No. 3--09--0408

Opinion filed March 17, 2011

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2011

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court

ILLINOIS, ) of the 13th Judicial Circuit,

 ) La Salle County, Illinois 

Plaintiff-Appellee, )

)

v. ) No. 90--CF--185

) 

JOSEPH J. CICHON, ) 

 ) Honorable H. Chris Ryan, 

Defendant-Appellant. ) Judge, Presiding.

JUSTICE SCHMIDT delivered the judgment of the court, with

opinion.

Justices McDade and Wright concurred in the judgment and

opinion.

OPINION

 Defendant, Joseph Cichon, was indicted on 54 counts

consisting of: aggravated criminal sexual assault, criminal

sexual assault, aggravated criminal sexual abuse, and child

pornography. Pursuant to a plea agreement, defendant pled guilty

to multiple counts in exchange for a 25-year sentence. Defendant

filed a petition for postconviction relief that was ultimately

granted. The State then refiled the charges against defendant

and offered him a plea deal with a 25-year sentence. He rejected
2

the offer and went to trial. He was convicted and sentenced to

105 years. 

After two unsuccessful postconviction petitions, the court

allowed defendant to file a third petition for postconviction

relief which advanced to a third-stage hearing. He claimed that

he received ineffective assistance of counsel in his original

postconviction proceedings and at the subsequent arraignment. He

also claimed his due process rights were violated at the

arraignment. The trial court denied his petition. On appeal,

defendant raises only the two arguments concerning ineffective

assistance of counsel. We affirm the decision of the trial

court.

FACTS

I. Original Proceedings

In 1990 and 1991, the State charged defendant with 54 counts

consisting of: aggravated criminal sexual assault, criminal

sexual assault, aggravated criminal sexual abuse, and child

pornography. Pursuant to a negotiated plea agreement, he pled

guilty to six counts of aggravated criminal sexual assault, three

counts of Class 1 felony child pornography and three counts of

Class 3 felony child pornography; the State dropped the remaining

charges. The court sentenced him to the agreed-upon sentence of

25 years. The victims’ families approved of the deal to avoid

putting the children through a trial.

II. Defendant Hires Geis
3

In 1994, defendant hired James Geis to file a postconviction

petition, claiming the attorney who represented defendant in the

original plea negotiations and sentencing had a conflict of

interest. During the course of that representation, Geis

explained to defendant the possible consequences if he chose to

have his original guilty plea vacated. Geis believed defendant

could possibly receive a 30-year sentence if he was retried, but

believed that it was unlikely defendant would receive a sentence

greater than his original 25 years. This advice is documented in

a letter that Geis sent to defendant.

However, Geis later told defendant that it was possible that

any sentences he received would have to be served consecutively

and could lead to a much longer sentence than the one he was

serving. Geis explained that the prosecutor in charge, Timothy

Huyett, was going to refile all 54 counts if defendant vacated

his guilty plea. At some point before his original guilty plea

was vacated, defendant met with Geis and Huyett. Huyett

explained that he was going to seek a sentence in excess of 100

years.

In open court on the day the trial court granted defendant’s

petition, Geis stated that he had explained to defendant that it

was possible he would face consecutive sentencing and receive a

much longer sentence than his original sentence. Huyett also

explained that defendant would face a maximum sentence of 60

years if he chose to go to trial again. After hearing both
4

statements, defendant still chose to go forward with his

petition. The trial court granted defendant’s petition and

vacated his original guilty plea and conviction. At this point,

Geis’s representation of defendant ended.

III. Representation by Bute and Cappellini

After Geis withdrew, the court assigned public defenders

Daniel Bute and Timothy Cappellini to represent defendant. 

Huyett spoke with Bute before the arraignment and offered

defendant a sentence of 25 years if he would plead guilty. He

indicated that the deal was only available for seven days. Prior

to the arraignment, Bute and Cappellini tried to convince

defendant that the 25-year term was an offer that he should

accept. They provided case law to defendant and explained that

because of recent interpretation of the statute by the Illinois

Supreme Court, he would be subject to a much greater sentence if

he went to trial. 

Defendant was arraigned on the new charges within a week of

his guilty plea being vacated. At the arraignment, Huyett

clarified that he misspoke during the postconviction hearing

where defendant’s guilty plea and sentence were vacated when he

said defendant was subject to a maximum sentence of 60 years. He

clarified that the maximum sentence defendant could receive was

120 years. He also reiterated that the 25-year offer would only

be available for a "short time." The court asked Bute if he

would like the court to admonish defendant on the maximum
5

possible sentence and Bute declined.

