2021 IL App (2d) 190003-U 

No. 2-19-0003 

Order filed June 18, 2021 

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(l).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court 

OF ILLINOIS, ) of Kane County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 12-CF-129 

) 

SENTORO DUNN, ) Honorable 

) David P. Kliment, 

Defendant-Appellant. ) Judge, Presiding. 

______________________________________________________________________________ 

JUSTICE JORGENSEN delivered the judgment of the court. 

Justices Schostok and Brennan concurred in the judgment. 

ORDER

¶ 1 Held: There was no error in the first-stage dismissal of defendant’s postconviction claim 

that plea counsel was ineffective for advising him that he could plead guilty and 

still appeal the trial court’s denial of his motion to dismiss the charges based on the 

State’s alleged breach of a cooperation agreement. Defendant alleged that, had 

counsel properly advised him, he would have declined the State’s plea offer and 

gone to trial to preserve the breach issue. However, defendant failed to allege facts 

establishing that such a decision would have been rational under the circumstances, 

particularly given the overwhelming evidence against him and the favorability of 

the plea offer.

¶ 2 In 2012, defendant, Sentoro Dunn, was charged with (1) unlawful possession of, with the 

intent to deliver, 900 grams or more of a substance containing cocaine, which was punishable by 
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a prison term of at least 15 and no more than 60 years (720 ILCS 570/401(a)(2)(D) (West 2012)) 

and (2) unlawful possession of 900 grams or more of a substance containing cocaine, which was 

punishable by a prison term of at least 10 and no more than 50 years (id. § 570/401(a)(2)(D)). In 

2015, defendant obtained new counsel and moved to enforce the State’s alleged agreement to 

dismiss the charges based on defendant’s successful cooperation with a separate federal 

investigation into drug trafficking in a different location. After an evidentiary hearing, the trial 

court denied the motion. In 2017, represented by his third attorney, defendant pleaded guilty to a 

reduced charge of possession with the intent to deliver 400 grams or more but less than 900 grams 

of a substance containing cocaine (id. § 570/401(a)(2)(C)) and was sentenced to 14 years’ 

imprisonment. Defendant did not file a timely postjudgment motion. Instead, he filed an appeal 

that was dismissed. People v. Dunn, No. 2-17-0414 (2018) (unpublished summary order under 

Supreme Court Rule 23(c)). 

¶ 3 In 2018, defendant petitioned pro se under the Post-Conviction Hearing Act (Act) (725 

ILCS 5/122-1 et seq. (West 2018)), claiming that his third attorney had been ineffective for

advising him that he could plead guilty and still appeal the denial of his motion to dismiss the 

charges. The trial court summarily dismissed the petition. Defendant appealed. We affirm. 

¶ 4 I. BACKGROUND

¶ 5 On February 28, 2012, defendant was charged after he and Leamon Cavitt, who was 

charged separately, allegedly purchased cocaine from undercover police in Carpentersville on or 

about January 18, 2012. Defendant hired Warren Breslin, a private attorney. The cause was 

continued numerous times. At a hearing on January 23, 2014, Assistant State’s Attorney Kelly 

Orland noted that the parties were working on a potential agreement that would depend on the 
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outcome of Cavitt’s trial. On June 27, 2014, Orland told the court that the State had made 

defendant a plea offer, good until October 10, 2014. 

¶ 6 On October 10, 2014, Breslin told the court, Judge John A. Barsanti presiding, “[W]e have 

issues with this case where an offer now is extended that we would not be able to accept,” as the 

plea negotiations had broken down. He anticipated moving to dismiss the charges, based on “the 

obligation of the State,” and that he might have to withdraw as defendant’s counsel. Further, 

defendant’s presence at the next hearing would have to be waived because he would be aiding in 

a federal drug investigation. The court gave defendant until November 12, 2014, to file the motion. 

¶ 7 On November 12, 2014, Breslin moved to dismiss the indictment, alleging as follows. On

January 18, 2012, defendant was arrested. In February 2012, he was released on bond, based on 

the State’s assurance that, if he agreed to work with federal and local law enforcement agencies, 

he would receive consideration commensurate with his performance. Later, Orland assured 

Breslin that ultimately defendant’s case would be dismissed “if he continued what proved to be 

cooperation leading to serious arrests and prosecutions.” In reliance on such assurances, defendant 

continued his undercover work at great risk to himself and his family.

¶ 8 The motion alleged that, based on defendant’s undercover work, no federal charges were 

brought against him. Orland expressed dissatisfaction to Breslin, telling him that defendant should 

have to pay some penalty in the state case. As scheduling progressed, Orland told Breslin that she 

would not agree to dismiss the charges but would consider agreeing to a sentence of probation on 

a plea to a reduced charge. Later, however, even though defendant fulfilled his cooperation 

agreement, the State insisted that a plea agreement would have to include a 10-year prison term on 

a Class X charge. Defendant rejected these terms, and the State asked the court to set the case for 

trial. Defendant argued that the court should dismiss charges because, in reliance on the State’s 
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earlier assurance, defendant and his counsel had not requested or received any discovery, and 

because defendant had upheld his original agreement with the State. 

