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Full Opinion
ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Robinson, 2012 IL App (4th) 101048
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ALFRED D. ROBINSON, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-10-1048
Filed August 27, 2012
Rehearing denied September 25, 2012
Held Defense counsel was not ineffective in rejecting defendantās request that
(Note: This syllabus counsel serve only as conduit during plea negotiations.
constitutes no part of
the opinion of the court
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of McLean County, No. 07-CF-194; the
Review Hon. Scott Drazewski, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, of State Appellate Defenderās Office, of Springfield,
Appeal and Alan D. Goldberg and Christopher L. Gehrke (argued), both of State
Appellate Defenderās Office, of Chicago, for appellant.
William A. Yoder, Stateās Attorney, of Bloomington (Patrick Delfino,
Robert J. Biderman, and Denise M. Ambrose (argued), all of Stateās
Attorneys Appellate Prosecutorās Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justice Appleton concurred in the judgment and opinion.
Justice Cook specially concurred, with opinion.
OPINION
Ā¶1 In this case, we are asked to determine whether defense counsel is ineffective when he
rejects a defendantās directive that counsel serve essentially as merely the defendantās
conduit during guilty-plea negotiations. We conclude that he is not, given that a criminal
defendantās role in guilty-plea negotiations when he is represented by counsel is limited to
accepting or rejecting the agreement for a guilty plea that defense counsel and the prosecutor
have reached.
Ā¶2 In February 2007, the State charged defendant, Alfred D. Robinson, with unlawful
possession of a controlled substance (720 ILCS 570/402(a)(2)(B) (West 2006)) and unlawful
possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(B) (West
2006)). In April 2007, the State charged defendant with unlawful possession of cannabis (720
ILCS 550/4(b) (West 2006)). Following an August 2007 trial, a jury found defendant guilty
of all three charges, and the trial court later sentenced him to 12 years in prison. Defendant
appealed, and this court affirmed. People v. Robinson, No. 4-07-0899 (Mar. 3, 2009)
(unpublished order under Supreme Court Rule 23).
Ā¶3 In August 2009, defendant pro se filed a petition under the Post-Conviction Hearing Act
(725 ILCS 5/122-1 to 122-8 (West 2008)), complaining, in pertinent part, that he was denied
his constitutional right to the effective assistance of counsel when his attorney, Terry Dodds,
failed to communicate to the State his desire to accept the Stateās guilty-plea offer. After
advancing defendantās petition to the second stage of postconviction proceedings, the trial
court granted the Stateās motion to dismiss.
Ā¶4 Defendant appeals, arguing that (1) the trial court erred by dismissing his postconviction
petition because he was denied the effective assistance of trial counsel, given that Dodds
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failed to communicate his desire to accept the Stateās guilty-plea offer, and (2) he should be
afforded a new hearing because his postconviction counsel provided unreasonable assistance
by failing to adequately present his pro se postconviction assertions. We disagree and affirm.
Ā¶5 I. BACKGROUND
Ā¶6 In February 2007, defendant was traveling on Interstate 55 in a vehicle driven by his
cousin. Illinois State Police Officer Brandon Smick initiated a traffic stop after observing the
vehicle speeding and swerving. During the stop, Smick discovered an outstanding warrant
for defendantās arrest. Shortly thereafter, a canine unit arrived to assist Smick. After walking
around the vehicle, the canine indicated that narcotics were present. While searching the
vehicle, the officers discovered 249.9 grams of cocaine and 2.6 grams of cannabis.
Ā¶7 The State thereafter charged defendant with unlawful possession of a controlled
substance (720 ILCS 570/402(a)(2)(B) (West 2006)) and unlawful possession of a controlled
substance with intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2006)). At a March 2007
status hearing, Dodds explained to the trial court that the State had āextended an offerā and
that he required a continuance in order to discuss that offer with defendant.
