2022 IL App (2d) 210735-U 

No. 2-21-0735 

Order filed July 13, 2022

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

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

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_____________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Du Page County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 10-CF-613 

) 

PETER MAUTER, ) Honorable 

) John J. Kinsella, 

Defendant-Appellant. ) Judge, Presiding.

_____________________________________________________________________________ 

JUSTICE McLAREN delivered the judgment of the court.

Presiding Justice Bridges and Justice Hudson concurred in the judgment.

ORDER

¶ 1 Held: We grant the appellate defender’s motion to withdraw because there is no arguably 

meritorious basis for an appeal.

¶ 2 Defendant, Peter Mauter, appeals from the judgment of the circuit court of Du Page 

County denying him leave to file his April 2020 proposed successive postconviction petition. The 

Office of the State Appellate Defender (OSAD) was appointed to represent defendant on appeal. 

The appellate defender now moves to withdraw, claiming that there is no nonfrivolous basis for 

an appeal. We grant counsel’s motion to withdraw and affirm the trial court. 

¶ 3 I. BACKGROUND
2022 IL App (2d) 210735-U 

- 2 -

¶ 4 In March 2010, defendant was charged in an eight-count indictment with sex offenses 

against his daughters, D.M. and C.M. Assistant Public Defender Brian Jacobs was appointed to 

represent defendant.

¶ 5 On August 17, 2010, Jacobs informed the court that the parties had reached an agreement 

by which defendant would enter open pleas of guilty to counts I through III of the indictment, 

each of which charged predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) 

(West 2004)) involving D.M. In exchange for the pleas, the State would nol-pros the remaining 

five counts (IV through VIII), which named C.M. as victim and charged predatory criminal 

sexual assault of a child and aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 

2004)). The trial court confirmed with the State that counts I through III each carried a range of 

6 to 60 years’ imprisonment and that, because of mandatory consecutive sentencing, defendant 

faced an aggregate sentencing range of 18 to 180 years’ imprisonment. See id. § 12-14.1(b)(1) 

(West 2008) (predatory criminal sexual assault of a child is a Class X felony punishable by a 

prison term of 6 to 60 years); 730 ILCS 5/5-8-4(a)(ii) (West 2008) (mandatory consecutive 

sentencing for predatory criminal sexual assault of a child); id. § 5-8-4(c)(2) (maximum limit on 

consecutive sentencing). The prison time would be served at 85%. The State noted that, without 

the dismissed charges, “[t]he mandatory [potential sentence] is three years to life.” (If convicted 

of predatory criminal sexual assault of a child against two or more victims, defendant would 

receive a mandatory natural life sentence. See 720 ILCS 5/12-14.1(b)(1.2) (West 2008)).

¶ 6 After the State presented the terms of the agreement, the trial court addressed defendant 

personally and confirmed that he wished to plead guilty to counts I through III in exchange for 

the dismissal of the remaining five counts. Defendant further confirmed that he wished to enter 

those pleas even though there was no agreement on sentencing. The court then asked defendant 
2022 IL App (2d) 210735-U 

- 3 -

if he had had a chance to review the charges with Jacobs. Defendant replied, “Not exactly.” The 

court then explained to defendant the charges and potential penalties on counts I through III. 

Defendant indicated that he understood this information and had no questions. The court then 

informed defendant that he had the right to plead not guilty to the charges and force the State to 

prove his guilt beyond a reasonable doubt at a jury trial or bench trial at which he would be 

entitled to confront the State’s witnesses, call his own witnesses, and testify if he wished. 

Defendant replied that he understood those rights. Defendant acknowledged that he had signed 

a jury waiver and confirmed that he wished to waive his right to a jury trial. He said he 

understood that if he pleaded guilty, he would enjoy none of the foregoing rights and the court 

would proceed to sentencing. He further confirmed that no one had forced or threatened him to 

plead guilty or promised him anything for his pleas beyond the terms of the agreement. He also 

asserted that he was entering his pleas freely and voluntarily.

¶ 7 Defendant then entered pleas of guilty to counts I through III. At that point, the State 

remarked that “[t]he only addition” was that C.M., the named victim in counts IV through VIII, 

would read her victim impact statement at sentencing. Hearing this additional term of the 

agreement, the court queried defendant as follows:

“THE COURT: Is that your agreement as well?

[THE DEFENDANT]: Yes.

THE COURT: Do you still wish to plead guilty to the charges?

