text:
    The PEOPLE of the State of Illinois, Appellee, v. Anthony S. BROWN, Appellant.
    Docket No. 121681
    Supreme Court of Illinois.
    Opinion filed November 30, 2017.
    Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy Defender, and Ann Fick, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
    Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Michael L. Cebula, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

¶ 1 In this appeal, we address a disagreement in the appellate court on the proper standard for reviewing a guilty-plea defendant's challenge to his plea counsel's performance raised in a petition seeking relief under the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 2014)). The specific issue presented is whether defendant made a substantial showing of a violation of his constitutional right to counsel by alleging that he entered into a negotiated guilty-plea agreement in reliance on his counsel's erroneous sentencing advice.

¶ 2 The trial court granted the State's motion to dismiss defendant's postconviction petition without an evidentiary hearing. The appellate court affirmed. In relevant part, the court rejected two other appellate court decisions holding that such a claim was sufficient, standing alone, to establish prejudice and to warrant an evidentiary hearing. See 2016 IL App (4th) 140760, ¶¶ 11, 25, 409 Ill.Dec. 314, 67 N.E.3d 526 (disagreeing with and ultimately rejecting People v. Kitchell , 2015 IL App (5th) 120548, 393 Ill.Dec. 840, 35 N.E.3d 232, and People v. Stewart , 381 Ill. App. 3d 200, 320 Ill.Dec. 317, 887 N.E.2d 461 (2008) ). For the reasons that follow, we agree with the appellate court's conclusion and affirm its judgment, albeit under a slightly different rationale.

¶ 3 BACKGROUND

¶ 4 On September 13, 2012, defendant Anthony S. Brown was charged by information with the offenses of being an armed habitual criminal ( 720 ILCS 5/24-1.7(a) (West 2012)) and home invasion with a firearm ( 720 ILCS 5/19-6(a)(3) (West 2012)). The charges arose from an incident that occurred on September 9 in Champaign, Illinois, at the home of defendant's former girlfriend.

¶ 5 On May 6, 2013, defendant entered a fully negotiated guilty plea to the charge of being an armed habitual criminal in the circuit court of Champaign County. In exchange, defendant was sentenced to 18 years' imprisonment, and the State nol-prossed the home invasion charge.

¶ 6 Before entry of the plea agreement, the trial court explained the charges, noting that defendant was charged as an armed habitual criminal after having previously been convicted of unlawful use of a weapon by a felon and unlawful possession with intent to deliver cannabis. The court admonished defendant that the armed habitual criminal charge was a Class X felony with a minimum sentence of 6 years and a maximum sentence of 30 years, a 3-year term of mandatory supervised release, and a potential fine of $25,000. The court further admonished defendant of his trial rights and the consequences of waiving those rights and entering a guilty plea. Defendant responded that he understood his rights and that he intended to plead guilty.

¶ 7 In presenting the plea agreement, the State recommended a sentence of 18 years' imprisonment and payment of fees. When asked by the trial court if defendant agreed with those terms, defendant responded affirmatively. Defendant denied that he was promised anything and denied that he was threatened or forced to accept the plea agreement.

¶ 8 The State then offered the following factual basis for the plea agreement:

"On September 9 of 2012, Champaign police were called to 1207 Crispus in Champaign by Shauntrayah Foster and Taylor Rodgers, who were reporting that the defendant, who they knew as their mother's ex-boyfriend, was in the home with a gun. Police responded and had to force entry into the home. As they forced entry, the defendant ran down the hallway towards them. Three police officers saw him lifting the gun from the area of his waistband [and] pointing it in their direction. They discharged their weapons. The revolver was recovered where [defendant] dropped it. It was sent to the state lab and determined to be a .22 caliber revolver that was in functioning condition."

After the State concluded its factual basis, the trial court asked defendant's attorney if he believed the State had witnesses who would testify to those facts. Defense counsel responded affirmatively. The court asked defendant if he was pleading guilty to the charge of being an armed habitual criminal, and defendant responded "yes."

¶ 9 The trial court accepted the plea agreement and proceeded to sentencing. Consistent with the plea agreement, the court sentenced defendant to 18 years' imprisonment and dismissed the home invasion charge.

¶ 10 On May 22, 2013, defendant filed a pro se notice of appeal. Defendant attached a signed affidavit, indicating that he "took plea at 50% not 85%." The trial court appointed the Office of the State Appellate Defender to represent defendant.

¶ 11 On June 7, 2013, defendant filed a pro se motion for reduction of sentence, asserting that he received ineffective assistance of trial counsel because his counsel erroneously advised defendant that he would serve only 50% of his 18-year sentence. The trial court denied the motion because defendant entered a negotiated guilty plea and, therefore, was not permitted to file a motion to reduce sentence.

¶ 12 On August 16, 2013, the appellate court dismissed defendant's direct appeal at his request. Defendant did not refile an appeal.

¶ 13 On February 27, 2014, defendant filed a pro se postconviction petition, challenging the constitutionality of the armed violence statute that relied on his prior conviction for unlawful use of a weapon. Defendant also argued that he received ineffective assistance of trial counsel because counsel misinformed him on his potential eligibility for good time credit and incorrectly advised defendant that he would serve only 50% of his 18-year sentence.

¶ 14 The trial court appointed the Champaign County public defender to represent defendant in the postconviction proceedings. Defendant's counsel filed an amended postconviction petition on June 19, 2014. The amended petition is the subject of this appeal.

