1 

2024 IL App (5th) 220637-U 

NO. 5-22-0637 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of 

Plaintiff-Appellee, ) Champaign County. 

 ) 

v. ) No. 19-CF-1482 

 ) 

DAKIR D. PICKENS, ) Honorable 

 ) Randall B. Rosenbaum, 

Defendant-Appellant. ) Judge, presiding. 

______________________________________________________________________________ 

JUSTICE CATES delivered the judgment of the court.

Justice Welch and Moore concurred in the judgment. 

 

 ORDER

¶ 1 Held: Following an evidentiary hearing, the circuit court did not err in denying both

the defendant’s amended postconviction petition and amended motion to

withdraw guilty plea and vacate judgment, where the defendant did not

demonstrate by a preponderance of the evidence that his defense counsel’s

 performance fell below an objective standard of reasonableness. 

¶ 2 Dakir D. Pickens, the defendant, filed an amended postconviction petition and claimed that 

his defense counsel was ineffective for failing to fully advise the defendant of the details of his 

plea agreement. The defendant also filed an amended motion to withdraw guilty plea and vacate 

the judgment, in which the defendant asserted that his decision to plead guilty was a result of 

ineffective assistance of counsel. After a hearing, the circuit court denied both the amended 

postconviction petition and the amended motion. The defendant appeals the circuit court’s orders 

that denied his amended petition and amended motion. The defendant claims on appeal that the 

NOTICE

Decision filed 08/21/24. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.

NOTICE

This order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1).
2 

circuit court erred when it refused to withdraw the defendant’s guilty plea, where his attorney 

failed to advise him that the State’s plea offer could be withdrawn at any time, and where the State 

withdrew the offer before the defendant had the opportunity to accept it. As a result of his counsel’s 

conduct, the defendant claims he accepted a less favorable plea offer, which imposed a harsher 

sentence than he would have received had he been allowed to accept the State’s previous plea 

offer. For the following reasons, we affirm the judgment of the circuit court. 

¶ 3 I. BACKGROUND

¶ 4 The State charged the defendant by information with armed violence (720 ILCS 5/33A3(b-5) (West 2018)), a Class X felony (count 1); armed violence (720 ILCS 5/33A-3(a) (West 

2018)), a Class X felony (count 2); financial institution robbery (720 ILCS 5/17-10.6(f) (West 

2018)), a Class 1 felony (count 3); and aggravated battery (720 ILCS 5/12-3.05(f)(1) (West 2018)), 

a Class 3 felony (count 4). The information alleged that “the defendant struck Eva Ku in the head 

repeatedly with a handgun” while he attempted to rob the Regions Bank in Champaign, Illinois. 

The circuit court appointed counsel to represent the defendant. 

¶ 5 While the case was pending, the defendant personally corresponded with the circuit court 

on several occasions. On June 25, 2020, the defendant filed a pro se motion to dismiss counts 1 

and 2. On July 9, 2020, the defendant filed a letter dated July 3, 2020, wherein the defendant 

requested a new attorney. He claimed that his attorney had not explained defendant’s speedy trial 

rights, and that the defendant and his attorney had disagreements about which motions were 

appropriate to file. Specifically, defense counsel had informed the defendant that “if the motion 

does not have merit [he] will not file it.” On July 14, 2020, the defendant filed a pro se motion to 

discharge, wherein he argued that the State failed to bring the defendant to trial before his speedy 
3 

trial period expired. In a letter filed on July 24, 2020, the defendant again asked for a new attorney 

because defense counsel would not adopt the pro se motion to dismiss counts 1 and 2. 

¶ 6 At a hearing on July 21, 2020, the defendant requested that he be allowed to represent 

himself. The circuit court admonished the defendant pursuant to Illinois Supreme Court Rule 

401(a) (eff. July 1, 1984). After further consideration, the defendant decided to remain represented 

by his defense counsel. Subsequently, on August 13, 2020, the defendant again requested a new 

attorney in a letter filed with the circuit court.

¶ 7 A plea hearing occurred on September 23, 2020. The circuit court admonished the 

defendant of his rights pursuant to Illinois Supreme Court Rule 402(a) (eff. July 1, 2012). The 

defendant indicated to the trial court that he understood he was present in court to plead guilty to 

count 2, armed violence. The circuit court advised the defendant of the sentencing range and that 

he may be required to serve 85% of his sentence. The defendant confirmed he understood his rights 

and that he was voluntarily pleading guilty. The prosecutor indicated that the State had agreed to 

cap any recommendation for incarceration at 23 years and that the court would determine whether 

the defendant’s conduct leading to the offense caused great bodily harm to the victim, Eva Ku. If 

the court found that the defendant caused great bodily harm, he would be required to serve no less 

than 85% of his sentence. Defense counsel added that absent a finding of great bodily harm, the 

defendant would be required to serve 50% of his sentence. 

