THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. JUAN J. TAPIA, Defendant-Appellant.
Docket No. 2-11-1314
Appellate Court of Illinois, Second District
January 9, 2014
2014 IL App (2d) 111314
Hon. Christopher R. Stride, Judge, presiding.
Illinois Official Reports
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
The denial of defendant‘s postconviction petition alleging that his trial counsel was ineffective in failing to correct an error in his presentence investigation report was affirmed, since defendant forfeited that claim by failing to raise the issue in a postjudgment motion or in his direct appeal, and forfeiture aside, even if his counsel‘s representation was deficient, defendant failed to establish that he suffered any prejudice.
Decision Under Review
Appeal from the Circuit Court of Lake County, No. 03-CF-3149; the Hon. Christopher R. Stride, Judge, presiding.
Judgment
Affirmed.
Counsel on Appeal
Thomas A. Lilien and Josette Skelnik, both of State Appellate Defender‘s Office, of Elgin, for appellant.
Michael G. Nerheim, State‘s Attorney, of Waukegan (Lawrence M. Bauer and Colleen P. Price, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
Panel
JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices McLaren and Zenoff concurred in the judgment and opinion.
¶ 1 Defendant, Juan J. Tapia, appeals a judgment denying his petition for relief under the Post-Conviction Hearing Act (Act) (
I. BACKGROUND
¶ 2 In September 2003, defendant was charged by complaint with two counts of attempted murder (
¶ 3 On October 9, 2007, defendant, represented by attorney Barry Boches, entered a negotiated guilty plea to the attempted murder of Rosio, a Class X felony with a sentencing range of 6 to 30 years’ imprisonment (see
¶ 4 The State presented the following factual basis for the plea. On August 28, 2003, defendant, the two victims, and Rene Gonzalez (Rene) (no relation to Rosio) were sitting in a parked van. Defendant and Rene exited the van; defendant handed Rene a knife and told him to stab Rosio while he attacked Martinez. Rene refused. Defendant opened the van door and stabbed Martinez twice in the torso; she ran off. Defendant then reached in and tried to stab Rosio. She left the van and ran, but defendant caught up to her, stabbed her in the chest and twice in the abdomen, and slashed her across the back of her left shoulder and across her temple. In the month preceding the attacks, defendant had told Rene that he believed that Martinez was cheating on him and that he wanted to kill her.
¶ 5 The PSI revealed the following pertinent information. Both victims were 15 years old on August 28, 2003. Martinez suffered stab wounds that required surgery, and she was
¶ 6 The PSI related the following about the history of the case. Defendant was arrested on August 28, 2003. On September 2, 2003, he posted bond and was released, but, on September 23, 2003, he failed to aрpear in court, and a warrant was issued for his arrest. Defendant had fled to Mexico, where he later met and married Martinez. They had a daughter. In 2005, the three of them moved to Davenport, Iowa. There, defendant was accused of kidnapping his daughter. After he gave the child to his mother, he fled to Georgia, where he incurred new charges. He was extradited to Illinois in February 2007. Since then, he had been in jail, with no major disciplinary problems.
¶ 7 According to the PSI, defendant, who was born April 1, 1982, had no juvenile record. On December 21, 2000, he pleaded guilty to unlawful use of a weapon, a Class A misdemeanor, and received 18 months’ court supervision, which was terminated satisfactorily. On May 9, 2002, he pleaded guilty to three counts of criminal damage to property and was sentenced to 30 months’ felony probation. In May 2002, defendant received supervision for driving under the influence of alcohol. On November 18, 2002, he pleaded guilty to resisting a peace officer, a Class A misdemeanor; that day, the trial court revoked his probation for criminal damage to property and resentenced him to two years’ imprisonment.
¶ 8 In the PSI it was noted that, on April 29, 2006, defendant was arrested in Gwinnett County, Georgia, for “False Identification Documents (felony, 2 counts), Burglary (felony), Criminal Trespass (misdemeanor), Simple Assault (misdemeanor) and give False Name/Address/Birth-date to Police.” The PSI also contained information that, on February 8, 2007, defendant pleaded guilty to the two counts of “False Identification Documents” and was sentenced to consecutive 12-month probation terms. He was then immediately returned to Illinois. Finally, as to defendant‘s criminal record, the PSI noted that, on October 10, 2005, Davenport police obtained a warrant to arrest him for kidnapping and child stealing, based on Martinez‘s accusation that he had stolen their daughter; the warrant was still active.