¶ 15 Defendant's amended petition withdrew his constitutional challenge to the armed violence statute and, instead, focused exclusively on his sentencing claim. Specifically, defendant alleged that trial counsel told him that he would serve 85% of his sentence if convicted of the home invasion charge but that he would serve only 50% of his sentence if convicted of the armed habitual criminal charge. Defendant noted that his counsel's advice was erroneous because the applicable sentencing statute requires a person convicted of the offense of armed habitual criminal to serve 85% of the sentence ( 730 ILCS 5/3-6-3(a)(2)(ii) (West 2012)). In addition, the record of the plea hearing demonstrates that defendant was not advised on how much of his sentence he would have to serve. Nor did any of the accompanying documentation (the charges, the sentencing papers, or the mittimus) include that information. Defendant further alleged in his amended petition that his counsel's ineffective assistance prejudiced him because he pleaded guilty based on the erroneous belief that he would serve only 50% of his 18-year sentence when he actually must serve 85%, an additional 6 years in prison. Defendant asserted that if he had been properly advised on sentencing he "would not have accepted the plea and would have taken the case to trial wherein he would have been acquitted." Defendant argued that he made the requisite "substantial showing of a violation of a constitutional right" and was entitled to an evidentiary hearing.

¶ 16 Defendant attached several documents to his amended petition, including his own affidavit. In his affidavit, defendant averred that he trusted his trial counsel to give him accurate information on sentencing and believed his counsel because "[counsel] showed me paperwork for the plea and it said nothing about having to do 85%." Defendant further attested that "right before the plea" he confirmed with his trial counsel that he would serve only 50% of his sentence and that counsel told defendant, "don't play with these people."

¶ 17 Defendant did not discover that his trial counsel erroneously advised him on sentencing until he arrived at the Department of Corrections. Although defendant attempted to contact his trial counsel after learning this information, he was never contacted by counsel. Defendant averred that he would not have accepted the plea agreement if he knew that he was required to serve 85% of his 18-year sentence.

¶ 18 On August 18, 2014, the State filed a motion to dismiss defendant's amended petition. The State argued that defendant failed to establish the requisite substantial showing of a constitutional violation to entitle him to an evidentiary hearing.

¶ 19 On August 26, 2014, the trial court granted the State's motion to dismiss. The court determined that defendant was not prejudiced by any error in counsel's advice on sentencing.

¶ 20 On direct appeal, the appellate court affirmed. 2016 IL App (4th) 140760, 409 Ill.Dec. 314, 67 N.E.3d 526. The court first noted that defendant's position was supported by the decisions in Stewart , 381 Ill. App. 3d at 206, 320 Ill.Dec. 317, 887 N.E.2d 461, and Kitchell , 2015 IL App (5th) 120548, ¶ 13, 393 Ill.Dec. 840, 35 N.E.3d 232, both holding that a postconviction petitioner makes a substantial showing of a constitutional violation and is entitled to an evidentiary hearing when he alleges in his petition that he entered into a guilty plea in reliance on his trial counsel's erroneous sentencing advice. 2016 IL App (4th) 140760, ¶ 11, 409 Ill.Dec. 314, 67 N.E.3d 526.

¶ 21 The appellate court, however, declined to follow Stewart and Kitchell after determining that those decisions conflicted with this court's opinion in People v. Rissley , 206 Ill. 2d 403, 276 Ill.Dec. 821, 795 N.E.2d 174 (2003), as it applied the familiar two-prong Strickland standard ( Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ) to a guilty-plea defendant's claim of ineffective assistance of counsel. The appellate court explained,

"[ Stewart and Kitchell ] assume a defendant can show prejudice [for purposes of Strickland ] simply by asserting that, but for plea counsel's bad advice, he or she would have pleaded differently and would have gone to trial. But Rissley is quite clear: a bare allegation to that effect will not establish prejudice. [Citation.] The defendant must additionally claim he or she is innocent of the charges or must identify a plausible defense to the charges. [Citation.]" 2016 IL App (4th) 140760, ¶ 25, 409 Ill.Dec. 314, 67 N.E.3d 526.

Because defendant made neither assertion, the appellate court affirmed the trial court's order granting the State's motion to dismiss defendant's amended petition. 2016 IL App (4th) 140760, ¶ 25, 409 Ill.Dec. 314, 67 N.E.3d 526. This court allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016).

¶ 22 ANALYSIS

¶ 23 On appeal, defendant contends that the trial court erred in dismissing his postconviction petition without an evidentiary hearing because he established a substantial showing of a constitutional violation. Specifically, defendant argues that he was denied his right to effective assistance of counsel when he entered into a fully negotiated guilty-plea agreement in reliance on his plea counsel's erroneous advice that he would only serve 50% of his 18-year sentence if he pleaded guilty to the armed habitual criminal charge.

¶ 24 When, as here, a postconviction petition reaches the second stage, the circuit court reviews the petition and any accompanying documents to determine whether the petitioner has made " 'a substantial showing of a constitutional violation.' " People v. Tate , 2012 IL 112214, ¶ 10, 366 Ill.Dec. 741, 980 N.E.2d 1100 (2012) (quoting People v. Edwards , 197 Ill. 2d 239, 246, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001) ). Upon a substantial showing of a constitutional violation, the petition must be advanced to the third stage, where the circuit court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2012) ; Tate , 2012 IL 112214, ¶ 10, 366 Ill.Dec. 741, 980 N.E.2d 1100. Upon no showing, the petition should be dismissed. Tate , 2012 IL 112214, ¶ 10, 366 Ill.Dec. 741, 980 N.E.2d 1100. We review de novo the dismissal of a postconviction petition without an evidentiary hearing. People v. Sanders , 2016 IL 118123, ¶ 31, 399 Ill.Dec. 732, 47 N.E.3d 237.