[THE DEFENDANT]: Yes.”

¶ 8 The State then provided a factual basis for the plea. The trial court found the factual basis 

adequate and accepted the plea as knowing and voluntary. 
2022 IL App (2d) 210735-U 

- 4 -

¶ 9 Between September 2010 and May 2011, defendant filed two motions to withdraw his 

plea but withdrew both motions. In June 2011, he filed a third motion to withdraw his plea, 

alleging as follows. He had (1) “never seen a copy of the charges against him, even though he 

had requested [it] numerous times,” (2) “never reviewed the police reports or other discovery with 

[Jacobs],” and (3) “never discussed the terms of the plea agreement with [Jacobs].” At the plea 

hearing, he “did not realize that he was pleading guilty, and was in a state of shock.” He had “a 

slight hearing disability and could not hear what was being said by the Assistant State’s Attorney 

during the plea proceedings.” “As a result, [he] did not understand the nature and consequences 

of the plea proceedings.”

¶ 10 At the hearing on the motion, defendant testified consistently with his allegations. 

Jacobs’s testimony contradicted defendant’s testimony. Specifically, Jacobs testified that he met 

with defendant early in the case, on April 21, 2010. At that meeting, he read defendant the 

indictment and explained the potential penalties, including that his sentences would be 

mandatorily consecutive and that he also faced a possible mandatory life sentence. Jacobs could 

not recall if defendant asked to see the indictment. Jacobs also could not recall if defendant asked 

for a copy of the police reports, but Jacobs stated that he was not permitted to provide copies of 

police reports. Instead, Jacobs read the police reports verbatim to defendant. They discussed 

possible defenses and the evidence against defendant. The April 21, 2010, meeting lasted about 

45 minutes to an hour. Subsequently, Jacobs generally met with defendant before every court

date. This amounted to about 9 or 10 meetings before the guilty plea. During those meetings, 

they discussed possible defenses, potential motions, the status of plea negotiations, and the 

specific terms of the State’s plea offer that defendant ultimately accepted. When defendant asked 

questions, he seem satisfied with Jacobs’s answers. He appeared to understand the proceedings. 
2022 IL App (2d) 210735-U 

- 5 -

He did not claim to have a hearing problem, and Jacobs was unaware of any such problem. Jacobs

received in discovery an audio recording in which defendant confessed to performing a sex act 

with one of his daughters. Jacobs and defendant spoke specifically about the confession and how 

it impacted the defense’s case. Jacobs recalled that, after the guilty plea, defendant called and 

expressed “confusion as to what he had pled guilty to.”

¶ 11 The trial court denied defendant’s motion to withdraw his plea. The court found Jacobs 

“far and away” more credible than defendant. The court fully accepted Jacobs’s account of his 

engagement with defendant in the months before the guilty plea. The court specifically found 

“absurd” defendant’s claim that he and Jacobs did not discuss the terms of the plea agreement. 

The court also noted that, at the plea hearing, it properly informed defendant of the charges, the 

terms of the plea agreement, and the rights he was waiving by pleading guilty. The court noted 

that each time it asked defendant if he understood, defendant said yes. The court concluded that 

the record established defendant’s guilty plea as knowing, intelligent, and voluntary.

¶ 12 The trial court held a sentencing hearing on September 7, 2011. The State presented an 

audio recording of a conversation with police in which defendant admitted to sexual contact with 

D.M. and C.M. A child abuse investigator testified that C.M. reported that defendant had sexually 

abused her from age four to age eight. The State also submitted a victim impact statement in 

which C.M. described the lasting effects of the sexual abuse.

¶ 13 The State asked the court to impose three consecutive 17-year prison terms, for a total of 

51 years. Defendant asked for three consecutive six-year terms, for a total of 18 years. Noting 

evidence that defendant abused C.M. as well as D.M., the court sentence defendant to three 

consecutive 15-year terms, for a total of 45 years. Defendant filed a motion to reconsider his 

sentence, which the trial court denied.
2022 IL App (2d) 210735-U 

- 6 -

¶ 14 Defendant appealed, and we remanded for compliance with Illinois Supreme Court Rule 

604(d) (eff. July 17, 2017). After proceedings on remand, defendant appealed, arguing that his 

case should again be remanded for compliance with Rule 604(d). We rejected that argument but 

granted defendant partial relief with respect to fines and fees. People v. Mauter, 2013 IL App 

(2d) 120481-U, ¶¶ 10-15. 

