2022 IL App (1st) 200741-U

No. 1-20-0741 

Second Division

July 12, 2022

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).

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

____________________________________________________________________________ 

THE PEOPLE OF THE STATE OF 

ILLINOIS, 

 Plaintiff-Appellee, 

 

 v. 

JAYNI FOWLER, 

 Defendant-Appellant. 

) Appeal from the

) Circuit Court of

) Cook County. 

) 

) 

) No. 15 CR 10957

) 

) 

) Honorable 

) Michael Joseph Kane,

) Judge, presiding.

____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court.

Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.

ORDER

¶ 1 Held: The circuit court’s dismissal of defendant’s initial pro se postconviction petition is 

affirmed where his claim that the proportionate penalties clause impacted his 

sentence as a youthful offender is forfeited and he has not set forth the gist of a

claim of ineffective assistance of plea counsel.

¶ 2 In 2016, defendant-appellant Jayni Fowler pled guilty to attempted murder and was 

sentenced to 34 years’ imprisonment. Defendant did not move to withdraw his guilty plea or pursue 

a direct appeal. On December 17, 2019, defendant filed a pro se postconviction petition pursuant 
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to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)), which the 

circuit court summarily dismissed. On appeal, defendant argues that the circuit court erred in 

dismissing his petition because he stated the gist of a claim that his plea was invalid based on plea 

counsel’s erroneous advice on the possible sentencing range and the proportionate penalties clause

impacted his sentencing as a youthful offender. For the following reasons, we affirm.

¶ 3 I. BACKGROUND

¶ 4 In July 2015, defendant was indicted on 24 counts in connection with a shooting that 

occurred on May 20, 2015, when defendant was 18 years old. The charges alleged that defendant 

fired a handgun toward a group of five children, aged 11 to 14 years old, injuring one of them. The 

indictment included four counts of attempted murder against the injured victim (720 ILCS 5/8-

4(a), 5/9-1(a)(1) (West 2014)) and eight counts of attempted murder related to the four uninjured 

victims (720 ILCS 5/8-4(a), 5/9-1(a)(1) (West 2014)). Additionally, there were seven counts of 

aggravated battery involving a child under 13 years old (720 ILCS 5/12-3.05 (West 2014)) and 

five counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a) (West 2014)).

¶ 5 On December 29, 2016, defendant entered into a negotiated guilty plea. We set forth the 

plea discussions before the circuit court to the extent relevant to the issues on appeal.

¶ 6 Before the court, the State recited the plea offer as follows:

“Judge, the agreement is for 34 years on Count 1. The sentence is delineated with 

nine years on the substantive attempt first-degree murder, 6 to 30 with an additional 25 for 

the firearm enhancement. That’s the minimum on the firearm enhancement. It will be 

stipulated that great bodily harm was produced by the defendant when he personally 

discharged a firearm. *** That’s at 85 percent. That sentencing enhancement alone carries 

a 25 to life. The State has agreed to nolle what would be additional consecutive counts as 
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well as not proceed—or not to ask for an extended term sentence, which would apply. The 

victim in this matter *** was under 12 at the time.”

The circuit court then repeated the terms of the plea offer as follows:

“So the agreement is in exchange for a plea of guilty on Count 1, the remaining 

counts will be dismissed. On Count 1, Class X attempt first-degree murder, the defendant 

will be sentenced to nine years [in the] Illinois Department of Corrections, plus additional 

25 years Illinois Department of Corrections add-on sentence based on the fact that the 

defendant personally discharged the firearm that caused the injuries to the victim[.]”

The State and the circuit court also stated on the record that defendant was informed that he was 

eligible for an extended term based on the age of the injured victim. The circuit court informed 

defendant of the penalties for the charges: 

“This attempt first-degree murder is a Class X. Range of sentence on a Class X is 

6 to 30 years in the Illinois Department of Corrections. You’re eligible for an extended 

term. It would be 30 to 60 years in the Illinois Department of Corrections, a fine up to 

$25,000 and because it’s Class X, it would be additional three years mandatory supervised 

release. Addition—you’re also facing additional mandatory add-on penalties because you 

discharged a firearm—you personally discharged a firearm which caused the great bodily 

harm to the victim and that range of sentencing is from 25-years to natural life.”

Defendant confirmed that he understood the possible penalties.

¶ 7 The State then presented the following factual basis for the plea: 

“[O]n May 20th, 2015 shortly before 3:30 p.m. in the afternoon near the location 

of 10932 South Loomis, that the defendant and another shot into a group of people. One of 
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those gunshots struck [the injured victim] who was under 12 at the time; and as a result, 

suffered the gunshot wounds that would be stipulated the great bodily harm in this matter.

Judge, Chicago Police responded to a man with a gun and shots fired. They chased 

the defendant from the scene and the defendant was taken into custody. The defendant was 

taken to the police headquarters where the defendant did admit that he did shoot into the 

crowd. Recovered from the scene were six shell casings which matched the number of 

reports heard by other witnesses.