¶ 8 The State then provided a factual basis for the charge. On October 15, 2019, two individuals 

entered a Regions Bank in Champaign, Illinois. The first suspect, now known to be the defendant, 

wore a blue hoodie and carried a loaded firearm. The second suspect, now known to be Dasheem 

Pickens, was the defendant’s brother. Both suspects wore hats and glasses to conceal their 
4 

identities. The defendant grabbed Ku, the bank manager, by her hair, brandished a firearm, and 

demanded money. Dasheem attempted to apprehend a second bank employee. 

¶ 9 Ku refused to give the suspects access to the locked teller area where other employees were 

hiding. The defendant hit Ku in the head repeatedly with his weapon. The defendant kicked the 

glass wall, leaving a shoe print. Unable to access the locked area, the suspects then fled the bank. 

The incident was captured on surveillance video. 

¶ 10 A postal employee observed the suspects flee the bank and turn into an alley. The suspects 

returned from the alley wearing different clothes. The postal employee provided a description of 

the two suspects.

¶ 11 When the police arrived at the bank, they found Ku bleeding from a wound on her head.

The police located the suspects in the area of the bank. After a foot chase, both suspects were 

apprehended and taken into custody. The postal employee identified the suspects, and their 

appearance was consistent with the bank surveillance video. When the defendant was taken into 

custody, he was wearing different shoes than when he kicked the glass in the bank. The two 

suspects had apparently traded shoes. The police found the sweatshirt worn by the defendant with 

a loaded .22-caliber firearm in the alley where the individuals had changed clothes. 

¶ 12 When officers advised the defendant they would be taking “GSR” (gunshot residue) 

samples, the defendant attempted to spit on his hands. The defendant also stated that he should 

have urinated on his hands to prevent the State from recovering any possible gunshot residue on 

his hands. At a later date, with counsel present, the defendant made a recorded statement admitting 

his role in the offense. 
5 

¶ 13 Following the State’s factual basis, the defendant pled guilty to armed violence. The circuit 

court found that the guilty plea was made knowingly, understandingly, and voluntarily. The circuit 

court also found that there was a factual basis for the plea and accepted the plea. 

¶ 14 The sentencing hearing was held on November 17, 2020, and November 18, 2020. During 

the hearing on November 17, 2020, evidence was presented regarding whether the defendant 

caused great bodily harm to the victim. The State first presented the circuit court with its legal 

memorandum describing when injuries constitute great bodily harm. The circuit court confirmed 

that it had received a copy of the victim impact statement and various pages of Detective Cherry’s 

police report. The State then called its first witness.

¶ 15 The State’s first witness was Dr. James R. DeSalvio. The parties stipulated that Dr. 

DeSalvio was an expert in the field of physical medicine. Dr. DeSalvio was one of Ku’s treating 

physicians. Dr. DeSalvio testified that the victim had presented with a head injury and symptoms 

of a concussion. Dr. DeSalvio testified that being struck in the head with a pistol would have 

caused the laceration on her scalp and the concussion. The symptoms of the concussion Ku 

experienced included difficulty concentrating, sensitivity to light, headaches, ringing in her ears, 

and loss of balance. Dr. DeSalvio testified that the victim’s concussion was a serious condition 

because her symptoms persisted from the incident and were still present at the time of the 

sentencing hearing, nearly a year later. Dr. DeSalvio stated that the victim’s symptoms have had a 

very profound effect on her day-to-day life. In addition, Dr. DeSalvio testified that the victim had 

various musculoskeletal injuries and a significant amount of mental distress and trauma from the 

incident. The victim’s musculoskeletal injuries caused pain in the muscles of the cervical spine, 

the neck area, and particularly the low back. Her pain made it difficult to perform daily life 

activities, such as getting up, walking, showering, and housework. The musculoskeletal issues 
6 

have also persisted and were present at the time of the sentencing hearing. Dr. DeSalvio stated that 

his notes reflect the most serious issues the patient presented with at the time, and the issues

impacting the patient most may shift over the course of treatment. 

