodily harm. Although

Cannon could not remember the events leading to her injuries when she testified, four State

witnesses testified that Cannon identified Nicholson as her assailant immediately after suffering

the injuries. In his own defense, Nicholson testified that a friend, Ollie Howell, struck Cannon in

the mouth, following which Cannon and Howell had a violent altercation. Howell testified that

he saw Nicholson strike Cannon after an argument over Cannon’s previous boyfriend.

¶5 The jury found Nicholson not guilty of the three counts of attempted murder and guilty of

aggravated domestic battery and aggravated battery. At the sentencing hearing, the trial court

found that Nicholson was older than 21 years old and had seven prior felony convictions—six

separate convictions for Class 2 felonies and one conviction for a Class 1 felony—over a period

of roughly 20 years from 1993. Considering his age and criminal history, the court sentenced

2 Nicholson to 20 years’ imprisonment as a Class X offender under the general recidivism

provisions of the Unified Code of Corrections (730 ILCS 5/5-4.5-95 (2012)). During his

sentencing, Nicholson interrupted the court and stated:

“But my—my—my question would be of if I was informed of all this prior to

when the State offered me the six years for the three counts of attempted

murder, one aggravated domestic, and one aggravated battery, I would have

considered the—I would have considered that plea more earnestly.”

¶6 Nicholson filed a motion to reconsider his sentence. In the motion, Nicholson’s trial

counsel acknowledged that he failed to advise Nicholson of his Class X sentencing eligibility.

Trial counsel admitted that he was unaware of Nicholson’s eligibility. The trial court denied the

motion.

¶7 On direct appeal, Nicholson raised no issues related to trial counsel’s failure to inform

him of the Class X sentencing. Instead, he challenged the trial court’s ruling on two evidentiary

matters and his conviction for aggravated battery. We affirmed his conviction for aggravated

domestic battery but vacated his conviction for aggravated battery as violating the principles of

one-act, one-crime.

¶8 Subsequently, Nicholson filed a pro se petition for postconviction relief that advanced to

the second stage. In his amended petition, Nicholson raised six claims, including a claim of

ineffective assistance of trial counsel. In that claim, he argued that trial counsel informed him of

a plea offer from the State. The offer was for six years’ imprisonment for the aggravated

domestic battery. In exchange, the State would dismiss the charges of attempted murder and

aggravated battery. Nicholson alleged that trial counsel told him the State could not prove

attempted murder and the most he would face on the aggravated battery—the next serious

3 offense, according to counsel—was 14 years’ imprisonment if he was convicted. Nicholson

claimed that because of trial counsel’s advice, he rejected the State’s offer. He argued that trial

counsel was ineffective because counsel should have known that he was facing Class X

sentencing on the aggravated domestic battery.

¶9 The trial court advanced the petition to a third-stage evidentiary hearing, where

Nicholson and trial counsel testified. Nicholson testified that counsel said the State could not

prove the attempted murder. He wanted to take the State’s offer, but counsel dissuaded him.

Counsel said that it was unlikely that Nicholson would get a sentence greater than six years on

the aggravated domestic battery. Nicholson stated that he would have considered the sentence

more “earnestly” if he had known he was still facing 25 years: “if I’d known that all these things

were possible, I most definitely would’ve taken the six years, point-blank.”

¶ 10 Trial counsel testified that he was unaware of the statutory enhancement at the time and

failed to advise Nicholson on the possibility of an extended sentence. But counsel stated that he

did not “urge” Nicholson to reject the plea. He could not recall the details of his advice but

believed that he would have advised Nicholson on the relative strengths and weaknesses of the

State’s evidence for each count.

¶ 11 The trial court denied Nicholson relief, finding that trial counsel’s advice fell short of the

competence required by the first prong of the Strickland test but not finding the prejudice

demanded for the second prong. The court stated that while Nicholson “was receiving a 6-year

offer and a dismissal of the attempted murder charge, [he] rejected a 6-year sentence and

subjected himself to the possibility that he could receive up to 30 years if he was found guilty of

attempted murder.” The court concluded that, regardless of counsel’s advice, Nicholson decided

to reject a “6-year offer with the understanding that [he] could be facing up to 30 years.”

4 ¶ 12 Nicholson appeals that decision.

¶ 13 ANALYSIS

¶ 14 This case comes to us on appeal from a third-stage evidentiary hearing under the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). The Act provides a three-

stage process by which a petitioner may allege a substantial deprivation of a constitutional right.

People v. Pellegrini,

. At the third stage, the circuit courts hold

fact-finding evidentiary hearings where they may make credibility determinations.

After such

hearings, the courts’ fact-finding and credibility decisions will not be reversed unless they were

manifestly erroneous.