Judge, we believe that shooting six times into this group of people was a substantial 

step towards the commission of first-degree murder of [the injured victim] who was one of 

the individuals in the group. The State has forsaken as a result of a plea on Count 1 to go 

forward on what would have been mandatory consecutive sentences as to the other 

victims.”

As to the injured victim, the State stated that he was shot by the defendant, which caused him great 

bodily harm, and he went to Comer Children’s Hospital “as a result of the gunshot wounds that he 

suffered at the hands of the defendant.”

¶ 8 In accordance with the plea agreement, defendant pled guilty to one count of first-degree

attempted murder against the injured victim, and the circuit court sentenced him to 34 years’ 

imprisonment. Defendant did not move to withdraw his guilty plea, nor did he file a direct appeal 

after entering his plea.

¶ 9 Almost three years later, on December 17, 2019, defendant filed a pro se postconviction 

petition under the Act. Under “Issue One,” defendant asserted that his sentence violated the 

proportionate penalties clause of the Illinois Constitution “where offense[s] with identical elements 
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are given [a] different sentence.” He stated that there was no “intent to kill” and that it was not 

clear from the record whether the victim suffered “a great bodily injury.” 

¶ 10 Under “Issue Two,” defendant asserted that his 34-year sentence is unconstitutional under 

both the proportionate penalties clause and “House Bill, Public act 100-1182, as applied to 

petitioner.” Specifically, he alleged that he was 18 years old at the time of the offense and he will 

be 48 years old when he is eligible for parole and 52 years old when he has served the entirety of 

his sentence. He argued that his sentence is disproportionate because the victim was shot in the 

shoulder and because there was no evidence that the victim suffered “great bodily harm.” 

¶ 11 Under “Issue Three,” defendant alleged that he was denied the effective assistance of plea 

counsel because counsel failed to recommend and request a Rule 402 conference prior to the plea.

Additionally, according to defendant, 

 “[t]rial counsel did not tell petitioner the minimum sentence for his offense of firstdegree attempt murder. Trial counsel told petitioner that he had to either plead guilty to 

thirty-four years in [prison] or go to trial. *** Trial counsel did not submit in [sic] a 402 

conference to the court and did not let petitioner know anything about a 402 conference. 

The trial court did not issue a presentence investigation on petitioner’s behalf. Petitioner 

was only 18 years old at the time of offense was *** illiterate and rel[ied] on counsel legal 

advice.” 

Defendant further claimed that his plea was unknowingly entered because he did not “fully know 

the nature of the charge, the potential sentencing range, the right to not plead guilty and the right 

to have a trial by jury[,]” and that the trial court did not have jurisdiction to sentence him without 

a presentence investigation (PSI) report and his waiver of the report was not valid. 
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¶ 12 Attached to the petition was defendant’s own affidavit. Therein, he averred that his attorney 

did not request a Rule 402 conference and informed him that if he did not take the plea deal, he 

would be forced to go to trial and would face more time. Defendant also averred that he did not 

waive his right to a PSI report and if one had been prepared, “it is a strong probability” that he 

would have received a lesser sentence.

¶ 13 On March 13, 2020, the circuit court issued an order summarily dismissing the petition as

frivolous and patently without merit. Relevant here, the court characterized defendant’s claims as 

follows: defendant’s sentence violated the Illinois Constitution, defendant’s plea counsel was 

ineffective, and defendant did not effectively waive his right to a PSI report. The court stated that 

the claims in defendant’s petition were forfeited by virtue of his voluntary plea. Finally, the circuit 

court found that, even if the claims had not been forfeited, they would “fail on post-conviction 

review” because the claims “failed to meet the appropriate standards.”

¶ 14 This appeal followed.1

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant requests that this court reverse the circuit court’s dismissal of his 

petition and remand for second stage proceedings under the Act. To that end, defendant argues he 

received ineffective assistance of plea counsel as his attorney misadvised him on the sentencing 

range and that his plea was invalid as the proportionate penalties clause would have impacted his 

sentencing as a youthful offender.

1 Defendant’s notice of appeal was filed on May 15, 2020. However, included with his notice was 

proof of service in accordance with Illinois Supreme Court Rule 12(b)(6) (eff. July 1, 2017), indicating 

that defendant placed his notice of appeal in the institutional mail on May 5, 2020. In light of our supreme 

court’s mandate addressing the COVID-19 emergency, which extended the timing for filing a notice of 

appeal from 30 days to 60 days, we find defendant’s notice of appeal to be timely filed. M.R. 30370. 
No. 1-20-0741 

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¶ 17 The State, in response, advances several arguments to support affirmance of the circuit 

court’s dismissal. First, the State contends that, even liberally construed, defendant’s appellate 

claims were not included in his pro se postconviction petition and are therefore forfeited. Second, 

the State argues that even if the claims were not forfeited, they are barred (1) because defendant’s 

plea waived all nonjurisdictional errors, (2) due to application of non-retroactivity principles, and 

(3) due to application of United States Supreme Court precedent. Lastly, the State argues that 

defendant simply has not set forth an arguable claim that his plea counsel was ineffective.