¶ 9 According to the PSI, defendant related that he left high school in 1996 but, in 1999, obtained certification as a computer technician and received a G.E.D. He worked in computers, then construction. In Mexico, he ran a chicken farm and sold it at a profit. He had been gainfully employed in Iowa and Georgia. He claimed that the kidnapping charge was based on a misunderstanding.
¶ 10 On December 17, 2007, the trial court, Judge Phillips presiding, held a sentencing hearing. At the outset, both the prosecutor and Boches told the court that they had reviewed the PSI and had no corrections or additions. The State then called Donald Paulsen, the police officer who
¶ 11 In mitigation, defendant called his parents and Martinez. Defendant‘s mother testified that she wanted him to be available, because she was chronically ill. Defendant‘s father testified that defendant had dropped out of school in tenth grade because of the gang activity there. Martinez testified that defendant had been a good father to their daughter, who was now three. Since August 2003, defendant had changed “a lot“; he no longer drank. A few months after the crime, Martinez had her baby, then went to Mexico and married defendant. Later, they moved to Iowa. At one point, she reported to the police that he had taken their daughter, but she had been mistaken; he had only dropped off the child at a relative‘s home. After defendant moved to Georgia, he regularly sent Martinez money.
¶ 12 In arguments, the prosecutor contended that defendant‘s account of the offense, as recorded in the PSI, differed widely from the evidence and demonstrated that defendant was minimizing his responsibility for his acts. Defendant had a serious criminal record even before August 28, 2003, and, after he was charged, he fled Illinois. Yet, despite being a fugitive, he “picked up offenses in Iowa, for which he must still answer; and he also picked up offenses in Georgia, for which he was convicted and sentenced.” Moreover, despite supportive parents and marketable job skills, he still chose to commit crimes. The prosecutor asked the court to sentence defendant to the 18-year cap.
¶ 13 Boches argued that, for most of the time after getting out on bond, defendant “did stay arrest free. His stay in Iowa, thеre was an explanation for that. He was never found guilty of that. I‘m not sure what the probation or what the item we‘re talking about Georgia is about [sic].” Defendant had taken responsibility for this offense and demonstrated rehabilitative potential. Boches asked the court to sentence defendant to “something more along the minimum.”
¶ 14 The trial judge stated as follows. In mitigation, it appeared that defendant had “gotten some control over [his] life” and was trying to care properly for his wife and child. In aggravation, however, were several considerations, the first being the offense itself. The photographs showed “a [sic] awful lot of blood.” Rosio had suffered several serious cuts. Although the judge did not consider in aggravation the threat of serious harm, that being implicit in the charge of attempted first-degree murder, he did consider “how this offense was, in fact, committed in this case.” Further, although Martinеz and defendant‘s parents supported him, Martinez‘s testimony had “very little credibility” and defendant had not in fact been taking care of his mother.
¶ 15 The judge continued:
“In aggravation, however, I am considering your prior criminal history. And certainly you do have a prior felony conviction in this state where you eventually after failing probation went to the Department of Corrections. There were other offenses
after that, and currently you have a pending probation case for felonies in the State of Georgia that were committed in 2006. I‘m not considering anything at all in aggravation or otherwise other to have knowledge that there is a warrant still outstanding for your arrest in Iowa, and certainly you remain presumed innocent in that. And according to what your wife testified [to] today, there does not appear to be a lot of evidence; but nobody is going to prejudge that case, particularly I.”
¶ 16 The judgе observed that defendant had “created *** havoc and the damage to a very young female.” Defendant had “fled this jurisdiction” and gone to Mexico but eventually “did take responsibility by pleading guilty.” The judge concluded that a sentence of 15 years was appropriate. After being sentenced, defendant did not file a postjudgment motion or a direct appeal. On September 17, 2009, defendant filed a “Motion For Order Nunc Pro Tunc” requesting additional credit for time served, including time in Georgia while awaiting extradition to Illinois. On September 24, 2009, the judge entered an order granting this request.
