## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Trujil lo , 2012 IL App (1st) 103212

Appellate Court Caption THE PEOPL E OF THE STATE OF I LL I NOI S, Plaintiff-Appe l lee, v. MANUEL

TRUJ I L L O, Def

endant- Appellant.

District & N o. First District, Second D ivision Docke t No. 1-10-3212

Filed May 8, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rter of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The summary dismiss al of defe ndant’s pro se postconviction petition w a s

reve rsed and the cause was re m an d ed for further proce eding s wher e defe ndant sufficie ntly alleg ed an arguable claim of ineffe ctive assistance of counsel based on his counsel’s alleg ed failure to inform him of a guilty plea offe r for multipl e controlled substance charg es, and on rema nd, the trial court was direc ted to rec onsider the cre dit due defe ndant for his pretria l custody

.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 07-CR-791; the Hon. Thomas M. Tucke r, Judge, pr esiding

.

J udgment Reverse d and re manded.Counsel on

Appea l Michae l J

. Pelletie r, Alan D. Goldberg
, and J eff rey Svehla, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s At torney , of Chicag o (Alan J

. Spellberg
, Kathry n A. Schierl, and Annette Colli ns, Assistant State’s Attorney s, of counsel), f

or the People.

Panel J USTI CE CUNNI NGHAM delivere d the judgme nt of the court, with opinion. Presiding J ustice Quinn and J ustice Har ris concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant Manuel Trujillo appea ls from the summary dismiss al of his pro se petition f or relief under the Post-Convi ction Hea ring Act (Ac t). 725 I L CS 5/122-1 to 122-8 (West 2010). On appea l, the defe ndant contends that the petition prese nted an arguable claim of ineffe ctive assistance of counse l ba sed on counse l’s alleg ed fa ilure to inform him of the State’s guilty plea offe r, and that th e m i t t i mu s m ust be corr ecte d to ref lect the corr ect amount of
prese ntence custody

cre dit. W e re verse and re mand for f urther procee dings. ¶ 2 At a jury t ri al
, t h e S t at e’ s evidenc e established that on Dec ember 6, 2006, the police executed a sear ch war

rant of the d ef

en d an t ’s home. In addition to a larg e amount of

n ar coti cs, they also rec overe d scale s and plastic bag g ies, which are g ener ally used for the packa g ing and sale of drug s. On Dec ember 7, 2006, the defe ndant was arr ested. He waived h i s Miranda rights and g ave an inculpatory statement which was introduced at trial. The defe ndant was convicted of 10 counts of possession of a controlled substance and possession with intent to deliver, including a Super Class X felony (720 I L CS 570/401(a)( 2)(C) (West 2006)). The defe ndant was sentenc ed to an ag greg ate term of 12 year s in prison and rec eived 62 day s of pre sentenc e custody cre dit. ¶ 3 On di rec t appea l this court vacated seve n of the de fenda nt’s convictions and sentences

as a violation of the one-a ct, one-c rime rule, modified the mi t t i m u s t o ref lect only the remai n i n g t h ree convictions, and aff irmed the sentenc es for those convictions. People v. Truji llo , No. 1-07-3320 ( 2009) (unpublished orde r pursua nt to Supreme Court Rule 23). ¶ 4 In September 2010, the defe ndant filed the instant pro se petition alleg ing, i n re l evant part, that his trial counse l was ineff ective f or fa iling to inform him of a ple a off er ma de by the State prior to trial. Specifica lly
, the defe ndant alleg es that the State made a plea offe r of six year s, that he would have acc epted the plea offe r if he had known of it, a nd that he only lear ned a plea offe r was made from a letter which counsel sent to the Attorney Reg istration and Disciplinary Commi ssion (ARDC). He also alleg es that “[c]ontrary to what [counsel] said to the ARDC he never told [defe ndant] a bout this offe r.” In support of his alleg ations,

-2-the defe ndant attache d an aff idavit in which he aver

red the same. The defe ndant also attache d the letter counsel wrote to the ARDC, dated June 14, 2010. In the letter, counsel states that befor e trial, “ the State’s Attorne y offe red six y ear s in the penitentiary for the Def endant to plead guilty .” The letter also say s that he “re commended to [defendant] prior to trial that he

acc ept the offe r due to the overwhelming evidenc e against him,” that the trial court admonished the de fenda

nt about the plea of

fer , and that the de fenda

nt rejec ted the off

er. ¶ 5 On September 24, 2010, the trial cour

t summarily

dismiss ed the de fenda

nt’s petition. ¶ 6 On appea l, the defe ndant first contends that his petition adequately prese nted the g ist of

a claim of ineffe ctive assistance of co un s el based on his alleg ation that counsel failed to inform him of the State’s plea offe r. Specifica lly
, the defe ndant argues that he adequately supported his all egations by attaching counsel’s letter, that his alleg ations are not contra dicted by the rec ord, and that h i s petition succe ssfully prese nted a claim with an arguable ba sis in both l aw a nd fac t. ¶ 7 The summary dismiss al of a p o s t co n v i ct i o n p et i tion is revie wed de novo