Bute and Cappellini were unable to convince defendant to

accept the plea. Bute later testified defendant was sure he

would win at trial. The case went to trial and defendant was

convicted of four counts of aggravated criminal sexual assault,

two counts of criminal sexual assault, one count of aggravated

criminal sexual abuse, and three counts of Class 1 felony child

pornography. He was sentenced to consecutive terms totaling 105

years. This court affirmed defendant’s sentences on direct

appeal.

IV. Postconviction Proceedings

Defendant filed two unsuccessful postconviction petitions

before he was granted leave to file the successive postconviction

appeal which is the subject of this appeal. In this petition, he

raised three issues, two of which he pursues with this court. 

First, he claims that his sixth amendment right to counsel was

triggered when the State plea bargained with Geis in 1997 prior

to the court vacating his sentence and guilty plea. He argues

that Geis was ineffective because he advised defendant that he

faced only 25 years and that he should reject the plea. Second,

he argues that Bute was ineffective at the arraignment because he

waived the court’s offer to admonish defendant about the maximum

possible penalty. 

V. Third-Stage Evidentiary Hearing

The petition advanced to stage-three proceedings. At the
6

evidentiary hearing, Geis, Cichon, Huyett, Bute and Cappellini

testified.

Geis testified that he originally told defendant that if he

were retried he would face at most 30 years. He said that he

told defendant that because it was the law when they originally

filed the postconviction petition. Geis also testified that once

he became aware that it was possible that defendant might face an

extended sentence, he never calculated exactly how much time

defendant faced. Geis went on to say he had explained to

defendant that if he were retried, it was possible he would face

consecutive sentences instead of concurrent sentences and that he

could receive a sentence much longer than 25 years. Geis

testified that defendant was "quite intelligent." Geis said that

not only had he explained to defendant that he might face an

extended sentence but the trial judge also told defendant that he

could receive consecutive sentences. 

Geis explained that the law was changing between the time he

started to represent defendant in 1994 and 1997 when the

evidentiary hearing was held. Geis testified that he had

explained to defendant that the law was changing and that the

issue of mandatory consecutive sentences was before the Illinois

Supreme Court at the time of the hearing. In response to a

question by the court, Geiss testified that "[he] didn’t think

that [his representation] was ineffective assistance of counsel."

Defendant testified that the only information that he ever
7

received from Geis was that the longest sentence he could receive

would be 30 years. He also said that Geis told him that the

prosecutor would likely try to scare him into withdrawing his

petition by telling him he faced a sentence much longer than 30

years. Defendant testified that when he heard Huyett or Bute

talk about sentences longer than 30 years, he assumed they were

posturing to get him to back down. Defendant testified that had

he known he faced even the possibility of 60 years, he would have

withdrawn his postconviction petition. He prosecuted his

original postconviction petition in reliance on what Geis told

him. He did admit that Bute told him that his understanding of

the time he was facing was wrong. Defendant testified that Bute

told him he faced 40 or 45 years. He said the only person who

ever told him he could receive over 100 years was Huyett.

Following defendant’s testimony, Huyett testified. He said

that prior to the day the court granted defendant’s petition,

Huyett, Geis and defendant discussed what would happen if the

petition was granted and the case went to trial. Huyett

testified that he explained to defendant that he would receive

100 years or more at trial. According to Huyett, defendant

responded by saying he was going to win at trial. Huyett also

testified that on the day defendant’s petition was granted, he

explained to him that he faced a sentence of up to 60 years.

Huyett explained that he corrected that mistake at the

arraignment when he explained that the defendant could receive up
8

to 120 years. 

Following Huyett, Bute testified. He said that after he was

appointed, he contacted Huyett to see if he would still offer 25

years. Huyett offered a 25-year deal if defendant accepted in

the next seven days. Bute said he told defendant that he could

not give him an exact length of sentence he could get at trial

because he had not seen the evidence yet. However, he did tell

him that given the charges he could get up to 80 years. Bute

described the 80-year figure as just a ballpark figure. 

Bute testified that defendant had a letter from Geis and

believed he could not get more than his original sentence. Bute

testified that Cappellini brought case law that showed defendant

could get more than 25 years. Bute testified that they could not

convince defendant to take the 25 years. Bute testified that

defendant "wasn’t going to accept 25 years." Bute said he tried

to get less than 25 years from Huyett but could not. 