Ā¶8 In April 2007, the State charged defendant with unlawful possession of cannabis (720
ILCS 550/4(b) (West 2006)). At a status hearing held shortly thereafter, the State sought a
trial date because it had made āsix different offers,ā which defendant had rejected, adding
that there were āno ongoing negotiations.ā
Ā¶9 At the July 23, 2007, status hearing, the trial court inquired into the status of the partiesā
ongoing guilty-plea negotiations, as follows:
āTHE COURT: Is the [S]tate proceeding on all three counts?
[PROSECUTOR]: Yes, sir.
THE COURT: And although it is inferentially People versus Curry related, can you
tell me, [prosecutor], if an offer, without specifying what the offer is, if an offer has been
made for a disposition other than a conviction upon the most serious offense, that being
a Class X felony.
[PROSECUTOR]: Previously, previously on multiple occasions, letās see, five
occasions there was, but there is not one today.
THE COURT: So thatās been withdrawn by the [S]tate?
[PROSECUTOR]: Correct.
THE COURT: All right. Just to confirm, this is primarily to go ahead and protect
your attorney, that being Mr. Dodds, at a later point in time for being challenged by you,
[defendant], that he didnāt tell you what at this point in time, do I assume that Mr. Dodds
hasāare you aware of what the potential penalties are for that, for the most serious of the
offer with intent to deliver?
THE DEFENDANT: No.ā
The court thereafter explained on the record the potential penalties for the charges that
defendant was facing. The court then inquired into defendantās desire to proceed, as follows:
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āTHE COURT: Okay. And knowing that, is it still your desire then to proceed to
trial?
THE DEFENDANT: No, I have attempted to accept the [S]tateās offer of eight years,
but it has been declined.
THE COURT: Well, apparently that offer isnāt there any more and so I cannot nor
will I get involved in negotiations, but basically, at this point in time, if the offer has been
withdrawnā
Did you need time to talk with Mr. Dodds about that?
THE DEFENDANT: Yes.ā
Following a brief recess, the colloquy continued as follows:
āTHE COURT: Let the record reflect, following a recess where Mr. Dodds and
[defendant] had an opportunity to confer privately in an adjoining conference room, that
*** defendant returns in open court with Mr. Dodds, [the prosecutor] being present for
the State.
Initially, Mr. Dodds, what can you advise me, if anything, with reference to how
weāll be proceeding today?
MR. DODDS: Your Honor, the [S]tate has made a cap offer during the recess, I donāt
want to say what the number was, but [defendant] has declined the cap offer which I will
state to the court that it was less than the maximum of the Class 1, so I can tell the court
that it was 15 or less.ā
Ā¶ 10 Following an August 2007 trial, a jury found defendant guilty of unlawful possession of
a controlled substance, unlawful possession of a controlled substance with intent to deliver,
and unlawful possession of cannabis. The trial court later sentenced him to 12 years in
prison. Shortly thereafter, defendant sent a letter to the court explaining that Dodds (1) failed
to communicate his June 29, 2007, acceptance of the Stateās offer to recommend an eight-
year prison term to the court, (2) failed to explain that the Stateās sentencing cap offer
applied only if he pleaded guilty, and (3) failed to be āsupportive.ā The court responded to
defendantās letter, explaining to defendant that Dodds would be receiving his letter and that
he should speak to Dodds about filing the appropriate motion.
Ā¶ 11 No further action was taken.
Ā¶ 12 Defendant appealed, arguing that the trial court failed to conduct an adequate inquiry into
his allegations of ineffective assistance of counsel. This court rejected defendantās argument,
concluding that the court did not err because āthe court rightfully relied on its own
knowledge of the negotiation timeline in rejecting defendantās claim of ineffective
assistance.ā People v. Robinson, No. 4-07-0899 (Mar. 3, 2009) (unpublished order under
Supreme Court Rule 23).
Ā¶ 13 In August 2009, defendant pro se filed a postconviction petition, complaining, in
pertinent part, that he was denied his constitutional right to the effective assistance of counsel
when Dodds failed to communicate to the State his desire to accept the Stateās eight-year
offer. In his petition, defendant asserted that after the State made a guilty-plea offer of eight
years, he asked Dodds to āsee if he could get [seven] years, but if not, then let [the State]
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know that [he would] take the [eight] years.ā Defendant further asserted that Dodds refused,
resulting in the Stateās withdrawing its offer.