¶ 15 In February 2014, defendant filed a postconviction petition under the Post-Conviction 

Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). He raised numerous ineffective-assistance 

claims as to both plea counsel (Jacobs) and postplea counsel. Defendant realleged several of the 

claims he brought against Jacobs in the June 2011 motion to withdraw the plea. Defendant also 

raised a new claim of Jacobs’s ineffectiveness. Specifically, he alleged that, on May 17, 2010, 

Jacobs told him that the State was offering to recommend 30 years in prison in exchange for 

defendant’s pleas to counts I through III. Jacobs did not mention that there was a time limit on 

the offer. Defendant asked Jacobs for time to consider the offer. Subsequently, the State 

superseded that offer with another offer. Defendant alleged that he “probably” would have

immediately accepted the State’s offer of 30 years had Jacobs told him that the offer had a time 

limit.

¶ 16 Defendant also claimed in the petition that the trial court violated his due process rights 

by failing to inform him that his convictions would expose him to civil commitment as a sexually 

dangerous person. Lastly, defendant asserted that his sentence was excessive.

¶ 17 The trial court summarily dismissed the petition. On appeal, defendant raised only one 

claim from the petition: that Jacobs was ineffective for failing to inform him that the 30-year offer 

had a time limit. We affirmed the dismissal because (1) defendant provided no evidentiary 

support for his allegation that the State made an offer of 30 years and, (2) in any event, defendant’s 
2022 IL App (2d) 210735-U 

- 7 -

allegation that he “probably” would have accepted the offer had Jacobs told him of the time limit 

was not only conclusory but “hardly in accordance with the context or common sense.” People 

v. Mauter, 2016 IL App (2d) 140522-U, ¶¶ 22, 26-27. 

¶ 18 In October 2017, defendant sought leave to file a successive postconviction petition. In 

his proposed petition, he claimed that Jacobs was ineffective for failing to inform him that his 

convictions could result in his civil commitment as a sexually dangerous person. He claimed that 

he had cause for not bringing his claim earlier, because counsel on appeal from the dismissal of 

his first postconviction petition omitted the claim. The trial court denied defendant leave to file, 

finding that the claim lacked merit and so defendant was not prejudiced by counsel’s failure to 

raise the claim in the prior postconviction appeal. Defendant appealed, and OSAD was appointed. 

We held that defendant could make no nonfrivolous claim that he had cause for failing to bring 

his claim earlier. Therefore, we granted appellate counsel’s motion to withdraw and affirmed the 

denial of leave to file the successive petition. People v. Mauter, No. 2-17-1019 (2019) 

(unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 19 In July 2018, defendant filed a petition for relief from judgment (735 ILCS 5/2-1401 

(West 2018)), claiming that his guilty plea was based on the State’s use of “perjured testimony”

in the factual basis for his guilty plea. Defendant claimed that, due to his hearing disability, he

“could not hear a word of what the State’s Attorney said during the whole [plea] proceeding.” He 

discovered the “perjury” only after obtaining a transcript of the plea hearing.

¶ 20 The trial court denied the section 2-1401 petition, finding that defendant did not include 

specific allegations of (1) a meritorious claim or (2) due diligence both in bringing the claim in 

the original proceeding and in filing the petition. On appeal, we agreed with the appellate 

defender that there was no nonfrivolous basis for appeal. Specifically, defendant’s petition was
2022 IL App (2d) 210735-U 

- 8 -

untimely, and he presented no arguable excuse for the delay. People v. Mauter, No. 2-18-0755 

(2020) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 21 On April 30, 2020, defendant filed the motion at issue in this appeal: a motion for leave 

to file another successive postconviction petition. The central claim in his proposed petition was 

that his constitutional rights were violated at sentencing when the State presented, and the trial 

court relied on, evidence of C.M.’s abuse notwithstanding the dismissal (per the plea agreement) 

of the counts naming her as victim. Defendant alleged that the State, the trial court, and Jacobs 

each infringed his constitutional rights in connection with the evidence of C.M.’s abuse. 

¶ 22 First, defendant claimed that the State breached the plea agreement and violated 

defendant’s due process rights when it used C.M.’s allegations after dismissing the counts naming 

her and, thus, “effectively stat[ing] for the [r]ecord that no crime had been committed with regard 

to [counts IV through VIII].” (Defendant also claimed that the State breached the plea agreement 

by asking for three consecutive 17-year prison terms.) 

