Illinois Official Reports 

Appellate Court

People v. Tucek, 2019 IL App (2d) 160788

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

KEVIN TUCEK, Defendant-Appellant.

District & No. Second District

Docket No. 2-16-0788

Filed January 16, 2019

Decision Under 

Review

Appeal from the Circuit Court of Kane County, No. 13-CF-1779; the 

Hon. Mark A. Pheanis, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

James E. Chadd, Thomas A. Lilien, and Fletcher P. Hamill, of State 

Appellate Defender’s Office, of Elgin, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick 

Delfino, David J. Robinson, and Mary Beth Burns, of State’s 

Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE BIRKETT delivered the judgment of the 

court, with opinion.

Justices Zenoff and Schostok concurred in the judgment and opinion.
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 OPINION 

¶ 1 Defendant, Kevin Tucek, appeals the summary dismissal of his petition for relief under the 

Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). Defendant’s 

petition did not show even the gist of a meritorious assertion that he was prejudiced by trial 

counsel’s alleged defective performance. Thus, we affirm.

¶ 2 I. BACKGROUND 

¶ 3 Defendant was charged with one count of predatory criminal sexual assault of a child (720 

ILCS 5/11-1.40(a)(1) (West 2012)), a Class X felony with a sentencing range of 6 to 60 years’ 

imprisonment (id. § 11-1.40(b)(1)). As amended, the indictment alleged that, “on or about 

August 1, 2009[,] and March 1, 2012,” defendant inserted his finger into the vagina of H.T., 

who was under 13 years old at the time. 

¶ 4 On January 17, 2014, the State filed a notice of its intent to introduce statements that H.T. 

made (see 725 ILCS 5/115-10 (West 2012)) on four separate occasions to four different 

people, including an investigator with the Kane County Children’s Advocacy Center and an 

investigator with the Du Page County Children’s Advocacy Center. On February 20, 2014, the 

State moved in limine to admit evidence that defendant had committed a separate illegal sexual 

act against H.T. (see id. § 115-7.3). The notice and the motion were not heard or ruled upon, as 

the parties reached a plea agreement. 

¶ 5 On November 20, 2014, the parties presented the agreement. Defendant would plead guilty 

to criminal sexual assault (720 ILCS 5/11-1.20(a)(3) (West 2012)), a Class 1 felony (id.

§ 11-1.20(b)(1)) with a sentencing range of 4 to 15 years’ imprisonment (730 ILCS 

5/5-4.5-30(a) (West 2012)), and the State would recommend a sentence of 8 years, to run 

concurrently with defendant’s sentence in a Will County case. Defendant would be required 

for life to register as a sex offender (see 730 ILCS 150/1 et seq. (West 2012)). Also, after he 

finished his sentence, he would serve a term of mandatory supervised release (MSR) of no less 

than three years and as much as life (see 730 ILCS 5/5-8-1(d)(4) (West 2012)). 

¶ 6 The trial court admonished defendant and asked him whether he understood the potential 

penalties, including MSR. Defendant said that he did and wished to persist in his plea. 

¶ 7 The State presented the factual basis for the plea. Between August 1, 2009, and March 1, 

2012, defendant and H.T. were residing with her mother. In interviews, H.T. stated the 

following. She was asleep in the living room but awoke because she felt rubbing on her vagina. 

She saw defendant’s face and realized that his finger was in her vagina. She jumped up, pulled 

up her underwear and pants, and told defendant that she was going to tell her mother what had 

happened. He said not to tell. She did not tell her mother until sometime afterward. 

¶ 8 The trial court admonished defendant that he would not receive day-for-day good-conduct 

credit but would have to serve 85% of his sentence. Defendant said that he understood. The 

court told him that the MSR term that followed “could be for as little as three but up to the rest 

of [defendant’s] life.” Defendant said that he understood. He also said that he knew that he 

would have to register as a sex offender. However, he had been unaware that, at the end of his 

prison term, the State could petition to commit him as a sexually violent person (see 725 ILCS 

207/1 et seq. (West 2012)). The court explained this possibility and allowed defendant to 
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discuss it with his attorney. Defendant then told the court that he understood and wished to 

plead guilty. 

¶ 9 The court accepted defendant’s plea and sentenced him accordingly. Defendant did not 

move to withdraw his plea, and he did not appeal. 