¶ 9 On December 11, 2014, the State responded to the motion as follows. The State agreed to 

reduce defendant’s bond so that he could cooperate with federal investigators and avoid federal 

prosecution in a separate drug case in Wisconsin, but neither state nor federal prosecutors promised 

him a reduction in the state charges. On February 1, 2012, Orland, Breslin, Ron Perrine, a 

Rockford police officer assigned to the State Line Area Narcotics Task Force (SLANT), and a 

second agent met with defendant at the jail. Orland agreed to a reduced bond so that defendant

could work in the federal investigation, but she made no other promises. On February 2, 2012, 

defendant was released on a reduced bond. On February 28, 2012, he was indicted. 

¶ 10 The State alleged further that, afterward, Breslin asked Orland to agree to a probation 

sentence for defendant in consideration of his undercover work. Orland told him that she could 

not make an offer until defendant completed his work and that, even then, probation would not be 

an option. In November 2013, Perrine informed Orland that defendant had completed his 

assignment successfully and would not face federal charges. Neither federal agents nor the federal 

prosecutor ever told defendant or Breslin that the state case would be dismissed. On November 7, 

2013, defendant and Breslin met with Orland and two Carpentersville police detectives. Defendant 

provided information about Cavitt. Orland told him that the State was making no promises. Much 

later, Orland offered defendant a 10-year sentence in return for his cooperation in Cavitt’s case. 

That offer expired on October 10, 2014, leaving no active agreement between the State and 

defendant. Thus, his motion should be denied. 

¶ 11 Breslin withdrew. The trial court appointed Ronald Dolak, an assistant public defender, to 

represent defendant. On September 24, 2015, Dolak filed an “Amended Motion to Enforce [Plea] 
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Agreement.” It alleged that defendant, through Breslin, and the State, through Orland, had entered 

into an agreement whereby defendant would cooperate with state and federal drug investigators

and the State would dismiss the present charges or agree to a guilty plea to a reduced charge and a 

sentence of probation. The State did not tender discovery to Breslin and assured him that it would 

not be needed, given the agreement. Defendant completed his obligations under the agreement, 

but Orland later told Breslin that she would not honor the agreement. The State had violated the 

agreement and the court should require specific performance.

¶ 12 On September 30, 2015, the court heard the amended motion. We recount the evidence.

¶ 13 Breslin testified on direct examination as follows. At the initial meeting in February 2012

with Orland, Breslin, and law enforcement agents, defendant signed an agreement to cooperate 

with and provide truthful information to the agents. Orland told defendant that the results of his 

cooperation would be considered in the pending state case, but no promises were made. Defendant 

answered the agents’ questions. Orland and Breslin agreed to seek a bond reduction so that 

defendant could be released.

¶ 14 Breslin testified that, about two months after the court reduced defendant’s bond and he 

was released, Orland told Breslin privately that the agents were very happy with defendant’s work 

and were hopeful that his information would greatly help them. As a result, she and Breslin agreed 

to waive defendant’s appearance at most hearings.

¶ 15 Breslin testified that, on “perhaps the third court date” on which they met, Orland told him 

that “if [defendant did] the work that he [was] doing or [was] about to do, that this case would be 

dismissed.” Orland was referring to the state prosecution; she had “nothing to say about the 

Federal case at all.” However, she specified that the State would dismiss the case only if defendant 
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was successful in what he had agreed to do for the agents. Orland provided no further details. 

Breslin relayed Orland’s message to defendant.

¶ 16 Breslin testified that his next conversation with Orland about the case occurred on 

September 12, 2013, during a conference in Judge Barsanti’s chambers while defendant waited 

outside. The three participants discussed waiving defendant’s appearance at future hearings and 

the possible return of his bond to Breslin in part payment of his fees. Breslin requested that the 

court ask defendant whether he would want to agree to the bond return that day, because if the 

court dismissed the case while defendant was elsewhere undercover, Breslin could get the refund 

processed. Breslin did not ask the court to dismiss the case. 

¶ 17 Breslin testified that he and Orland next spoke about the case shortly after the in-chambers 

conference and well before November 12, 2014. Orland told Breslin that he had learned that the 

federal prosecutors had decided not to pursue charges against defendant. She expressed 

dissatisfaction with this development and told Breslin, “ ‘I have to give him something on this. I 

can’t just dismiss it. It’s not fair that he gets nothing and walks away.’ ” Orland stated her 

“preliminary opinion” that defendant should receive nonreporting probation. Breslin responded 

that although that would violate Orland’s promise, he did not “strongly object to that.” Breslin

relayed her statements to defendant and assured him that, although Orland was “backpedaling” on 

her prior offer, the new proposal would enable him to report by mail and not worry about his safety.

