SIXTH DI VISI ON May 4, 2007

No. 1-05-3172

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 99 CR 08691-03 ) WAYNE BA

RNSLATER, ) Honorab le ) Christopher Donnelly, Defend ant-App ellant. ) Judge Presi ding.

JUSTICE JOSEPH GORDO

N deliver ed the opi nion of the

court: Defendant, Way

ne Barnslater, appeals from the c ircuit court's grant of the State' s motion to dismiss hi s postconv

iction petition at the second stage o f postcon

viction re view. On a

ppeal, he contends that he made the necessary substantial showing of a freestanding cla im of actual innocenc e of the a

ggra vated cr iminal sexua

l assault t o which he

pled gu ilty so as to pr

eclude h is petit ion's dism issal . He fur ther ar gues th at the circui t cour t erred in rej ectin g his p etit ion's challenge to the voluntariness of his plea, even if res judic ata applied, since fu

ndamenta l fairne ss would mandate the relaxation of that procedural bar wher e the plea was obtained by a threat from his own co

unsel. We a

ffirm. FACTUAL BACKGROU ND The State charged defenda nt with, among other charges, ag gravated kidnaping and aggravated cr

iminal sexual assault, in a 68-count indictment on March 9, 1999. The charges stemmed fro m an alleged in cident inv olving defend ant, two cod efendants, an d 19-year-old Y.B.1-05-3172

-2-

On Dece mber 22, 1 999, def

endant to ok part in

a Supreme

Court Rule

402 (177 I

ll. 2d R. 402) con ferenc e with the

State and the circ uit court. At the con

clusion of that hea ring, the circu

it court stated: "My understa nding is t he plea o f guilty

would be t

o *** two c ounts of aggrav ated cr imin al sex ual as sault , one c ount of aggrav ated k idnap ing. I indicated the State is recommending that I sentence the de fendant to a period of six years I

llinois Department of Corrections as to the aggravated cr

iminal sexual assault count involving vaginal intercourse and also to six years Illinois Department of Corrections on the one alleging contact , mouth to the penis, a nd that pursuant to the statute that these sentenc es be mad

e consec utive, so he'd be

serving a period of 12 y ears. The ag grava

ted kidna ping co unt would me

rge int o the coun

ts as it is a predicate offense to the aggravated criminal sexual assault counts. The other counts would be nolle prossed pursuant to the plea ag reement." Following the hearing, defe ndant pled guilty to those two counts of a ggravated criminal sexual

assau lt and one co unt o f aggrava ted ki dnapi ng. Following a colloquy

between the circuit court and defenda nt in which defendant stated that he "was not threatened in any way in order

for [him] to plead guilty," the State pre sented the factual basis for defendant's plea . The prosecutor stated:

"If this case were to go to trial, the evidence would show that on March 9, 1999, at approximately be tween the hours of seven p.m. and1-05-3172

-3- 10 :1 1 p .m ., at th e a dd re ss of 49 0 M ad is on , C al um et Ci ty, Co ok Co un ty, the State of Illinois, the residence of Way ne Barnslater, that [Y.B.], the victim, went over there with Joe Michael Clemmons and David Jackson, codefendants, under the ruse to baby -sit. When she arrived there, the three defe ndants and her were sitting around drinking. The defendant, Mr. B arnslater, had a fifth of gin. He poured about three to four shots worth of gin and 7-Up in a glass and [Y.B.] drank it straight down. After approximately 20 minutes, she wa s in the kitchen using the phone. They ha

d been talking about having sex. The defenda nt, Mr. Barnslater, went into the kitchen where she was on the phone, pulled down his pants showing her his pe nis. She la

ughed. He walke d out of the room. At that time

shortly thereafter, she went int

o the bedr oom, and f

ell asleep i n the bed. He went i

nto the be droom, sa

w one of t

he code fendant s having sex with her. She was moaning as in a drunken stupor. Subsequently the defe

ndant then placed his penis in her mouth while the other individual was having vaginal intercourse with her. Mr. Barnslater did the oral intercourse at that time. Subsequently, after the

others were done, the defendant we nt back placed h is penis in her vagina. When she was sti ll unresp onsive, he left it in her for approximately a minute or so, and when she was unresponsive,1-05-3172

-4- he then pu

lled it out a

nd left the

room. During this time the police had come to the door along with the victim's mother asking for the victim. The defenda nt answered the door indicating she was not there. Howeve r, later when the police c ame back, he indic ated she , in fact, was there, and that she was unconsc ious in the bedroom. The officer went in. She was transported to St. Margaret' s Hospital where it was learned that she had a blood alcohol content of .264, in her sy stem at that time. During the acts of intercourse, she would testify that she was unable and unwilling to give consent or unknowing [sic] due to the fact that she was under the influence of alcohol." Defense counsel stipulated to the State's proffe red factual basis for the plea. On Januar

y 20 , 2000, de fendant

moved to withdraw h

is guilty plea. He allege d that defense counsel and the State worked tog ether to convince him to plead guilty in spite of insuffici ent evidence t o prove his gui lt. Whi le never averrin g that he did n ot have sex with Y.B. while she was intoxicated, he contended that she never complained of be ing kidnaped and that he did not force her to drink. According to def endant, in this motion, Y.B. went to his bedroom voluntarily with a friend of his. In a supplement to his motion to withdraw his plea, filed on March 20 , defend

ant further alleged, among other thin

gs, that he was " denied the right

to a fair trial" b ecause

defense counsel t old him to ple ad guilt

y a nd acce pt a 12-y ear sen tence be cause, i f1-05-3172

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he did not, in light of his criminal history, he would re ceive a 20-y ear sentence. The circuit court denied the motion, after a hearing, on June 19, 2000. Subseque ntly , defend

ant made a direct appeal

assertin g, amon g other things, t hat his attorney wa s ineffective for counseling him to plead g uilty on account of his criminal history when the attorne y mis attribute d to him a c onviction of a diff erent pe rson bea ring the same name as he. He further argue d that cou

nsel comp elled him t

o plead g uilty through misrepre senting

his criminal history and, there by, render

ed his plea involuntary. However, this court affirmed, noting that defendant's true criminal recor d was so extensive that counsel's representation of the additional "phantom" was not so material as to render his plea involuntary, and also obser ving that defense counsel had negotiated f or the statutory minimum sentences on the c harges for which defendant would be sentenced, and that their c onsecutive service was also mandated by statute. On June 18, 2002, defendant filed a pro se postconviction petition. Therein, he made a "free standing

claim of i

nnocenc e, as a r

esult of newly

discover ed evide nce." I n support o f his claim he a

ttached his own af

fidavit in which he criticize d defens e counse l for "only repeat edly insist[ing] he accept the plea, because the judge [was] g oing to give [him] a considerable amount of time." He also attached the affida vit of Y.B. in which she stated: "Mr. B arnslate

r on the ni ght of Ma

rch 9, 19 99, did not s exually assault me

([Y.B.]) i

n any way , form or

fashion n or was I held ag ainst my will. No one at that residence forced me to drink. My alcohol consumption was of my choice