¶ 10 On June 13, 2016, defendant filed a pro se postconviction petition. As pertinent here, it 

alleged as follows. Defendant had “recently learned” that he was subject to “a lifetime of MSR 

imprisonment imposed on him by the Illinois Dept of Corrections staff and Illinois Prisoner 

Review Board.” A “counselor” had told him that, if he could not secure an approved residence 

after he was released, he would be imprisoned for life, per the conditions of his MSR. When he 

pleaded guilty, defendant did not realize that, even after his prison term was over, his 

imprisonment could be continued indefinitely based on his failure to obtain approved housing; 

“he [had] understood that the term of MSR is required by law to be served beyond the confines 

of a prison facility or any type of GPS or electronic monitoring device.” (Emphasis in original.) 

Defendant’s petition concluded:

“[T]he defendant argues that counsels [sic] assistance was ineffective. Counsel failed 

to ensure the Defendant entered a knowing and voluntary plea. The Defendant 

contends that had counsel advised him of the actual mandatory supervised release term, 

he would not have pleaded guilty and would have proceeded to trial. The Defendant 

was not fully admonished of all the collateral consequences involving his case.” 

(Emphasis in original.) 

¶ 11 The trial court summarily dismissed the petition. Defendant timely appealed. 

¶ 12 II. ANALYSIS 

¶ 13 On appeal, defendant contends that his petition stated the gist of a meritorious claim that 

his trial attorney was ineffective for failing to inform him that he could serve part or all of his 

MSR term in prison if he did not satisfy the conditions of MSR, including obtaining approved 

housing in a permissible location. 

¶ 14 The trial court may summarily dismiss a petition that is frivolous or patently without merit. 

725 ILCS 5/122-2.1(a)(2) (West 2016). To survive summary dismissal, the petition need state 

only the gist of a meritorious claim of a constitutional violation. People v. Edwards, 197 Ill. 2d 

239, 244-45 (2001). The petition need not make legal arguments or cite legal authority. People 

v. Gaultney, 174 Ill. 2d 410, 418 (1996). Our review is de novo. People v. Coleman, 183 Ill. 2d 

366, 388-89 (1998). To prevail on a claim of ineffective assistance of counsel, a defendant 

must establish that (1) counsel’s performance was objectively unreasonable and (2) the 

defendant was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); 

People v. Valdez, 2016 IL 119860, ¶ 14. 

¶ 15 First, we note the following. To be released on MSR, a defendant must have a satisfactory 

release plan, including an intended residence that meets several conditions (see 730 ILCS 

5/3-3-7(a)(7.6) (West 2012)).1If he completes his prison sentence but his release plan does not 

meet these conditions, he will be kept in prison. Such continued custody is based on the legal 

fiction that he was released on MSR and, by violating a condition, was immediately returned to 

 

1Also, under the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2012)), the 

residence must be located more than 500 feet from a school, park, or playground (id. § 8(a)). 
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custody. This is commonly known as being “ ‘violat[ed] at the door.’ ” Cordrey v. Prisoner 

Review Board, 2014 IL 117155, ¶ 9; People v. McDonald, 2018 IL App (3d) 150507, ¶ 28 n.4. 

¶ 16 Defendant contends that his trial counsel should have informed him that his sentence of 

eight years’ imprisonment did not eliminate the possibility that he would serve life in prison. 

He argues that, even if the conditions of MSR and its possible revocation were collateral 

consequences of his plea, his counsel was still obligated to inform him of them. See Padilla v. 

Kentucky, 559 U.S. 356, 367-70 (2010) (deficient advice about immigration consequences of 

guilty plea can support claim of ineffective assistance); People v. Hughes, 2012 IL 112817, 

¶¶ 50-51, 60 (deficient advice about possible commitment as sexually violent person can 

support claim of ineffective assistance). He thus asserts that he met Strickland’s performance 

prong. 

¶ 17 We need not decide whether the claim satisfied Strickland’s performance prong because it 

did not satisfy the prejudice prong. To do so, it had to raise the gist of a meritorious allegation 

that it is reasonably probable that, absent counsel’s error, defendant would not have pleaded 

guilty but would have insisted on going to trial. Valdez, 2016 IL 119860, ¶ 29; People v. 

McCoy, 2014 IL App (2d) 100424-B, ¶ 16. This required more than “[a] conclusory allegation” 

to that effect. Valdez, 2016 IL 119860, ¶ 29. Needed were facts to show that the decision to 

reject the plea bargain would have been rational under the circumstances. See id.