¶ 18 Breslin testified that the only subsequent conversation with Orland about the disposition 

of the case was when she gave him a written offer under which defendant would plead guilty to a 

reduced charge and accept a 10-year prison term. At the time, Breslin believed that the offer of a 

deal without prison or jail time was still in place. He relayed Orland’s message to defendant.
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¶ 19 Breslin’s testimony circled back to November 7, 2013, when he was present with Orland 

as defendant spoke to Carpentersville police officers about Cavitt’s case. Breslin received a proffer 

sheet explaining that nothing was promised for defendant’s cooperation against Cavitt. Neither 

Orland nor the officers said anything about a possible agreement or other disposition in defendant’s 

case. Breslin regarded the proffer as essentially a formality, as he believed that the State had 

agreed to dismiss all the charges against defendant, or at least to seek no more than probation, if 

he performed satisfactorily in the Wisconsin investigation. That continued to be his understanding 

until Orland’s offer of a 10-year sentence in return for a reduced felony charge.

¶ 20 Breslin testified that the agreement to dismiss the charges in return for defendant’s service 

to the Wisconsin investigation was never put into writing. Defendant fulfilled his part of the 

agreement by doing what he was asked and obtaining information that the agents found extremely 

valuable. In reliance on the State’s promises, the defense did not contest any issues in the case 

and filed no motions other than to reduce the bond so that defendant could be released. Thus, 

Breslin received no discovery, because he never requested any. 

¶ 21 Breslin testified on cross-examination as follows. First, Orland never provided any written 

outline of the terms of an agreement. Second, Orland’s oral offer to dismiss the charges came 

about two months into the case; she made it privately in the courtroom. Third, Breslin was 

uninvolved in the federal case and did not know what charges defendant was facing there. 

¶ 22 Breslin testified that, shortly before the February 2012 meeting at the jail, he received and 

signed proffer letters from Orland and the federal prosecutor in Wisconsin. Both letters stated that 

no promises were being made in return for defendant’s cooperation with the Wisconsin

investigation. The only other writing that Orland gave him indicating a plea offer or agreement 

was the written offer for a 10-year sentence to a reduced charge.
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¶ 23 Breslin testified that, after September 2013, he believed that he had a clear agreement with 

Orland—the case would be dismissed if defendant cooperated with the federal investigators to 

their satisfaction. He admitted that, on October 3, 2014, he wrote to Kane County State’s Attorney 

Joseph McMahon about defendant’s case. In his letter (admitted into evidence), Breslin asked 

McMahon to review the case. He noted defendant’s cooperation with the federal investigation and 

the documented threats against defendant for his undercover work. Breslin told McMahon that 

the proposed 10-year sentence in the state case would undermine the government’s efforts to 

protect defendant and would be “tantamount to a death sentence.” Breslin’s letter made no mention 

of Orland’s alleged oral agreement with him or her later mention of a possible sentence of 

probation on a lesser charge. On redirect, Breslin explained that, by the time he wrote McMahon, 

Orland had “backpedaled” to offering probation on a reduced charge. 

¶ 24 Defendant testified on direct examination as follows. Shortly after he was arrested, two 

federal agents approached him and asked him whether he knew certain people who were involved 

with moving drugs in Illinois and Wisconsin; he said yes. Defendant told Breslin about the 

interview. At the February 2012 the meeting at the jail, Orland told defendant that, if he wanted 

to help himself and “make this case go away,” he had to “get on board and do whatever the [agents 

said].” The agents told him that he could help himself with the federal case too, although he had 

not yet been charged there. Orland told defendant that the agents would first need to see what he 

had to offer. She provided a paper that defendant signed. He spoke to the agents briefly, then, at 

their direction, called one of his drug suppliers. After he finished the call, Breslin told defendant 

that his bond would be reduced so that he could get out of jail. 

¶ 25 Defendant testified that the day after he was released from jail, the agents contacted him 

and told him that he would need to help with the investigation. Shortly afterward, the federal 
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prosecutor spoke to him, saying nothing about the state case. Defendant worked undercover for 

about a year and a half, wearing wires and providing the federal agents with information about a 

specific drug cartel. The agents praised his work, which helped them recover substantial quantities 

of cocaine, guns, and money. Defendant did everything the agents asked him to do. He received 

numerous threats along the way and was given money to relocate his family and himself.

¶ 26 Defendant testified that, during this time, he believed that he was helping himself with the 

state case as well. He explained that, shortly after the case began, Breslin told him that Orland had 

just told him that, because the agents had said that he was doing great work, she would dismiss the 

case. Shortly afterward, Breslin telephoned defendant and told him that things were still looking 

good and that he was going to try to get the case dismissed. At this point, defendant’s 

understanding was that, as long as he continued to do good work, the case “would go away.” 