¶ 25 The sixth amendment guarantees a criminal defendant the right to effective assistance of trial counsel at all critical stages of the criminal proceedings, including the entry of a guilty plea. People v. Hughes , 2012 IL 112817, ¶ 44, 368 Ill.Dec. 26, 983 N.E.2d 439 (citing Missouri v. Frye , 566 U.S. 134, 140, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) ). A claim that a defendant was denied his constitutional right to effective assistance of counsel is generally governed by the familiar two-pronged test established in Strickland , 466 U.S. 668, 104 S.Ct. 2052. Under Strickland , 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. Hughes , 2012 IL 112817, ¶ 44, 368 Ill.Dec. 26, 983 N.E.2d 439.

¶ 26 The Strickland standard also applies to a claim that trial counsel was ineffective during the guilty-plea process. Hill v. Lockhart , 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The first prong of Strickland remains the same under Hill for guilty-plea defendants. Hill , 474 U.S. at 58-59, 106 S.Ct. 366. For purposes of the second prong, however, 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." Hill , 474 U.S. at 59, 106 S.Ct. 366. This court follows Hill 's application of Strickland when a guilty-plea defendant raises a claim of ineffective assistance of counsel. People v. Valdez , 2016 IL 119860, ¶ 29, 409 Ill.Dec. 21, 67 N.E.3d 233 ; Hughes , 2012 IL 112817, ¶ 63, 368 Ill.Dec. 26, 983 N.E.2d 439 ; People v. Hall , 217 Ill. 2d 324, 335, 299 Ill.Dec. 181, 841 N.E.2d 913 (2005) ; Rissley , 206 Ill. 2d at 457, 276 Ill.Dec. 821, 795 N.E.2d 174. We have also held that "[a] conclusory allegation that a defendant would not have pleaded guilty and would have demanded a trial is insufficient to establish prejudice" for purposes of an ineffectiveness claim. Valdez , 2016 IL 119860, ¶ 29, 409 Ill.Dec. 21, 67 N.E.3d 233 (citing Hughes , 2012 IL 112817, ¶ 64, 368 Ill.Dec. 26, 983 N.E.2d 439, and Hall , 217 Ill. 2d at 335, 299 Ill.Dec. 181, 841 N.E.2d 913 ).

¶ 27 Here, the State does not contest defendant's argument that his trial counsel's performance was objectively unreasonable, the requisite showing for the first prong of Strickland . The applicable sentencing statute effectively requires a defendant convicted of the offense of armed habitual criminal to serve 85% of his sentence ( 730 ILCS 5/3-6-3(a)(2)(ii) (West 2012)), but defendant alleges in his petition that his counsel erroneously advised him that he would serve only 50% of his sentence for that offense. At this stage of review, we must take as true all well-pleaded facts in the petition and supporting documentation. People v. Pitsonbarger , 205 Ill. 2d 444, 467, 275 Ill.Dec. 838, 793 N.E.2d 609 (2002). We agree with defendant that there is no objectively reasonable justification for counsel's erroneous advice on this straightforward and readily verifiable sentencing information. See, e.g. , Padilla v. Kentucky , 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (explaining the need for trial counsel to give "correct advice" to a defendant on a "truly clear" consequence of pleading guilty). Accordingly, we accept the State's implicit concession that defendant's allegations in his petition are sufficient to satisfy the first prong of Strickland .

¶ 28 We next address the prejudice prong, the primary focus of defendant's argument before this court. As we have explained, Hill instructs that "[t]o establish prejudice in the guilty-plea context, 'the 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.' " Valdez , 2016 IL 119860, ¶ 29, 409 Ill.Dec. 21, 67 N.E.3d 233 (quoting Hill , 474 U.S. at 59, 106 S.Ct. 366 ).

¶ 29 Although acknowledging that our decisions have relied on the Strickland standard as applied by the United States Supreme Court in Hill , defendant nonetheless contends that "[i]n Illinois, post-conviction petitioners alleging ineffective assistance of guilty plea counsel must go beyond what Hill v. Lockhart requires."

Citing Hall , 217 Ill. 2d at 335, 299 Ill.Dec. 181, 841 N.E.2d 913, and Rissley , 206 Ill. 2d at 459-60, 276 Ill.Dec. 821, 795 N.E.2d 174, defendant notes that this court has also required a guilty-plea defendant to raise a claim of innocence or state a plausible defense that could have been raised at trial to satisfy the prejudice prong.

¶ 30 Defendant contends that our holdings in Hall and Rissley , requiring a claim of actual innocence or a plausible trial defense, should be limited to ineffective assistance claims related to trial strategy but should not apply to a case like his, when a defendant pleads guilty based on counsel's affirmative misrepresentation on the consequences of the plea. He further argues that an evidentiary hearing is necessary because his claim depends on matters outside the record, specifically his counsel's sentencing advice. For support, defendant cites the appellate court's decisions in Stewart and Kitchell . He also relies heavily on a decision issued by the United States Supreme Court while this appeal was pending, Lee v. United States , 582 U.S. ----, 137 S.Ct. 1958, 198 L.Ed.2d 476 (2017). Defendant argues that Lee "strongly supports his argument that a static prejudice standard cannot be used to adjudicate all claims of ineffective assistance of guilty plea counsel."

¶ 31 The State argues that Lee provides no basis for overturning this court's precedent or reversing the appellate court's judgment in this case. Instead, the State maintains that Lee reaffirms this court's "bare allegation rule" but otherwise should be limited to cases involving deportation that include sufficient factual allegations that the possibility of deportation was the determinative factor in the defendant's guilty plea.

¶ 32 Lee represents the Supreme Court's most recent discussion of whether guilty-plea counsel's allegedly deficient performance prejudiced a defendant for purposes of an ineffective assistance claim. Necessarily, Lee instructs our analysis of the issue presented here.