Ā¶ 14 Defendant attached to his petition an affidavit, which contained the following assertions.
Dodds informed him about the Stateās eight-year offer on May 30, 2007. Sometime after
Dodds told him about the offer, defendant asked Dodds to āsee if [he] could get it down to
[seven] years, and if not, then, [he would] take the [eight] years.ā Dodds responded as
follows: āI [am] not going back to ask for [seven] years.ā As a result, defendant and Dodds
began arguing and defendant was āsent away.ā
Ā¶ 15 Defendant also included with his petition a pro se letter that he sent to the prosecutor that
was dated July 1, 2007, and file stamped by the Stateās Attorneyās office on July 5, 2007.
That letter read, in part, as follows:
āI *** am writing to you to say that on [June 29, 2007,] my attorney[,] *** Dodds[,]
ask[ed] you or you offered 8 years. I know this case is set for trial on [July 23, 2007,] but
on [June 29, 2007,] I ask[ed] *** Dodds to ask you for 7 years and we could have been
done with this case then. His response to me was [that] he canāt do that.ā
Ā¶ 16 Defendant also attached to his petition a signed letter from Dodds dated July 16, 2007.
That letter read, in part, as follows:
āI understand that you have written [the prosecutor] in an attempt to further negotiate
a plea bargain for yourself. Due to the nature of the status of these proceedings, I would
request that you discontinue such practice, and further request that should you have
something that you would like to ask the prosecutor that you go through me as your agent
and attorney. I have had countless conversations with him about this case, and the time
for negotiation has come and gone.
I am also writing you to confirm the status of these proceedings. You have been
previously advised that the possible sentencing range of punishment in this case is from
9 to 30 years in the Illinois Department of Corrections, provided that you are convicted
of the āsuper xā count of unlawful possession with intent. As I have previously advised
you, I am doubtful you can beat this count, despite weight being the only indicator of
intent to deliver. While I think it is a legitimate argument that you did not intend to
deliver, due to my experience with McLean County juries, I am doubtful that they will
believe our argument.
Lastly, just to confirm what I have previously told you, even were you to beat that
count of unlawful [possession] with intent, it is seriously doubtful that the judge will give
you a sentence of less than 8 years due to the weight and regardless of the fact that you
were found not-guilty of the more serious offense; in other words, it will be a shallow
victory. The judge may believe you intended to deliver the narcotics regardless of
convincing the 12 jurors to the contrary and obtaining a not-guilty verdict. He would then
likely sentence you to more than the minimum. Nonetheless, I have hopes that we can
beat Count II.
The above notwithstanding, I think that [the prosecutor] has revoked his previous
offer of 8 years at this point. From my discussions with him[,] he seemed extremely
agitated that you requested a 7[-]year offer after previously indicating that you would
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[accept] 8 and after I had successfully negotiated your desired sentence with him; he has
now informed me that the offer is again 9, although I have a feeling that he may again
come down to 8, should you so desire.ā
Ā¶ 17 In March 2010, the trial court advanced defendantās postconviction petition to the second
stage of postconviction proceedings and appointed attorney Keith Davis to represent
defendant. In August 2010, Davis filed a āDeclaration To Stand on Pro Se Pleadingsā and
a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012), averring that
he had consulted with defendant, examined the record of proceedings at trial, and had made
any amendments necessary to adequately present defendantās pro se claims. In September
2010, the State filed a motion to dismiss defendantās postconviction petition.
Ā¶ 18 At a December 2010 hearing on the Stateās motion to dismiss, the State argued, in
pertinent part, that defendantās claim that Dodds was ineffective because he failed to
communicate defendantās desire to accept the Stateās eight-year guilty-plea offer because that
argument was barred by the doctrine of res judicata, and, in any event, counsel was effective.