¶ 23 Second, defendant asserted that the trial court did not admonish defendant at the plea 

hearing that the court “could or would use prior conviction[s] and the nolle-prose [sic] charges in 

aggravation against the [d]efendant at sentencing.” Thus, defendant’s plea was not knowing and 

voluntary. Moreover, the trial court “exceeded its [j]udicial [a]uthority” and “in essence [sic]” 

found defendant guilty on counts IV through VIII despite their dismissal. Also, the court 

sentenced defendant to “ ‘[l]ife’ in years” when the State’s August 27, 2020, offer letter stated 

that the maximum sentence would be 18 years in prison. Defendant also claimed that the court

violated the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000), when it considered the 

evidence of C.M.’s abuse. 
2022 IL App (2d) 210735-U 

- 9 -

¶ 24 Third, defendant claimed that Jacobs was ineffective for failing to inform defendant that 

“with [his] guilty [p]lea the [c]ourt at [s]entencing could use prior convictions and even [n]olleprose [sic] charges against the [d]efendant when sentenced.” Defendant suggested that “[t]here 

is no sound logic or advantage to a [p]lea bargain agreement when the State and the [c]ourt can 

use [n]olle-prose [sic] charges it said it would drop against you.” Defendant asserted that, if 

properly warned of the consequences of pleading guilty, he “would have gone to [t]rial and not 

ended up with a ‘[l]ife’ sentence in years.” Defendant attached to his petition a copy of the August 

17, 2020, offer letter from the State. In the letter, the prosecutor states that, in exchange for 

defendant’s pleas of guilty to three counts of predatory criminal sexual assault of a child, the State 

will nol-pros all remaining counts, which “will change the defendant’s minimum sentence from 

life imprisonment to eighteen years in the Illinois Department of Corrections [(DOC)].” The State 

would also “present victim impact statements at sentencing for both D.M. and C.M.”

¶ 25 Defendant’s motion for leave to file alleged that he had cause for failing to bring his claim 

earlier. He asserted that, from 2011 to 2018, he took the psychotropic medication trazodone for 

anxiety and depression. Trazodone’s side “effects include sedation.” He “was not thinking 

clearly under these meds. and that is why [he] failed to see these contentions in [his] case.” “[His] 

meds were changed *** in 2018.”

¶ 26 Defendant attached to his motion several pages of psychiatric reports from the DOC. 

These include mental health treatment plans, progress notes, and diagnostic evaluations. Pages 

are missing from most of the copies defendant submitted. A progress note from June 2018 reflects 

that defendant will decrease his intake of trazodone and begin taking Remeron. A progress note 

from August 2018 indicates, under “Current Psychotropic Medications,” that defendant is taking 

Remeron and will discontinue his intake of trazodone. Remeron “[c]ontinues to be effective” and 
2022 IL App (2d) 210735-U 

- 10 -

trazodone is “[s]omewhat effective”; overall, defendant is satisfied with his current medications. 

The section entitled “History of Present Illness” notes that Remeron “has been helpful for 

[defendant’s] flashbacks and nightmares (related to when he was in combat in the military).” 

Defendant’s mood has improved but he still has some anxiety. He agrees with “tap[ering] off 

[t]razodone in favor of going up on Remeron.” An evaluative section in the report states that 

defendant’s “Thought Processes” are “Clear/Coherent” and that his “Thought Content” is 

“Unremarkable.” A progress note from September 2018 reflects that the increased intake of 

Remeron has helped defendant’s mood, anxiety, and insomnia.

¶ 27 None of the attached psychiatric records mention that trazodone had a sedative effect on 

defendant or impaired his thought processes.

¶ 28 Defendant also filed on April 30, 2020, a “Motion for Change of [P]lace of Trial” under 

“725 ILCS 5/114-6.” Defendant alleged that his arrest in this case drew “inflammatory publicity” 

and that he can no longer expect an unbiased jury in Du Page County. He also claimed that, since 

Jacobs was now a Du Page County circuit court judge, all judges on the circuit had a “[c]onflict 

of [i]nterest” in hearing defendant’s claim of Jacobs’s ineffectiveness. Defendant was “rightfully 

and reasonably concerned [that] he cannot get a fair hearing or ajudication [sic] of the documented 

evidentiary claims contained in his [proposed petition].” He therefore asked that his proceedings 

be moved to another county. 