¶ 16 During cross-examination, Dr. DeSalvio acknowledged that the laceration on the victim’s 

head was only two centimeters long. Dr. DeSalvio also testified on cross-examination that his notes 

from an early appointment with the victim did not mention musculoskeletal pain. In notes from 

April 24, 2020, Dr. DeSalvio stated that the “patient is continuing to struggle more from a mental 

health point of view than from a musculoskeletal point of view.

¶ 17 Detective Jody Cherry of the Champaign Police Department testified next for the State. 

Detective Cherry was one of the responding officers to the bank robbery and was the assigned case 

agent. While Detective Cherry testified, a video of the robbery was introduced into evidence. As 

the video was played, Detective Cherry narrated various portions. Detective Cherry also testified 

that six shell casings and one live round were discovered throughout the bank. The defendant had 

fired one shot into the ceiling of the breakroom, one shot at the teller station door, and four into 

the bulletproof glass. The defendant also kicked the bulletproof glass. Detective Cherry testified 

that prior to the bank robbery a third party used the defendant’s phone to call 911 to report “shots 

fired” on the opposite side of Champaign. The 911 call caused several squad cars to be dispatched 

to the opposite side of Champaign to address the “shots fired” call. Detective Cherry stated that 

they had also located the clothing worn by the defendant and his brother during the robbery and 

had recovered a weapon. Once the individuals were in custody, police backtracked to where the 

individuals had been seen. Through that investigation the police found the firearm buried in a pile 

of rocks near an apartment building. 
7 

¶ 18 Eva Ku, the victim, testified about the attack and how it had impacted her. Before the 

robbery, Ku was about to have lunch. Ku went to the breakroom to get a plastic spoon when she 

heard a gunshot. The defendant approached her, grabbed her hair, threw her to the ground, and hit 

her on her head with a gun. The defendant demanded that she give him the money and access to 

the teller area. Ku was in shock and remained on the ground trying to protect her head. After the 

gunmen left, Ku went to the emergency room. She was bleeding profusely from her head, and she 

received four staples to treat her wound. Ku returned to the emergency room the next day because 

she had extreme pain in her head. 

¶ 19 Ku described her recovery since the incident. She testified she had migraines every day

because of the head injury. Ku’s migraines also caused nausea. Due to the severity of Ku’s 

migraines, Ku’s mother helped care for Ku’s two children. Ku also had an issue with her balance

and ringing in her left ear. In addition, Ku experienced pain in her neck, shoulder, and lower back. 

Pain bothered her daily. Ku was still participating in physical therapy at the time of trial. As a 

result of her injuries, Ku was unable to return to work or pursue a master’s degree. The injuries

prevented Ku from being able to look at screens for more than a half hour, otherwise she would 

get a headache, eye pain, dizziness, and nausea. 

¶ 20 The State also presented the testimony of Erika Ecker, who worked as a teller at the time 

of the robbery. Ecker testified about her experience during the robbery. She was behind the glass 

wall that the defendant shot at when he tried to access the money at the bank. Ecker still worked 

at the bank, but the robbery made her nervous and she no longer goes places by herself. That 

testimony concluded the State’s evidence.

¶ 21 Defense counsel presented two witnesses in mitigation. Greg Jahiel, a social worker from 

the “READY Program,” testified that he knew the defendant from when he attended the alternative 
8 

high school for the 2016 to 2017 school year. Jahiel testified that the defendant was polite and did 

well in school when he was present. Any issues that Jahiel had noticed were related to the 

defendant’s attendance. April Whitney, a teacher from the “READY Program,” also testified. 

Whitney also knew the defendant when he attended the alternative school. Whitney recalled the 

defendant as “a very gentle young man who wanted to do well.” 

¶ 22 The sentencing hearing continued on November 18, 2020. The State recommended that the 

defendant serve 23 years in the Illinois Department of Corrections and that the circuit court find 

that the defendant’s conduct caused great bodily harm to Ku. Defense counsel argued that there 

were not sufficient facts presented to prove great bodily harm. Defense counsel recommended that 

the defendant be sentenced to 15 years, that the circuit court not make a finding of great bodily 

harm, and that the defendant receive substance abuse treatment while incarcerated. The circuit 

court sentenced the defendant to 19 years of imprisonment. The circuit court found that the State 

proved that the defendant’s actions caused great bodily harm, and, therefore, his sentence would 

be served at 85%. 

¶ 23 On December 17, 2020, defense counsel filed a motion to reconsider sentence that argued 

the circuit court improperly considered the firearm to find great bodily harm where the use of the 

firearm is included within the definition of the offense. On February 4, 2021, the circuit court 

denied the motion. The defendant appealed. 