¶ 17 On December 7, 2009, defendant filed a pro se postconviction petition under the Act. The only factual allegations were contained in paragraph five, which stated that “[t]he trial court took into consideration improper aggravating factors of case No. 06-B-5117-9 listed as a felony conviction in the P.S.I. before the court in fashioning a sentenсe in this case, when in fact case No. 06-5117-9 are misdemeanors. See attached Exhibits [sic] A); and counsel was ineffective in not correcting these facts before the court or going over the P.S.I. with petitioner to make corrections in violation of petitioner‘s 5th, 6th, and 14th Amendment Constitutional rights.” (Emphasis added.) Attached to defendant‘s petition was his certificate prepared pursuant to section 1-109 of the Code of Civil Procedure (
¶ 18 Also attached to the petition was a copy of the court order disposing of case number 06-B-5117-9 in the superior court of Gwinnett County, Georgia. The order reflects that on February 7, 2007, defendant entered a negotiated plea to two misdemeanor counts of “manufacturing false identification document” in exchange for consecutive terms of 12 months’ probation. Printed at the top of the order in bold capital letters are the words, ”FINAL DISPOSITION/NEGOTIATED PLEA/MISDEMEANOR SENTENCE.” In еxchange for defendant‘s pleas to those charges, the State of Georgia nol-prossed charges of burglary, simple assault, criminal trespass, and giving a false name. Judge Phillips reassigned the case to Judge Stride. Judge Stride docketed the petition, finding that defendant had raised the gist of a constitutional claim, and appointed counsel for defendant. Counsel filed an amended petition, raising the claim that Boches had provided ineffective assistance in two respects. First, Boches had failed to recognize and correct a crucial error in the PSI: the statement that, in Georgia in 2006, defendant had been convicted of two counts of a felony, “False Identification Documents.” The amended petition noted that, in sentencing defendant, the judge had specifically mentioned the “felonies in the State of Georgia.” Second, Boches had failed to objeсt when the judge mentioned defendant‘s arrest warrant in Iowa, as defendant was presumed innocent of the charges. Counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984), but did not attach any affidavits to the amended petition.
¶ 20 On October 6, 2011, prior to the argument on the motion to dismiss, the State asked that the trial court not consider Boches’ affidavit and the court agreed. The State then argued that defendant remained silent at the sentencing hearing and did not offer any corrections and that Boches did not represent defendant in the State of Georgia. Defense counsel responded by arguing that defendant “was never given a copy of the P.S.I. to review. That was done with Mr. Boches while he was incarcerated in Lake County Jail, and he was never actually able to view the P.S.I.” (Emphasis added.)
¶ 21 The trial court denied the motion to dismiss, finding that there was no basis for the dismissal at that point. On October 25, 2011, the State answered the amended petition and maintained that defendant had failed to satisfy either prong of the test in Strickland v. Washington, 466 U.S. 668 (1984), for evaluating claims of ineffective assistance of counsel. The State also argued that the record showed that defendant had the opportunity to review the PSI and remained silent regarding the inaccuracy and that, through his silence, he waived the issue. Further, the State argued that there was no assertion that Boches knew of the error or that defendant informed him of the error.
¶ 22 On December 20, 2011, the day of the third-stage hearing, defendant filed an affidavit in which he stated as follows. He did not receive a copy of the PSI to review until the date of sentencing. Before then, he had discussed his background with Boches. On December 17, 2007, just before sentencing, Boches showed defendant the PSI and “asked [him] to very quickly to look over it.” Dеfendant did so and told Boches that he “did not notice any errors but could not be sure because [he] did not understand all of the legalese in it.” Boches saw no errors either. He “assured [defendant] that everything was in order, even though he was aware of [defendant‘s] criminal history.”
¶ 23 The State indicated its intent to call Boches, who would be arriving shortly. The court stood in recess. After the recess, the parties agreed to proceed “based on the affidavit” of Boches. The court stated that “[i]t‘s a very narrow issue that‘s being presented here. I think it‘s appropriate to proceed with the hearing via affidavit, there being no objection from the defense.” After submitting Boches’ affidavit, the State rested. The court took judicial notice of the sentencing hearing transcript. Defendant presented no rebuttal.