But, we apply a mixed standard of review to claims of ineffective

assistance of counsel. People v. Peterson,

, ¶ 222. The court’s fact-

finding and credibility assessments in deciding whether or not counsel was ineffective will be

reviewed under the ordinary standard for the dismissal of a postconviction petition following the

third-stage evidentiary hearing. See

“However, the ultimate question of whether counsel’s

actions support a claim of ineffective assistance is a question of law that is subject to de novo

review on appeal.” Id.; see also People v. Hale,

(applying a de novo

standard of review to a claim of ineffective assistance of counsel).

¶ 15 The Illinois Constitution, like the United States Constitution, guarantees all criminal

defendants the right to effective assistance of counsel. Hale,

. This right

extends to the plea-bargaining process, including situations where a defendant rejects a guilty

plea offer and subsequently receives a fair trial. Id. ¶ 16. Claims of ineffective assistance of

counsel are reviewed under the two-prong test established in Strickland v. Washington,

(1984). Hale,

, ¶ 15. To prevail on such a claim, a defendant must show that

counsel’s performance was both deficient and prejudicial. People v. Curry,

, 519

5 (1997) “More precisely, a defendant must show that his attorney’s assistance was objectively

unreasonable under prevailing professional norms, and that there is a ‘reasonable probability

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

different.’ ”

(quoting Strickland,

).

¶ 16 Nicholson contends that trial counsel’s performance was unreasonable because counsel

failed to inform him that he was subject to Class X sentencing under section 5-4.5-95(b). The

trial court agreed and found that trial counsel’s failure was unreasonable and, thus, deficient

performance. We agree with the court’s finding of deficient performance. Section 5-4.5-95(b)

states in relevant part:

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

2 felony, after having twice been convicted in any state or federal court of an

offense that contains the same elements as an offense now *** classified in

Illinois as a Class 2 or greater Class felony 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 2012).

¶ 17 Given Nicholson’s age and criminal history, Section 5-4.5-95(b) elevated his aggravated

domestic battery Class 2 conviction to Class X sentencing. In Nicholson’s motion for

reconsideration of sentence, counsel admitted that he was unaware that section 5-4.5-95(b)

applied to the conviction. At the third-stage hearing, counsel also admitted that he had not

informed Nicholson of his Class X sentencing eligibility. “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.) Curry,

. Part of this

obligation is satisfied when defense counsel accurately informs his client of the maximum and

6 minimum sentences that can be imposed for the offenses charged by the State. See People v.

Blommaert,

(1992). Consequently, trial counsel’s performance was

deficient when he failed to inform Nicholson’s that he was eligible for Class X sentencing under

section 5-4.5-95(b). See Curry,

.

¶ 18 The State does not dispute this conclusion, arguing instead that the claim of

ineffectiveness is forfeited because it was not raised on direct appeal. We disagree. “A

postconviction claim that depends on matters outside the record *** is not ordinarily forfeited

because such matters may not be raised on direct appeal.” People v. Brown,

(citing People v. English,

). Nicholson’s claim depends on the

specific terms of the State’s plea offer—the details of said offer entered the record only after

Nicholson filed his petition and affidavit. Therefore, we find the argument is not forfeited.

¶ 19 Having found counsel’s performance was deficient, we now turn to the second prong of

the Strickland test: whether counsel’s performance was prejudicial to Nicholson. To establish the

second prong, a “defendant must show that there is a reasonable probability that, but for

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

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

Strickland,

. In this case, where the claim is for a rejected guilty plea offer,

Nicholson must show that (1) but for his counsel’s deficient advice, he would have accepted the

plea offer, (2) the plea would have been entered without the prosecution cancelling it, (3) the trial

court would have accepted the bargain, assuming that it had discretion under state law to accept

or reject it, and (4) “ ‘the end result of the criminal process would have been more favorable by

reason of a plea.’ ” Hale,

(quoting Missouri v. Frye,

(2012)).

7 ¶ 20 Here, there is no question that a 6-year prison sentence, which was the minimum sentence

Nicholson could have received for aggravated domestic battery if convicted and sentenced as a

Class X offender, would have been more favorable than the 25 years that he ultimately received.

There is also no indication that the plea agreement would not have been accepted and entered by

the trial court, as six years was a lawful Class X term, and the judge’s knowledge of the details

of the offense at this point in the proceedings, prior to any trial, would have been necessarily

limited. Similarly, there is no indication that the State would have canceled the agreement.

¶ 21 The only significant factor at issue in establishing whether Strickland prejudice occurred

is whether there was a reasonable probability that Nicholson would have accepted the State’s

offer but for counsel’s erroneous advice. The court concluded that Nicholson would not have

accepted the plea offer, regardless of counsel’s advice, because Nicholson rejected the offer even

though he knew he could be facing 30 years on the attempted murder charges. Put differently, the

court assumed that the two charges were interchangeable to Nicholson because they had the

same sentence range. But, to Nicholson, they were not interchangeable because he reasonably

did not believe that he was facing 30 years on any of the pending charges.