¶ 29 The trial court denied both motions. Defendant filed a timely appeal. The trial court 

appointed OSAD.

¶ 30 II. ANALYSIS

¶ 31 The appellate defender moves to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 

551 (1987), and People v. Lee, 251 Ill. App. 3d 63 (1993). Counsel states that he read the record 
2022 IL App (2d) 210735-U 

- 11 -

and found no issue of arguable merit. Counsel further states that he advised defendant of his 

opinion. Counsel supports his motion with a memorandum of law providing a statement of facts, 

a list of potential issues, and arguments why those issues lack arguable merit. We advised 

defendant that he had 30 days to respond to the motion. That time is past, and defendant has not 

responded. 

¶ 32 Counsel identifies four potential issues for appeal and concludes that none has arguable 

merit. We agree.

¶ 33 A. Denial of Motion to Change Venue 

¶ 34 We depart from the order in which counsel addresses the potential issues. We address 

first whether the trial court erred in denying defendant’s motion to change venue.

¶ 35 Defendant sought reassignment of his case to another county for two reasons: (1) there

was such negative publicity surrounding his case that he cannot expect an unbiased Du Page 

County jury, and (2) any judge in the circuit court of Du Page County has a conflict of interest 

because Jacobs is now a judge on that circuit and defendant is alleging Jacobs’s ineffectiveness. 

¶ 36 As counsel notes, defendant’s motion was brought under inapplicable authority. “[T]he 

Illinois statutory provisions relating to substitutions of judges and changes of venue do not apply 

in post-conviction proceedings.” People v. Thompkins, 181 Ill. 2d 1, 22 (1998). Judicial 

substitution in postconviction cases is governed by constitutional requirements, and “only under 

the most extreme cases is disqualification on the basis of bias or prejudice constitutionally 

required.” Id. The defendant must demonstrate that he would be “substantially prejudiced” if he 

was denied a substitution of judge. People v. Enis, 194 Ill. 2d 361, 416 (2000). 

¶ 37 The defendant in Thompkins asserted a judicial conflict of interest in similar 

circumstances. Before the evidentiary hearing on his postconviction petition, the defendant 
2022 IL App (2d) 210735-U 

- 12 -

claimed that he could not get a fair hearing in the Cook County circuit court because his former 

defense counsel, whom he was alleging had been ineffective, was now a Cook County judge. The 

trial court denied the request for a change of venue, and the supreme court affirmed. Thompkins, 

181 Ill. 2d at 21-23. The court noted that the defendant relied solely on the notion that “one Cook 

County circuit court judge cannot sit in judgment over the prior conduct of another Cook County

circuit court judge.” Id. at 22. Similarly, here, defendant baldly asserts that all trial judges in 

Du Page County have a conflict of interest as to claims alleging the ineffectiveness of Jacobs 

while he was a practicing attorney. Without further evidence of bias, this claim fails under 

Thompkins. 

¶ 38 Defendant’s other claim is that the jury pool in Du Page County is tainted. In so arguing, 

defendant anticipates that his postconviction proceedings might result in a jury trial. Because we 

hold, for the reasons given below, that the trial court properly denied defendant leave to file, we 

need not decide whether defendant could receive a fair jury trial in Du Page County.

¶ 39 B. Denial of Leave to File a Successive Postconviction Petition

¶ 40 The remaining three potential issues counsel identifies concern whether the trial court 

erred in denying defendant leave to file his successive postconviction petition. Counsel frames 

those issues as: 

“(A) Whether the State violated the Due Process Clause and breached the terms of 

the plea agreement by presenting evidence at sentencing that [defendant] had committed 

predatory criminal sexual assault of a child *** against C.M.

(B) Whether the trial court violated the Due Process Clause by accepting 

[defendant’s] guilty plea without first admonishing him that at sentencing it could 
2022 IL App (2d) 210735-U 

- 13 -

consider evidence that he committed [predatory criminal sexual assault of a child] against 

C.M., or evidence of other uncharged crimes.

(C) Whether [Jacobs] provided [defendant] with ineffective assistance of counsel 

when Jacobs failed to inform him that the court at sentencing could consider evidence that 

he committed [predatory criminal sexual assault of a child] against C.M., or evidence of 

other uncharged crimes.”