¶ 18 A. The Act

¶ 19 The Act provides a method for a criminal defendant to collaterally attack a conviction by 

asserting that it resulted from a substantial denial of his constitutional rights. 725 ILCS 5/122-1 

(West 2018); People v. Hodges, 234 Ill. 2d 1, 9 (2009). A postconviction proceeding in a 

noncapital case has three stages. Hodges, 234 Ill. 2d at 10. At the first stage, a petition need only 

state the “gist” of a constitutional claim (id. at 9 (citing People v. Porter, 122 Ill. 2d 64, 73 (1988)), 

and a trial court may summarily dismiss a petition within 90 days if it “determines the petition is 

frivolous or is patently without merit” (725 ILCS 5/122-2.1(a)(2) (West 2018)).

¶ 20 A petition is frivolous or patently without merit when it “has no arguable basis in either 

fact or law,” such as where it is “based on an indisputably meritless legal theory or a fanciful 

factual allegation.” Hodges, 234 Ill. 2d at 11-12, 16. Additionally, a defendant’s claim is 

considered frivolous or patently without merit if it is procedurally barred under either the doctrine 

of res judicata or forfeiture. People v. Blair, 215 Ill. 2d 427, 445 (2005). In particular, any issues 

that could have been raised on direct appeal, but were not, are procedurally barred. People v. Ruiz, 

132 Ill. 2d 1, 9 (1989). However, the doctrines of res judicata and forfeiture are relaxed in three 

specific situations: (1) where fundamental fairness requires, (2) where the alleged forfeiture stems 
No. 1-20-0741 

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from the incompetence of appellate counsel, or (3) where the facts relating to the claim do not 

appear on the face of the original appellate record. People v. Harris, 206 Ill. 2d 1, 13 (2002).

¶ 21 Although a defendant’s petition is to be liberally construed and need only present a limited 

amount of detail, that “does not mean that a pro se [defendant] is excused from providing any 

factual detail at all surrounding the alleged constitutional deprivation.” People v. Delton, 227 Ill. 

2d 247, 254 (2008). We review de novo the summary dismissal of a defendant’s postconviction 

petition. People v. Allen, 2015 IL 113135, ¶ 19.

¶ 22 B. Forfeiture 

¶ 23 Before proceeding to the merits of defendant’s claims, we must address the State’s

contention that defendant’s claims are forfeited. The State argues that because, among other 

reasons, defendant’s claims here on appeal were not included in his pro se postconviction petition 

they cannot be addressed by this court on appeal. The State claims that defendant’s appeal “lacks 

any relationship [to] those claims he raised in his postconviction petition.” In particular, the State 

asserts that defendant’s petition did not claim that his plea was invalid based on his youth or that 

his status as a youthful offender implicated constitutional concerns related to the eighth 

amendment and proportionate penalties clause jurisprudence, or that he was misadvised

concerning the same. As authority, the State cites to People v. Reed, 2014 IL App (1st) 122610; 

People v. Mars, 2012 IL App (2d) 110695; and People v. Jones, 213 Ill. 2d 498 (2004). 

¶ 24 In his reply brief, defendant argues that the State’s reading of the petition is unduly narrow 

and overlooks certain parts of his petition. Specifically, defendant claims that his petition does, in 

fact, assert that plea counsel was ineffective for giving erroneous advice and also references the 

due process requirement that his guilty plea be knowing and voluntary. Further, defendant claims 

that his affidavit alleges “that his personal background and lack of criminal history would have 
No. 1-20-0741 

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resulted in a lesser sentence.” Defendant cites People v. Thomas, 2014 IL App (2d) 121001, for 

support.

¶ 25 Section 122-3 of the Act provides that “[a]ny claim of substantial denial of constitutional 

rights not raised in the original or amended petition is waived.” 725 ILCS 5/122-3 (West 2018). It 

is well established that “any issues to be reviewed must be presented in the petition filed in the 

circuit court.” People v. Jones, 211 Ill. 2d 140, 148 (2004); see also People v. Dorsey, 2021 IL 

123010, ¶ 70 (proportionate penalties clause claim not included in the motion for leave to file a 

successive postconviction petition or in the petition itself was forfeited). 

¶ 26 However, a pro se postconviction petitioner is not required to allege facts supporting every 

element of a constitutional claim. Mars, 2012 IL App (2d) 110695, ¶ 32. Instead, a pro se petition 

must be viewed with a lenient eye and “borderline cases” should be allowed to proceed. Id. The 

threshold at the first stage is low because a pro se defendant will likely be unaware as to the precise 

legal basis for his claim. Hodges, 234 Ill. 2d at 9. Notwithstanding this low threshold, a petitioner 

must still clearly set forth in his petition the manner in which his constitutional rights have been 

violated, and the issues raised in the petition “must bear some relationship to the issue[s] raised on 

appeal.” Id.; People v. Thomas, 2014 IL App (2d) 121001, ¶ 48. 