¶ 18 Where, as here, the allegedly deficient representation involved not defense strategy or the 

chance of an acquittal but instead the consequences of a guilty plea, the defendant need not 

articulate a claim of innocence or a plausible defense. See People v. Brown, 2017 IL 121681, 

¶ 45. However, he must raise more than a bare allegation that, absent counsel’s errors, he 

would have spurned the guilty plea and proceeded to a trial. Id. ¶¶ 47-48. The relevant 

circumstances are still crucial to assessing prejudice, and the defendant must show that the 

decision to proceed to a trial would have been rational. Id. ¶ 48. The potential penalties and the 

probability of an acquittal (which necessarily subsumes the existence of a plausible defense) 

are among these circumstances. See id. ¶¶ 49-51. We conclude that the pro se petition did not 

meet this test. 

¶ 19 Defendant correctly notes that his petition raised more than a mere allegation that he would 

not have pleaded guilty had he known of the possibility that he would serve some or all of his 

MSR term in prison and not on release. However, his petition still did not meet even the low 

threshold for surviving summary dismissal. We note the following. 

¶ 20 Defendant was charged with a Class X felony that exposed him to a sentencing range of 6 

to 60 years’ imprisonment. 720 ILCS 5/11-1.40(b)(1) (West 2012). By pleading guilty to a less 

serious charge, he obtained a sentence of eight years. Although it is unlikely that he would 

have received the maximum Class X sentence, even a sentence somewhere in the middle of the 

range would have far exceeded what he received under the agreement. Moreover, although 

defendant notes that the record does not show that the evidence of his guilt was overwhelming, 

we note that his petition did nothing to put forth a plausible defense based on anything more 

than attacking the credibility of H.T. The record shows that, in addition to her testimony, the 

State had several of her out-of-court statements that it planned to introduce at trial; although 

there was no guarantee that these statements would be admitted, there was no assurance that 

any of them, much less all of them, would be excluded. Notably, defendant did not oppose the 

admission of the statements but decided to plead guilty instead. Further, the State also had 
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evidence that he had committed a separate uncharged sexual offense against H.T. Defendant 

chose not to contest the motion in limine to admit this evidence. 

¶ 21 In sum, defendant did not allege facts to establish the gist of a meritorious argument that, 

had he known of the possibility—not certainty, or even clear probability—of serving his MSR 

term in prison, he would have forgone pleading guilty and chosen a trial that would have 

exposed him to the risk of a far greater prison term, with no more assurance of serving his MSR 

term outside prison walls. 

¶ 22 Defendant relies on McDonald. There, the defendant was charged with two counts of 

criminal damage to property, one a felony and one a misdemeanor, and two counts of violating 

an order of protection. McDonald, 2018 IL App (3d) 150507, ¶ 3. In exchange for the dismissal 

of one count of violating an order of protection, he pleaded guilty to the remaining three 

counts. Id. There was no agreement on sentencing. The trial court imposed an 18-month prison 

term for the felony property conviction, to run concurrently with a 364-day jail sentence for the 

misdemeanor, and an 18-month prison sentence for the violation offense, to run consecutively 

to the other sentences and to be followed by four years of MSR. Id. ¶ 4. 

¶ 23 The defendant filed a pro se petition under the Act, alleging that he had not been fully 

informed of the consequences of his plea, i.e., that, as an indigent and a convicted sex offender, 

he would be required to serve his MSR term in prison. Id. ¶ 5. The trial court moved the 

petition to the second stage and appointed the defendant’s trial counsel to represent him. Id. In 

a supplemental affidavit, the defendant stated that he had not been fully advised that he 

“ ‘would not be placed on [MSR] if [he] was indigent and homeless.’ ” Id. ¶ 6. Thus, the 

affidavit alleged, he had been unaware that his MSR term “ ‘would extend [his] period of 

incarceration by 2 years.’ ” Id. The court moved the petition to the third stage, an evidentiary 

hearing. The defendant’s new attorney elicited testimony from trial counsel that, before the 

entry of the plea, he had been aware that the defendant was a registered sex offender, but he 

had not discussed with him the need to obtain a suitable residence for his MSR term or face the 

possibility of serving the MSR term in prison. Id. ¶ 10. The court denied the petition. 

¶ 24 On appeal, the defendant contended that, at the third stage of the proceeding, his 

postconviction counsel had rendered unreasonable assistance (see People v. Flores, 153 Ill. 2d 

264, 276 (1992)) for failing to amend the petition to argue that his trial counsel had been 

ineffective for failing to inform him of the potential of serving his MSR term in prison. 