Cappellini was the final witness to testify. He testified

that he researched the potential sentence that defendant could

receive and tried to convince defendant that he should take the

25-year offer from Huyett. Cappellini said that defendant told

him he was wrong about the potential sentence so Cappellini

showed him the actual case law and read portions of it,

explaining that defendant did face a sentence much longer than 25

years. When asked who made the decision not to accept the 25-

year deal, Cappellini testified that defendant made the decision.
9

Cappellini said that he and Bute tried to convince defendant for

between 30 and 45 minutes, but defendant would not accept the 25-

year deal. 

The court denied the petition. The trial court found that

prior to the court granting defendant’s first petition, there

were some negotiations, discussions and advice given by Geis

regarding potential plea negotiations that might occur if

defendant decided to vacate his original guilty plea. The court

also found that Geis originally told defendant that he was only

subject to 30 years, should he go to trial and be convicted.

The trial court found that Geis informed defendant that the

supreme court was reviewing the issue of mandatory consecutive

and concurrent sentences. The court went on to say that although

Geis had not sent a letter to defendant explaining the

possibility of consecutive sentencing, it was explained in open

court in front of defendant and he still chose to proceed. 

The court also found that prior to the final hearing during

which defendant’s original guilty plea and sentence were vacated,

Huyett, Geis and defendant had a meeting. Huyett made it clear

that it was his position that defendant faced 100 years or more

by vacating his original plea. The court said that in addition

to this meeting, defendant met with Bute and Cappellini and they

told him he was looking at up to 80 years. 

The court found that Geis may have been ineffective

originally because of the letter he sent, but that any deficiency
10

was cured by the discussion between defendant, Huyett and Geis. 

The court also said that it found no reasonable reliance on Geis

by defendant. The court said it found no ineffective assistance

by Bute after he began representation of defendant.

ANALYSIS

We review fact-finding and credibility determinations by the

trial court in a stage-three postconviction proceeding for

manifest error. People v. Coleman, 183 Ill. 2d 366, 384 (1998). 

A manifest error is one that is clearly evident, plain, and

indisputable. People v Green, 218 Ill. App. 3d 71, 75 (1991). 

Defendant alleges a sixth amendment ineffective assistance of

counsel claim. In People v. Albanese, 104 Ill. 2d 504, 526

(1984), the supreme court adopted the ineffective assistance of

counsel test from Strickland v. Washington, 466 U.S. 668 (1984).

A petitioner shows ineffective assistance of counsel when he

shows first "that counsel's representation fell below an

objective standard of reasonableness and that counsel's

shortcomings were so serious as to ‘deprive the defendant of a

fair trial, a trial whose result is reliable.’ [Citation.]" 

People v. Albanese, 104 Ill. 2d at 525. The petitioner must

also show "that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." (Internal quotations marks omitted.) 

People v. Albanese, 104 Ill. 2d at 525.

The analysis can proceed in any order. "If it is easier to
11

dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, which we expect will often be so, that

course should be followed." (Internal quotation marks omitted.)

People v. Albanese, 104 Ill. 2d at 527.

We now review the trial court’s decision that defendant

failed to prove both elements required to show ineffective

assistance of counsel.

I. Alleged Ineffective Assistance by Geis

Defendant argues that Geis was ineffective because he

originally told him that he was not in danger of receiving more

the a 30-year sentence. The State raises two arguments in

support of the court's decision. First, that Geis did not

represent defendant in any proceeding where he was convicted, so

any potential ineffective assistance is not cognizable in this

proceeding. Second, that even if Geis’s actions are cognizable

in this proceeding, Geis’s actions were reasonable. 

A. Not Cognizable Here

Section 122-1(a) of the Code of Criminal Procedure of 1963

(the Code) (725 ILCS 5/100-1 et seq. (West 2008)) provides that a

person imprisoned in the penitentiary can file a petition for

postconviction relief if he claims that: "in the proceedings

which resulted in his or her conviction there was a substantial

denial of his or her rights under the Constitution of the United

States or of the State of Illinois or both." 725 ILCS 5/122-

1(a)(1) (West 2008).
12

Geis never represented defendant in a proceeding that

resulted in defendant’s conviction. Geis represented defendant

in postconviction-relief proceedings, the result of which was

that defendant’s previous guilty plea was vacated. At the end of

the hearing, Geis indicated that his representation of defendant

then terminated. The result of the proceeding was that defendant

was "unconvicted." Postconviction hearings are intended to

provide a collateral remedy for constitutional violations that

occur at trial or sentencing. People v. Woods, 193 Ill. 2d 483,

489 (2000). Any violation defendant alleges by Geis is not

reviewable in a postconviction hearing.