Defense counsel Davis responded that he agreed with the Stateās position, but not its
rationale. Davis concluded, and expressed to the trial court, that defendantās postconviction
claims were āon shaky footing.ā As to defendantās claims of ineffective assistance of trial
counsel, Davis indicated that the ātenor of most of the plea discussionsā was that defendant
āwas willing to take X-number of years, [and he] was not given that.ā
Ā¶ 19 The trial court then dismissed defendantās postconviction petition, finding, in pertinent
part, as follows:
ā[T]here was kind of a renewed assertion as it relates to an alleged deprivation of
defendantās constitutional rights relating to a plea agreement or plea deal, and the record
*** would indicate that no such agreement had ever been reached between the [S]tate
and *** defendant, there was always a condition precedent, and so there was no meeting
of the minds.ā
Ā¶ 20 This appeal followed.
Ā¶ 21 II. ANALYSIS
Ā¶ 22 Defendant argues that (1) the trial court erred by dismissing his postconviction petition
because he was denied the effective assistance of trial counsel, given that Dodds failed to
communicate his desire to accept the Stateās guilty-plea offer, and (2) he should be afforded
a new hearing because his postconviction counsel, Davis, provided unreasonable assistance
by failing to adequately present his pro se postconviction assertions. We address defendantās
contentions in turn.
Ā¶ 23 A. Defendantās Claim That the Trial Court Erred by
Dismissing His Postconviction Petition
Ā¶ 24 1. Postconviction Proceedings and the Standard of Review
Ā¶ 25 In People v. Andrews, 403 Ill. App. 3d 654, 658, 936 N.E.2d 648, 652-53 (2010), this
court outlined postconviction proceedings under the Post-Conviction Hearing Act, as
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follows:
āA defendant may proceed under the Act by alleging that āin the proceedings which
resulted in his or her conviction[,] there was a substantial denial of his or her rights under
the Constitution of the United States or of the State of Illinois or both.ā 725 ILCS 5/122-
1(a)(1) (West 2006). In noncapital cases, the Act establishes a three-stage process for
adjudicating a postconviction petition. 725 ILCS 5/122-1 through 122-8 (West 2006);
People v. Jones, 213 Ill. 2d 498, 503, 821 N.E.2d 1093, 1096 (2004). At the first stage,
āthe trial court, without input from the State, examines the petition only to determine if
[it alleges] a constitutional deprivation unrebutted by the record, rendering the petition
neither frivolous nor patently without merit.ā (Emphasis in original.) People v. Phyfiher,
361 Ill. App. 3d 881, 883, 838 N.E.2d 181, 184 (2005). āSection 122-2.1 [of the Act]
directs that if the defendant is sentenced to imprisonment (rather than death) and the
circuit court determines that the petition is frivolous or patently without merit, it shall be
dismissed in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2004).ā People v. Torres,
228 Ill. 2d 382, 394, 888 N.E.2d 91, 99-100 (2008).
If a petition is not dismissed at stage one, it proceeds to stage two, where section 122-
4 of the Act provides for the appointment of counsel for an indigent defendant who
wishes counsel to be appointed. 725 ILCS 5/122-4 (West 2006). At the second stage, the
State has the opportunity to answer or move to dismiss the petition. 725 ILCS 5/122-5
(West 2006). If the trial court does not grant the Stateās motion to dismiss or if the State
has filed an answer, the petition proceeds to the third stage, where the defendant may
present evidence in support of his petition. 725 ILCS 5/122-5, 122-6 (West 2006).ā
Ā¶ 26 Here, the trial court dismissed defendantās postconviction petition following a second-
stage hearing on the Stateās motion to dismiss. ā[T]he dismissal of a postconviction petition
at the second stage is warranted only when the allegations in the petition, liberally construed
in light of the trial record, fail to make a substantial showing of a constitutional violation.ā
People v. Snow, 2012 IL App (4th) 110415, Ā¶ 15, 964 N.E.2d 1139. We review de novo the
trial courtās dismissal of a postconviction petition at the second stage. Id.