¶ 24 While the appeal was pending, the defendant filed a pro se postconviction petition. The 

defendant alleged in his petition that in May 2020, assistant State’s Attorney Lozar had extended 

a plea offer for an open plea to count 2 for 15-20 years to be served at 50%. The defendant 

expressed to his counsel that he wanted to accept the plea offer. His defense counsel responded, 
9 

“No I’m going to give you a day to think about it.” The plea offer was retracted the following day. 

The defendant’s petition was advanced to the second stage with a public defender to be appointed. 

¶ 25 In the meantime, the appellate court remanded the defendant’s appeal to the circuit court 

to comply with the requirements of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). Upon 

remand, the defendant’s new attorney, Horwick, filed a 604(d) certificate and an amended motion 

to withdraw guilty plea and vacate the judgment. The amended motion argued that defense counsel 

had provided ineffective assistance because he told the defendant not to accept the State’s plea 

offer where defendant would be allowed to plead guilty to count 3 with a sentencing cap of 20 

years on the day the offer was made. Further, defense counsel did not advise the defendant that 

there was an expiration date on the plea offer, and the following day the State revoked the offer. 

If the defendant had known that the offer would be revoked the next day, he would have accepted 

the offer.

¶ 26 On March 7, 2022, the defendant’s postconviction counsel, Horwick, filed an amended 

postconviction petition.

1 The amended petition also alleged an ineffective assistance of counsel 

claim but changed the date and terms of the plea offer. It alleged that defense counsel had informed 

the defendant about an offer to plead guilty to count 2 with a sentencing cap of 20 years, which 

would be served at 50%. It further alleged that the defendant wanted to accept the offer, but his 

defense counsel told him to think about it for a day. The following day the defendant was informed 

that the offer was no longer available. The amended petition argued that defense counsel was 

ineffective because he did not fully advise the defendant regarding the details of the plea 

agreement, including that the offer would expire. 

1

Attorney Horwick was appointed to represent the defendant on the postconviction petition and 

the motion to withdraw guilty plea and vacate judgment.
10

¶ 27 On September 23, 2022, the circuit court held a hearing on the amended motion to 

withdraw guilty plea and vacate judgment and the amended petition for postconviction relief. The 

defendant’s counsel, Horwick, was present at the hearing and represented the defendant on his 

amended motion to withdraw guilty plea and vacate judgment and amended postconviction 

petition. Defense counsel called the defendant as the first witness. The defendant testified that he 

spoke with his plea counsel2 on August 6, 2020, but his memory of the conversation was “kind of 

blurry.” During the conversation the defendant and his attorney discussed a plea offer that had 

been made by the State. The plea offer was a minimum 15 years with a cap of 20 years, which 

would be served at 50%. The defendant stated that he wanted to accept the plea offer the same day 

it was made, but his defense counsel advised him to “think about it.” The defendant’s counsel 

admitted a letter from plea counsel dated August 7, 2020, which detailed the plea negotiations.

The defendant reiterated that his memory was “a little blurry.” He thought he spoke to his plea 

counsel the day after the plea offer was conveyed and told his plea counsel that he still wanted to 

accept the offer. Plea counsel then informed the defendant that the offer had been revoked. The 

defendant testified that he would have accepted the offer immediately had his plea counsel not told 

him to wait. 

¶ 28 On cross-examination, the defendant testified that he believed that the entire initial

conversation regarding the plea offer occurred on August 6, 2020. The defendant testified that he 

did not express any hesitation when he told his plea counsel that he wanted to accept the offer. The 

defendant also testified that his plea counsel did not tell him that the offer could be revoked. The 

defendant’s testimony was the only evidence presented by defense counsel. 

2

The attorney that represented the defendant prior to and at the time of the defendant’s plea is 

hereafter referred to as “plea counsel.”
11

¶ 29 The State then called the defendant’s plea counsel as a witness. Plea counsel explained that 

he had been assigned to represent the defendant in a case involving a bank robbery. After a review 

of the evidence, he believed that the case against the defendant was “fairly strong,” in part because 

the defendant was found near the bank shortly after the incident, portions of the robbery were 

captured on surveillance video, and the defendant made incriminating statements about gunshot 

residue. 