¶ 25 When the case was called for hearing, the trial court asked the State if it was conceding that the Georgia convictions were of misdemeanors. The State said, “[t]hat‘s correct, judge.” Next, the trial court asked defense counsel if defendant was still maintaining that when “the sentenсe was held, Mr. Boches failed to review the presentence investigation report with the defendant.” Counsel initially said yes, but then said, “I‘m sorry. Not that he failed to complete the two. He did-in the affidavit he stated that he did review it with him. He didn‘t review it with him. He gave him a copy of the PSI just minutes before the sentencing hearing went, and that was the time he was given to review the PSI and that was it.” Counsel indicated that defendant had no other evidence to present and was resting on the pleadings and defendant‘s affidavit. The State raised no objection to this procedure.
¶ 26 In response, the State first addressed the amended petition‘s claim that Boches had been ineffective for failing to object to the trial court‘s consideration of the Iowa arrest warrant for defendant. The State noted the judge‘s statement that he was “not considering anything at all, in aggravation or otherwise,” in relation to the Iowа case, as defendant was presumed innocent in that case. Next, the State addressed Boches’ alleged ineffectiveness for failing to recognize and point out that the two Georgia convictions were of misdemeanors, not felonies. The State noted that defendant had never asserted that he ever told Boches that the two convictions were of misdemeanors. Boches had not represented defendant in the Georgia case, so Boches had had no way of knowing that the convictions were of misdemeanors; therefore defendant had not met his burden of proving deficient performance. Further, defendant had shown no prejudice from Boches’ alleged carelessness. Defendant had been sentenced to three years less than the cap. In reply, defendant argued that Boches had had a duty to discuss the Georgia convictions with defendant and a more general duty to research the issue “if there were question marks.”
¶ 27 After taking the case under advisement, the trial court denied the amended petition. The court explained that at a third-stage evidentiary hearing the defendant bears the burden of making a substantial showing of a constitutional violation. The court summarized defendant‘s position, that as a result of counsel‘s deficient performance in failing to discover and correct the error in the PSI regarding the Georgia convictions, Judge Phillips “erroneously relied upon those convictions being felonies” in arriving at his sentence. The court said that it had reviewed the affidavits as well as the transcript of the sentencing hearing. The court observed that during the sentencing hearing Judge Phillips asked both the State and defendant if they had reviewed
¶ 28 The court noted that, while Judge Phillips “absolutely” referred to the Georgia case, he also considered the rest of defendant‘s criminal history, including a prior felony conviction in Illinois, his failure to successfully complete probation, and a sentence to the Department of Corrections. The court noted also that Judge Phillips expressly declined to consider the active arrest warrant from Iowa. The court found that defendant had not proven that Boches’ performance was objectively unreasonable. The court then went on to hold that, even assuming that defendant had proven deficient performance, it could not say that the result of the proceedings would have been different “had Mr. Boches said, ‘well, judge, that probation isn‘t for felonies, it‘s for misdemeanors.’ ”
¶ 29 The court concluded, “I cannot find that the defendant has met their [sic] burden of making a substantial showing of a constitutional violation, and defendant‘s post-conviction petition is denied.” Defendant timely appealed.
II. ANALYSIS
¶ 30 On appeal, defendant argues that the trial court erred in denying his amended postconviction petition, because the evidence proved both that Boches’ failure to recognize and correct the PSI error concerning the Georgia convictions was objectively unreasonable and that defendant was prejudiced thereby. Defendant аrgues that, based on discussions with Boches prior to the date of his sentencing, Boches “was aware of the true nature of his Georgia convictions.” Defendant no longer contends that Boches was ineffective for failing to object to the reference to the open arrest warrant from Iowa. The State responds first by asserting that defendant, having been given proper admonishments under Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001), procedurally defaulted his claim because he did not raise it, as he could have, in a postjudgment motion or a direct appeal. Alternatively, the State argues that defendant failed to prove that Boches’ performance was deficient. Further, the State argues that, even if Boches’ performance was deficient, defendant failed to establish that he was prejudiced.