¶ 22 Nicholson was not simply advised by his attorney that the State could not meet its burden

of proving the attempted murder but was also thoroughly informed of the evidentiary basis for

that opinion. This assessment proved true and valid when the jury found him not guilty on those

charges. With regard to the aggravated domestic battery, he was also erroneously told that

probation was a possibility and that he was facing a maximum of 14 years. Counsel’s optimistic,

fact-supported presentation of the likely outcome of the charges and the associated potential

sentences was the advice on which Nicholson would have reasonably relied in rejecting the plea

offer. See, e.g., Lee v. United States, 582 U.S.___, ___,

(2017) (“where we

8 are instead asking what an individual defendant would have done, the possibility of even a highly

improbable result may be pertinent to the extent it would have affected his decisionmaking”).

Consider now altering this rosy picture by removing the possibility of probation and increasing

the maximum sentence for the aggravated domestic battery to 25 years. Nicholson would now

understand that, given his eligibility for Class X sentencing, the plea offer presented his best

possible outcome. We conclude that counsel’s erroneous advice—omitting Class X sentencing

and, instead, advising Nicholson that in a worst-case scenario he was facing a Class 2 sentence

that included the possibility of parole—was the deciding factor leading him to reject the State’s

six-year plea offer. Absent counsel’s advice, which subjectively affected his decision-making,

we find it objectively rational that Nicholson would have accepted the guilty plea offer—and

thus, was prejudiced by counsel’s advice.

¶ 23 The State argues that Nicholson could not objectively show that he would have accepted

plea deal. Citing Hale, the State speculates that Nicholson rejected the plea, hoping that the jury

would also acquit him of the aggravated domestic battery. But the Hale court found the

“defendant clearly and expressly, on many occasions, professed his innocence and indicated a

desire for trial,” starting from his bond reduction hearing and continuing onto his trial. (Emphasis

omitted.) Hale,

. Similarly, the Hale court concluded that these assertions

of innocence with his trial tactics showed the defendant “arguably believed” he could prevail on

the charge for which the State made the offer. Id. ¶ 27. There is no similar evidence in this

record. Beyond his trial testimony, the record does not contain “many occasions” where

Nicholson asserted his innocence. Additionally, unlike the Hale court, we find Nicholson’s trial

testimony did “ ‘little, by itself, to answer the question of why he refused the plea offer in the

first place.’ ” See id. The record simply does not demonstrate that Nicholson was driven by his

9 hope at vindication rather than a desire for the lowest possible sentence his attorney could secure.

Had he known that he faced Class X sentencing, six years—the minimum possible sentence—

would look like a gift.

¶ 24 Having found Nicholson presented a successful claim of ineffective assistance of counsel,

we now turn to the question of his remedy. In Lafler v. Cooper,

(2012), the

United States Supreme Court ruled that “the court may exercise discretion in determining

whether the defendant should receive the term of imprisonment the government offered in the

plea, the sentence he received at trial, or something in between” following an evidentiary hearing

where a “defendant has shown a reasonable probability that but for counsel’s errors he would

have accepted the plea.” In so ruling, the court explained:

“In implementing a remedy ***, the trial court must weigh various

factors; and the boundaries of proper discretion need not be defined here.

Principles elaborated over time in decisions of state and federal courts, and in

statutes and rules, will serve to give more complete guidance as to the factors

that should bear upon the exercise of the judge’s discretion. At this point,

however, it suffices to note two considerations that are of relevance.

First, a court may take account of a defendant’s earlier expressed

willingness, or unwillingness, to accept responsibility for his or her actions.

Second, it is not necessary here to decide as a constitutional rule that a judge is

required to prescind (that is to say disregard) any information concerning the

crime that was discovered after the plea offer was made. The time continuum

makes it difficult to restore the defendant and the prosecution to the precise

positions they occupied prior to the rejection of the plea offer, but that baseline

10 can be consulted in finding a remedy that does not require the prosecution to

incur the expense of conducting a new trial.”

.

¶ 25 Applying the Court’s reasoning in Lafler, we hold that the appropriate remedy is to

remand the case to the trial court for resentencing. The trial court has the discretion to impose a

sentence that is either (1) equal to the 6 years offered by the State or (2) greater than it but less

than the 25 years Nicholson initially received. If it chooses the latter, the court should consider

the length of time already served on his current sentence. Finally, in exercising its discretion, the

court may consider facts relevant to the aggravated domestic battery conviction offense that were

revealed after Nicholson’s trial and sentencing hearing.

¶ 26 CONCLUSION

¶ 27 The judgment of the circuit court of Knox County is reversed, and the matter is remanded

with instructions for resentencing.

¶ 28 Reversed and remanded.

11 No. 3-18-0010

Cite as: People v. Nicholson,

Decision Under Review: Appeal from the Circuit Court of Knox County, No. 12-CF-24; the Hon. Paul L. Mangieri, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Deepa Punjabi, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys John T. Pepmeyer, State’s Attorney, of Galesburg (Patrick for Delfino, Thomas D. Arado, and Gary F. Gnidovec, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

12