.1-05-3172

-6- I was intoxicated and coerce d into making accusations that was not the truth agai nst Mr. Barns later." Subsequently, on September 3, in a pro se motion to amend his pro se petition, defendant attached an unsworn letter addressed " to whom it may concern," from attorney Rog er L. Brown. In his letter, dated Aug

ust 21, 2002, attorney Br

own stated: "Please be advised that I

personally interviewed Ms. [Y.B.] on August 19, 2002. At that meeting, she informed me that Mr. Way ne Barnslatter [sic] did not sexually assault her. When I queried as to why she had not come forth with this information sooner, and why , according to the attached affidavit, she felt she had been ' coerced into making accusations that were not the truth agai nst Mr. Barns later,' Ms. Y. B. indicated her mother was the force contr olling the charges which wer e b[r]ought. She stated told me that she had really no say in how the cha

rges were b[r]ought and that her mother controlled the entire situation. But she did state w

ithout hes itation tha

t Mr. Bar nslatter [sic] did not s exually assault her." Defend ant's pro se

petition survived the first stage of review. The public def ender, appointed to represent defendant under the Post-Conviction Hear ing Act (725 IL

CS 5/122-1, et seq. (West 2002)), filed defendant's supplemental postconviction petition on September 24, 2004. In the body of the sup

plementa l petition, defenda

nt exclusive ly premised h is relief on his freestanding claim of actual innoce nce based on newly

discovered evidence. The petition did not1-05-3172

-7-

purport t o attack the volunt

ariness of his ple a or the p erforma nce of c ounsel. I

n support o f his contention that the recantation evidence presente d was "newly discovered," defendant alleg ed: "[Y.B.] was the State's witness. She was within their control and influenc e. Her p ersonal

testimony

was not of

record , their [sic ] was a stipulation to the evidence to be submitted for purposes of the plea. The evidence submitted to the court for the plea was based on te stimony submitted by the State's Attorney regarding what they

would have been presented [sic] had the case went to trial. Due to the

stipulation the [tria

l] attorne y w as unable

to cross examine the truth or veracity of the statements read into the record by opposing Counsel, and unfortunately there was no way

to ascertain that Ms. Y.B.'s testimony was coerced, but for her aff idavit." As evi denti ary suppo rt for the su pplem ental petit ion, defend ant agai n atta ched Y. B.'s affidavit, as well as attorney Brown's letter. Defenda

nt also attached an affidavit from his father, plus his own affidavit in which he expanded on the allegations he made in his aff idavit in support of his pro se petition. Defendant's father, in his affida vit, averred that he was present in court on the day that defendant pled guilty . According to defendant' s father:

"It was obvious that his plea was not voluntary . He hesitated

severa l times whe

n asked if his plea was forc ed, and I observe d his attor ney nudge h im wi th hi s elbo w to get him t o resp ond t o the J udge's1-05-3172

-8- questions

. *** Afte r pleadi ng gui lty b efore t

he Judge , Way

ne immedia

tely began procee ding to withdraw h is plea. H e stated

he plead guilty because his attorney informed him that his chanc es of winning were slim and that he would be sentenced to a longer pe riod of time if he did not plead guilty." According to defendant, in his expanded affidavit, he a nd his attorney had a

"bullpen" conference where c ounsel "repeatedly insisted that [he] enter a plea agreement." De fendant alleged that counsel "stated bec ause of [his] extended criminal history [that] the plea agree ment was the best thing" for him and that, if he did not take the plea , "the judge was going to give [him] a considerable amount of time, because of [his] background" and bec ause he had violated his sentence of probation previously imposed by the presiding judge. Defendant averre d that he informed his counsel that he "did not do any thing," but that counsel replied "it [did] not matter because of the allegations made a gainst [him] and [because] the judge was mad cause [he] violated [the judge's previously imposed sentence] of probation." Defendant conc luded that he "was coerced and pre ssured into accepting the plea ag reement, afraid of what may have happened whether I was innoce

nt or not." On May 20, 2005, t

he State moved to dismiss defe ndant' s postconv

iction petition. With respect to the explicitly raised c ontention of factual innocence demonstrated by newly discover

ed evidenc e, the Sta

te conte nded that defenda nt's "newly

discover ed evide nce" di d not esta

blish innocence in that Y.B.'s affida vit did not dispel the original contention that she was intoxicated1-05-3172

-9-

and, ther efore, incapab le of gi

ving consent at a

time when

defenda nt enga ged in in tercourse with her. The State additionally pe rceived defendant to have raised a n issue surrounding the voluntariness of his plea and a claim of ineffective a ssistance of counsel in his petition. The State argued that those issues were barr ed from postconviction review on grounds of res judicata because they

had previously bee

n addressed on direct appeal. At a hearing on t he motion to dismi ss, the St ate and defendan t appeared to agree t hat Y.B. was unconscious at the time sexual acts were allege d to have been committed upon her. The State used that fact to reemphasize that Y.B.'s af fidavit did nothing to undermine the element of her lack of consent. Defendant, on the other hand, argued "if she wa s unconscious *** how could she verify that [defe

ndant] had

sex with her . And the t

hing is someone wo

uld have t o testify that that act took place ." Defendant further arg ued at the hearing, with respect to the voluntariness of his plea, "that he did not want to plead, that he pled beca use he *** felt he had to plea; b ut once he

found out t

hat ther e was a lot of evide

nce out there tha

t would sup

port his position, he decided that he was going to continue to fig ht for this." In g ranting the State 's motion

to dismiss de fendant's postc onviction petition, t

he circ uit court stated that it perceived any ineffective assistance claims or claims surrounding the

vo lu nt ar in es s o f d ef

en da nt 's pl ea to be ba rr ed by res judicata . However, the court also found the petition deficient on its merits. The court observed:

"Regarding the new

ly discovered e

vidence, it's readily

apparent that the complaining witness *** as was placed into the plea, that the vi ct im wa s n ot re al ly c on sc io us at th e t im e a nyw ay.1-05-3172