Ā¶ 27 2. Defendantās Contention That the Trial Court Erred by Dismissing His
Petition Because He Was Denied the Effective Assistance of Trial Counsel
Ā¶ 28 Defendant contends that the trial court erred by dismissing his postconviction petition at
the second stage of postconviction proceedings because he demonstrated that he was denied
the effective assistance of trial counsel, given that Dodds failed to communicate his desire
to accept the Stateās eight-year guilty-plea offer. Specifically, defendant asserts that Dodds
was ineffective because he refused to follow defendantās directive to counter the Stateās
eight-year offer with an offer to plead guilty in exchange for seven years, and if the State did
not accept that counteroffer, to accept the Stateās original eight-year offer. We disagree.
Ā¶ 29 a. Ineffective Assistance of Counsel
Ā¶ 30 Claims of ineffective assistance of counsel are judged under the familiar standard set
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forth in Strickland v. Washington, 466 U.S. 668 (1984). Under that standard, a defendant
āmust show that counselās performance fell below an objective standard of reasonableness
and that there is a reasonable probability that, but for counselās unprofessional errors, the
result of the proceeding would have been different.ā People v. Manning, 241 Ill. 2d 319, 326,
948 N.E.2d 542, 546-47 (2011) (citing Strickland, 466 U.S. at 688, 694).
Ā¶ 31 In this case, defendant claims that Doddsā performance fell below an objective standard
of reasonableness when Dodds failed to follow defendantās directive to communicate his
counteroffer to the State, and if the State rejected his seven-year counteroffer, to accept the
Stateās eight-year offer. Defendantās position in this regard misconstrues the role of a
defendant in plea negotiations.
Ā¶ 32 b. A Defendantās Role in Plea Negotiations
Ā¶ 33 In People v. Rainey, 325 Ill. App. 3d 573, 582, 758 N.E.2d 492, 500 (2001), this court
cited the supreme court decision in People v. Brocksmith, 162 Ill. 2d 224, 229, 642 N.E.2d
1230, 1232 (1994), as holding that there are five decisions that a criminal defendant has a
right to make personally: (1) whether to plead guilty, (2) whether to waive the right to a trial
by jury, (3) whether to testify, (4) whether to appeal, and (5) whether to request jury
instructions on lesser-included defenses. All other decisions are matters of trial strategy on
which the ultimate decision is left to defense counselās sound judgment. Perhaps as
significant, howeverāat least for purposes of this caseāis the fact that each of these decisions
that is āpersonalā to the defendant requires a simple āup or down voteāāthat is, they require
only a āyesā or ānoā answer. For example, when a defendant elects to testify, his role is not
to decide what questions his attorney will ask him once he is on the stand; his role is to
decide whether he will get on the stand at all. See People v. Ramey, 152 Ill. 2d 41, 54, 604
N.E.2d 275, 281 (1992) (holding that trial counsel has the right to make the ultimate decision
with respect to matters of tactics and strategy such as whether and how to conduct the
examination of witnesses after consulting with his client). Likewise, when a defendant elects
to seek a plea agreement, his role is not to āhaggleā with the prosecutor by directing counsel
during the negotiation process; his role is to decide whether to accept or reject the plea
agreement that his counsel and the prosecutor ultimately reached.
Ā¶ 34 Having outlined the criminal defendantās importantābut limitedārole in plea negotiations,
we turn to plea negotiations generally.
Ā¶ 35 c. Plea Negotiations Generally
Ā¶ 36 Plea negotiations are generally governed by the principles of contract law. In 2004, the
supreme court explained that the plea-negotiation process itself is akin to contract
negotiations, as follows:
āAlthough the application of contract law principles to plea agreements may require
ātempering in some instancesā in order to satisfy concerns for due process, plea
agreements are nonetheless subject to traditional principles of contract law absent such
concerns. See [People v.] Evans, 174 Ill. 2d [320,] 326-27[, 673 N.E.2d 244, 247
(1996)]; People v. Bouie, 327 Ill. App. 3d 243, 246[, 763 N.E.2d 858, 860] (2002);
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Coleman v. United States, 318 F.3d 754, 759 n.1 (7th Cir. 2003); United States v.