¶ 27 Further, the appellate court is not free, as is the supreme court pursuant to its supervisory 

authority, to excuse waiver caused by the failure of a defendant to include issues in his or her 

petition. People v. Jones, 213 Ill. 2d 498, 506-08 (2004). In fact, our supreme court has criticized 

this court on more than one occasion for overlooking waiver of new claims on appeal and instead 

addressing the merits of such claims. People v. Reed, 2014 IL App (1st) 122610, ¶ 43 (citing 

People v. Pendleton, 223 Ill. 2d 458, 475 (2006)); see also Jones, 213 Ill. 2d at 506 (stating “our 

appellate court has repeatedly overlooked the waiver language of section 122-3”). Rather, where 
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a claim is omitted in the pro se petition, the defendant’s recourse is to seek leave of court to file a 

successive postconviction petition asserting the new claim. Jones, 213 Ill. 2d at 509; see also 725 

ILCS 5/122-1(f) (West 2018). 

¶ 28 The foundational case on forfeiture of claims not included in a postconviction petition is 

People v. Jones. In that case, the defendant filed an initial pro se postconviction petition alleging 

simply that he was denied effective assistance of counsel guaranteed by the Sixth Amendment of 

the United States Constitution, nothing more. 213 Ill. 2d at 502. His attached affidavit included 

only his notarized signature attesting to the truthfulness of the petition but contained no additional 

information. Id. The circuit court summarily dismissed the petition because the defendant failed to 

assert any claim at all. Id. On appeal, the defendant argued that the circuit court erroneously 

admonished him, and his appointed counsel gave erroneous advice, and he requested that he have 

the opportunity to move to withdraw his guilty plea. Id. at 502-03. The appellate court affirmed 

the circuit court’s dismissal of the petition. Id. at 502. 

¶ 29 In acknowledging the challenges presented to pro se litigants when filing petitions under 

the Act, the Jones court first discussed the “practical drawbacks to the three-stage process set forth 

in the Act[.]” Id. at 504-05. Specifically, the court stated:

“[T]he typical pro se litigant will draft an inartful pleading which does not survive 

scrutiny under the ‘frivolity/patently without merit’ standard of section 122-2.1, and it is 

only during the appellate process, when the discerning eyes of an attorney are reviewing 

the record, that the more complex errors that a nonattorney cannot glean are discovered. 

The appellate attorney, not wishing to be remiss in his or her duty, then adds the newly 

discovered error to the appeal despite the fact that the claim was never considered by the 

trial court in the course of its ruling. *** [T]he attorney is zealously guarding the client’s 
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rights and is attempting to conserve judicial resources by raising the claim expeditiously at 

the first available chance. These goals are laudable, but they nonetheless conflict with the 

nature of appellate review and the strictures of the Act.” Id. 

Even so, the court resolved that claims not included in the defendant’s petition may not be raised 

for the first time on appeal and affirmed the dismissal of the petition. Id. at 508-09. 

¶ 30 Whether a claim has been forfeited depends on the precise allegations in the petition as 

compared to the claims made in the appellate brief on appeal. Reed, 2014 IL App (1st) 122610, ¶ 

59 (where the petition and brief both alleged appellate counsel error but on different constitutional 

grounds, appellate claims were deemed forfeited); Mars, 2012 IL App (2d) 110695, ¶¶ 31-33 

(where the petition alleged trial counsel error and brief on appeal alleged appellate counsel error, 

appellate claims were deemed forfeited; see also Thomas, 2014 IL App (2d) 121001 (where 

evidentiary error claimed in petition was merely reframed on appeal). Thus, we must compare 

defendant’s claims on appeal with the precise allegations in the postconviction petition. This is a 

highly fact-specific inquiry. Thus, below, we set forth in detail the allegations in defendant’s postconviction petition and then also his claims on appeal. 

¶ 31 1. Allegations in the Petition

¶ 32 In his postconviction petition, defendant identified three issues. Each of those issues 

contains a variety of allegations, which we recite here as follows: (1) his sentence violated the 

proportionate penalties clause where an offense with identical elements received a different 

sentence; (2) his sentence is disproportionate because the victim did not suffer great bodily injury 

and there was no intent to kill; (3) his sentence is also disproportionate under Public Act 100-1182 

as applied to petitioner; (4) he was denied effective assistance of trial counsel because counsel 
No. 1-20-0741 

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failed to request a Illinois Supreme Court Rule 402 conference;2 (5) plea counsel did not tell him 

the minimum sentence for first degree attempted murder; and (6) he was 18 years old and relied 

on counsel’s legal advice; (7) his plea was invalid because he did not understand the direct results 

of the plea, including the waiver of his rights and the sentencing range; and (8) the court did not 

have jurisdiction to sentence defendant without a PSI report. Additionally, in his affidavit, 

defendant averred that (1) his counsel informed him that if he did not take the plea, he would be 

forced to go to trial and would face more time and (2) he did not waive his right to a PSI report 

and if one had been prepared, “it is a strong probability” that he would have received a lesser 

sentence.

¶ 33 2. Claims on Appeal

¶ 34 On appeal, defendant asserts two claims in support of his contention that his guilty plea is 

invalid. Although awkwardly intertwined throughout the appellate brief, defendant’s arguments 

comprise two discrete claims. The one claim asserts a violation of the proportionate penalties 

clause and the other, ineffective assistance of counsel related to sentencing. We separately set 

both claims out in detail below. 