¶ 33 In Lee , the United States Supreme Court reviewed the ineffective assistance claim of a defendant who pleaded guilty to an aggravated felony that subjected him to mandatory deportation. Lee's counsel erroneously informed him that his plea would not result in his deportation. Reaffirming the Hill standard for guilty-plea cases, the Court explained that "when a defendant claims that his counsel's deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a 'reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " Lee , 582 U.S. at ----, 137 S.Ct. at 1965 (quoting Hill , 474 U.S. at 59, 106 S.Ct. 366 ).

¶ 34 Especially relevant to this case, Lee distinguished an ineffective assistance claim involving a matter of trial strategy related to a defendant's acquittal prospects from a claim involving a defendant's understanding of the consequences of pleading guilty. The first category requires a showing that a defendant would be "better off going to trial" absent his counsel's deficient performance by establishing that he would have been acquitted or had a viable defense. Lee , 582 U.S. at ----, 137 S.Ct. at 1965-66.

¶ 35 In contrast, Lee rejected the acquittal or viable defense requirements for the second category-an ineffective assistance claim related to a defendant's understanding of the consequences of pleading guilty. As the Court instructed:

"Not all errors, however, are [related to a defendant's prospects of acquittal]. Here Lee knew, correctly, that his prospects of acquittal at trial were grim, and his attorney's error had nothing to do with that. The error was instead one that affected Lee's understanding of the consequences of pleading guilty. The Court confronted precisely this kind of error in Hill . [Citation.] Rather than asking how a hypothetical trial would have played out absent the error, the Court considered whether there was an adequate showing that the defendant, properly advised, would have opted to go to trial. The Court rejected the defendant's claim because he had 'alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.' [Citation.]" Lee , 582 U.S. at ----, 137 S.Ct. at 1965.

Although a defendant without a viable defense is highly likely to lose at trial and rarely could establish prejudice from accepting a favorable plea deal, the Court concluded that the probability of success at trial should not be the dispositive factor. Lee , 582 U.S. at ----, 137 S.Ct. at 1966.

¶ 36 Instead, Lee instructs that when a defendant's claim of ineffective assistance of plea counsel involves a consequence of pleading guilty, it is appropriate to compare the consequences of a defendant's conviction following a trial to the consequences of the defendant entering the guilty plea. Lee , 582 U.S. at ----, 137 S.Ct. at 1966. As the Court explained:

"When those consequences are, from the defendant's perspective, similarly dire, even the smallest chance of success at trial may look attractive. For example, a defendant with no realistic defense to a charge carrying a 20-year sentence may nevertheless choose trial, if the prosecution's plea offer is 18 years." Lee , 582 U.S. at ----, 137 S.Ct. at 1966-67.

Applying those considerations to Lee's case, the Court concluded that Lee adequately demonstrated a reasonable probability that he would have rejected the plea if he had been properly advised that his plea would lead to his mandatory deportation. Lee , 582 U.S. at ----, 137 S.Ct. at 1967.

¶ 37 In reaching that conclusion, the Court recognized that Lee's case presented "unusual circumstances." Lee , 582 U.S. at ----, 137 S.Ct. at 1967. The Court observed that Lee and his trial counsel testified at the evidentiary hearing that Lee would have proceeded to trial if he had known about the deportation consequences. During the plea colloquy, Lee replied affirmatively when the trial court asked whether his decision to plead guilty was affected by the possibility that his conviction could result in his deportation. When the court asked how it affected his decision to plead, Lee responded " 'I don't understand.' " Lee , 582 U.S. at ----, 137 S.Ct. at 1968. Only after Lee's counsel assured Lee that the judge's statement was a " 'standard warning' " was Lee willing to proceed with his guilty plea. Lee , 582 U.S. at ----, 137 S.Ct. at 1967-68.

¶ 38 The Court emphasized the severity of the consequences of deportation. These consequences were especially true for Lee, who had lived in the United States for almost three decades, had two established businesses in Tennessee, and was the only family member in the United States who could care for his elderly parents-both naturalized American citizens. There was no evidence that Lee had any connections to South Korea, his native country, or that he had ever returned there since leaving as a child. Lee , 582 U.S. at ----, 137 S.Ct. at 1968.

¶ 39 The Court in Lee also addressed the government's claim that Padilla , 559 U.S. at 372, 130 S.Ct. 1473, required Lee to show that a decision to reject the plea "would have been rational under the circumstances." The government argued that Lee could not make that showing because going to trial would have only delayed the inevitable consequence of mandatory deportation. Rejecting the government's argument, the Court concluded it would not be irrational for Lee to reject the plea because he still had a chance, however remote, to avoid deportation by going to trial. The Court explained that Lee had strong connections to the United States, the consequence of taking a chance at trial was not markedly harsher than pleading guilty, and it was apparent that deportation was the determinative issue for Lee. Lee , 582 U.S. at ----, 137 S.Ct. at 1968-69.

¶ 40 This court's jurisprudence is consistent with Lee . We similarly follow Hill 's application of the Strickland test to claims of ineffective assistance of guilty-plea counsel. Valdez , 2016 IL 119860, ¶ 29, 409 Ill.Dec. 21, 67 N.E.3d 233 ; Hughes , 2012 IL 112817, ¶ 63, 368 Ill.Dec. 26, 983 N.E.2d 439 ; Hall , 217 Ill. 2d at 335, 299 Ill.Dec. 181, 841 N.E.2d 913 ; Rissley , 206 Ill. 2d at 457, 276 Ill.Dec. 821, 795 N.E.2d 174. Recently, we held that " 'a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances' " when the claim involved counsel's alleged failure to advise a defendant on the deportation consequences of pleading guilty. Valdez , 2016 IL 119860, ¶ 29, 409 Ill.Dec. 21, 67 N.E.3d 233 (quoting Padilla , 559 U.S. at 372, 130 S.Ct. 1473 ); see also Hughes , 2012 IL 112817, ¶ 65, 368 Ill.Dec. 26, 983 N.E.2d 439 (applying same Padilla standard).