¶ 41 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) is a 

procedural means by which a defendant can pursue a claim that his conviction or sentence was 

based on a substantial denial of his constitutional rights. People v. Boykins, 2017 IL 121365, ¶ 9. 

Successive postconviction petitions are highly disfavored. People v. Bailey, 2017 IL 121450, 

¶ 39. Section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2018)) provides that “[o]nly one 

petition may be filed *** without leave of the court.” Leave of court may be granted if the 

defendant establishes (1) “cause” for failing to bring the claim in his initial postconviction petition 

and (2) “prejudice” resulting from that failure. Id. To establish “cause,” the defendant must show 

that some objective factor external to the defense impeded his ability to raise the claim in his 

initial petition. People v. Davis, 2014 IL 115595, ¶ 14; 725 ILCS 5/122-1(f) (West 2018). To 

establish “prejudice,” the defendant must show that the claimed constitutional error so infected 

his trial that the resulting conviction or sentence violated due process. Davis, 2014 IL 115595, 

¶ 14; 725 ILCS 5/122-1(f) (West 2018). [T]he cause-and-prejudice test for a successive petition 

involves a higher standard than the first-stage frivolous or patently without merit standard that is 

set forth in section 122-2.1(a)(2) of the Act [(725 ILCS 5/122-2.1(a) (West 2018))].” People v. 

Smith, 2014 IL 115946, ¶ 35. “Section 122-1(f) does not provide for an evidentiary hearing on 

the cause-and-prejudice issues and, therefore, it is clear that the legislature intended that the cause-
2022 IL App (2d) 210735-U 

- 14 -

and-prejudice determination be made on the pleadings.” Id. ¶ 33. Meeting the cause-andprejudice test “requires the defendant to submit enough in the way of documentation to allow a 

circuit court to make that determination.” (Internal quotation marks omitted.) Id. ¶ 35. Leave to 

file should be denied “when it is clear, from a review of the successive petition and the 

documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter 

of law or where the successive petition with supporting documentation is insufficient to justify 

further proceedings.” Id. We review de novo the denial of leave to file for failure to show cause 

and prejudice. People v. Robinson, 2020 IL 123849, ¶ 39. 

¶ 42 With respect to cause, defendant alleged that he could not have brought his claim earlier 

because, from 2011 to 2018, the sedative effects of the drug trazodone impaired his ability to 

think clearly and prevented him from recognizing the basis for his claim. Defendant submitted 

psychiatric records to support this allegation. However, the records attribute no such effects to 

trazodone. Defendant implied that his switch to Remeron increased his energy and clarified his 

thought processes, enabling him finally to identify the claim he would bring in his current 

proposed petition. However, while the records mention some specific benefits from Remeron—

related to mood, flashbacks, and nightmares—there is no mention of improved energy or mental 

clarity.

¶ 43 We also note that, despite the purportedly sedative effects of trazodone, defendant was 

prolific from 2011 to 2018 in his pro se attempts to obtain relief from his convictions. During 

that period, he filed his initial postconviction petition (2014), his motion to file his first successive 

petition (2017), and his section 2-1401 petition (2018). The claims in these petitions concerned 

the same subject matter as defendant’s current claim: Jacobs’s representation in the plea process 

and the trial court’s admonishments at the plea hearing. Significantly, defendant’s motion for 
2022 IL App (2d) 210735-U 

- 15 -

leave to file did not explain how he was able to recognize the bases of these prior claims despite 

the allegedly stultifying impact of trazodone yet was unable to recognize the basis of his current 

claim. We conclude that there is no arguable basis to assert that defendant had cause for failing 

to bring his claim earlier. 

¶ 44 Defendant’s assertion of prejudice likewise lacked potential merit. We begin with the 

settled principle that the rules of evidence governing trials are relaxed at sentencing hearings and 

that the court may consider any relevant and reliable evidence in aggravation or mitigation. 

People v. Olson, 2019 IL App (2d) 170334, ¶ 26; see also People v. Jackson, 149 Ill. 2d 540, 549 

(1992) (“[R]elevance and reliability are the important factors in the consideration of evidence at 

sentencing.”). The defendant’s “history of prior delinquency or criminal activity” is an 

aggravating factor at sentencing. 730 ILCS 5/5-5-3.2(a)(3) (West 2008). Relevant criminal 

history includes uncharged criminal conduct. People v. Flores, 153 Ill. 2d 264, 296 (1992). The 

court may also consider criminal conduct underlying charges that were dismissed as part of a plea 

agreement in the case. People v. Glass, 144 Ill. App. 3d 296, 302-03 (1986).