¶ 35 a. Proportionate Penalties Claim

¶ 36 Defendant claims that counsel should have informed him that, following a trial, it was 

possible that he might receive less than a life sentence in light of his age based on Miller v. 

Alabama, 567 U.S. 460, 489 (2012), and its progeny in Illinois. Briefly, Miller and the cases which 

followed, suggest that young adults, if shown to be more similar to a juvenile, may not be sentenced 

2 Rule 402(d) provides that, at the request of the parties, prosecution and defense counsel can meet 

with the judge to advise him or her of a proposed plea agreement and learn, in advance of a plea, whether 

he or she would accept the plea and what sentence would be imposed should the defendant plead guilty. Ill. 

S. Ct. R. 402(d) (eff. July 1, 2012).
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to a natural or de facto life sentence without a sentencing hearing that considers the defendant’s 

youth and its attendant characteristics. See People v. Harris, 2018 IL 121932, ¶¶ 37-48 (discussing 

Miller and its progeny and application to emerging adult defendants). Defendant asserts that based 

on his age, he might have been permitted a Miller-compliant sentencing hearing that conceivably 

would have been limited to a sentence of 40 years or less. Because counsel did not inform him of 

this possibility, he argues that his plea was invalid. 

¶ 37 In our view, defendant has deconstructed the three separate issues in his petition in which 

he alleges a violation of the proportionate penalties clause and disproportionate sentencing and 

reconstructed them to assert a single Miller based proportionate penalties claim here on appeal. 

Clearly the allegations in the petition and the claims on appeal share some commonalties. Both

mention the proportionate penalties clause; the length of sentence; age; and plea counsel’s advice. 

Significantly, however, the allegations in the petition were dispersed throughout and were not 

consolidated to identify one single issue. Thus, even allowing a liberal construction, we find that 

defendant has not set forth the same claim on appeal as was alleged in the petition. Moreover, 

despite the commonalities between the claims, at no point in his petition does defendant reference 

Miller or any of the cases that followed it. See People v. Cathey, 2012 IL 111746, ¶¶ 19-21 (the 

defendant did not properly raise a Patrick violation where the defendant did not cite or reference 

People v. Patrick anywhere in his postconviction petition). Defendant made several disparate 

claims in his petition that cannot now be combined on appeal to create a new claim, and as such,

we find this claim to be distinct from the allegations contained in defendant’s petition. 

¶ 38 Additionally, we reject defendant’s argument that his reference to Public Act 100-1182 in 

his petition was an invocation of Miller and its subsequent jurisprudence. Public Act 100-1182 

established a parole review for offenders who were committed certain crimes while under the age 
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of 21. Pub. Act 100-1182 (eff. June 1, 2019) (amending 730 ILCS 5/5-4.5-110). Under the new 

statute, a person under 21 years of age at the time of commission of first-degree murder and is 

sentenced on or after the effective date of the act shall be eligible for parole review after serving 

20 or more years of his or her sentence, excluding those subject to a sentence of natural life. Id.

Although the amendment bears some relationship to the evolving approach to sentencing young 

adults, we cannot go so far as to say it is a clear assertion of a Miller-based challenge, particularly 

where defendant did not explain his reference to the legislation.

¶ 39 As our supreme court noted in Jones, appellate counsel’s attempts to raise claims for the 

first time on appeal from a summary dismissal of a postconviction petition are understandable and 

certainly expected but are nevertheless not permitted. We find it laudable that appellate counsel 

here has crafted a more artful and complex claim from the disjointed allegations asserted in 

defendant’s petition. That notwithstanding, the circuit court was not given the opportunity to 

review the claim that defendant now raises on appeal, which is a prerequisite for our review on 

appeal. See Schili Leasing, Inc. v. Forum Insurance Co., 254 Ill. App. 3d 731, 746 (1993) (“A trial 

court cannot err in failing to decide an issue not presented to it for decision.”); Rogers v. Gehrke,

77 Ill.App.2d 343, 347 (1966) (“It is unfair to permit us to sit in review of a trial judge unless he 

had an opportunity to consider the same question presented to us.”). Accordingly, we find that 

defendant has forfeited this claim on appeal for failing to raise it in the circuit court within his 

postconviction petition. 

¶ 40 b. Ineffective Assistance of Plea Counsel

¶ 41 Defendant’s other claim on appeal is that he was misadvised on the possible sentencing 

range he faced upon a conviction at trial. Specifically, he claims that he was informed that if he 

was convicted of all counts of attempted first degree murder, the sentence for each count would 
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run consecutive to each other. As such, defendant claims that he was led to believe that he faced a 

mandatory minimum of 135 years in prison if found guilty of all five counts of attempted murder. 

He maintains, however, the mandatory consecutive sentencing would only apply to the offense of 

attempted first degree murder of the injured victim who suffered “great bodily harm” while the 

sentences for the other four counts would run concurrently. Citing People v. Brown, 2017 IL 

121681, which addresses ineffective assistance of plea counsel, defendant asserts that he has 

demonstrated arguable prejudice.