-10- That h is gui lt is not b ased s impl y on her tes timo ny but on other s['] as well. This is not newly discovere d evidence that she is not aware of whether the defendant assaulted her or not. That's not what is at issue. That there are other witnesses who can pr ovide the State with proof beyond a re asonable doubt that the defendant is guilty of crimes as charged. Therefore, y

our motion to dismiss the PC [postconviction petition] will be granted ." Defend ant appe als. ANA LYSIS On appeal, defendant contends that the circuit cour t erred in dismissing his freestanding claim of actual innocence based on newly discovered evidence by

concluding that the infor mati on con taine d in Y. B.'s aff idavi t was n ot "new ly discov ered." H e argues that Y .B.'s averments demonstrated that she was under the control a nd domination of her mother and, therefore, that defendant could not have pr eviously obtained her e

xculpatory statements. Defendant further arg

ues that the circuit court's conclusion that his new evidence was immaterial since witnesses other than Y.B. could have established his g uilt beyond a rea sonable doubt amounted to an impermissible assessment of credibility a s between Y.B. and those other witnesse s. Defe

ndant' s second c ontention is that the

circuit c ourt err

ed in dismis sing his c laim surrounding the voluntariness of his guilty plea on grounds of res judicata . He argues that, even if raised before, we should gra nt him relief from the effect of his counsel's c oercion on grounds1-05-3172

-11-

of funda mental fa irness. We , howeve

r, disag ree with defenda nt's con tentions. In the review of a

first or second-stage postconviction petition "all we ll-plead

ed fact s in the petition and affidavits are to be taken as true, but nonfac tual and nonspecific assertions which merely amount to con clusions are not suffi cient." People v. Rissley , 206 Ill. 2d 403, 412 (2003). Additionally, we will not credit alleg ations positively rebutted by the record. See People v. Phyfiher , 361 Ill. App. 3d 881, 883-84 (2005) ("U nder first-stage procedure , as provided by section 122-2.1, or under second- stage procedure, as provided by section 122-5, the circuit court is forec losed fr

om enga ging in any fact-f inding be cause a

ll well-pl eaded f

acts not rebutted by the record are to be

taken as true at st age one and sta

ge two o f the post-conviction proc ess" (emphasis added)). We review the gr ant of the State's motion to dismiss a postconviction petition de novo

. People v. Pendleton , 223 Ill. 2d 458, 473 (2006). The wron gful conviction o f an innoc ent pers on violate s due proc ess under the I llinois Constitution

and, thus, a free standing

claim of a

ctual innocence

is cognizable unde

r the PostConviction Hearing Act. See People v. Washington , 171 Ill. 2d 475, 489 (1996). To obtain relief under the general fra

mework surrounding newly discovered evidence establishing actual innocence, defendant would have to prese nt evidence that " 'appea

r[s] to be of such a conclusive character that i t [would ] probabl y change the result if a new trial [wer e] granted' " ( People v. Jones , 26 Ill. App. 3 d 78, 8 2 (197 5), qu otin g People v. Silvia , 389 Ill. 346, 352 (1945)); likewise, to survive a motion to dismiss, and to be entitled to an evidentiary hea ring under the Act, a petitioner must make a "substantial showing" of the depr ivation of a constitutional right (see People v. Simpson , 204 I ll. 2d 536, 5 46-47 (20 01)), in t his case a depriv ation of d

ue proce ss1-05-3172

1 The appellate decision in Savory was crit icized by another division of

the appe llate court and by our

supreme court in its decision nevertheless affirming the Savory appel late c ourt's judgment. See People v. Savory , 197 I ll. 2d 203 (2001); People v. Rokita , 316 Ill. App. 3d 292 (2000). However, the basis of the criticism was that the Savory appella te decis ion assume d that, -12- through continued incarceration in spite of ac tual innocence. However, for the re asons discussed below , we aff

irm t he dis miss al of d efenda nt's p ostco nvict ion p etit ion b ecause defend ant's proffered evidence ac

hieves neither. As previously noted, def

endant's conviction for agg ravated criminal sexual assault, as opposed to simple criminal sexual assault, was based on the assault being committed during the commission of an aggravated kidnaping . Defendant appears to arg ue that, since the averments of Y.B.' s affida

vit to the e ffect that she wil lingly came to d

efenda nt's home and dran k voluntar

ily undercut the necessary

elements of kidnaping, he is, therefore, " actually innoce nt" of aggrava

ted criminal sexual assault. In so doing, he fails to ac knowledge the distinction between being found "not guilty" and being "actually innocent" for purposes of postconviction relief. In People v. Savory , 309 Ill. App. 3d 408 (1999), the court addre ssed a statute allowing for postconviction DNA testing of evidence wher e the testing had the "potential to produce new , noncumulative evidence materially relevant to the defendant's asser tion of actual innocence" (725 IL CS 5/116–3 (West 1998)). In assessing the meaning of "actual innocence," the court observed that "actual innocence" did not conc ern whether a defendant had be en proved guilty beyond a reasonable doubt. Savory , 309 Ill. App. 3d at 414. Rather, the Savory court concluded, "actual innocence" mean t "total vi ndication ," or "exonerat ion." Savory , 309 Ill. App. 3d at 414-15. 1 See1-05-3172

to permit defendants to obtain DNA testing, any DNA evidence acquired would have to be sufficie nt in and of

itself to prove the

defenda nts' actual innoc ence, w

hereas the statut e only require d that any

request ed DNA te sting ha

ve "the potentia l" to pro duce evidence " materia lly relevant" to proving actual innoce nce. Savory , 197 I ll. 2d at 21 3; Rokita , 316 Ill. App. 3d at 301- 02. No criticism, however, was directed at the Savory appellate decision's understanding of the meaning of "actual innocenc e." -13- also People v. Lamming , 358 I ll. App. 3d 1153, 1155 (2005) ( "postconviction [D NA] testing

is predica ted upon a

claim of a

ctual innocence . If a

defenda nt does not

deny committing

the acts charged, there would be no re ason to test for new evidence potentially relevant to the question of innocence"). The court in Moore v. Owens , 298 Ill. App. 3d 672 (1998), in the context of legal malpr actic e clai ms by crim inal d efenda nts, appear ed to r each th e same c onclu sion , stat ing:

"We do not believe that even if a criminal defenda nt is acquitted on retrial, that alone will suffice as proof of innocenc e, although it may be evidence for a fact finder to c onsider. Rather, because of the differe nt burdens of proof in a civil trial and a criminal trial, we believe that the plaintiff must also prove independently in the c ivil trial that he was actually innocent an d 'not just lucky.' [Citati on.]" Moore , 298 Ill. App. 3d at 675. See also Levine v. Kling , 123 F.3d 580, 582 (7th Cir. 1997) ("an acquittal doesn't mea n that the defendant did not commit the crime for which he was tried; all it means is that the g overnment was not a ble to prove bey

ond a rea sonable d

oubt that he committe d it"); Shaw v. Sta te , 861 P.2d1-05-3172

-14-

566, 570 n.3 (Alaska 1993) (drawing a distinction betwee n "actual innocence" a

nd "legal innocenc e"); Glenn v. Aiken , 409 Mass. 699, 709, 569 N.E.2d 783, 789 (1991) (Liacos, C.J., special ly c oncurri

ng) (" A crimina

l trial is a n adjudic ation of a

defenda nt's legal guilt. As a resu

lt, a jury' s verdict does not address necessarily the issue of a defendant's actual g uilt. Two examples

su ff ic e t o m ak e t he po in t. A d ef en da nt wh o c om mi tt ed th e c ri me ma y be ac qu it te d i f t he ju ry, based on th e evid ence in trodu ced by the p rosecu tion , had a reason able d oubt as to t he defe ndant 's legal g uilt. Or, a lternati vely , a defe

ndant may

be acqu itted bec ause evi dence o f guilt is suppressed due to it being tainted by some constitutional violation by law enforce ment personnel"). Savory 's and Moore 's understanding of "ac tual innocence" is consistent with the understa nding of those othe

r jurisdic tions whic

h have he ld that actual innoc ence re quires that a defendant be free of liability not only for the crime of conviction, but also of any re lated offenses. See Wanatee

v. Ault , 120 F. Su

pp. 2d 784, 789 (N.D . Iowa 2000) ( "there is a public

interest in the continued incarceration of a person c onvicted of murder, where the gr ounds for habeas release did not go to his actual innocence, but only to a constitutional defect in his representation, which this

court concluded r

esulted in his convic

tion of a g

reater offense , as oppos ed to his pleading guilty to a lesse r offen se with a l esser se

ntence" ); Bailey v. T

ucker , 533 Pa. 237, 247- 48, 621 A. 2d 108, 113 (1993) ( "we re quire tha t as an el ement to a

cause of action in trespas s agains t a defe nse at torne y whose der elict ion wa s the s ole pr oxi mate c ause o f the d efenda nt's unlawful conviction, the defendant must prove that he is innocent of the crime or any lesser included offense. *** The underly ing act for first degre e murder and for voluntary manslaughter1-05-3172

-15-

is the unlawful taking of human life. A person convicted of unla wfully taking a

human life may not collect monetary da

mages for being wrong fully convicted of f irst degree murder when in fa ct that per son is gui lty o f a lesse r degr ee of hom icide" ); Sangha v. LaB arbera , 146 Cal. App. 4th 79, 88, 52 Cal. Rptr. 3d 640, 647 (2006) (holding that to be "actually innocent" so as to recover for legal malpractice, a d

efenda nt must be f

ree fr om " anycriminal involvement," including the commission of a lesser included offense of the crime of c onviction (emphasis in original))

. Throug hout defe ndant' s postconv

iction ple adings, as well a s the plea procee dings, there is

never a denial of the fact that Y.B .'s intoxic ation re ached su ch a point that she lo st the abil ity t

o consent t o sexual inte

rcourse . In f

act, in hi s pro se motion to withdraw his plea, defendant stated that "the victim was drunk and could not say that she was forced to have sex." There was likewise agreement between de fendant and the State at the hearing on the motion to dismiss the petition that, for s ome peri od of time, as a res ult of intoxic ation, Y. B. beca me uncons cious in defendant's home. Against this backdrop, defendant never de nies engaging in any

form of sexual relations with Y.B. In fact, de fendant never sets out himself what occurred in his home during the relevant times. Defendant, likewise, fails to include any affidavits from the other men identified in the stipulated factual basis for his plea as taking part in the assa ult, or the unnamed friend he alleged went to his bedroom with Y.B. in his motion to withdraw his guilty plea , so as to establish that he never performed a sexual act on Y.B . at a time when she was incapable of giving consent thereto . See 720 I

LCS 5/1 2-13(a) (2) (West 1998) (" The acc

used comm

its crimina

l sexual ass ault if he or she: *** commits an act of sexual penetration and the accused knew that the vic tim was1-05-3172

-16-

unable to understa nd the nat ure of the act or

was unab le to giv e knowing consent" ); 720 I

LCS 5/12-15(a)(2) (West 1998) ("The ac cused commits criminal sexual abuse if he or she: *** commits an act of sexual conduct and the accused knew that the victim was una ble to understand the nature of the act or was unable to give knowing consent"). Of co ur se , Y .B . h er se lf

av er s t ha t d ef

en da nt "d id no t s ex ua ll y as sa ul t [ he r] in an y wa y, form or fashion." However, that statement ca rries with it the ambiguity of a legal conclusion, as opposed to a statement of specific facts contradicting or denying

the facts supporting conviction. See Rissley , 206 I ll.2d at 41 2. We begin by noting that Y.B. d

oes not sta

te that no sexual acts took place that day

and that, as the circuit court and postconviction counsel recog nized, during her period of unconsciousness, Y.B. would not have known who mig ht have perpetrated any sexual act upon her . Moreove r, depen ding on w hat Y.B. 's unde

rstandin g of "s exual assa

ult" is, defendant cou ld still be criminal ly culpable in spi te of her stat ement. For ex ample, if Y. B. believed that sexual assault only occur red in the event that the perpetrator applied phy sical force in order to enga ge in a s exual act

with her, then she m

ight say that she had not bee

n sexually assaulte d even tho

ugh the law would

recog nize defe ndant as having c ommitted a n offens e should he have performed some form of sexual act, including intercourse, through taking adva ntage of her seve re intoxica

tion and/or unconsc iousness. See 720 I LCS 5/1 2-13(a) (2), 12- 15(a)( 2) (West 1998). Thus, it remains unclear whether Y.B. de nies the facts present in the stipulated factual basis for defenda nt's ple a that wou

ld support his conviction or if she mere ly c oncludes that those facts are legally

insufficient to support the statutory def initions of such offenses as aggra vated criminal sexual assault, simple criminal sexual assault, and criminal sexual abuse. See People v.1-05-3172