¶ 45 First, we agree with counsel that there is no nonfrivolous argument that the State breached 

the plea agreement or violated defendant’s due process rights by presenting, in aggravation, 

evidence that defendant abused C.M. The State’s agreement to nol-pros counts IV through VIII 

in exchange for guilty pleas on counts I through III was not, by itself, a tacit promise not to present 

the facts underlying those dismissed charges as aggravating evidence at sentencing. Id. at 302-

303. Nor, contrary to defendant’s assertion, was the nolle prosequi a binding acknowledgment 

that defendant did not commit the offenses charged in counts IV through VIII. “A nolle prosequi

is the formal entry of record by the prosecuting attorney which denotes that he or she is unwilling 

to prosecute a case.” People v. Norris, 214 Ill. 2d 92, 104 (2005). It leaves the matter in the same 
2022 IL App (2d) 210735-U 

- 16 -

condition as before the prosecution commenced and does not bar further prosecution. People v. 

Hughes, 2012 IL 112817, ¶ 23. If a nolle prosequi does not bar further prosecution, it necessarily 

does not bar the State from presenting the facts underlying the dismissed charges as aggravating 

evidence at sentencing. The State was clear at the plea hearing that it intended to introduce C.M.’s 

victim impact statement into evidence at sentencing. Addressing defendant personally, the trial 

court confirmed that defendant understood the State’s intent yet still wished to plead guilty. 

Previously in this case, defendant claimed to have had a hearing problem that impacted his 

awareness of what occurred at the plea hearing. Defendant did not allege that impairment again 

in his current motion for leave to file or in his proposed petition. In any event, even if defendant 

did not hear the State say it would present C.M.’s victim impact statement, the State did not 

explicitly state that it would not present such evidence, and, as noted, the mere dismissal of counts 

IV through VIII was not an implicit promise to that effect (see Glass, 144 Ill. App. 3d at 302-03). 

¶ 46 We also note that the record rebuts defendant’s claim that the State breached the plea 

agreement by seeking three consecutive 17-year sentences. At the plea hearing, the State agreed 

only to dismiss certain charges. Defendant personally acknowledged at the plea hearing that there 

was no agreement on sentencing. Defendant also misunderstands the State’s August 2020 offer 

letter to mean that that the dismissed counts would change defendant’s maximum, not minimum, 

sentence to 18 years’ imprisonment. 

¶ 47 Second, counsel is correct that it would be frivolous to argue that the trial court’s guilty

plea admonitions were flawed because the court did not admonish defendant that the State “could 

or would use prior conviction[s] and the nolle-prose [sic] charges in aggravation against the 

[d]efendant at sentencing.” The trial court confirmed that defendant wished to plead guilty 

despite the State’s intent to introduce at sentencing C.M.’s victim impact statement. Certainly, 
2022 IL App (2d) 210735-U 

- 17 -

the trial court gave defendant no general admonition about the State’s use of prior offenses, but 

here defendant has specifically complained only about the evidence of C.M.’s abuse. In any 

event, defendant was entitled to no such general admonition. Illinois Supreme Court Rule 402 

(eff. July 1, 2012), requires, among other things, that the trial court to advise the defendant of “the 

minimum and maximum sentence prescribed by law, including, when applicable, the penalty to 

which the defendant may be subjected because of prior convictions or consecutive sentences”

(emphasis added) (Ill. S. Ct. R. 402(a)(2) (eff. July 1, 2012)). The emphasized language pertains 

to statutory allowances for greater penalties because of prior convictions; it does not require the 

trial court to admonish the defendant that the State is permitted to introduce evidence of prior 

offenses in aggravation. People v. Rayna, 32 Ill. App. 3d 924, 925 (1975); see also People v. 

Warship, 59 Ill. 2d 125, 128 (1974). As for constitutional requirements, due process mandates 

that a defendant be advised of the “direct consequences” of his guilty plea. Hughes, 2012 IL 

112817, ¶ 35. “[A] direct consequence of a guilty plea is one which has a definite, immediate, 

and largely automatic effect on the range of a defendant’s sentence.” Id. Evidence of C.M.’s 

abuse would not have a “definite” or “automatic” impact on defendant’s sentence where it was 

within the trial court’s discretion to decide what weight, if any, to assign it. And, contrary to 

defendant’s suggestion, the trial court’s reliance on that evidence did not infringe due process 

principles as recognized in Apprendi. “[A]ny fact that increases the penalty for a crime beyond 

the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable 

doubt.” Apprendi, 530 U.S. at 490. The State offered evidence of C.M.’s abuse not to increase 

the prescribed statutory maximum but to increase defendant’s sentence within that maximum.