¶ 42 As with the proportionate penalties claim, for purposes of our forfeiture determination, we 

must compare defendant’s claims here on appeal with the allegations in his petition. In the petition,

defendant asserted that he was not adequately advised by counsel of the potential penalties for the 

offenses if he were to go to trial. Citing Brown, 2017 IL 121681, which as we have noted addresses 

ineffective assistance of plea counsel, defendant alleged that he demonstrated arguable prejudice. 

He additionally alleged that his guilty plea was invalid under the due process clause.3

¶ 43 The seminal case for ineffective assistance claims, Strickland v. Washington, 466 U.S. 668 

(1984), is not referenced by defendant. Despite defendant’s election to cite caselaw other than the 

familiar Strickland case, we nonetheless understand the claim to be one for ineffective assistance, 

requiring for its resolution application of Strickland’s two-prong test. In our view, defendant’s 

claim raised on appeal bears some relationship to the allegations in the petition. Thus, the two 

cannot be said to be separate and distinct. Moreover, the circuit court expressly considered and 

rejected defendant’s ineffective assistance of plea counsel claim. Accordingly, we deem 

3 Significantly, the requirement that a plea be voluntary and knowing is pursuant to the due 

process clause of the United States Constitution (Boykin v. Alabama, 395 U.S. 238, 245 n. 5 (1969)), and 

the voluntariness of a plea depends on whether the defendant had effective assistance of counsel (People 

v. Correa, 108 Ill. 2d 541, 549 (1985)).
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defendant’s ineffective assistance claim to be properly before us on review and we therefore 

address it on the merits.

4

¶ 44 Under the sixth amendment of the United States Constitution (U.S. Const., amend. VI), a 

criminal defendant has the right to receive effective assistance from defense counsel at all critical 

stages of the criminal case, including the entry of a guilty plea. People v. Brown, 2017 IL 121681, 

¶ 25. In determining whether a defendant was denied effective assistance of counsel, we employ 

the two-prong test set forth in Strickland, and adopted by Illinois courts in People v. Albanese, 104 

Ill. 2d 504, 525-27 (1984). To satisfy the test, a defendant must establish that his counsel’s 

performance fell below an objective standard of reasonableness and that he was prejudiced by 

counsel’s deficient performance. People v. Hall, 217 Ill. 2d 324, 335 (2005). However, at the first 

stage of postconviction proceedings, “a petition alleging ineffective assistance may not be 

summarily dismissed if (i) it is arguable that counsel’s performance fell below an objective 

standard of reasonableness and (ii) it is arguable that the defendant was prejudiced.” Hodges, 234 

Ill. 2d at 17. “Because a defendant must satisfy both prongs of the Strickland test to prevail, the 

failure to establish either precludes a finding of ineffective assistance of counsel.” People v. 

Cherry, 2016 IL 118728, ¶ 24. For the reasons that follow, we find that defendant cannot satisfy 

either prong. 

¶ 45 For guilty plea defendants, the first prong requires a showing that counsel failed to ensure 

that the defendant entered the plea knowingly and intelligently. People v. Rissley, 206 Ill. 2d 403, 

457 (2003); see also People v. Hillenbrand, 121 Ill. 2d 537, 554 (1988) (“Due process requires 

4 The State’s additional arguments that defendant’s claims are barred due to defendant’s waiver of 

nonjurisdictional errors, the application of non-retroactivity principles, and the application of United 

States Supreme Court precedent, are only relevant to defendant’s proportionate penalties clause claim and 

thus, we need not address them as to defendant’s separate claim of ineffective assistance of plea counsel. 
No. 1-20-0741 

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that a guilty plea not be accepted unless it appears to be knowing, intelligent[,] and voluntary.”). 

Defendant specifically contends that he was incorrectly advised that each of the sentences 

associated with the offenses as to the uninjured victims would be served consecutively. As a result, 

he maintains that his plea was not knowing. 

¶ 46 A review of the record shows that defendant was not misadvised as to the possible 

sentencing options should he opt to proceed to trial. Based on the charges, defendant was subject 

to the following possible sentences.

¶ 47 In regard to count I, attempt first degree murder involving the use of a firearm and resulting 

in great bodily harm is a Class X felony, which carries a sentence of 6 to 30 years. The use of a 

firearm mandates an additional sentence of 25 years to life, resulting in a minimum sentence of 31 

years and a maximum sentence of natural life. 720 ILCS 5/8-4(c)(1)(D) (West 2014); 730 ILCS 

5/5-4.5-25(a) (West 2014). Defendant was also subject to an extended term because the felony 

offenses were committed against individuals under 12 years of age. 730 ILCS 5/5-8-2, 5-5-

3.2(b)(3)(i) (West 2014)). The sentence for attempt first degree murder would be consecutive to 

any other sentences. 730 ILCS 5/5-8-4(d)(1) (West 2014). Defendant was also charged with 

attempt murder (720 ILCS 5/8-4(a), 5/9-1(a)(1) (West 2014)), aggravated battery (720 ILCS 5/12-

3.05 (West 2014)), and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a) (West 2014)) as 

related to the uninjured victims. The minimum sentence for these charges would be 4 years (720 

ILCS 5/24-1.2(a) (West 2014); 730 ILCS 5/5-4.5-30 (West 2014)), and the maximum would be 

45 years (720 ILCS 5/8-4(c)(1)(b), 5/9-1(a)(1) (West 2014); 730 ILCS 5/5-4.5-25 (West 2014)).