McDonald, 2018 IL App (3d) 150507, ¶ 25. The appellate court agreed. The court explained 

that, although the allegations in the supplemental affidavit (quoted earlier) did not state a 

cognizable claim, they “state[d] enough of a ‘gist’ of a constitutional claim to proceed to the 

second stage.” Id. ¶ 28. The court added, however, that, to prevail on his claim of ineffective 

assistance, the defendant would still have had to show prejudice. Id. Thus, the pro se petition 

“did not state a legally sufficient claim and therefore required amendment by counsel so that 

such a claim could be formed.” Id. ¶ 31. 

¶ 25 The court rejected the State’s argument that postconviction counsel could not have 

performed unreasonably, as the claim was inherently meritless. The court relied on the 

long-standing rule that, where postconviction counsel does not fulfill his duties, a remand for 

compliance is required regardless of whether the claim raised in the petition has merit. Id. ¶ 33; 

see People v. Suarez, 224 Ill. 2d 37, 47 (2007). The court did note, however, that there was no 

case law holding that the failure to warn a client of the possibility of being “violated at the 

door” can never amount to ineffective assistance. McDonald, 2018 IL App (3d) 150507, ¶ 33. 
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The court also noted that the defendant had been admonished that he faced a maximum term of 

three years’ imprisonment but actually faced the possibility of spending up to seven years in 

prison, four of them based on MSR noncompliance. Id.

¶ 26 Defendant asserts that McDonald supports his contention that his pro se petition stated the 

gist of a meritorious claim that his trial counsel was ineffective for failing to advise him that, if 

he could not find suitable housing, he would spend some or all of his MSR term—potentially 

the rest of his life—in prison. He compares the language in his petition to the language that the 

appellate court in McDonald held stated the gist of a meritorious claim of ineffective 

assistance. He reasons that, if the McDonald defendant’s allegation was good enough to 

withstand the first stage of consideration under the Act, so was his. 

¶ 27 We acknowledge that McDonald does support defendant. The passage that the court held 

stated the gist of a meritorious claim of ineffective assistance was indeed limited. Most 

notably, it did not explicitly allege prejudice at all—not even a bare conclusion that, had the 

defendant been advised of the possibility of serving his MSR term in prison, he would have 

forgone the plea and proceeded to a trial. Thus, the court implicitly held that a pro se petition’s 

allegation of ineffective assistance of counsel in the guilty-plea context can survive the first 

stage under the Act even if it fails to allege prejudice. Although this holding would be of great 

service to defendant, it is not in accord with established law and, in particular, this court’s 

opinion in McCoy.

¶ 28 In McCoy, the defendant pleaded guilty to armed robbery; in return, the State dismissed 

two counts of burglary. The trial court then sentenced the defendant to 10 years’ imprisonment. 

McCoy, 2014 IL App (2d) 100424-B, ¶ 3. The defendant later filed a pro se postconviction 

petition claiming that his trial counsel had been ineffective in various respects. Id. ¶¶ 4-5. The 

trial court summarily dismissed the petition. Id. ¶ 11. We affirmed, holding that the petition 

had failed to allege prejudice. We noted that the defendant had not alleged that, absent 

counsel’s errors, he would have pleaded not guilty and gone to trial. Id. ¶ 18. Further, the 

record belied any such assertion, as the defendant’s codefendant would have implicated him 

and, by entering the plea, the defendant had avoided facing the two burglary charges. Id.

¶ 29 McCoy requires a pro se petition’s claim of ineffective assistance to satisfy the “gist” 

requirement for both prongs of Strickland, not merely the performance prong. This, of course, 

is consistent with Strickland itself. See People v. Hodges, 234 Ill. 2d 1, 17 (2009). Insofar as 

McDonald holds otherwise, we do not follow it. 

¶ 30 Moreover, even were we to read McDonald as implying that the defendant had satisfied the 

prejudice prong of Strickland, it would be distinguishable. In McDonald, the defendant’s plea 

bargain contained no agreement on sentencing (as far as the opinion discloses). Although one 

Class 4 felony charge was dismissed, he pleaded guilty to three other charges; one was a 

misdemeanor, but another was a Class 4 felony and the remaining charge (criminal damage to 

property) was at least a Class 4 felony (see 720 ILCS 5/21-1(a)(1), (d)(1)(C), (d)(1)(F)-(J) 

(West 2012)). The defendant’s plea agreement did not lower the classification of any offense to 

which he pleaded guilty; thus it did little to lessen his aggregate sentence. 