¶ 27 Defendant testified that he did not have any conversations with Orland about the case. 

However, he did have conversations with the federal agents. They never told him that the state 

case would be dismissed, but they said that they would “go up to bat for [him]” in the case. They 

told him that, when they heard about Orland’s offer for a 10-year prison term, they were “totally 

shocked.” 

¶ 28 Defendant testified that in either September or October 2013, he met with Breslin and 

signed a bond release slip so that Breslin could obtain the proceeds in his absence. Breslin made 

the request because he believed that the case was going to be dismissed. Until he heard about 

Orland’s offer for a 10-year prison sentence, defendant had believed that he had an agreement with 

the State that, if he performed well in the federal investigation, his case would be dismissed. 

¶ 29 Defendant testified that, on November 7, 2013, he attended a meeting in Orland’s office 

with her, Breslin, and two Carpentersville police officers. Orland told defendant that she wanted 
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him to provide information on Cavitt, and she had him sign a paper that stated in part that no 

promises were being made. Defendant answered questions about Cavitt. There was no discussion 

about a dismissal of the charges against defendant, but defendant still believed that there was an 

agreement to that effect, because Breslin had told him so and he had not heard differently. 

Sometime later, defendant heard that the agreement had changed; dismissal had been replaced by 

probation. However, defendant never believed that the agreement involved his going to prison. 

Had he so believed, he would not have cooperated with the federal agencies.

¶ 30 Defendant testified on cross-examination as follows. When he first met the federal agents, 

they immediately told him that they were not there on the state case. They never told him that he 

was facing federal drug charges. He never believed that the federal government had strong 

evidence against him in their investigation. At the February 2012 meeting, after Orland heard his 

phone call, she told him that if he helped the agents “bust this case wide open,” she would make 

his state charges “go away.” After that, the only time that Orland spoke to defendant directly was 

on November 7, 2013, after she and Breslin had spoken in the courthouse hallway. She handed 

defendant two papers: one had the 10-year offer and the other told him that there was no agreement 

in return for his assistance in the Cavitt case.

¶ 31 Defendant testified that the federal agents never promised him a specific reward for his 

cooperation. He signed a statement that the federal government did not promise him anything for 

his cooperation. However, Perrine did tell him at times that, by aiding the federal investigation, 

he was helping himself with his state case. On redirect, defendant testified that he had believed 

that Perrine was working for the State as a state police member. 

¶ 32 Defendant rested.
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¶ 33 The State called Craig Grywalsky, one of the federal agents with whom defendant had 

worked. He testified on direct examination as follows. He was a special agent with the Drug 

Enforcement Administration (DEA). On January 31, 2012, he and Perrine interviewed defendant 

at the jail. At the time, Perrine was a Rockford police officer assigned to SLANT as a deputized 

task force officer with the DEA. Grywalsky told defendant that he was a federal narcotics agent 

involved in a federal investigation and was there to talk exclusively about that matter and not about 

defendant’s state case in any way. Grywalsky then stated that he wanted to speak to defendant 

about aiding the investigation. The federal prosecutor would be made aware of any such 

cooperation. After defendant was released from jail, Grywalsky met with him several times. On 

February 6, 2012, defendant signed a confidential-source agreement. Grywalsky explained to him 

that the only promise he would make to defendant is that the federal and state prosecutors would 

be made aware of everything he was doing. 

¶ 34 Grywalsky testified that defendant received money to help him relocate after the 

investigation. He made it clear to defendant that his influence was on the federal level only and 

that all he could do in the state case was speak on his behalf about his aid to the federal 

investigators. Grywalsky never heard any other federal agent tell defendant that he would get any 

benefit in the state case other than the agents’ speaking on his behalf to the prosecutors. 

¶ 35 Grywalsky testified on cross-examination that defendant’s cooperation had been essential 

to the eventual success of the investigation. Based on the number of arrests and the drugs and 

assets seized, the case was the largest of Grywalsky’s professional career. Defendant cooperated 

fully throughout his time and was the best confidential source that Grywalsky had ever had in his 

career. Although Grywalsky never asked defendant about the facts of the state case, he spoke to 

Orland about defendant’s excellent work. Orland said that she would take the information under 
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advisement but that the outcome of the state case would be decided solely by the State. Grywalsky 

testified on redirect examination that Orland never told him that she had agreed to dismiss

defendant’s case because of his federal work. Grywalsky never asked her to dismiss the case.

¶ 36 Perrine testified on direct examination as follows. In February 2012, he was a Rockford 

police officer assigned to SLANT and deputized by the DEA’s Madison, Wisconsin, office. 