The sentences for these charges would be served concurrently. 730 ILCS 5/5-8-4 (West 2014). 

The point is, given the various offenses charged, there are innumerable permutations of the various 

sentencing ranges that could result in a variety of possible sentences. 
No. 1-20-0741 

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¶ 48 During the hearing on defendant’s plea, he was informed of the accurate sentencing range 

for attempt first degree murder—31 years to life imprisonment. He was also informed that he was 

eligible for an extended term and that he was subject to consecutive sentences. Moreover, at no 

point was defendant explicitly advised that he would have been sentenced to 135 years in prison

if he went to trial. “Where the record rebuts the allegations in a petition, summary dismissal is 

proper.” People v. Trujillo, 2012 IL App (1st) 103212, ¶ 12. Requiring defense counsel to predict 

and explain the myriad ways in which a client will be impacted by a conviction would be 

unreasonable. People v. Hughes, 2012 IL 112817, ¶ 59; see also People v. Glover, 2017 IL App 

(4th) 160586, ¶ 36 (defendant’s alleged misapprehension of the possible maximum sentence for 

two dismissed charges did not render his guilty plea invalid). Thus, based upon the various 

sentencing options, counsel was correct in advising defendant that he faced more time, potentially 

a life sentence, if he went to trial.

¶ 49 Further, to the extent that counsel did misadvise defendant on the possible sentencing 

outcomes at trial, such advice was cured by the State’s and the circuit court’s statements during 

the plea hearing. See People v. Unzueta, 2017 IL App (1st) 131306-B, ¶ 28 (where counsel’s 

failure to advise the defendant of the immigration consequences of his guilty plea was cured by 

the trial court). The record shows that the State, in open court and prior to the court’s reiteration 

to defendant of the plea agreement, advised the court that it had agreed to “nolle what would be 

additional consecutive counts.” Subsequently, the court reiterated the plea agreement to defendant, 

without mention of the possible consecutive counts. In a concluding statement following the 

State’s offer of the factual basis for the plea, the State commented that it was forsaking “what 

would have been mandatory consecutive sentences as to the other victims.” Although the State 

referenced the requirement that the dismissed counts would have been consecutive, the record does 
No. 1-20-0741 

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not demonstrate that defendant was in any way misadvised concerning the possible sentence either 

by the State, by the Court, and clearly not by defense counsel. Based upon our review of the plea 

proceedings, we do not find that defendant was misadvised concerning the possible sentence. We 

find no basis in the record upon which to conclude that defendant’s plea was not given voluntarily 

and knowingly. Thus, defendant has failed to satisfy the first prong of Strickland. Accordingly, his 

claim of ineffective assistance of plea counsel, as well as his due process claim, fails.

¶ 50 Although failure to demonstrate either prong is fatal to an ineffective assistance of counsel

claim, we nonetheless address the second prong of the Strickland test. To meet the second prong, 

“a guilty-plea defendant ‘must show that there is a reasonable probability that, but for counsel’s 

errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Brown, 2017 

IL 121681, ¶ 26 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). To this point, our supreme 

court has held that a “ ‘conclusory allegation’ ” is insufficient in a guilty-plea case. Id. (quoting 

People v. Valdez, 2016 IL 119860, ¶ 29). Rather, the defendant “ ‘must convince the court that a 

decision to reject the plea bargain would have been rational under the circumstances.’ ” Valdez, 

2016 IL 119860, ¶ 29 (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)); see also People v. 

Deltoro, 2015 IL App (3d) 130381, ¶ 22. Typically, in cases where the claim is related to a 

defendant’s defense strategy or chance of acquittal, “this court requires a claim of innocence or a 

plausible defense to establish prejudice.” Brown, 217 IL 121681, ¶ 45. Where a defendant alleges 

that plea counsel failed to advise him as to consequences of pleading guilty, a court “compare[s] 

the consequences of a defendant’s conviction following a trial to the consequences of the defendant 

entering the guilty plea.” Brown, 2017 IL 121681, ¶ 36 (citing Lee v. United States, 137 S. Ct. 

1958, 1966 (2017)). Ultimately, “[t]he question of whether counsel’s alleged deficient 

performance caused the defendant to plead guilty depends in large part on predicting whether he 
No. 1-20-0741 

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likely would have been successful at trial.” Hall, 217 Ill. 2d at 336. Stated another way, “would 

[defendant] have been better off rejecting the plea offer and insisting on a trial.” (Internal 

quotations and citations omitted.) People v. Hatter, 2021 IL 125981, ¶ 30.