¶ 41 Lee similarly considered Padilla's "rational under the circumstances" standard. See Lee , 582 U.S. at ----, 137 S.Ct. at 1968-69 (discussing and rejecting the government's claim that Lee failed to satisfy Padilla ). As Lee explained, when a defendant does not have a viable defense strategy or chance of acquittal, "[t]he decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea." Lee , 582 U.S. at ----, 137 S.Ct. at 1966. In other words, Lee requires a consideration of the specific circumstances of each case when assessing a guilty-plea defendant's ineffective assistance claim based on his understanding of the consequences of pleading guilty.

¶ 42 This comports with our approach in Valdez and Hughes . Like Lee , both Valdez and Hughes involve ineffective assistance claims related to a defendant's understanding of the consequences of pleading guilty.

¶ 43 Valdez addressed a defendant's claim that he was prejudiced by his counsel's failure to advise him properly on the deportation consequences of pleading guilty. Valdez , 2016 IL 119860, ¶¶ 29-32, 409 Ill.Dec. 21, 67 N.E.3d 233. We determined that Valdez was not prejudiced by his counsel's deficient advice because the record established that the trial court provided the relevant information under section 113-8 of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/113-8 (West 2012) ). Valdez , 2016 IL 119860, ¶¶ 31-32, 409 Ill.Dec. 21, 67 N.E.3d 233.

¶ 44 Similarly, Hughes addressed a defendant's claim that he was prejudiced by his counsel's failure to advise him properly on the potential for the State to seek his commitment as a sexually violent person if he pleaded guilty. Hughes , 2012 IL 112817, ¶¶ 63-66, 368 Ill.Dec. 26, 983 N.E.2d 439. After explaining that resolution of the prejudice inquiry "will turn on the facts of a particular case," we concluded that Hughes's "mere assertion" that he would not have pleaded guilty if properly advised by counsel was insufficient to establish prejudice. Hughes , 2012 IL 112817, ¶¶ 65-66, 368 Ill.Dec. 26, 983 N.E.2d 439.

¶ 45 In comparison to Valdez and Hughes , this court has taken a different approach when reviewing an ineffective assistance claim related to a defendant's defense strategy or chance of acquittal, i.e. , a defendant's prospects at trial. In that type of case, this court requires a claim of innocence or a plausible defense to establish prejudice. See Hall , 217 Ill. 2d at 335-36, 299 Ill.Dec. 181, 841 N.E.2d 913 (requiring claim of innocence or plausible defense to support an ineffectiveness claim based on plea counsel's allegedly erroneous advice that the defendant had no defense to the charge of aggravated kidnapping); Rissley , 206 Ill. 2d at 459-62, 276 Ill.Dec. 821, 795 N.E.2d 174 (requiring claim of innocence or plausible defense to support an ineffectiveness claim based on plea counsel's alleged failure to investigate a potential insanity defense and counsel's misunderstanding of the procedures used in a capital case).

¶ 46 We agree with defendant that the innocence or plausible defense standard from Hall and Rissley is inapplicable here. See Lee , 582 U.S. at ----, 137 S.Ct. at 1965 (distinguishing guilty-plea counsel's error related to a defendant's chance of acquittal or prospects at trial with plea counsel's error related to a defendant's understanding of the consequences of pleading guilty). Defendant alleges that he was prejudiced by his counsel's failure to advise him correctly that he was required to serve 85% of his sentence. His allegation involves his understanding of the consequence of his guilty plea, the type of claim considered in Lee and this court's decisions in Valdez and Hughes .

¶ 47 While we agree with defendant that Hall and Rissley do not apply to his claim, our inquiry is not over. Neither Lee nor any decision from this court allows an ineffective assistance claim to satisfy the requisite prejudice prong based solely on the bare allegation that the defendant would have rejected the plea if his guilty-plea counsel had provided accurate advice. Indeed, this court recently reaffirmed our prior consistent holdings that "[a] conclusory allegation that a defendant would not have pleaded guilty and would have demanded a trial is insufficient to establish prejudice" for purposes of the Strickland analysis. Valdez , 2016 IL 119860, ¶ 29, 409 Ill.Dec. 21, 67 N.E.3d 233 (citing Hughes , 2012 IL 112817, ¶ 64, 368 Ill.Dec. 26, 983 N.E.2d 439, and Hall , 217 Ill. 2d at 335, 299 Ill.Dec. 181, 841 N.E.2d 913 ). Lee similarly concluded that "[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies." Lee , 582 U.S. at ----, 137 S.Ct. at 1967. To the extent the appellate court's decisions in Stewart and Kitchell conflict with these decisions, they are overruled.

¶ 48 Although Lee was not decided when we issued our decision in Valdez , nothing in Lee suggests that we should reconsider our analysis. If anything, Lee bolsters our determination in Valdez that we must consider the relevant surrounding circumstances to assess prejudice. See Lee , 582 U.S. at ----, 137 S.Ct. at 1966 (for purposes of analyzing an ineffective assistance claim, a defendant's decision whether to plead guilty "involves assessing the respective consequences of a conviction after trial and by plea"). As we explained in Valdez , for a guilty-plea defendant to obtain relief on a claim that he relied on his counsel's erroneous advice about a consequence of his plea, 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, 409 Ill.Dec. 21, 67 N.E.3d 233 (quoting Padilla , 559 U.S. at 372, 130 S.Ct. 1473 ).