Perrine had numerous conversations with defendant and Breslin about the investigation. He never 

told either one that he was offering defendant credit in his state case. In mid-to-late 2013, 

defendant asked Perrine numerous times about what credit he would get in state court for his 

cooperation. Perrine always responded that everything defendant had done would be relayed to the 

attorneys in the case. He never told defendant that his state case would be dismissed or that his 

undercover work could lead to a dismissal. Orland never told Perrine that she was going to dismiss 

the state case. Perrine never asked Orland to give defendant credit for his work on the federal 

investigation and, to his knowledge, neither did any federal agent.

¶ 37 Perrine testified on cross-examination that, in January and February 2012, he was 

employed by the Rockford police department, a state agency. SLANT was also a state agency. 

Perrine was involved with defendant from February 2012 until December 2013. Defendant’s work 

was “stunning”; he “definitely overachieved.” In the months leading up to October 2013, 

defendant asked Perrine about the state case. Perrine told him that everything he did in the case 

would be relayed to all the attorneys involved and that it was their decision what to do; he had no 

power. Perrine and Grywalsky spoke to Orland about defendant’s work and praised it very highly.

¶ 38 Perrine testified on redirect examination that, in the initial meeting with defendant, Orland, 

and Breslin at the jail, Orland never said or suggested in any way that if defendant cooperated in 
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the federal investigation, he would get credit or a dismissal in the state case. Instead, she was there 

only to facilitate the meeting between defendant and the agents. 

¶ 39 Orland testified on direct examination as follows. Since December 2008, she had been the 

supervisor of the drug unit of the Kane County State’s Attorney’s Office. She had been involved 

in agreements with defendants who cooperated. All these agreements had been in writing. That 

way, everyone involved knew the terms and what was expected of each party. She had never 

entered into an oral agreement with a defendant to cooperate in a felony case.

¶ 40 Orland testified that she was the prosecutor in defendant’s case. The lead charge had a 

minimum sentence of 15 years. She believed that the case against defendant was strong. 

¶ 41 Orland testified that she never entered into any agreement with defendant to dismiss the 

case. Nobody from the federal government asked her to give defendant credit in the state case 

based on his cooperation with the federal investigation. Orland never told defendant or Breslin 

that she would dismiss the case. She had no authority to dismiss a case of this magnitude without 

the approval of her supervisor. 

¶ 42 Orland testified that, at the initial meeting at the jail, her role was solely to introduce 

defendant to the agents. She never told him that his case would go away if he cooperated with the 

federal investigation. Orland did not directly discuss the potential outcome of the case at all. At 

that point, she had no reason to give defendant any benefit in the case. 

¶ 43 Orland testified that she eventually entered into plea negotiations with Breslin. She 

prepared a contract for defendant to testify against Cavitt in exchange for a 10-year sentence on a 

reduced charge. As best she could recall, she made this offer in March 2014. Previously, she had 

discussed with Breslin a request for a bond reduction so that defendant could work undercover in 

the federal investigation. During these discussions, she never told Breslin that she would dismiss 
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the case if defendant aided the investigation. Other than the 10-year offer, Orland never made any 

sort of firm offer to Breslin based on defendant’s cooperation against Cavitt. In some discussions, 

Breslin asked her for an offer that would involve probation for defendant, but she always declined. 

She told Breslin that the credit that defendant got in the federal proceedings would not also be 

given in the state case; there would be no “double credit.” She also told Breslin that she would 

consider giving defendant credit if the federal agents told her that defendant had rendered 

extraordinary assistance to them, but she said that it was premature to talk about that. No federal 

agent asked her to dismiss the case or to give defendant any credit in it. 

¶ 44 Orland testified that, on October 10, 2014, she had more than one conversation with 

Breslin. In the first one, Orland noted that it was the deadline for defendant to accept the 10-year 

offer and that unless he did, it was time to set his case for trial. Breslin and Orland had a heated 

conversation, after which the case was called and they appeared in court. Later that day, as she 

was walking to a hearing in another case, Breslin told her that she “better speak to [him] about this 

case” and “better be ready for the phone call and what’s to come with it.” Orland walked away. 

¶ 45 Orland testified on cross-examination as follows. She did not answer discovery in 

defendant’s case until June 2015. The case was continued for a long time so that defendant could 

complete his work for the federal investigation. Orland never agreed with Breslin that he could 

keep defendant’s bond money; that would have been inconsistent with her policy. At the inchambers conference in November 2013, Breslin told her that he believed that he should be getting 

the bond money returned. However, she told him that she disagreed because the case was still 

pending and she did not expect the bond money to go back to him. During the heated conversation 

on October 10, 2014, Breslin never told her that she had promised to dismiss the case based on 

defendant’s completion of his cooperation with the federal agents. 
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¶ 46 The State rested. Judge Barsanti stated that he had no personal recollection of the inchambers conference or knowledge that there had been one. Thus, his decision would be based 

solely on the evidence at the hearing. 