¶ 51 As we have previously noted, defendant’s claim relates to the sentencing consequences of 

a potential conviction following a trial, but he also asserts “plausible defenses.” Specifically, 

defendant claims that he has shown arguable prejudice where evidence of “great bodily harm” and 

“intent” are questionable, both of which would have been required for the most severe sentencing 

consequences had he gone to trial. He also claims that it would have been rational to forgo a 34-

year sentence if he had been made aware that “the proportionate penalties clause provided some 

protection against him dying in prison[.]” As is apparent, defendant has conflated both of his 

claims, making it unnecessarily difficult for this court to determine where one claim ends, and one 

begins. 

¶ 52 Nevertheless, the allegation that the proportionate penalties clause would affirmatively 

limit his sentence to less than life is not only conclusory, but pure conjecture. There is nothing in 

defendant’s petition to support that allegation, other than the fact that he was 18 years old at the 

time of the offenses. Moreover, the proportionate penalties clause does not guarantee a young adult

defendant a sentence of less than life. The case law, as it currently stands is to the effect that if a

youthful offender can demonstrate that his brain was more similar to a juvenile’s at the time of the 

offense, then the sentencing court must consider the Miller-factors in determining the appropriate 

sentence. See People v. Hilliard, 2021 IL App (1st) 200112, ¶ 25.

¶ 53 Defendant asserts, without more, that proof of intent and great bodily harm were not 

foregone conclusions in relation to the offenses charged against him, and thus, his sentence could 
No. 1-20-0741 

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have potentially been lesser than counsel and the trial court suggested at the plea hearing, making 

it rational for him to have rejected the plea offer. We briefly address and reject these contentions.

¶ 54 “The offense of attempted murder is shown when the State proves, beyond a reasonable 

doubt, that the defendant, with the specific intent to kill, commits any act which constitutes a 

substantial step toward the commission of murder.” People v. Valentin, 347 Ill. App. 3d 946, 951 

(2004). Specific intent to kill for the offense of attempted murder “has routinely been found in 

cases where a defendant shoots someone while firing into a crowd, even if he or she was not aiming 

at the person who was shot.” People v. Willingham, 2020 IL App (1st) 162250, ¶ 68. Here, the 

charges against defendant alleged that he shot towards a group of children, injuring one of them, 

and that defendant admitted to doing so when taken into police custody. Accordingly, we find 

defendant’s suggestion of a defense to the charges of attempt first degree murder to be without 

merit.

¶ 55 “[T]he term great bodily harm is not susceptible of a precise legal definition, [but] it 

requires an injury of a greater and more serious character than an ordinary battery.” (Emphasis in 

original.) People v. Mimes, 2014 IL App (1st) 082747-B, ¶ 29. “Bodily harm as it relates to 

ordinary battery requires ‘some sort of physical pain or damage to the body, like lacerations, 

bruises or abrasions, whether temporary or permanent.’ ” Id. (quoting People v. Mays, 91 Ill. 2d 

251, 256 (1982)). A gunshot wound does not necessarily satisfy the great bodily harm requirement. 

See People v. Ruiz, 312 Ill. App. 3d 49, 62–63 (2000) (gunshot wound to the police officer's knee 

was not a severe bodily injury where the wound was barely visible on the day of the incident and 

the officer did not immediately seek medical treatment); People v. Durham, 303 Ill. App. 3d 763, 

770 (1999) (battery victim's gunshot injury, which required no medical attention and was described 

as a mark, small nick or a cut, was not a severe bodily injury for sentencing purposes). However, 
No. 1-20-0741 

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here, the State’s factual basis clearly stated that the injured victim was taken to the hospital for 

medical treatment of the gunshot wound. For that reason, we do not find it arguable that a finding 

of great bodily harm would not be warranted in this case. 

¶ 56 We conclude that neither of these alleged defenses were plausible to the point where they 

would have resulted in a lesser sentence had defendant chosen to proceed to trial. Thus, even if 

counsel had misadvised defendant as to the potential sentencing range, in our view, defendant 

would not have been better off going to trial. As such, he has failed to demonstrate that he was 

prejudiced. 

¶ 57 By pleading guilty, defendant received only a single attempted first-degree murder

conviction, which was a Class X felony due to defendant causing great bodily harm to the victim 

and included a 25 years’ to natural life mandatory firearm enhancement, with a low-range sentence 

of 34 years’ imprisonment, where the minimum sentence was 31 years. It is hard to imagine how 

rejection of the State’s plea offer in this case would have been rational given the range of 

sentencing possibilities confronting this defendant, most of which greatly exceeded the sentence 

he actually received. Thus, we conclude that defendant has not shown arguable prejudice under 

the second prong of Strickland. 

¶ 58 Because we find that defendant has not presented the gist of an ineffective assistance of 

plea counsel claim, we must conclude that defendant’s postconviction petition was not entitled to 

further proceedings under the Act. Accordingly, the circuit court’s summary dismissal of the

defendant’s postconviction petition was proper. 

¶ 59 III. CONCLUSION

¶ 60 For the reasons stated, we affirm the judgment of the circuit court.

¶ 61 Affirmed.