¶ 49 Here, defendant's allegation in his petition, standing alone, is insufficient to establish prejudice. Pursuant to Lee and this court's decisions in Valdez and Hughes , we must examine the circumstances surrounding his plea. Defendant was charged with (1) being an armed habitual criminal, a Class X felony with a sentencing range of 6 to 30 years' imprisonment ( 720 ILCS 5/24-1.7(b) (West 2012); 730 ILCS 5/5-4.5-25 (West 2012) ), and (2) home invasion, a Class X felony that included a mandatory 15-year firearm enhancement for a total sentencing range of 21 to 45 years' imprisonment ( 720 ILCS 5/19-6(c) (West 2012)). With defendant's significant criminal history, it is entirely possible that he would have received sentences on the higher end of those ranges. And there is little doubt that defendant would have been convicted of both offenses-defendant, a convicted felon, was apprehended by police officers inside the victims' home after he pointed a handgun at the officers.

¶ 50 By pleading guilty, however, defendant received only a single Class X felony conviction for armed habitual criminal with a mid-range sentence of 18 years' imprisonment. Most critically, in exchange for defendant's pleading guilty, the State agreed to nol-pros the home invasion charge. Defendant, therefore, avoided a conviction for home invasion, a Class X felony that included a mandatory 15-year firearm enhancement, for a sentencing range of 21 to 45 years' imprisonment. Given the nature of his crime and his criminal history, defendant most likely would have received a sentence on the higher end of that range. Indisputably, any sentence on an armed violence conviction would have been greater than the 18-year sentence defendant received for armed habitual criminal by pleading guilty. See Lee , 582 U.S. at ----, 137 S.Ct. at 1966 (explaining that a defendant's decision to plead guilty "involves assessing the respective consequences of a conviction after trial and by plea").

¶ 51 Moreover, unlike the defendant in Lee , nothing in defendant's plea colloquy demonstrates that his primary focus when pleading guilty was serving 50% of his sentence. See Lee , 582 U.S. at ----, 137 S.Ct. at 1968 (concluding, in relevant part, that Lee's responses on deportation consequences during the plea colloquy demonstrated that he placed paramount importance on avoiding deportation). In addition, defendant denied on the record that he was promised anything during the plea negotiations.

¶ 52 Based on these circumstances, we conclude that defendant has failed to establish the requisite showing of prejudice because he has not shown that a decision to reject his plea bargain would have been rational under the circumstances of his case. Valdez , 2016 IL 119860, ¶ 29, 409 Ill.Dec. 21, 67 N.E.3d 233 ; Hughes , 2012 IL 112817, ¶¶ 65-66, 368 Ill.Dec. 26, 983 N.E.2d 439. Without the requisite substantial showing of a constitutional violation, defendant's postconviction petition is not entitled to an evidentiary hearing.

¶ 53 In closing, we acknowledge the inherent challenge of successfully raising a claim of ineffective assistance of guilty-plea counsel. But we necessarily reject defendant's implicit assertion that Lee lowered the threshold for establishing prejudice when the ineffective assistance claim involves a consequence of pleading guilty. Lee expressly reaffirmed " Strickland 's high bar" and recognized society's strong interest in the finality of convictions based on guilty pleas. Lee , 582 U.S. at ----, 137 S.Ct. at 1967. Our holding in this case is consistent with those principles.

¶ 54 CONCLUSION

¶ 55 For these reasons, we affirm the judgments of the appellate and circuit courts. Defendant's allegations in his postconviction petition failed to establish a substantial showing of a constitutional violation, and his petition was properly dismissed without an evidentiary hearing.

¶ 56 Affirmed.

Chief Justice Karmeier and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.

      Section 3-6-3(a)(2.1) of the Unified Code of Corrections (730 ILCS 5/3-6-3(a)(2.1) (West 2012)) allows defendants convicted of certain enumerated offenses to receive "day-for-day" credit against their sentences, potentially allowing those defendants to serve only 50% of their sentence.

      Lee was issued after defendant filed his opening brief in this appeal but before the State filed its appellee brief. The State addresses Lee in its brief. Defendant's reply brief is devoted almost entirely to discussing the impact of Lee on his claims here.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Appellee, v. Jared M. STAAKE, Appellant.
    Docket No. 121755
    Supreme Court of Illinois.
    Opinion filed November 30, 2017
    Michael J. Pelletier, State Appellate Defender, Jacqueline L. Bullard, Deputy Defender, and Amanda S. Kimmel and Allen H. Andrews, Assistant Appellate Defenders, of the Office of the State Appellate Defender, of Springfield, for appellant.
    Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Erin M. O'Connell, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE THOMAS delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial on a first degree murder charge, defendant Jared M. Staake was convicted in the circuit court of Schuyler County of second degree murder ( 720 ILCS 5/9-2(a)(1) (West 2012)) for the stabbing death of Michael Box. The trial court sentenced defendant to 18 years in prison. On appeal, the appellate court affirmed his conviction, finding that (1) the State's amendments of the initial charge from second degree murder to first degree murder did not amount to a "new and additional" charge for speedy-trial purposes and (2) defendant's failure to make an offer of proof deprived the appellate court of a proper record to determine whether the trial court abused its discretion in granting the State's motion in limine to preclude defendant from presenting evidence and argument as to an intervening cause of death. For the reasons that follow, we affirm the judgment of the appellate court.