¶ 47 After hearing arguments, the court stated as follows. Defendant’s work was wholly 

satisfactory to the federal authorities; indeed, it was outstanding. He “certainly acted as if he had 

some kind of an offer and *** he accepted it.” Thus, the pivotal issue was whether the State had 

agreed to dismiss the charges upon defendant’s successful completion of his federal tasks.

¶ 48 The court considered the evidence. First, the federal prosecutor’s proffer promised only 

that defendant’s statements could not be used against him in any case-in-chief. It said nothing 

about a disposition of the state case. Second, the confidential-source agreement with the federal 

prosecutor stated that it did not apply to any other prosecutor or court. Third, defendant’s proffer 

agreement of February 1, 2012, with the State’s Attorney’s office, the Carpentersville police 

department, the Illinois State Police, and the DEA (the agreement was actually signed February 6, 

2012) stated that the sole consideration provided to defendant was that none of what he told law 

enforcement agents could be used in any case-in-chief. The agreement did not contemplate any 

other consideration. Fourth, Breslin’s letter to Kane County State’s Attorney McMahon, written 

immediately after Orland had made the 10-year sentence offer, did not mention any agreement or 

offer between the State and defendant. The federal agents testified consistently that they did not 

promise, and could not have promised, that the State would give defendant any benefit based on 

his undercover work for the DEA. 

¶ 49 The court noted that, to prove the alleged agreement, defendant relied on (1) Orland’s 

alleged off-the-record statement to Breslin in court, which statement Orland denied making, and 

(2) the absence of discovery in the case. The court concluded that this evidence was insufficient
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and specifically found “the evidence of [Orland] and the law enforcement officers to be more 

credible than that of [defendant] and Attorney Breslin.” Orland’s testimony was corroborated by 

the lack of any written record of the alleged agreement. Although defendant and Breslin might 

have been operating under the impression that defendant’s work for the DEA might lead to a 

dismissal of his state case, there were no objective facts to show such an agreement, and subjective 

impressions were immaterial. Thus, as there was no agreement, the motion to dismiss was denied.

¶ 50 On June 20, 2016, the public defender was allowed to withdraw. On March 10, 2017, the 

trial court held a hearing at which Peter Buh, a private attorney, represented defendant. Orland 

presented the court with the parties’ agreement: defendant would enter an open plea of guilty to 

count I, which had a sentencing range of 15 to 60 years’ imprisonment. However, defendant would 

not go into custody. If he appeared in court on April 6, 2017, the State would agree to allow him 

to withdraw his plea and enter one to possession with intent to deliver 400 grams or more but less 

than 900 grams of a substance containing cocaine, which has a sentencing range of 8 to 40 years’ 

imprisonment. 720 ILCS 570/402(a)(2)(C) (West 2012). The parties would also agree that 

defendant would be sentenced to 14 years’ imprisonment. Count II would be dismissed. If 

defendant did not appear on April 6, 2017, the court would set the matter for sentencing in his 

absence on the guilty plea to the original count I. 

¶ 51 The trial court duly admonished defendant. The State provided the following factual basis 

for the plea. On January 17, 2012, defendant met with undercover officers inside a McDonald’s 

in Carpentersville, having spoken to one of them earlier and arranged to meet so he could purchase 

a kilogram of cocaine. Defendant retrieved a bag of money from a vehicle, entered the undercover 

officer’s vehicle, counted out approximately $39,000 in cash from the bag, and accepted the 

kilogram of cocaine and set it next to him. At that point, he was arrested. He admitted that he 
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purchased the cocaine with the intent to deliver it. Laboratory tests confirmed that the substance 

contained cocaine and weighed more than 900 grams. 

¶ 52 Defendant stipulated to the factual basis. He told the court that he still wanted to plead 

guilty. The court found that defendant had entered a voluntary and knowing plea.

¶ 53 On April 6, 2017, defendant appeared in court, withdrew his original plea, and entered a

plea to the reduced charge for the agreed 14-year sentence. The court duly admonished him. The 

State repeated the factual basis from the prior hearing, except that, for purposes of the plea, the 

amount of the substance was 400 grams or more but less than 900 grams. The court accepted the 

plea and admonished defendant of his appeal rights. Among the admonishments was that, before 

defendant could appeal, he would first have to present, within the next 30 days, a written motion 

to withdraw the guilty plea; that any grounds not raised in the motion would be waived on appeal; 

that, if the court denied the motion, defendant would have 30 days therefrom to file a notice of 

appeal; and that the issues on appeal would be limited to those matters that he had set forth in his 

motion to withdraw the plea. Defendant told the court that he understood his appeal rights. The 

court entered the judgment. 

¶ 54 Defendant did not file a motion to withdraw his guilty plea. On June 23, 2017, we allowed 

the State Appellate Defender’s Office to file a late notice of appeal on his behalf. Later, the 

appellate defender moved to withdraw on the basis that defendant’s failure to file a motion to 

withdraw his guilty plea required the dismissal of the appeal.. We agreed and dismissed the appeal. 