¶ 32 The Unified Code of Corrections requires the sentencing court to “consider any presentence reports.”
¶ 33 We first аddress the State‘s forfeiture claim. As the State points out, defendant did not file a postjudgment motion or a direct appeal in this case. Ordinarily, forfeiture bars a postconviction claim that could have been, but was not, raised on direct appeal. People v. Blair, 215 Ill. 2d 427, 453 (2005). Because defendant entered a partially negotiated plea, he could not have moved to reconsider his sentence on the sole ground that it was excessive or sought appellate relief on that ground. People v. Linder, 186 Ill. 2d 67, 74 (1999) (defendant who agrees to a potential sentencing range implicitly concedes that a sentence imposed within the range cannot be excessive). Defendant‘s claim does not involve mere excessiveness, but instead alleges that, due to counsel‘s deficient performance, the trial court considered inaccurate information, resulting in a longer sentence than defеndant would have otherwise received. In the trial court, the State argued that defendant had waived this claim by remaining silent after he had an opportunity to review the PSI.
¶ 34 On appeal, the State argues that defendant has forfeited his claim of ineffective assistance of counsel because the facts and record for this claim existed when he could have taken a direct appeal. Blair, 215 Ill. 2d at 443-44. As our supreme court recently explained:
“The common law doctrine of waiver bars a claim that could have been presented previously. See People v. Blair, 215 Ill. 2d 427, 443 (2005). Waiver is distinct from forfeiture, however. While forfeiture applies to issues that could have been raised but were not, waiver is the voluntary relinquishment of a known right. Blair, 215 Ill. 2d at 443-44 & n.2. In Blair, this court noted, ’ “[w]hereas forfeiture is the failure to make the timely assertion of the right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” ’ Blair, 215 Ill. 2d at 444 n.2, quoting United States v. Olano, 507 U.S. 725, 733, 123 L. Ed. 2d 508, 519, 113 S. Ct. 1770, 1777 (1993).
In determining whether a legal claim has been waived, courts examine the particular facts and circumstances of the case. See Edwards v. Arizona, 451 U.S. 477, 482, 68 L. Ed. 2d 378, 385, 101 S. Ct. 1880, 1884 (1981). Waiver principles are construed liberally in favor of the defendant. United States v. Jaimes-Jaimes, 406 F.3d 845, 848-49 (7th Cir. 2005).” People v. Phipps, 238 Ill. 2d 54, 62 (2010).
¶ 36 In his reply brief, defendant claims that the State has forfeited its claim of procedural default because “the State never alleged during the entire course of the post-conviction proceedings below that the petitioner procedurally defaulted his ineffective assistanсe claim by failing to file a post-plea motion or a direct appeal.” We disagree. We note that the State argued waiver in the trial court and has not indicated that it wishes to forgo the affirmative defense of procedural default on appeal. Blair, 215 Ill. 2d at 456.
¶ 37 Defendant argues in his reply brief that he was “not required to seek to vacate his plea as his only available remedy for counsel‘s deficient representation.” He argues that, rather than claiming that his “sentence is excessive per se,” he is alleging “that the procedures used to determine his sentence were improper because, due to ineffective representation by plea counsel, the trial judge relied on inaccurate and unreliable information when determining his sentence” (emphasis in original). Defendant then provides a “see” cite to People v. Economy, 291 Ill. App. 3d 212 (1997). Defendant‘s reliance on Economy is misplaced. In Economy, the defendant entered a negotiated plea, seeking entry into the Treatment Altеrnatives for Safe Communities (TASC) program. The trial court sentenced the defendant to prison. The defendant filed a motion to reconsider his sentence, which was denied. On appeal, the State argued that all of the defendant‘s claims were waived. The appellate court agreed on all claims except the defendant‘s claim that the trial court misapplied the law by considering improper sentencing factors, as that claim was not merely that the sentence was excessive and the claim was included in his motion to reconsider his sentence. Id. at 219 (citing People v. Catron, 285 Ill. App. 3d 36, 37-38 (1996)). The appellate court reached the merits of that claim and rejected it. Of course, Economy predates Linder, where the supreme court held that where the sentence imposed is within the agreed range the defendant may not challenge his sentence without first moving to withdraw his guilty plea. Linder, 186 Ill. 2d at 74.