-17-

Patel , 366 Ill. App. 3d 255, 271 (2006) ("statutory interpretation is not a matter to which an expert wit ness may testify "); People v. Sepka , 51 Ill. App. 3d 244, 259 (1977) ("a witness may not testify as to the leg al effect of facts alrea dy in evidence "). Further, in any

event, Y.B.'s recantation af fidavit would merely impea ch her stipulated testimony in the factual basis for the plea which the State, in all likelihood, would have been free to introduce as substantive evidence in the event of an ac tual trial. See 725 IL CS 5/115-10.1 (West 1998) (providing that a prior inconsistent statement is not made inadmissible under the hearsay rule if, among other things, it describes an e vent over which the witness had personal knowledg e, and the

witness' s stateme

nt has bee n signed by t he witnes s, acknowledge d under o ath in legal proceedings, or mec hanically re corded). As the court recog nized in People v. Chew , newly discover

ed evidence "which merely impeaches a witness" will ty pically not be of such conclusive character as to justify postconviction relief. People v. Chew , 160 Ill. App. 3d 1082, 1086 (1987). See also People v. Steidl , 177 Ill. 2d 239, 260 (1997) ("the re cantation of testimony is rega rded as i nherent ly u nreliab le, and a

court wil l not gra

nt a new tr

ial on tha t basis exce

pt in extraord inary circumst ances" ); McVey

v. State , 863 N.E.2d 434, 446 (Ind. App. 2007) (" we find that [the victim's] first affidavit [recanting by stating '[the defendant] and I have never had sex with each other and he never touched me inappropriately' ] would be used merely to impeac h her trial testimony. Unlike [defendant], we do not conclude tha t the affidavit would destroy or oblitera te the testimony

upon which a convic

tion was obtained. [Ci

tation.] I nstead the affid

avit would merely ser

ve to cast doubt on [the victim's] trial testimony. As such, it would not destroy or obliter ate her earlier testimony

, but rather plac e her cr

edibility at issue, a matter

that is1-05-3172

-18-

reserved for the jury "). Moreove r, we ca nnot conc lude that

defenda nt's evi dence would quali fy as "new ly discovered." I

n this case, defendant would have to have known the under lying fa cts comprising what he presently

identifies as "newly

discovered evidence," plus alterna tive sources for the presentation of those facts which he could have dra wn on prior to his plea, to demonstrate that Y.B.'s original accusa

tions were false. To qualify as " newly discover ed evidence," the evidence must, among other things, " 'have been disco vered since th e trial. ' " People v. Jones , 26 Ill. App. 3d 78, 82 (1975), quoting People v. Silvia , 389 I ll. 346, 352(1945). U sually , to qualif y a s new evi dence, it is the fa cts comprisin g that e vidence which must

be new a nd undiscovered a s of trial , in spite o f the exer cise of due diligence. Generally , evidence is not "newly

discovered" when it presents facts alr eady known to the defendant at or prior to trial, though the source of those facts may

have been unknown, unavailable, or uncooperative. See People v. Moleterno , 254 Ill. App. 3d 615, 625 (1993) ("Like the

witness in Jones , Perry her e was initially uncooper

ative. Like the information involved in Jones , the information at issue here, the color of the gun, wa s also within the knowledge of defendant. He c ould have testified to this fact when he took the stand. His wife could have testified to the color of the gun as she wa s the intermediary be tween her husband and Per ry. P err y cou ld hav e be en s ubp oen aed and ask ed t he c ol or a nd w her eab out s of th e gu n. In sum, the c olor of th e gun c annot be c onsidere d 'newl y di scovere d' "); Chew , 160 Ill. App. 3d at 1085 ("Based on questions asked of both the complainant and O fficer Jones regarding dr ug sales at the Ta ylor Street a

ddress, i t also app ears tha

t defend ant knew about the evidenc e prior to

trial;1-05-3172

-19-

thus w e find no a

buse of dis cret

ion in the tr ial c ourt' s ref

usal t o gr ant the moti on fo r new

tria l []" based on the defendant's submission of a newspape r article describing the address the r obbery complainant testified he was on his way to at the time of the offense, so as to see a friend, as a " 'popular drug con fectionary with a wid e followin g' ") ; Anderson v. Commonwealth , 63 S.W.3d 135, 141- 42 (Ky . 2001) (" It is by de fendant's own a dmission tha

t we know he had both

reports in his possession before trial. The evidence the defe nse claims to be newly discove red is that the Commonwealth's Attorney deceitfully kept a

witness [the doctor authoring the reports] from testifying. Eve

n if true, this does not fit the definition of newly discove red evidence"). There d oes appe ar to be a

n exception to the g eneral rule whe n a witnes s later r

ecants, howev er. Co urts h ave hel d that defend ants w ill n ot be p reclud ed from presen ting a w itnes s's recant ation as newly

discover ed evide nce, thou gh they knew the witness to

be perju ring him self or herself. See Archer

v. State , 934 So. 2d 1187, 1194 (Fla. 2006) ("a recanta tion is not precluded from being considered ne wly discovere d evidence simply bec ause the defendant knew, as reflected by

what the defendant claimed the facts to be, that the r ecanting witness was not telling the truth at the time of the trial or because the def endant took the stand to testify contra ry to the witness"). But, this exception will not apply if the de fendant had evidence available at the time of trial to demonstrate that the witness was ly ing. See Archer , 934 So. 2d at 1194 ("The appropriate question was whether [the defendant] was or should have been aware of the existence of evide nce that would demonstrate

that [the r

ecantin g witne ss's] test

imony was fals e"); se e also Jones , 26 Ill. App. 3d at 82-83 ("B oth defendant and his lawy er knew that Long

had made a statement favorable to them and that he was available f or subpoena. *** The only change in the1-05-3172