People v. Dunn, No. 2-17-0414 (2018) (unpublished summary order under Supreme Court Rule 

23(c)).

¶ 55 On October 6, 2017, defendant filed a pro se petition under section 2-1401 of the Code of 

Civil Procedure (735 ILCS 5/2-1401 (West 2016)), alleging that he had had a cooperation 
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agreement with the State and thus his conviction violated due process. On June 21, 2018, on the 

State’s motion, the trial court dismissed the petition. Defendant appealed, but later the appeal was 

dismissed on his own motion. People v. Dunn, No. 2-18-0569 (Jan. 11, 2020) (unpublished minute 

order).

¶ 56 On September 6, 2018, defendant filed a pro se motion to withdraw his guilty plea, alleging 

various errors. On September 28, 2018, the trial court dismissed the motion as untimely and thus 

outside the court’s jurisdiction to consider. 

¶ 57 On October 24, 2018, defendant filed the pro se postconviction petition that is the subject 

of this appeal. As pertinent here, the petition alleged as follows. The parties had an oral agreement. 

At some point, defendant asked Breslin to get the agreement put into writing, but Breslin declined 

and told defendant just to do his part. In March 2017, defendant’s new attorney told him, “[T]ake 

the next offer[,] you can appeal your case.” Defendant did not want to plead guilty, because he 

had an agreement with the State, but he did so based on his attorney’s advice. Only later did he 

learn that, by pleading guilty, he could not “address any of [his] issues.” Defendant’s counsel was 

ineffective for providing the misleading information that induced defendant to plead guilty. The 

pro se petition did not contend that defendant’s plea counsel had been ineffective for failing to file 

a motion to vacate the judgment and withdraw the guilty plea.

¶ 58 In a separate section, defendant contended, with no supporting factual allegations or 

specific legal argument, that the State had entrapped him into committing the offense to which he 

later pleaded guilty. 

¶ 59 The trial court held that the pro se petition was frivolous. The court explained that the 

petition appeared to contend primarily that the State violated its cooperation agreement with 

defendant and that his attorneys were ineffective for failing to obtain the benefit of the agreement 
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for defendant. The court noted that the trial court presiding over the case had specifically found, 

after an evidentiary hearing, that there had been no such agreement. Further, (1) the State never 

promised defendant any benefit based on his work in the federal investigation, (2) defendant could 

not use the Act to relitigate his motion to dismiss the case, (3) defendant had entered a knowing 

and voluntary plea of guilty, and (4) there was no merit to his claims of due process violations or 

ineffective assistance of counsel. After the court dismissed his petition, defendant timely appealed.

¶ 60 II. ANALYSIS

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

that his plea counsel, Buh, was ineffective for inducing him to plead guilty by advising him that 

he could still appeal the denial of his motion to dismiss. Thus, defendant argues that he showed 

both deficient performance, in that counsel’s advice was legally unsound, and prejudice, in that, 

had he been properly advised, he would have gone to trial to preserve his claim of error.

¶ 62 The State responds that defendant’s claim—that his guilty plea was not knowing—has been 

forfeited and, in any event, lacks merit. The State responds further that Buh’s performance was 

neither unreasonable nor prejudicial. Finally, the State contends that defendant’s petition was an 

improper attempt to relitigate the existence of an alleged oral agreement, an issue previously 

decided when the trial court dismissed his section 2-1401 petition. We need not decide all of the 

possible grounds for affirmance that the State raises. We affirm on the basis that defendant’s claim 

of ineffective assistance of counsel—the only claim on which he seeks reversal—is frivolous. 

Even if defendant’s petition satisfied the performance prong of the test for ineffective assistance, 

it fails the prejudice prong. 

¶ 63 A trial court may dismiss a petition that is frivolous or patently without merit. 725 ILCS 

5/122-2.1(a)(2) (West 2018); People v. Tucek, 2019 IL App (2d) 160788, ¶ 14. A petition needs 
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to state only the gist of a meritorious claim of a constitutional violation to survive summary 

dismissal. People v. Edwards, 197 Ill. 2d 239, 244-45 (2001). The petition’s well-pleaded 

allegations must be taken as true and construed liberally. Id. at 244. We review de novo the 

summary dismissal of a petition under the Act. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

¶ 64 To prevail on a claim of ineffective assistance of counsel, a defendant must establish that 

(1) counsel’s performance was objectively unreasonable and (2) he was prejudiced thereby. 

Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Tucek, 2019 IL App (2d) 160788, ¶ 14. 