¶ 38 Defendant also cites People v. Doguet, 307 Ill. App. 3d 1 (1999), for the proposition that, despite his nеgotiated plea, he can challenge the trial court‘s consideration of improper or unreliable evidence at sentencing and request a new sentencing hearing. Defendant acknowledges that the appellate court did not address the merits of this issue in Doguet, however, because the case was remanded “for the trial court to admonish defendant of his right to file a motion to withdraw his guilty plea and the consequences thereof.” Id. at 7. The defendant was charged with first-degree murder of his wife. The State agreed to allow him to plead to second-degree murder and dismissed the first-degree-murder charge. The defendant was sentenced to 11 years’ imprisonment. The trial court‘s admonishments were defective because the defendant was told “that if he wanted to appeal his sentence, he would first have to file a motion to reconsider sentence.” Id. at 3. The defendant filed a motion to reconsider his sentence, which the trial court denied. As part of his motion, defendant claimed that in determining his sentence the trial court improperly relied on a letter, purportedly written by the
¶ 39 Finally, defendant relies on People v. Hermann, 349 Ill. App. 3d 107 (2004), for the proposition that he was not required to file a motion to withdraw his plea where he alleges not that his sentence was excessive but that the trial court improperly applied the law. In Hermann, the defendant entered a negotiated guilty plea to two counts of criminal damage to property. At a restitution hearing, the trial court ordered restitution on a dismissed count. The defendant filed a motion to reconsider the sentence, which was denied. However, the defendant‘s attorney failed to file a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. Nov. 1, 2000). Relying on People v. Janes, 158 Ill. 2d 27 (1994), this court reversed the denial of the defendant‘s motion to reconsider and remanded the case so that the defendant could file a new postjudgment motion and for a hearing in compliance with Rule 604(d). In also determining that the defendant could challenge her sentence by filing only a motion to reconsider, this court said:
“The motion did not allege that the sentence was excessive and was not an improper attempt by defendant to avoid or modify the terms of her plea agreement with the State. Instead, defendant argued that the trial сourt was without statutory authority to order restitution on the dismissed charge. Also, defendant asserted that the plea agreement entered into by the parties did not require the payment of restitution on the dismissed charge. Under these circumstances, Rule 604(d) did not require defendant to file a motion to withdraw her guilty plea and to vacate the judgment. [Citations.] Hence, dismissal of the appeal is not warranted.” Hermann, 349 Ill. App. 3d at 114.
¶ 40 In each of the cases relied upon by defendant, the alleged error, whether it related to an improper application of the law, an improper receipt of evidence, or the imposition of a sentence that was not agreed upon, there was a timely objection and the issue was raised in a postjudgment motion. None of these cases helps defendant‘s cause. Defendant did not file a postjudgment motion. Instead he waited more than two years to raise the claim in his pro se petition.
¶ 41 The State argued below that defendant had the opportunity to review the PSI and through his silence waived the issue. The State did not cite any cases in support of this proposition. However, our research led us to People v. Harden, 221 Ill. App. 3d 993 (1991), where the defendant made an argument similar to defendant‘s argument in this case. There, after a bench trial the defendant was convicted of armed robbery and sentenced to an extended term of 60 years’ imprisonment. He filed a postconviction petition, alleging in part that he was denied effective assistance of counsel because trial counsel did not apprise the sentencing court that a prior federal conviction “had apparently been vacated.” Id. at 994-95. The defendant‘s petition was dismissed without an evidentiary hearing. The First District affirmed, holding that the defendant had waived the issue. Id. at 995. The court stated:
“It is significant that defendant did not allege he was unaware of the district court‘s 1976 order regarding his Federal conviction. It is clear that defendant could have raised this issue in the direct appeal, but he did not do so. Defendant did present a related issue, that the extended-term sentence based upon his prior Federal conviction was improper. This court held that issue was waived because of defendant‘s failure to object in the trial court. The supreme court concluded that we correctly held that defendant had waived any question on the propriety of the imposition of an extended term based on his Federal conviction.” Id. at 995-96 (citing People v. Harden, 113 Ill. 2d 14, 18 (1986)).