¶ 30 The first plea offer was for the defendant to plead guilty to count 1, armed violence while 

discharging a firearm, with a sentencing range of 20 to 30 years, to be served at 50%. Plea counsel 

thought the defendant would serve 50% because his review of the statute and the police reports 

did not reveal any evidence of great bodily harm. During the first meeting, the defendant indicated 

that he wanted to cooperate with the State and implicate another person who had provided the guns 

and the plan to rob the bank. The defendant was not able to produce enough corroboration to 

support the defendant’s attestations. As a result, the defendant’s priority became negotiating a 

better resolution. 

¶ 31 The State then presented plea counsel with email correspondence regarding a plea offer 

made by the State on June 16, 2020. The State’s offer was an “open cap of 20 [years] on count 

two, armed violence.” The sentencing range for count two would be 15 to 20 years. At that time, 

plea counsel still believed that the sentence would be served at 50%. He relayed this offer to the 

defendant the same day. Plea counsel testified that the defendant was not enthusiastic about the 

offer. The defendant expressed he wanted 15 years pursuant to a previous offer that plea counsel 

had proposed to the State. Plea counsel indicated that he “thought it was a fairly good offer with 

all the facts consider[ed] in the case,” including that the defendant could not produce evidence 

about the third-party involvement and the defendant might still get 15 years. Plea counsel testified 
12

that the defendant did not accept or reject the State’s offer. At the end of the conversation, plea 

counsel testified that he told the defendant to think about the offer. Plea counsel testified that he 

would often give indecisive clients time to consider their decision because he did not want to 

pressure a client. Since there was no expiration date on the offer, plea counsel did not inform the 

defendant that the offer could be revoked. Plea counsel, on the same day, sent an email to the 

assistant State’s attorney, Lozar, indicating plea counsel had relayed the plea offer to the defendant, 

and “will let you know what he says.” The following day, plea counsel received an email from the 

State that retracted the offer. The email was admitted into evidence and plea counsel read the email 

into the record. In the email, the State’s attorney apologized for retracting the offer, which he rarely 

did, but after he had spoken with the victim, he learned that the victim’s injuries and long-term

effects from the incident were more severe than initially related to him. The State needed to decide 

whether the offer was still appropriate and if the injuries constituted great bodily harm. Plea 

counsel testified that on the same day as receiving the email, he informed the defendant that the 

State had retracted the offer. The defendant was not happy because he thought he would have to 

serve 50%, not 85% of his sentence. 

¶ 32 After the plea offer was retracted, the defendant indicated that he wanted to represent 

himself because plea counsel would not file certain motions the defendant believed were relevant 

to the case. Plea counsel and the defendant disagreed about the strength of the motions requested 

by the defendant. Plea counsel testified that the defendant did not mention the retracted offer during 

his conversations with the defendant or in the circuit court filings made by the defendant. After 

plea counsel reviewed the medical records for the victim, he asked the State to re-extend its offer. 

The State declined. Plea negotiations continued until the defendant accepted an offer of an open 

plea with a cap of 23 years, the dismissal of a misdemeanor, and the circuit court would make the 
13

determination of whether there was great bodily harm to the victim. Plea counsel also testified that 

a plea would not have been executed the day an agreement was made, especially when the 

agreement occurred later in the day, as it was in this case. It could have been arranged for the next 

day if the jail had been willing to bring the defendant to court. 

¶ 33 On cross-examination, plea counsel testified that he typically had 50 clients at a time, but 

the number of clients varied between 40 and 60. Plea counsel also confirmed that the defendant 

did not accept the State’s offer and plea counsel had given the defendant time to think about it. 

Further, plea counsel did not have the opportunity to speak with the defendant the following day 

regarding the offer because the defendant did not have court scheduled. Plea counsel’s testimony 

concluded the State’s evidence.

¶ 34 The defendant’s postconviction counsel argued that the defendant received ineffective 

representation because plea counsel told the defendant to take some time to think about the offer

and the defendant listened to his counsel’s advice. If the defendant had accepted the offer 

immediately, there would have been a chance that the outcome would have been different because 

the defendant would be serving 50% instead of 85% of his sentence. 

¶ 35 The State then argued that the circuit court did not have jurisdiction over the motion to 

withdraw guilty plea because it was not timely. The State argued that plea counsel was not 

ineffective because he believed that this offense would be served at 50% because great bodily harm 

was not alleged by the State until the offer was retracted. The State also argued that plea counsel 

was not ineffective when he failed to convey that the offer could be retracted because there was 

no suggestion that there was a deadline on the offer, and it was rare for the State to retract an offer. 

The dispute whether the defendant accepted the offer was a credibility determination for the court 

to make, but the defendant had not complained about it in any of his previous pro se filings with 
14

the court. Alternatively, the State argued that if plea counsel acted unreasonably when he failed to 

immediately convey the defendant’s acceptance of the offer, there had been no showing that the 

outcome would have been different.