-20-

situation from time of trial to time of motion [for new trial] was that the witness became more coopera tive. His v ersion of

the occu rrence did not cha

nge. Th is eviden ce was not newly discovered"). In this case, defenda

nt had to have known of other sources of his presently proffered evidence of "actual innocenc e" at the time he pled guilty . Reduced to its material essence, defendant's newly

discovered evidence is that he did not kidnap Y.B., nor sexually assault her, and that she lied to police when she claimed that he did. Of course, de fendant would have known that Clemmons and Jackson, his codefendants, and one of whom is presumably the friend defendant referred to in his motion to withdraw his plea, could have testified to those facts. See People v. Smith , 341 Ill. App. 3d 530, 540 (2003) ("we fail to see how defendant could not have known of t

he existence of Ed

wards, h is own cod

efenda nt, and the

allege d testimony

he could have provided") . Had def endant pr oceede d to trial, he could have used this evide

nce to demonstrate that Y.B.'s accusations we re false. See Archer , 934 So. 2d at 1194. Furthermore, we cannot conclude tha t defendant has met his burden of showing that Y.B.'s recantation could not have be en discovered prior to his plea, provided he had exercised due diligence. See Jones , 26 Ill. App. 3 d at 82 , quot ing Silvia , 389 Ill. at 352 (holding that "newly discovered evidence" must also " ' be such as could not have been discovered be fore the trial by the exerc ise of due

diligence' " ); People v. Harris , 154 I ll. App. 3d 308, 318 ( 1987) (" It is the appli cant's

burden to

show that t

here ha s been no

lack of d ue dilig ence on

his part" ). In

fact, there is no showing of defendant ever attempting to obtain the evidence of her rec anted testimony himself prior to pleading guilty . To counter our conclusion, defendant sets forth two arg uments.1-05-3172

-21-

First, a s previou sly

noted, in t

he body of his supp lemental

petition, d

efenda nt claims: "[ Y. B. ] w as th e S ta te 's wi tn es s. Sh e w as wi th in th ei r c on tr ol an d i nf lu en ce . * ** [U ]n fo rt un at el y, there was no way to ascert ain that Ms . [Y.B.'s] t estimony was coerced, but for her affi davit." However, we cannot acce pt this conclusory char

ge of unprofessionalism by the State's Attorney when it is unsupported by any specific facts demonstrating that the State secr eted Y.B. from defendant or defense counsel. See Rissley , 206 Ill. 2d at 412 ("all well-plea ded facts in the petition and affidavits are to be taken as true, but nonfac tual and nonspecific assertions which merely amount to con clusions are not suffi cient") ; see also 134 Ill. 2d R. 3.4(a)(1) (" A lawyer shall not *** unlawfully obstruct another pa rty's a ccess to evidence or unlawfully alter, destroy or conceal a document or other materia l having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act"); 134 Ill. 2d R. 3.4(a) (3) ("A lawy er shall not *** request a person other than a cl ient to re frain fr om volunta

rily giving releva nt informa

tion to another party ***"); United States v. Fred , No. CR 05-801 JB, slip op. at __ (D.N.M. December 4, 2006) ("As a genera

l rule of criminal law, witnesses 'belong ne ither to the government nor the defense [, and b]oth sides have a right to interview witnesses before trial. [Citations.] Nevertheless, '[a] witness in a criminal case has the rig ht to refuse to be interviewed,' ***. [Citation.] The witness' decision must be their own-the prosecutor must not obstruct communications between witnesses and defense counsel- and 'it is unprofessional conduct for the prosecutor to advise a prospective witness to decline to give the defense information that person has a right to give.' [Citations.]"). Defend ant's se cond con

tention mir

rors his f irst in tha t it identif ies another part

y, namely1-05-3172

-22-

Y.B.' s mother, as blocki

ng him fr om obtainin

g Y.B. 's rec antation . In ma king this argume nt, defendant relies on attorney Brown's documentation of his conversation with Y.B . in which she "indicated her mother was the force controlling the charges which we re b[r]ought," and that "her mother controlled the entire situation." Setting aside questions of waiver, c onsidering that defenda nt never explicitly

advanc ed this ar

gument b efore t

he circ uit court ( Ayers v. B ituminous Insurance Co. , 100 Ill. App. 3d 33, 36 (1981) ("B ecause the *** argument was not pre sented below, it has been waived")), we will not assume that Y.B ., a 19-yea r-old woman, would not have recanted prior to defenda nt's plea where there is no indication that defe nse counsel even attempted to interview her. See Stocker v. Scherer , 1 Ill . 2d 405 (1 953) (hol ding tha t a party failed to demonstrate due diligence wher e, knowing of a witness having cer tain information, he failed to interview that witness because the party believed the same information could be provided by other sour

ces); see also Schlicht v. United States , No. CIV03-1606, slip op. at 2 (D. Ariz . Jan uary 30, 2 006) ( "due di ligenc e assu mes at least some l evel o f dedu ctive reason ing in an active e ffort to discover evidence based on the knowledg e and information already possessed by the litigants" (emphasis added)); Bradle y v. State , 450 So. 2d 173, 176 (Ala. Crim. App. 1983) ("The c ourt foun

d that the allege dly newly -discove red evid ence did not consti

tute newl y discovered evidence in that it was discoverable a nd available before trial. Of course, the evidenc e was the

statemen t of the br other of the appe llant acc

used of pa

rticipat ing in the same crime. Appellant asks us to assume that he and his brother could not have communicate d and that their lawyer

s could not have communicated before trial. We find this highly unlikely").1-05-3172

-23-

Thus, it se ems clea

r to us tha t defend ant has f ailed to present c onclusive evidenc e or to make a substantial showing of his actual innocence. B ased on the allegations of the petition and supporting materials, even when construed libera lly in defendant' s favor, we cannot conclude that defendant, even if "not guilty " of aggra vated criminal sexual assault predicated on agg ravated kidnaping, is "actually

innocent" of any

crime against Y.B., including lesser included offenses of aggravated cr

iminal sexual assault such as simple criminal sexual assault or criminal sexual abuse. Independently

of the foregoing analy

sis, and though not argued by any of the pa

rties, we would strongly

question w

hether a claim for relief u nder the Post-Convic

tion Hear ing Act premised upon newl

y di scovere d evidenc e of act ual innoc ence ca

n suffic e to raise

a cogn izable constitutional deprivation where the challenged convic tion was entered pursuant to a plea of guilty. We believe tha

t a defendant's postconviction claim of actual innoce nce cannot be deemed to depriv e him of his

due proc ess rig

hts in the f

ace of t he fact that the d

efenda nt previo usly confessed to the commission of the crime in his plea. Where the constitutional basis under which the Act is invoked rests upon a defendant's claim of a ctual innocence, there must be a substantial showing that his continued incarce ration in t he face of such e vidence would viola

te his rig hts under due process. I f a defendant claims that his guilty plea was coerced, then that coer cion provides the necessary

constitutional deprivation for which postconviction relief would be appropr iate, but not wher e he cla ims actua l innocen ce in the face of a prior, constituti onally

valid confess ion of gu

ilt. This question does not appear to have been fully confronted in Illinois, but has been1-05-3172