¶ 42 In Harden, as in this case, the sentencing court received in evidence a PSI. The report, like here, had been examined by the defendant. As in Harden, defendant does not claim that he was unaware of the true nature of the Georgia convictions. To the contrary, he argues that he was awаre and so informed Boches prior to the date of the sentencing hearing. The Harden sentencing court “observed that the defendant‘s criminal record showed a Federal conviction for ‘Armed Bank Robbery.’ ” Harden, 113 Ill. 2d at 17. The supreme court noted that, during the sentencing hearing, the defendant, except by requesting a minor deletion, did not object to the admission of the PSI or to its reference to the defendant‘s having had a federal conviction of armed bank robbery. Id. at 18-19. By not objecting, the defendant did not preserve the issue. Id. at 19.
¶ 43 It is clear that under Illinois law a presentence report is generally a reliable source for the purpose of inquiring into a defendant‘s criminal history. People v. Williams, 149 Ill. 2d 467, 491 (1992). It is equally clear that “[a]ny claimed deficiency or inaccuracy within a presentence report must first be brought to the attention of the sentencing court, and a failure to do so results in waiver of the issue on review.” (Emphases added.) Id. at 493. As the court in Williams made clear, a defendant hаs an obligation to notify the sentencing court that he believes that the presentence report is deficient. Id. In this case, defendant concedes that he reviewed the PSI prior to the sentencing hearing. While defendant‘s affidavit provides some explanation for his failure to catch the error when he reviewed the PSI, that he “did not understand all of the legalese in it,” there is no explanation for defendant‘s failure to speak up when the sentencing judge specifically referenced “the felonies in the state of Georgia.” For postconviction purposes, we conclude that defendant has forfeited the issue.
¶ 44 Whereas waiver precludes review, forfeiture permits review under the plain-error doctrine. People v. Bowens, 407 Ill. App. 3d 1094, 1101 (2011) (citing People v. Townsell, 209 Ill. 2d 543, 547-48 (2004)). But even if we were to relax the rules of forfeiture, defendant‘s claim of ineffective assistance of counsel is completely without merit. To be entitled to relief, a defendant has the burden to prove a substantial deprivation of a constitutional right. Pendleton, 223 Ill. 2d at 471. In proving ineffective assistance of counsel, he must first overcome a strong presumption that counsel provided competent representation. Strickland, 466 U.S. at 689. We understand the trial court‘s decision to docket defendant‘s pro se petition. In his petition, defendant alleged that Boches “was ineffective in not correcting these facts before the court or going over the PSI with petitioner to make corrections.” (Emphasis added.) This assertion was not clearly rebutted by the trial court record. It is worth noting that the trial court allowed the
¶ 45 As the supreme court has explained, “[t]he issue of incompetency of counsel is always to be determined from the totality of counsel‘s conduct.” People v. Mitchell, 105 Ill. 2d 1, 15 (1984). In this case, defendant was originally facing a sentence of 12 to 60 years. See
¶ 46 Finally, even if we were to find that Boches was deficient for failing to correct the PSI, defendant has failed to prove any resulting prejudice. Under Strickland, proof of prejudice cannot be based on mere conjecture or speculation. People v. Palmer, 162 Ill. 2d 465, 481 (1994). Instead, defendant was required to show that сorrecting the Georgia conviction information “would have likely resulted in a lesser sentence.” People v. Williams, 272 Ill. App. 3d 868, 880 (1995). The sentencing court‘s reference to the Georgia case was nothing more than a passing reference and took up one line of seven transcript pages of its findings. The court was merely observing that defendant continued to violate the law after his felony conviction in Illinois and sentence to the Department of Corrections. We further note that in its sentencing argument, while the State made reference to the Georgia convictions, it did not emphasize that they were of felonies. The sentencing court noted that, while they were of “felonies,” defendant received a “probation” sentence. It was defendant‘s burden to prove more than the possibility that the error prejudiced him. Defendant did not carry his burden of proving prejudice.
III. CONCLUSION
¶ 47 Accordingly, the judgment of the circuit court of Lake County is affirmed.
¶ 48 Affirmed.