Muzika, 986 F.2d 1050, 1054 (7th Cir. 1993) (the existence of a plea agreement is
determined by ordinary contract principles of offer and acceptance). Pursuant to
traditional principles of contract, the legal effect of a counteroffer is the rejection of a
standing offer. Sharp Electronics Corp. v. Deutsche Financial Services Corp., 216 F.3d
388, 395-96 (4th Cir. 2000), citing Restatement (Second) of Contracts Ā§ 36 (1981). A
rejected offer cannot be revived by a later acceptance. See Sementa v. Tylman, 230 Ill.
App. 3d 701, 705[, 595 N.E.2d 688, 692] (1992); DāAgostino v. Bank of Ravenswood,
205 Ill. App. 3d 898, 902[, 563 N.E.2d 886, 889] (1990); Sharp Electronics Corp., 216
F.3d at 396. When a defendant rejects a State offer, the parties go āback to the drawing
board.ā Coleman, 318 F.3d at 759.ā People v. Henderson, 211 Ill. 2d 90, 103-04, 809
N.E.2d 1224, 1232 (2004).
Ā¶ 37 Understanding that plea negotiations are governed generally by the principles of contract
law, we turn to the plea negotiations in this case, keeping in mind that defendant contends
that Dodds was ineffectiveāthat is, Doddsā actions fell below an objective standard of
reasonablenessāfor failing to follow defendantās directive to first counter the Stateās offer,
and if the State refused, to then accept the Stateās eight-year offer.
Ā¶ 38 d. The Plea Negotiations in This Case
Ā¶ 39 In this case, the State at one point offered defendant, through Dodds, the opportunity to
plead guilty and, in exchange, the State would recommend that the trial court impose a
sentence of eight years in prison. Dodds, as was his duty, conveyed the Stateās offer to
defendant, who responded by directing Dodds to āsee if he could get [seven] years, but if not,
then let [the State] know that [he would] take the [eight] years.ā Dodds refused, stating that
he was ānot going back to ask for [seven] years.ā Presumably, Dodds understood that if he
countered the Stateās eight-year offer, the legal effect of that counteroffer (as the supreme
court explained in Henderson, 211 Ill. 2d at 104, 809 N.E.2d at 1232) would be the rejection
of the Stateās then-eight-year offer. In other words, Dodds correctly identified defendantās
counteroffer for a seven-year deal as a rejection of the Stateās eight-year offer. Indeed,
defendantās petition and accompanying documents show that he and Dodds argued about
defendantās directive, indicating that defendant did not want to accept the eight-year offer
without first countering it with a request to plead guilty in exchange for seven years in prison.
The fact that defendant later indicated his desire to accept the Stateās eight-year offer at the
July 2007 status hearing is of no consequence; at that point, the offer was āoff the table.ā See
Brach v. Matteson, 298 Ill. 387, 392, 131 N.E. 804, 806 (1921) (an offer āmust be accepted
before it is withdrawn or it becomes inoperativeā); Restatement (Second) of Contracts Ā§ 36
(1981) (an offereeās power to accept may be terminated by, among other things, revocation
by the offeror).
Ā¶ 40 As Doddsā representation was objectively reasonable, defendantās claim that he made a
substantial showing of a constitutional violation because he was denied the effective
assistance of counsel must fail. In so concluding, we emphasize that underlying defendantās
claim is his contention that he, not his counsel, is entitled to direct the plea-negotiation
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process with the State. And we emphasize as well our rejection of that contention, deeming
it wholly incompatible with the teaching of the Supreme Court of Illinois in Brocksmith.
Accordingly, we reject defendantās claim that the trial court erred by denying his
postconviction petition on that basis.