¶ 31 Here, as we noted earlier, the plea agreement reduced the classification of the sole charge 

against defendant and limited his sentencing exposure to the lower-medium range of the 

reduced classification. Thus, by entering the plea agreement, defendant avoided a discretionary 

sentence of at least 6 and as much as 60 years and obtained a sentence of 8 years. As noted, 

although it is unlikely that he would have received the maximum Class X sentence, even a 
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sentence somewhere in the middle of the Class X range would have far exceeded what he 

received in the bargain. Therefore, even were the allegations of the pro se petition in 

McDonald sufficient to plead prejudice at the first stage under the Act, that would not help 

defendant here. 

¶ 32 In oral argument, defendant cited Jae Lee v. United States, 582 U.S. ___, 137 S. Ct. 1958 

(2017), to support his contention that, despite the weakness of the evidence of record, he 

sufficiently alleged the gist of the prejudice prong. In Jae Lee, the defendant, a Korean national 

and a legal permanent resident who had been in the United States for 35 years, was charged 

with possessing illegal drugs. Under federal law, deportation was nondiscretionary and 

essentially certain. However, his trial attorney informed him that, if he pleaded guilty, he 

would receive a lesser sentence than were he to go to trial, and he would not be deported. Based 

on that advice, the defendant pleaded guilty. Id. at ___, 137 S. Ct. at 1963. 

¶ 33 The defendant then sought postconviction relief based on ineffective assistance of counsel. 

At an evidentiary hearing, he and his former attorney both testified that deportation had been 

the determinative factor in his decision to plead guilty. Id. at ___, 137 S. Ct. at 1963. The 

federal district court denied relief, and the appellate court affirmed, both holding that the 

defendant had failed to show prejudice. They reasoned that, because the evidence of guilt had 

been overwhelming and a longer prison term was likely after a trial, he had not shown that a 

rational defendant would have chosen going to trial over pleading guilty. Id. at ___, 137 S. Ct. 

at 1964; see Jae Lee v. United States, 825 F.3d 311, 313 (6th Cir. 2016). 

¶ 34 The Supreme Court reversed, holding that under the circumstances the defendant had met 

his burden of proof. The Court explained that the question of whether the defendant would 

have chosen a trial over a guilty plea could not be decided solely on the basis of his chance of 

an acquittal. The defendant had adduced evidence that, had he been properly advised that 

deportation would inevitably follow a conviction, he would have taken his chance, however 

remote, on the possibility of an acquittal. The defendant had repeatedly asked his attorney 

about whether there was a risk of deportation if he pleaded guilty; he had told the court at the 

guilty-plea hearing that the risk of deportation had affected his decision; he and the attorney 

had both testified that deportation was the determinative issue in his decision; and the effects of 

deportation would have been extremely severe, including a forced return to a country that he 

had not seen in nearly three decades, the loss of a successful business, and separation from 

elderly parents who depended on him for their care. Jae Lee, 582 U.S. at ___, 137 S. Ct. at 

1968-69. The Court cautioned that its decision did not allow courts to overturn guilty pleas 

“solely because of post hoc assertions from a defendant about how he would have pleaded but 

for his attorney’s deficiencies.” Id. at ___, 137 S. Ct. at 1967. 

¶ 35 Defendant’s situation differs markedly from that of the defendant in Jae Lee, even 

considering that this case involves a first-stage dismissal. Jae Lee does not support holding that 

defendant showed even the gist of a meritorious assertion of prejudice. 

¶ 36 Unlike the certain deportation in Jae Lee, the danger of the administrative decision to 

violate defendant at the door is contingent and to a considerable degree within his control. The 

defendant in Jae Lee would lose his home in the United States permanently, as a matter of clear 

statutory command. He adduced considerable evidence that deportation was the determinative 

issue in his decision to accept the plea deal. Id. at ___, 137 S. Ct. at 1967-68. For the defendant 

in Jae Lee, “deportation after some time in prison was not meaningfully different from 

deportation after somewhat less time.” Id. at ___, 137 S. Ct. at 1967. Here, defendant is subject 
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to the possibility of a delay in his release from prison, based on a serious but uncertain risk that 

he will not find suitable housing and will be violated at the door by the Prisoner Review Board. 

For this deprivation to be permanent, the denial would have to be repeated many times. Thus, 

the provision of more complete information about the housing requirement would not have 

induced defendant to go to trial in the face of strong evidence and the substantial risk of a 

prison term decades longer than the one to which he agreed. 

¶ 37 III. CONCLUSION 

¶ 38 The judgment of the circuit court of Kane County is affirmed. As part of our judgment, we 

grant the State’s request that defendant be assessed $50 as costs for this appeal. 55 ILCS 

5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978). 

¶ 39 Affirmed.