. People v

. Hodges , 234 I ll. 2d 1, 9 (2009). At the f irst stag e of postconvic tion procee dings, a petition will only be dismiss ed if it is frivolous or patently without merit. 725 I L CS 5/122-2.1(a) (2) (West 2008); People v. Brown
, 236 I ll. 2d 175, 184 (2010). A petition is considere d frivolous or wi thout merit only if it has “no arguable basis either in law or in fac t.” Hodges
, 234 I ll. 2d at 11-12. Petitions based on me ritless leg al theory or fanc iful fac tual alleg ations will be dismiss ed. Hodges , 234 I ll. 2d at 16. ¶ 8 In particula

r, a first-stag e petition claiming ineffe ctive assistance of counsel must show that it is arguable that counsel’s perf ormanc e fell below an objective standard of

rea sonablene ss and that it is arguable that the defe ndant was prejudice d by counsel’s perf ormanc e. Hodges , 234 I ll. 2d at 17. ¶ 9 Her e, the defe ndant’s claim of ineffe ctive assistance of counsel is based on a meritorious leg al theory

. A defe ndant has the right to decide whether to plead guilty

. People v. W hitfield
, 40 I ll. 2d 3 0 8
, 311 (1968). As such, an attorney ’s failure to disclose a plea offe r to the d ef endant may g ive rise to a constitutional claim, reg ardle ss of whether the defe n d an t subsequently rec eived a fair trial. People v. Curry
, 178 I ll. 2d 509, 517 (1997); W hitfield
, 40 I ll. 2d at 311. Notably
, the i mportance of defense counsel’s effec tive repr es en t at i o n in the
context of plea neg otiations was rec ently reinforced by two re ce n t United States Supreme Court opinions. See Lafler v

. Cooper
, ___ U.S.___, 132 S. C t. 1376 (2012) (holdingthat a defe ndant can succe ed on an ineff ective assistance of counsel claim wher e that defe ndant reje cts a plea offe r based on counsel’s erroneous advice and can show that, but for the

err oneous advice
, he would have acc epted the plea offe r and the ultimate outcome of the plea
proce ss would have been differ ent); Missouri v. Frye
, ___ U.S. ___, 132 S. Ct. 1399 (2012) (whe re the defe ndant showed that counsel did not inform him of a formal offe r from the State and there was a rea sonable probability the defe ndant would have acc epted the offe r had it been prese nted to him, counsel’s perf ormanc e was constitutionally defic ient). In fac t, the Supreme Court specific ally held that, as a g ener al rule, “def ense counsel has the du ty t o communicate formal offe rs from the prosec ution to acc ept a plea on terms and condi t i o n s that may be fa vorableto the acc used.” Frye , ___ U.S. at ___, 132 S. Ct . at 1408.

-3-¶ 10 I f coun s el in this case failed to inform defe ndant of the guilty plea offe r, it is arguable

that his assistance was deficient. More o v er , i n his petition, the defendant also alleg ed that he would have acc epted the offe r if he ha d been a dvised of it. The ref ore if he can establish that the offe r wa s not communicated to him, arguably he has be en pre

judiced by

counsel’s alleg ed defic iency

. We find that the defe ndant’s asser tion that his counsel was ineffe ctive for failingto communicate the State’ s guilty plea of fer to him did notlack merit. ¶ 11 Additionally
, the fac tual basis fo r th e d ef en d an t ’s cl ai m i s n ei t h er fanta stic nor delusional. Acc ording to his alleg ations, the State prese nted an offe r of a six -year prison term in exchang e for his guilty plea, but his counsel failed to inform him of the offe r and the defe ndant di d not lear

n of i t until counse l fi l ed a letter with the ARDC in J une 2010, long afte r the case had conclude d. These alleg ations are supported by both the defen d an t ’s aff idavit, in which he aver s the same, and counsel’s letter to the ARDC, which s t at es, “[p] rior to trial the S tat e’ s At torney offe red six year s in the penitentiary for the Def endant
to plead guilty .” Ba sed o n the rec ord befor e us, the defe ndant’s fac tual alleg ations are not fanc iful. ¶ 12 Where the rec ord r eb uts th e alleg ations in a petition, summary dismiss al is proper

. People

v. Rogers
, 197 I ll. 2d 216, 222 (2001). Her e, the State mistakenly sug g ests that the defe ndant’s alleg ation conce rning his counsel’s failure to communicate the State’s plea offe r to him is flawe d beca

use it is rebutted by counsel’s letter, which states th at h e t o l d the defe ndant about the pl ea offer