2 Since this particular argument would have no forc e in the case of a plea that did not admit guilt, such as an Alford plea, some courts do appear to allow postconviction challeng es under those circumstances. See People v. Lundeen , 30 Ill. App. 3d 21 (1975) (allowing postconviction review where its defendant entere d an Alford plea, vol untarily and knowi

ngly accepting the imposition of a criminal penalty even while maintaining his factual innocence) ; Johnson v. Sta

te , 936 So. 2d 1 196, 1197 ( Fla. App . 2006) (" appella nt will only

be allowe d to -24- specifically a

ddressed in other jurisdictions. See Majors v. State , 946 So. 369 , 373-74 ( Miss. App. 2006 ) ("Ne

wly discover ed evide nce is re levant on

ly in situations

where a defenda nt goes t o trial and is convicted. *** Here, [the defendant] did not stand trial because he a dmitted that he had committed the offense by pleading guilty . Therefore, [the defendant] cannot now claim that he has ne wly discover ed evide nce whic h would ha

ve 'pr oduced a differe nt result' because his guilty plea e ssentially nullifies any argument that there is some undiscovered evide nce which could prove his innocence"); accor d Weeks v. Bowersox , 119 F.3d 1342, 1355-56 (8th Cir. 1997) (Loken, J., concurring)

("there is an inherent paradox in the notion that someone who has stood in open co

urt and de clared

'I am guilty

,' may turn aro und y ears la ter and c laim that he deser ves to pass thro ugh the actual in nocenc e gate

way . Beca

use a g uilty plea wa ives the d efenda nt's rig ht to prove his actual innocence at trial, [citation.], a strong arg ument can be made that a guilty plea should absolutely forec lose a post-conviction claim of actual innocence ***. *** I conclude that the actu al innoce nce inqui ry in guilty plea ca ses must fo cus prima rily on the g uilty plea. Un less the habeas petitioner has newly -discovered evidence that his guilty plea was a false declaration of guilt, he should not pass through the actual innocence gateway "). 2 But see Ex parte Brown , 2051-05-3172

withdraw his plea u

pon a show

ing of ma nifest inj ustice. [Cit

ations.] ** * [A]ppella

nt does sta

te in his motion that he was 'wrongfully convicted,' he has maintained his innocence throug hout the proceedings, and he requeste d a new trial. The record also shows that appellant ente red a plea of convenie nce. Thu s, the substance of appella nt's cla im is one of

manifest injustice "). Bu

t, defendant may

not take advantage of this exception to the gene ral rule because his plea was unconditional and because he stipulated to a factual basis that established his g uilt of the crimes of conviction. -25- S.W.3d 538, 544 n.8 (Tex. Crim. App. 2006) (holding "claims of actual innocence based upon newly discover ed evide nce are cogniza ble on post-conviction writs o f habea s corpus" "reg ardless of whether the applicant pled guilty or had a jury

trial" because where " 'new evidence unquestionably

established an ap

plicant' s innocen

ce, it is di fficult t

o conclud e that a prior gu

ilty plea was accurate or re liable' [Citation.]"). Moreover, this approach is consistent with that taken, albeit without elaborate discussion, by Justice Schaefer, on be half of our supreme court, in People v. Cannon , 46 Ill. 2d 319 (1970). In Cannon , our supreme court reviewed the denial of a defendant's postconviction petition subsequent to a guilty ple a. In his petition, the Cannondefendant claimed that his charge of indecen t libertie s with a ch

ild was unt

rue, and that his ch

ildren we re coer ced into a ccusing him, and precluded from asserting his innocenc e, by their mother, the defendant's wife. Cannon , 46 Ill. 2d at 321. I

n affirming the denial of the defenda nt's petition, our supreme court stated:

" Before his plea of guilty was accepted, the defendant, represented by appointed counsel, was fully and carefully admonished by the trial judge, and in the light of that admonition, the1-05-3172

-26-

defendant's present claim cannot be entertained ." (Emphasis added). Cannon , 46 Ill. 2d at 321. We furthe

r note tha t the factual basis

provided in support

of a gu ilty plea ge nerally provides a scant record on appeal. See People v. Jamison , 197 Ill. 2d 135, 160 (2001), quoting People v. Barker , 83 I ll. 2d 319, 3 27-28 (19 80) (“ ' [T]he quant um of proo f neces sary

to establi sh a factu al basis f or the ple a is less than that ne cessar y to sustain a convicti on after

a full tri al. [Citations.] All that is re quired to appear on the re cord is a

basis from which the

judge c ould

reasona bly reach t he conc lusion tha

t the def endant a ctually committed

the acts with the in

tent (if any) re quired to constitute the offense to which the defendant is pleading guilty. [Citations.]' ”); accord People v. Ritchie , 25 I ll. App. 3d 875, 877 ( 1975). Con sequentl y, a reviewi ng cour t is hampered in its ability to evaluate whether a defendant has made a substantial showing of a freestanding claim of actual innoce nce since it is deprived of the extensive evidence and exploration of issues that would have been contained in the record of a n actual trial, and which may have ove rwhelme d any

newly discover ed evide nce pre sented by

the defe ndant in hi s postconviction petition. See People v. Parsons , 284 Ill . App. 3d 104 9, 106 2 (199 6) (rej ectin g a motion for a new trial based on newly discovered evidence, namely, the alleged admission of perjury by

a complaining witness, and observing "Summit's supposed c ontradiction of her trial testimony , are not in the nat ure of c onclusive

evidenc e which, if believ ed, would probably change the result on retrial. [Citation.] *** [T]he evidence adduced at trial, independe nt of Summit's te stimony , was suf ficient by its elf to sup

port the d efenda nt's con viction" ); see a

lso Lamming , 358 Ill. App. 3d at 1155-56 (addressing the analogous situation where a defenda nt seeks postconviction DNA testing in support of a claim of actual innoce nce, and stating: "To be1-05-3172