¶ 36 After hearing evidence and argument from counsel on both the amended motion to 

withdraw plea and the amended postconviction petition, the circuit court found that plea counsel 

was credible and the defendant was “less credible.” The circuit court then addressed whether plea 

counsel was ineffective. Based on the evidence presented at the hearing, the circuit court could not 

find that plea counsel was ineffective. Plea counsel had properly advised the defendant about the 

percentage of time to be served with the information he had at the time. There was no deadline on 

the offer, so plea counsel was not at fault for failing to declare a deadline. The circuit court 

considered the testimony, corroborating emails and letters presented, and found that the defendant 

did not accept the offer. As a result, plea counsel did nothing wrong by not conveying an 

acceptance of the offer. As a matter of law, the circuit court found that plea counsel’s conduct did 

not fall below that of a reasonable attorney. The circuit court did not make a finding on whether 

there was prejudice to the defendant because it did not believe that plea counsel acted 

inappropriately. The circuit court denied the amended motion to withdraw guilty plea and the 

amended postconviction petition. This appeal followed. 

¶ 37 II. ANALYSIS

¶ 38 On appeal, the defendant claims that the circuit court erred when it refused to withdraw the 

defendant’s guilty plea, where his plea counsel failed to advise him that the State’s plea offer could 

be withdrawn at any time, and where the State withdrew the plea offer before the defendant had 

the opportunity to accept it. Alternatively, the defendant argues that plea counsel could have 

attempted to secure more specific terms from the State, including a firm expiration date for its 
15

offer. Before addressing the defendant’s claim on the merits, we consider the State’s claim of 

waiver.

¶ 39 The State argues that the defendant waived any alleged error because he pled guilty while 

fully aware of the circumstances of the earlier plea offer and its withdrawal. “ ‘It is well established 

that a voluntary guilty plea waives all non-jurisdictional errors or irregularities, including 

constitutional ones.’ ” People v. Sophanavong, 2020 IL 124337, ¶ 33 (quoting People v. Townsell, 

209 Ill. 2d 543, 545 (2004)). Under the Post-Conviction Hearing Act, the State was required to file 

either an answer or motion to dismiss within 30 days from the date of the order allowing the second 

stage proceeding. 725 ILCS 5/122-5 (West 2020). “By its answer, a party either admits or denies 

the allegations contained in the complaint, thereby framing the issues to be resolved later by 

litigation. A motion to dismiss, on the other hand, attacks the sufficiency of the complaint.” 

(Internal quotation marks omitted.) People v. Thompson, 2016 IL App (3d) 140586, ¶ 25. The State 

may forfeit a claim of waiver by failing to raise the issue before the circuit court. People v. Behena, 

2020 IL App (1st) 180197, ¶ 29. 

¶ 40 Here, during the second stage of the proceedings, the State filed an answer to the amended 

postconviction petition. The State did not argue that the defendant had waived his claim of 

ineffective assistance of defense counsel in its answer or at the evidentiary hearing. Therefore, we 

reject the State’s contention of waiver.

¶ 41 We then turn to the merits of the defendant’s appeal. The Post-Conviction Hearing Act 

(725 ILCS 5/122-1 et seq. (West 2020)) provides a three-step process to resolve a criminal 

defendant’s conviction or sentence that resulted from a violation of rights protected under the state 

or federal constitution. People v. York, 2016 IL App (5th) 130579, ¶ 15. “At the first stage of 

postconviction proceedings, the court reviews the petition to determine whether it is frivolous and 
16

patently without merit.” York, 2016 IL App (5th) 130579, ¶ 15. This review is undertaken 

independently, without input from the State. “To survive first-stage dismissal, the defendant need 

only assert the gist of a constitutional claim.” York, 2016 IL App (5th) 130579, ¶ 15. If the circuit 

court does not dismiss the claim, the petition is docketed for further proceedings and counsel is 

appointed for the defendant. At the second stage, an amended petition may be filed by counsel, 

and the State may file a motion to dismiss or an answer. The defendant is required to make a 

“substantial showing of a constitutional violation” at the second stage. (Internal quotation marks 

omitted.) York, 2016 IL App (5th) 130579, ¶ 16. If the petition is not dismissed at the second stage, 

it advances to the third stage, where the court will hold an evidentiary hearing on the defendant’s 

claims. People v. Wallace, 2018 IL App (5th) 140385, ¶ 27. The defendant has the burden to prove 

a substantial denial of a constitutional right by a preponderance of the evidence during the third 

stage. People v. Coleman, 2013 IL 113307, ¶ 92. 