¶ 2 BACKGROUND

¶ 3 In July 2013, the State charged defendant by information with second degree murder, alleging that he committed the first degree murder of Box while acting under sudden and intense passion resulting from serious provocation from Box. Trial was scheduled to commence January 13, 2014. In October 2013, defendant disclosed that he intended to assert self-defense as an affirmative defense if the cause proceeded to trial. Thereafter, the State filed a motion in limine , asking the trial court to prohibit defendant from presenting evidence or argument relating to Box's refusal of medical treatment being an intervening cause of death.

¶ 4 In early December 2013, the State told the court at a status hearing that it might amend the charge to first degree murder given that defendant was now claiming self-defense. The State asserted that its proposed amendment "shouldn't change anything, because even in a second-degree murder case, the State still has to prove first-degree murder." The court instructed the State to make any amendment to the charging instrument within the next seven days. The following day, the State filed an amended information, alleging that defendant committed first degree murder ( 720 ILCS 5/9-1(a)(1) (West 2012)) by stabbing Box, thereby causing his death, while knowing that the stabbing would cause his death. The amended information no longer charged second degree murder.

¶ 5 On December 18, 2013, the trial court conducted a hearing on the State's motion in limine to prohibit defendant from producing any evidence or argument about an intervening cause of death. Defendant argued that causation was an essential element of the crime and, as such, was a question of fact for the jury to determine. The trial court found that if the defense planned to challenge the State's evidence of causation, it would have to produce its own evidence of causation and not just speculation of what might have happened. The trial court then granted the State's motion with the following qualification:

"It is quite true that the [State] must prove causation. * * * I know there have been statements by the [State] on more than one occasion that they have a forensic scientist who is going to testify as to cause of death. And I agree it is their burden and one of the elements of their case to prove causation.
On the other hand, if the Defense is going to raise an alternate theory, a question mark to some of the [State's] evidence, it has to be raised by evidence, not just by speculation. * * * And so if the Defense thinks they're just going to come in and say, oh, the defendant [sic ] went to the hospital, but he left the hospital and we don't know what would have happened if he had stayed at the hospital, that's not evidence. That's guess, speculation, and conjecture. So if the Defense intends to actually question the State's causation evidence, I think they're entitled to do that, but then they're going to have to come up with, with actual evidence of that, not just their own speculation of what might have happened. * * *
* * * [I]f the defense has evidence * * * to actually question the causation evidence, then * * * through an offer of proof they can * * * introduce that to me outside the presence of the jury, and I'll see if it raises to that. But what I'm not going to let either side do in this case is just raise question marks for the jury with no evidence behind it * * *.
So the defense response didn't, by affidavit or otherwise, indicate that they had any evidence with regard to causation. And they may. I simply don't know. I don't know if they have a forensic expert as well that's going to question what the State's witnesses have said. But if that's the case, I'm going to need to know about that, and I'm assuming that's going to have been produced in the discovery. But at this juncture, I don't have any of that information. So I'm granting the [State's] motion * * * unless the Defense has * * * actual evidence they're going to produce. And if they do, I'm going to see that in an offer of proof outside the presence of the jury."

¶ 6 After moving on to other matters, the trial court informed defendant of the nature of the first degree murder charge and the penalties he faced if found guilty. Defendant indicated that he understood and persisted in his plea of not guilty. Defense counsel then conceded that he was prepared for trial and that the amendment from second degree murder to first degree murder had no affect on the defense's preparation for trial.

¶ 7 On January 3, 2014, defendant argued that causation was an element of the offense and that he therefore had a constitutional right to cross-examine the State's witnesses-in particular, the medical examiner-on the issue of causation, and he should not first have to present a proffer of what the State's witnesses might provide. The court responded by explaining that the requirement of a proffer was intended to prevent a "fishing expedition that you know in advance isn't going to produce any evidence because you know what the medical examiner said." The court told defendant that he could still submit a proffer of evidence he expected to extract from the medical examiner.

¶ 8 On January 9, 2014, the State filed a second amended information. The new information again charged defendant with first degree murder ( 720 ILCS 5/9-1(a)(2) (West 2012)) but this time under a different theory than that alleged in the first amended information. The second amended information alleged that defendant stabbed Box, causing his death, knowing that the stabbing created a strong probability of death or great bodily harm.

¶ 9 On January 13, 2014-the day of trial-defendant filed a motion challenging the second amended information. Defendant argued that it charged him under a different subsection of the first degree murder statute than had the first amended information. Defendant maintained that section 9-1(a)(2) contained a different mens rea requirement than section 9-1(a)(1). As a result, defendant argued that he now lacked time to adequately prepare for trial that day on the second amended information. Defendant requested that the trial court prohibit the State from charging first degree murder under section 9-1(a)(2).

¶ 10 The trial court denied defendant's motion as to the second amended information. Defendant then requested a continuance to prepare for trial on the recent amendment. The State responded that, when charging first degree murder, the State is required to notify a defendant only that he is being charged with first degree murder, not to identify which subsection of the first degree murder statute the State intends to pursue. The court denied defendant's motion for a continuance, finding that defendant had not pointed to anything about the trial or the evidence that had changed because of the second amended information.

¶ 11 Defendant again inquired about whether he could question the State's expert witnesses about the cause of death. The trial court responded, "No. The limitations as to whether or not the [victim's] seeking or not seeking medical treatment affected causation, and my ruling stands with regard to that. You may not go into those issues."

¶ 12 The cause then proceeded to a trial in front of a jury, where the evidence presented was as follows. Casey Slusser testified that she was employed managing carnival games for Kenny Fox, who operated a travelling carnival business. In July 2013, Slusser worked for Fox at the Schuyler County fair. She and Box were the only two employees who managed carnival games for Fox, and while traveling for work, both Slusser and Box lived together in a trailer in which they had separate rooms. Slusser described Box as her ex-boyfriend's best friend and her "protector."