Defendant argues that once Huyett discussed possible

outcomes of defendant’s postconviction proceedings, he created

bifurcated proceedings: one, the postconviction proceedings, and

the other, the second criminal proceeding against defendant.

Defendant argues that the second criminal proceeding did result

in his conviction and is cognizable in this proceeding. We

disagree. 

There could be no second criminal proceeding against

defendant while his original guilty plea and sentence remained

valid. Huyett’s actions prior to the court's vacating

defendant’s guilty plea and sentence cannot have been plea

bargaining because it was impossible for the State to bring

charges against defendant due to the double jeopardy clause of

the United States Constitution. U.S. Const. amend. V. Huyett
13

was trying to explain to defendant that it was not a good idea to

have his original sentence and plea vacated because the outcome

would likely be a much longer sentence. He was unable to bargain

with defendant because it was impossible at that point for Huyett

to charge defendant with anything. Therefore, Geis never

represented defendant in a proceeding that is cognizable in a

postconviction proceeding. That is, under no stretch of the

imagination can we consider a postconviction proceeding that

resulted in defendant’s conviction being vacated as "proceedings

which resulted in [defendant’s] conviction." 725 ILCS 5/122-

1(a)(1) (West 2008).

B. Even if Cognizable, No Error Occurred

Even if defendant’s claim were cognizable in this

proceeding, the trial court’s decision was not manifest error. 

The trial court found that any error founded on Geis’s letter was

cured when defendant was told in open court that it was possible

he could receive a sentence much greater than 25 years. 

The court found no ineffective assistance because defendant

was ultimately given the correct information. The trial court

focused on the statements to defendant that it was possible to

get a larger sentence and that the supreme court was reviewing

the issue, but it was possible that he would face mandatory

consecutive sentences. We find no error in the trial court’s

decision. 

C. "But For" Causation
14

Defendant’s actions speak much louder than his words. When

defendant knew that he faced the possibility of receiving a

sentence much longer than 25 years, he still chose not to accept

the plea offer of 25 years. Defendant argues that, but for the

actions of Geis, he would only have a 25-year sentence. Yet, it

is clear to this court that defendant did know by his arraignment

that he faced up to 120 years and he still rejected the deal the

State offered. Even assuming, arguendo, that Geis’s actions were

not objectively reasonable, defendant still cannot show that

Geis’s actions prejudiced him. Geis got defendant what defendant

wanted: his conviction vacated. Later, with full knowledge of

what could happen, defendant rejected another offer of 25 years.

II. Alleged Ineffective Assistance by Bute and Cappellini

Defendant argues that when Bute and Cappellini waived having

the judge admonish defendant as to the maximum possible sentence

if he was convicted on all counts, they provided ineffective

assistance of counsel. Defendant must show that this decision

fell below an objectively reasonable standard. See Albanese, 104

Ill. 2d at 525.

The trial court found that defendant was aware that it was

possible he would receive a much longer sentence than the 25

years offered by the State. The trial court did not believe it

was unreasonable to waive the court’s offer to admonish defendant

concerning the maximum penalty because the court found defendant

was aware of the fact he faced a sentence over 100 years. 
15

The record supports the trial court’s finding. The evidence

is clear that Huyett first informed defendant that he was looking

at 60 years if he rejected the State’s offer. He later corrected

the 60 years to 120 years at the arraignment. Bute and

Cappellini testified that they spent at least 30 minutes showing

defendant case law and explaining that the 25-year offer was in

his best interest because it was likely he would get much more

time if he went to trial. There is no reason to believe that

after all this, defendant would have changed his mind if the

judge had told him the same thing again. Defendant rejected the

offer because he thought he could win at trial.

We find no manifest error in the trial court’s decision. 

The trial court was in the best position to make credibility and

factual determinations and we will not second-guess those

decisions. 

CONCLUSION

For the foregoing reasons, the judgment of the circuit court

of La Salle County is affirmed. 

Affirmed.