¶ 42 To prove ineffective assistance of counsel, the defendant must prove both (1) counsel’s 

conduct fell below an objective standard of reasonableness and (2) counsel’s deficient 

performance prejudiced the defendant, and it is reasonably probable that the result would have 

been different but for counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 

687 (1984). It is well settled that there is a strong presumption that counsel’s conduct falls within 

the wide range of professional assistance. People v. Crutchfield, 2015 IL App (5th) 120371, ¶ 34. 

Whether to enter a plea is a decision that belongs to the defendant, not a decision that counsel may 

make as a part of trial strategy. People v. Boyd, 2018 IL App (5th) 140556, ¶ 17. 

¶ 43 “[W]here a defendant pleads guilty to less favorable terms and claims that ineffective 

assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland’s 

inquiry into whether ‘the result of the proceeding would have been different,’ 466 U.S., at 694, 
17

requires looking not at whether the defendant would have proceeded to trial absent ineffective 

assistance but whether he would have accepted the offer to plead pursuant to the terms earlier 

proposed.” Missouri v. Frye, 566 U.S. 134, 148 (2012). The defendant must also demonstrate a 

reasonable probability that the plea would have been entered into without the prosecution 

cancelling the plea or the circuit court rejecting the plea. Frye, 566 U.S. at 148. 

¶ 44 If the defendant fails to satisfy either prong under Strickland, the claim will fail. Boyd, 

2018 IL App (5th) 140556, ¶ 19. Where allegations of ineffective assistance of counsel survive to 

a third-stage hearing, we review the trial court’s decision as a mixed question of fact and law. 

People v. Coleman, 2015 IL App (4th) 131045, ¶ 66. We accept the trial court’s findings of fact 

so long as they are not against the manifest weight of the evidence. But we review whether the 

facts found by the trial court prove ineffective assistance of counsel de novo. Coleman, 2015 IL

App (4th) 131045, ¶ 66. A finding is against the manifest weight of the evidence only if it contains 

error that is clearly evident, plain, and indisputable. People v. Hughes, 329 Ill. App. 3d 322, 325 

(2002). 

¶ 45 Here, the record shows that plea counsel relayed the details of the State’s offer to the 

defendant the same day that it was made. Plea counsel did not mention that the offer could be 

retracted because the State did not include a deadline in its offer. Plea counsel testified that the 

defendant was not enthusiastic about the offer and that the defendant did not accept or reject the 

offer. Plea counsel testified that he believed that it was a favorable offer and suggested that the 

defendant take a day to consider it. Defendant, on the other hand, testified that he wanted to take 

the offer, but that his plea counsel advised him to “think about it.” 

¶ 46 The following day, the State’s attorney emailed plea counsel to retract the offer. In the 

State’s attorney’s email, he noted that this was a rare occurrence, and he apologized for the 
18

necessity to retract the offer in this case. The State’s attorney indicated that the victim’s injuries 

and long-term effects were more serious than initially related to him, so he needed to check 

whether the injuries would constitute great bodily harm, and whether the 15- to 20-year sentence 

was appropriate. Since no court had been scheduled on the day following the plea offer, plea

counsel did not have the opportunity to follow up with his client before the State withdrew its 

offer.

¶ 47 The circuit court stated that there was no corroboration for what the defendant claimed 

occurred and there was corroboration for what plea counsel testified had occurred. As a result, the 

circuit court found that plea counsel’s testimony was more credible than the defendant’s testimony. 

¶ 48 Based on the foregoing, plea counsel’s conduct did not fall below an objective standard of 

reasonableness. Plea counsel promptly relayed the terms and conditions of the State’s offer to the 

defendant, which did not include a deadline. When plea counsel presented the offer to the 

defendant, he was not enthusiastic about the offer and indicated that he wanted a previous offer 

declined by the State. As plea counsel often did with indecisive clients, he suggested that the 

defendant take a day to think about the offer. Allowing the defendant time to reflect was not 

unreasonable because whether to accept a plea offer is a decision only the defendant can make.

Boyd, 2018 IL App (5th) 140556, ¶ 17. Further, the State’s attorney’s email acknowledged he 

“rarely” retracted offers. There was simply no indication that the offer would be retracted so 

quickly. 