. Counsel’s letter, however, is outside t h e ac tu al t rial record and was attache d to the postconviction petition. The supreme court has said that under such circ umstances, “ ‘it is not the intent of the [A] ct that [such] claims b e ad j u d i ca t ed on the pleading s.’ ” People v. Coleman
, 183 I ll. 2d 366, 382 (1998) (quoting People v. Airmers
, 34 I ll. 2d 222, 226 (1966)). ¶ 13 Fur

thermore
, counsel’s letter stated that the trial judge admonished the defe ndant “prior
to trial reg arding the offe r and what h e fa ce d i f he lost the trial.” Somehow, the State extrapolates from this statement that the trial court’s admonishment about the plea offe r was likely contained in two missing transcripts from the trial rec ord, for the dates of J uly 9, 2007, and September 7, 2007. After the parties filed their respe ctive briefs on appea l, the two missing transcripts wer e acc ounted for in a sup p l ement to the rec ord. In an aff idavit, the officia l court repor

ter who took notes for the trial court on J uly 9, 2007, aver s that she “made

a thorough and diligent sear ch” but w as unable to f ind a ny rec ord of the proce eding for the
prese nt case from that date. Howeve r, the memorandum of order s shows that on J uly 9, 2007, both parties wer e prese nt and the case was continued by agree ment to August 16, 2007. The
transcript from September 7, 2007, shows that on that date the case was continued to October 3, 2007. Acc ording ly
, nothing of substance occur red on either date. Acc ording ly
, the rec ord fails t o show that the tri al co u rt admonished the defenda nt about a guilty plea offer on the
two dates inferr ed by the State or any other date and there fore does not positively rebut the defe ndant’s alleg ation that he did not know of the offe r. Fur thermore
, although counsel’s lett e r c o ntra dic ts some of the defe ndant’s alleg ations, cre dibility deter minations are impro p e r at this stageof proc eeding s. Coleman , 183 I ll. 2d at 385. ¶ 14 In sum, the defe ndant’s alleg ation as supported by trial counsel’s letter established that the State had made a guilty plea offe r. In turn, trial counsel has a duty to disclose the plea

-4-offe r to the defe ndant beca use only the defe ndant can decide what plea to enter

. Whether or not counsel informed the defendant of the S tate’s plea of fe r ca nnot be resolved at the first stag e of these postconviction proce eding s beca use it would require a cre d ibility d eter mination. The defe ndant alleg es that counsel did not tell him about the plea an d
, i n contra st, counsel states that he told the defe ndant about the plea. The defe ndant alleg es that he would have acc epted the offe r and counsel states that the defe ndant reje cted it. The actua l

rec ord neither supports nor re b u t s either position. We hold that the defe ndant sufficie ntly alleg ed an arguab l e claim of ineffe ctive assistance of counsel to withstand summary dis mi s s a l. A c c o rding ly
, upon rema nd the trial court is direc ted to conduct further proce eding s consistent with this opi nion. ¶ 15 The defe ndant next asser ts that the mitti mus must be modified to cre dit him with the full number of day s he spent in pretria l custody

. The defe ndant was g iven 62 day s of prese ntence custody cre dit, but claims that he should have bee n cre dited for 96 da y s. ¶ 16 A def

endant is entitled to c redit “for time spe nt in custody as a re sult of the offe nse for which the sentenc e was imposed.” 730 I L CS 5/5-8-7(b) (West 2006). Her e, the parties agree that the defe ndant was in custody startingDec ember

7, 2006, posted bail on Dec ember 11, 2006, and was ultimately rele ased from state custody on J anuar y 31, 2007. They also agree that the def

endant wa s in the custody of the Immigration and Naturalization Service (I NS)
at some point betwee n Dec ember 11 and J anuar y 31, but disagree as to the specific s of when he wa s in state and fe dera l custody

. ¶ 17 The defe ndant’s calc ulation of addi t i o n al d ay s o f p re s en t encing custody cre dit is premised on his position that he was in state custody the entire time from Dec ember 7, 2006 (the date of his arr est) through J anuar y 31, 2007 (the date of his rele ase on bond). Howeve r, the rec ord indicates that the defe ndant was in fede ral custody of the I NS from Dec ember 11, 2006 (the date the def

endant posted ba il) through J anuar y 22, 2007, when defense counsel informed the court at an arr aignment hearing that the defe ndant was prese ntly in I NS custody and would be rele ased from the I NS later that same day

. The defe ndant can only rec eive

cre dit for the time he spent in fede ral custody if it was “a conseque nce of the offe nses upon which he s ee k s cr ed i t

. ” Thomas v. Gree r , 143 I ll. 2d 271, 280 (1991). There fore
, if the defe ndant was in fede ral custody as a conseque nce of the prese nt case , he is entitled to cre dit for those day s. The rec ord does not establish the rea son for, or the definitive time frame of, the defe ndant’s day s in fede ral custody and, there fore
, we cannot deter mine if the defe ndant is entitled to any additional day s of cre dit. Acc ording ly
, on rema nd, we direc t the trial court t o make a deter

mination reg arding the appropriate amount of custody cre dit to wh i ch th e defe ndant is e ntitled. See People v. Gilkey
, 263 I ll. App. 3d 706, 714-15 (1994) (whe re the

rec ord was unclea

r as to what day s the defe ndant serve d on unrelated charg es and what day s he serve d on charg es related to the matter at hand, this court rema nded the cause to the trial court for rec alculation of pr esente nce c ustody cre dit). ¶ 18 For the fore g oing rea sons, we reve rse the ruling of the circ uit court of Cook County and

rema nd for f urther pr ocee dings c onsistent with thi s opinion.

¶ 19 Reverse d and re manded.

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