¶ 65 Defendant’s petition can be liberally construed to allege that Buh advised him that pleading 

guilty would not preclude his contending on appeal that the trial court erred in denying his motion 

to dismiss. If so, that could support a claim of unreasonable performance, as the law is and was 

then clear that a voluntary and knowing guilty plea waives all nonjurisdictional errors, including 

constitutional ones. People v. Townsell, 209 Ill. 2d 543, 545 (2004). Nonetheless, we say no more 

about the performance prong, as the petition’s allegations relating to the prejudice prong do not 

satisfy even the Act’s low threshold for surviving summary dismissal. 

¶ 66 To satisfy Strickland’s prejudice prong, the petition needed 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. People v. Valdez, 2016 IL 119860, ¶ 29; 

Tucek, 2019 IL App (2d) 160788, ¶ 17. “Needed were facts to show that the decision to reject the 

plea bargain would have been rational under the circumstances.” Id.

¶ 67 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. Tucek, 2019 IL App (2d) 160788, ¶ 18. 

However, he must raise more than a bare allegation that, absent counsel’s errors, he would have 
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spurned the guilty plea and proceeded to trial. Id. The relevant circumstances are still crucial to 

assessing prejudice and thus making the required showing that the decision to proceed to a trial 

would have been rational. Id. These circumstances include the probability of an acquittal (which 

necessarily subsumes the existence of a plausible defense) and the potential penalties. Id. We 

conclude that the petition raised little more than the bare allegation that, absent Buh’s allegedly 

erroneous advice, defendant would have rejected the plea offer and proceeded to trial. The relevant 

circumstances point the other way. 

¶ 68 We consider first the probability of an acquittal. Defendant all but concedes that this 

circumstance militates strongly against him. The record overwhelmingly supports this conclusion. 

From the beginning, no one has disputed that defendant (1) arranged to purchase cocaine from 

undercover police officers; (2) went to the meeting place and handed an officer a bag containing 

approximately $39,000; (3) took from the officer more than 900 grams of a substance that 

contained cocaine; and (4) was promptly arrested and soon confessed. In other words, defendant 

was caught red-handed, and he knew it. Further, he later agreed to turn State’s evidence in the 

trial of Cavitt, his accomplice. The result of a trial would have been a foregone conclusion in light 

of the overwhelming evidence of defendant’s guilt. 

¶ 69 Defendant notes that his petition alleged that he was entrapped into committing the offense, 

and he argues that the availability of this defense shows a rational basis for taking the case to trial. 

This argument is frivolous. During the entire five-year history of the case, defendant said nothing 

on the record about entrapment. In his pro se petition, defendant belatedly raised this defense as 

a pure conclusion. Defendant never made any allegations to suggest that the police induced 

defendant to commit the offense instead of merely providing him the opportunity to do what he 

was already predisposed to do. See People v. Arndt, 351 Ill. App. 3d 505, 516 (2004). Moreover, 
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at the time of the offense, defendant already had a substantial history of large-scale drug dealing. 

Otherwise, he would not have been asked to aid the federal government in investigating major 

drug trafficking by a powerful drug cartel. Thus, the possibility of an acquittal at a trial was remote 

at best and militates against a finding of prejudice.

¶ 70 We turn next to the probable penalties. This factor also militates against a finding of 

prejudice. By accepting the State’s plea offer, defendant pleaded guilty to a reduced charge and 

obtained a prison sentence of 14 years. While this was a substantial penalty, going to trial on the 

original charge would have subjected defendant to a minimum penalty of 15 years’ imprisonment 

and the possibility of as much as 60 years. Although it was unlikely that the trial court would have 

imposed anywhere near the maximum, given defendant’s admirable work for the federal 

investigation, even a sentence near the midpoint of the applicable range would have subjected 

defendant to a far greater term of imprisonment than what he accepted—approximately two 

decades greater. Thus, by taking the plea offer, defendant avoided an all-but-certain conviction 

with a penalty that, by law, would have been more severe than what he obtained. 

¶ 71 Finally, we note that, however strongly defendant believed that the State had obligated 

itself to dismiss the charges, the trial court found otherwise. This finding could not have been 

disturbed on appeal unless it was against the manifest weight of the evidence. See People v. 

Dasaky, 303 Ill. App. 3d 986, 992 (1999). The court made its finding after holding a long and 

thorough evidentiary hearing. The court relied heavily on witness credibility, finding Orland and 

the federal agents more believable than defendant and Breslin, and also on the lack of any written 

evidence of an oral promise by an assistant state’s attorney to dismiss a Class X charge. We have 

recapped the hearing evidence at length to show the futility of seeking a reversal on the ground 
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that the finding that there was no cooperation agreement was against the manifest weight of the 

evidence. An appeal on this ground would have been frivolous. 

¶ 72 In sum, defendant’s claim of ineffective assistance of plea counsel did not satisfy the Act’s 

requirements for further proceedings, and the trial court therefore properly dismissed it. 

¶ 73 III. CONCLUSION

¶ 74 For the reasons stated, we affirm the judgment of the circuit court of Kane County. 

¶ 75 Affirmed.