-27-

entitled to DNA testing pursuant to section 116-3, a defendant must first prese nt a prima faci

e case that identity wa s at issue at his trial ***. [Citation.] The plain and unambiguous language of the statute presupposes the existence of a trial and a conviction resulting from that trial. Without a trial, there is no way

to satisfy the identity

-at-issue requirement. * * * Because defendant pled guilty, he did not have

a trial, he did not deny c ommitting the acts charged, and identity was not at issue. The trial court, therefore, corr ectly denied de fendant's postconviction motion for DNA testing "); Phyfiher , 361 Ill. App. 3d at 884 (" all well- pleaded facts no t rebutted by the record are to be taken as true at stage one and stage two of the postconviction process"). We turn then to defendant's renewed a ttempt to vacate his guilty plea on the grounds that it was invo luntary

since it w as enter

ed in res ponse to a

threat f rom his own

counsel. We first

no te th at de fe nd an t c on ce de s t ha t t hi s c la im is ba rr ed by res judicata based on our holdin

gs in his direct appeal

. Relying on People v. Pitsonbarger , 205 Ill. 2d 444, 458 (2002), however, he contends that fund amental f airness require s that we r

elax this pr

ocedura l bar. De fendant

argue s: "[T]he ne w evidence esta

blishes tha

t Mr. Bar nslater i s not guil

ty and he pled only for

the reason he has repeatedly asserted. That is, he pled guilty not beca use he wa s guilty

, but pursu

ant to the threat o f signif

icantly more prison time in the event he failed to so plead. Now it is known, as he has always pr

oclaimed, [that] he is innocent of the offenses charged. Fundamental fairness requ ires consid eration of hi s current clai ms." Our supreme court has recog nized "that, in the interests of fundamental fairness, the doctrine of res judicata can be relaxed if the defenda nt presents substant ial new evid ence."1-05-3172

3 Defendant suggests that we de termine whether fundamental fairness re quires us to relax the bar of res judicata by e mploy ing the c ause and

prejudic e test und

er which a party must demonstrate an objective cause for his not raising the claim sooner, and prejudice, meaning a n error so pervasive that the conviction ran af oul of due process. See People v. Morgan , 212 Ill. 2d 148, 153 ( 2004); People v. Mahaffey , 194 Ill. 2d 154, 173 (2000). I n so doing, defendant mistakenly directs us to the test for e valuating whether it is appropriate to ease the a pplication of the proc edural b ar of wa

iver, not res judicata . The bar of res judicata addresses the iniquity of a party see king fresh review of an issue pre viously adjudicated; there fore, if res judicata is an ap pl ic ab le co ns id er at io n, th er e w il l n ec es sa ri ly b e n o p la ce fo r a rg um en t s ur ro un di ng wh y a claim was not brought sooner. -28- People v. Patterson , 192 Ill. 2d 93, 139 (2000). 3 The stand ards add ressing when new

evidenc e is sufficiently substantial so as to rela x res judicata are the same standards used to determine whether newly

discovered evidence should result in a new trial. See Patterson , 192 Ill. 2d at 139. Since we have already

shown that defendant's new evidence could potentially have be en discovered sooner through the exercise of due diligence and is not conclusive evidence of a ctual innocence, there is no basis on which to find that fundamental fairne ss requires the relaxation of res judicata here. Moreover, even if not barred by res judicata , defendant's contention that his plea was

coerce d would be

without me

rit. Def endant c ontends th

at "[his] guilty plea was the produc t of his attorney' s threat that he would re ceive a

longer sentenc e based u

pon his cr iminal re cord. ' A guilty1-05-3172

-29- plea, if induced by

promises or threats which deprive it of the charac ter of a volunta ry act, is vo id. A conv

iction ba sed upon s

uch a ple a is open t

o colla teral attac k.' People v. Washington , 38 Ill. 2d 446, 450 (1967)." However, multiple foreign authorities that we find persuasive have held against interpreting reasonable attorney

advice as to possible sentences as a form of coe rcion. For example, in Jones v. Este lle , 584 F.2d 687 (5th Cir. 1978), the Fifth Circuit addressed its habeas corpus petitioner's claim that "his attorney 's impatience and stern demand for a quic k answer, when added to the threat of a life sentence if the case went to trial, produced a n involunt ary plea." Jones , 584 F.2d at 690. The Fifth Ci

rcuit re jected it s petitione

r's cla im, howev er, st ating:

"These allegations are not suff icient for us to find that the plea was coerced. Trial counsel's irritation and impatienc e, although certainly not commendable, do not amount to mental coercion sufficient to overbear Jones' free will. Moreover, a plea is not involuntary solely because

a de fe nd an t p le ad s g ui lt y ou t o f a de si re to li mi t t he po ss ib le pe na lt y. [Citations.] To establish coercion Jones must show that the fear of the greater penalty

destroyed his ability

to weigh rationally , with aid of counsel, the advantages of proce eding to trial against those of pleading guilty. [Citation.] There has been no showing that petitioner's guilty

plea was coerced." Jones , 584 F.2d at 690. See also Rankins v. State , 839 So. 2d 581, 584 (Miss. App. 2003) ("Rankins argues that his plea1-05-3172

-30-

wa s n ot vo lu nt ar il y or in te ll ig en tl y ma de be ca us e h e w as co er ce d b y hi s c ou ns el . S pe ci fi ca ll y, Rankins asserts his counsel induced him to plead guilty by telling him that if he did not take the plea bar gain of eight y ears he could g et the maxim

um senten

ce of thi rty ye ars. *** I

n rega rd to Rankin's impression that his attorney w rongly pe rsuaded him to plead guilty , we find no suggestion that his attorney threatened or provided improper inducements. I t is obvious that Rankins's attorney

gave him only

advice as to what the situation could entail if he did not plead. Advising a client o f the poss ibility of rece iving the

maximum sent

ence if the case goes to t rial is not a for m of coer cion") ; Simons v. Sta

te , 719 S.W.2d 4 79, 481 (M o. App. 19 86) ("movant first argues that his counsel's advice of a possible 100-yea

r sentence coerced him into an involuntary plea of guilty . *** For counsel to predict the possibility of a lengthy sentence following a jury trial does not amount to a coerced and involuntary plea"). Washington , the only Illinois case defendant cites to in support of his claim, does not mandate a different result. I n Washington , our supreme court held a defendant' s plea to not be voluntar y w here his counsel h

ad misrep resente d the punishment by falsely assuring him that it was ag reed be tween him self, the

circuit c ourt, and

the prose cution, that, in exchange f or his guilty plea, he would re ceive a

sentenc e of 14 y

ears, bu t where t he circ uit court s ubseque ntly imposed a sentence of 25 y ears. Washington , 38 Ill. 2d at 450-51. Here, on the other hand, defendant makes no present claim that he was misled by his attorney, the cour

t, or anyone e lse as to his possib le sente

nce; he merely, incorr

ectly , contends that bein

g infor med by his counse l as to his possible sentence amounted to a "threat" fr om his counsel. For all t he fore going

reasons , we aff

irm the jud

gment of the circ uit court.1-05-3172

-31-

Affirmed. FITZG ERALD-SMI TH, P.J., and McNULTY, J., concur.