¶ 48 Finally, counsel is correct that defendant cannot credibly argue that Jacobs was ineffective 

for failing to inform defendant that “with [his] guilty [p]lea the [c]ourt at [s]entencing could use 
2022 IL App (2d) 210735-U 

- 18 -

prior convictions and even [n]olle-prose [sic] charges against the [d]efendant when sentenced.” 

“An attorney’s conduct is deficient if the attorney failed to ensure that the defendant’s guilty plea 

was entered voluntarily and intelligently.” People v. Hall, 217 Ill. 2d 324, 335 (2005). A claim 

that counsel was ineffective as regards a guilty plea is judged by the standards of Strickland v. 

Washington, 466 U.S. 668 (1984). Hall, 217 Ill. 2d at 334-35. Under Strickland, a defendant 

must establish that counsel’s performance fell below an objective standard of reasonableness and 

that the defendant was prejudiced by counsel’s substandard performance. Strickland, 466 U.S. at 

688, 694. 

¶ 49 Once again, we emphasize that defendant expressly acknowledged on the record that he 

wished to continue with his guilty plea despite the State’s declared intent to introduce at 

sentencing C.M.’s victim impact statement. Defendant has not alleged that Jacobs told him that 

the State could not present such evidence at sentencing. Moreover, Jacobs was required only to 

ensure that defendant was “ ‘reasonably informed with respect to the direct consequences of 

accepting or rejecting a plea offer.’ (Emphasis in original.)” People v. Hale, 2013 IL 113140, 

¶ 16 (quoting People v. Curry, 178 Ill. 2d 509, 518, (1997)). As explained, the direct 

consequences of a guilty plea do not include the State’s presentation of aggravating evidence at 

sentencing. 

¶ 50 Defendant also made no arguable showing of prejudice from Jacob’s representation. 

Defendant had to show “a reasonable probability that, absent counsel’s errors, the defendant 

would have pleaded not guilty and insisted on going to trial.” Hall, 217 Ill. 2d at 335. “A bare 

allegation that the defendant would have pleaded not guilty and insisted on a trial if counsel had 

not been deficient is not enough to establish prejudice.” Id. Rather, “for a guilty-plea defendant 

to obtain relief on a claim that he relied on his counsel’s erroneous advice about a consequence 
2022 IL App (2d) 210735-U 

- 19 -

of his plea, the defendant “ ‘ “must convince the court that a decision to reject the plea bargain 

would have been rational under the circumstances.” ’ ” People v. Brown, 2017 IL 121681, ¶ 48 

(quoting People v. Valdez, 2016 IL 119860, ¶ 29, quoting Padilla v. Kentucky, 559 U.S. 356, 372 

(2010)). 

¶ 51 Defendant asserted that, if Jacobs had properly informed him of the consequences of 

pleading guilty, he “would have gone to trial and not ended up with a ‘[l]ife’ sentence in years.” 

As counsel notes, the plea agreement offered defendant, at age 59, the possibility of a “survivable” 

sentence, as the aggregate range was 18 to 180 years in prison. If, however, defendant went to 

trial and was convicted of predatory criminal sexual assault against both C.M. and D.M., a natural 

life sentence would be mandatory (see 720 ILCS 5/12-14.1(b)(1.2) (West 2008)). To the extent 

defendant insinuated that he would not have been convicted at trial on the counts that would 

trigger a mandatory natural-life sentence, he had to support that assessment by articulating either 

a claim of actual innocence or a plausible defense to the charges. People v. Hatter, 2021 IL 

125981, ¶ 26. He did not do so.

¶ 52 For these reasons, we agree with counsel that it would be frivolous to argue that the trial 

court erred in denying defendant leave to file his successive postconviction petition.

¶ 53 III. CONCLUSION

¶ 54 After examining the record, the motion to withdraw, and the memorandum of law, we 

agree with counsel that this appeal presents no issue of arguable merit. Thus, we grant the motion 

to withdraw and affirm the judgment of the circuit court of Du Page County. 

¶ 55 Affirmed.