Ā¶ 41 B. Defendantās Claim That He Was Not Afforded Reasonable
Assistance of Postconviction Counsel
Ā¶ 42 Defendant next contends that he should be afforded a new hearing because he was not
provided reasonable assistance of postconviction counsel. Defendant asserts that Davis
provided unreasonable assistance because Davis represented to the trial court that
defendantās postconviction claim was that defendant was willing to plead guilty in exchange
for a certain number of years but that the State did not offer that option, when in reality,
defendant was claiming that Dodds failed to communicate his acceptance of the eight-year
plea offer to the State. Based upon the particular circumstances of this case, we disagree.
Ā¶ 43 The right to counsel in postconviction proceedings is wholly statutory. 725 ILCS 5/122-4
(West 2010). Thus, a defendant is entitled only to the level of assistance required by the
statute; in this case, a āreasonableā level of assistance. People v. Perkins, 229 Ill. 2d 34, 42,
890 N.E.2d 398, 402 (2007). To assure that a defendant receive reasonable assistance, the
supreme court has imposed the following specific duties upon postconviction counsel in
Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012): ācounsel must (1) consult with the
[defendant] either by mail or in person to ascertain the contentions of deprivation of
constitutional rights; (2) examine the record of the trial court proceedings; and (3) make any
amendments to the pro se petition necessary for an adequate presentation of the [defendantās]
contentions.ā Perkins, 229 Ill. 2d at 42, 890 N.E.2d at 403.
Ā¶ 44 Here, Davis filed a certificate, certifying that he complied with Rule 651(c). Defendant
claims, however, that Davis nevertheless failed to adequately present his postconviction
contention related to plea negotiations to the trial court. Our review of the record refutes
defendantās claim in this regard in that the courtās findings at the second-stage hearing show
that the court clearly understood defendantās postconviction contentionānamely, that Dodds
failed to communicate his acceptance of the Stateās eight-year guilty-plea offer. However,
the court found that the parties had failed to reach an agreement because āthere was always
a condition precedent.ā That ācondition precedent,ā as the court put it, was that Dodds had
to first ask for the seven years before defendant would accept the eight-year offer from the
State.
Ā¶ 45 The record affirmatively shows that defendantās postconviction claims were adequately
presented to the trial court, and that the court understood and correctly ruled upon those
claims. We understand defendantās concerns about his postconviction counsel and agree that
counsel should have been a more vigorous advocate on defendantās behalf at the second-
stage hearing on the Stateās motion to dismiss defendantās postconviction petition.
Nonetheless, on this record, we reject defendantās contention that he should be afforded a
new hearing.
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Ā¶ 46 III. CONCLUSION
Ā¶ 47 For the reasons stated, we affirm the trial courtās judgment. As part of our judgment, we
award the State its $75 statutory assessment as costs of this appeal.
Ā¶ 48 Affirmed.
Ā¶ 49 JUSTICE COOK, specially concurring.
Ā¶ 50 I concur in the decision to affirm the trial courtās dismissal of defendantās postconviction
petition. I disagree, however, with the suggestion that defendantās only role during the plea-
negotiation process is to decide whether to accept or reject the plea agreement that his
counsel and the prosecutor ultimately reached. An attorney has a duty to keep his or her
client informed of all developments in the case and the attorneyās progress in preparing the
defense. ā[A]part from the five decisions that ultimately belong to a defendant in a criminal
case, trial counsel has the right to make the ultimate decision with respect to matters of
tactics and strategy after consultation with the client.ā (Emphasis added.) People v.
Clendenin, 238 Ill. 2d 302, 320, 939 N.E.2d 310, 321 (2010). Clendenin dealt with a
stipulation to the admission of evidence which was not tantamount to a guilty plea.
Clendenin held that defense counsel may validly waive a defendantās confrontation right by
agreeing to such a stipulation āas long as the stipulation is part of counselās trial tactics and
strategy, and the defendant does not object.ā (Emphasis added.) Clendenin, 238 Ill. 2d at 320,
939 N.E.2d at 321. Defendant is not āentitled to direct the plea-negotiation process with the
Stateā (supra Ā¶ 40), but defendant does have some say in the matter.
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