¶ 49 The defendant also argues that the circuit court made a factual finding that was manifestly 

erroneous when it concluded that the defendant told plea counsel “no, I don’t want” the offer.

When considering whether the defendant accepted the offer, the circuit court made the following 

statements:
19

“Defendant’s the only one who says, yes, I wanted it, and it begs the question really 

of what stake does Mr. Ham[3] have in all this. 

 Mr. Ham has a lot of caseload, a heavy caseload. He’s really, really busy. 

If he conveys an offer to a defendant and the defendant says, yes, I’ll take it why in 

the world would Mr. Ham say no, you know what, why don’t you sleep on it, why 

don’t you think about it which then ultimately caused Mr. Lozar the next day to 

revoke the offer due to something totally unrelated. It seems to me that the 

Defendant very likely said, just as *** Mr. Ham said, he didn’t want it. He wasn’t 

enthusiastic about it. Mr. Ham likely told him I think this is a good offer and when 

the Defendant said, no, I don’t want it, I’m not enthusiastic about it that’s what 

caused Mr. Ham to say, you know what, think about it. I’ll give you some time to 

think about [it] to see if you will, in fact, accept that offer. That’s why he emailed 

the State after talking with Mr. Pickens to say I’ve relayed it to my client. I’ll let 

you know what he says implying clearly that Mr. Pickens did not say, yes, I want 

it but, no, I don’t want it, and Mr. Ham’s the one who said let me buy you some 

time essentially.

 So, the real issue is what did Mr. Pickens say to Mr. Ham, and I don’t 

find based on the testimony here, as well as the corroboration of the emails and 

other letters, that he accepted the offer and therefore Mr. Ham did something wrong 

by not conveying it.” 

The full context of the court’s statement demonstrates that the circuit court did not incorrectly 

remember plea counsel’s testimony. Plea counsel testified that the defendant was not enthusiastic 

about the offer and did not accept or reject it. The circuit court commented that if the defendant 

had accepted the offer, plea counsel would have readily conveyed the defendant’s acceptance due 

to defense counsel’s heavy workload. Based on the testimony and corroboration of emails and 

letters, the circuit court found that the defendant did not accept the offer. Therefore, we find that 

the circuit court’s finding is not against the manifest weight of the evidence.

¶ 50 The defendant has the burden to show a substantial denial of constitutional right by 

preponderance of the evidence. During a third stage postconviction hearing, the circuit court is 

“able to observe and hear the witnesses at the evidentiary hearing and, therefore, occupies a 

3

The reference to Mr. Ham is plea counsel.
20

position of advantage in a search for the truth which is infinitely superior to that of a tribunal where 

the sole guide is the printed record.” (Internal quotation marks omitted.) People v. Coleman, 183 

Ill. 2d 366, 384 (1998). Based upon the record, the circuit court’s determination was not manifestly 

erroneous, where the circuit court was in the best position to observe and determine the credibility 

of witnesses. The circuit court considered the evidence and determined that plea counsel was more 

credible than the defendant and that plea counsel’s testimony was supported by correspondence. 

We are unable to conclude that the circuit court erred by denying the defendant’s petition where 

the circuit court was in the best position to assess the credibility of the witnesses. The defendant 

has failed to show that plea counsel’s conduct fell below an objective standard of reasonableness. 

The standard for ineffective assistance under Strickland has not been satisfied. 

¶ 51 The defendant also appeals the circuit court’s denial of his amended motion to withdraw 

guilty plea and vacate judgment. The amended motion also alleged that his counsel provided 

ineffective assistance during plea negotiations, which resulted in the imposition of a significantly 

harsher sentence. The circuit court’s denial of a defendant’s motion to withdraw guilty plea should 

be reviewed for an abuse of discretion. Boyd, 2018 IL App (5th) 140556, ¶ 13. “An abuse of 

discretion occurs only where the court’s ruling is so arbitrary or unreasonable that no reasonable 

person would take the view adopted by the trial court.” Boyd, 2018 IL App (5th) 140556, ¶ 14. 

Challenges to guilty pleas based on ineffective assistance of counsel are subject to the standard set 

forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Illinois Supreme Court 

in People v. Albanese, 104 Ill. 2d 504, 525-28 (1984). Based on the reasons discussed above, we 

similarly find that the circuit court did not abuse its discretion when it denied the defendant’s 

motion to withdraw guilty plea and vacate judgment. 
21

¶ 52 III. CONCLUSION

¶ 53 For the foregoing reasons, we affirm the judgment of the circuit court of Champaign 

County. 

¶ 54 Affirmed.