¶ 13 Slusser further testified that on July 1, 2013, defendant visited the fairgrounds and socialized with other carnival workers. Slusser and Box began playing a beer-drinking game. After they finished playing the game, Box went to his room. Slusser asked defendant if he wanted to come to her room. Defendant agreed, and the two went to Slusser's room, where they lay down and talked. After about two or three minutes, Box began yelling and banging on Slusser's door. Defendant exited Slusser's room, opening the door so hard that it banged off the trailer.

¶ 14 Slusser testified that as defendant exited the trailer, Box punched him in the face. Defendant took a couple of steps backward before taking a knife out of his pocket. Defendant stabbed Box with the knife in the left abdomen. Box fell into a pile of tires. Defendant said, "I'm sorry. I didn't mean to stab you," before running off.

¶ 15 Slusser took Box to the hospital and dropped him off there. Two days later, Slusser checked on Box in his trailer. She found him dead and lying naked on the floor.

¶ 16 Dr. Mark Day testified that in the early morning hours of July 2, 2013, he treated Box at the hospital for a "small" stab wound. Day testified that it was difficult to examine Box because he was very uncooperative. Day tried to examine the wound, but Box took a swipe at him. Box was not bleeding significantly, and Day left the room for a minute. By the third or fourth time that Day tried to evaluate Box, Box had passed out. Day did not think the stab wound had penetrated Box's fascia. Day explained that the fascia is underneath the muscle, and in the absence of an injury to the fascia, the wound is one that "you need not worry about that much." Day reluctantly stitched up Box's wound because he believed Box didn't want anything else done. Box later woke up and left the hospital without being officially discharged.

¶ 17 Defendant testified that he was in Slusser's room when Box started yelling and pounding on Slusser's door for 20 to 30 seconds. Defendant decided it was time to go, so he opened Slusser's door and stepped outside. As he stepped onto the ground, he was punched in the face but did not see who hit him. As defendant staggered backward, he saw Box approaching him. Defendant pulled a folding knife out of his pocket and stabbed Box. Defendant testified that he stabbed Box because he was afraid for his life and did not know what else to do.

¶ 18 Dr. Amanda Youmans, a forensic pathologist, testified that she performed the autopsy of Box. She discovered gastric contents in Box's abdomen, indicating that the knife wound had penetrated Box's stomach. She opined that he died from septic shock due to acute peritonitis resulting from a stab wound to the stomach.

¶ 19 Youmans further testified that she learned that Box had returned to the hospital after his initial admission and was prescribed opiate pain medication. The toxicology report revealed that Box had opiates in his system at an elevated level at the time of death, but it was not a lethal amount and was not a contributing cause of his death.

¶ 20 During closing argument, defense counsel conceded that the State had proven the element of causation, telling the jury the following:

"I confess to you right here, right now, folks, when you get your jury instructions, next to that [causation] element, put guilty, because he did; he stabbed Mr. Box. Mr. Box some two days later perished. [Defendant] set those dominoes falling for Mr. Box in an adverse way."

¶ 21 At the State's request, and over defendant's objection, the trial court instructed the jury on second degree murder. The jury found defendant guilty of second degree murder. The trial court sentenced him to 18 years in prison, after noting defendant's violent and extensive criminal history.

¶ 22 On appeal to the appellate court, defendant argued that the State violated the speedy-trial statute by amending the charge to first degree murder. Defendant maintained that first degree murder was a "new and additional charge," subject to compulsory joinder with the second degree murder charge. Therefore, delays attributable to defendant on the second degree murder charge were not attributable to him with respect to the first degree murder charge. Second, defendant argued that the trial court erred in restricting evidence and argument pertaining to causation.

¶ 23 The appellate court affirmed. 2016 IL App (4th) 140638, 413 Ill.Dec. 396, 78 N.E.3d 388. With respect to the speedy-trial issue, the court found that first degree murder and second degree murder require proof of the same elements, with the only difference being that second degree murder requires the additional proof of a mitigating factor (see 720 ILCS 5/9-2(a)(1), (a)(2) (West 2012)). First degree murder is not a " 'new and additional charge' " for purposes of compulsory joinder because the criminal behavior the State alleges defendant committed is the same for both charges. 2016 IL App (4th) 140638, ¶ 69, 413 Ill.Dec. 396, 78 N.E.3d 388. The appellate court also noted that defense counsel conceded that the amendment did not undermine his readiness for trial. The appellate court observed that defense counsel was already prepared to defend against first degree murder because the charge of second degree murder had already alleged that defendant had committed first degree murder. Id. ¶ 71. The appellate court acknowledged that its decision-finding that the first degree murder charge was not a "new and additional" charge-was inconsistent with the decision in People v. Izquierdo-Flores , 367 Ill. App. 3d 377, 305 Ill.Dec. 246, 854 N.E.2d 1156 (2006), but declined to follow that decision. 2016 IL App (4th) 140638, ¶ 73, 413 Ill.Dec. 396, 78 N.E.3d 388.

¶ 24 With respect to the causation issue, the appellate court rejected as forfeited defendant's argument concerning evidence that the victim's resistance to treatment was an intervening cause of his death. The appellate court found that defendant "failed to make an offer of proof regarding the evidence the trial court allegedly improperly kept out." Id. ¶ 80. The appellate court noted that "the trial court did not prohibit defendant from cross-examining the State's witnesses on the issue of causation" but merely required defendant to make an offer of proof before doing so. (Emphasis in original.) Id. ¶ 79. Thus, "[i]f defendant had a legitimate factual basis to question the State's witnesses or introduce other testimony about causation, he was free to do so." Id.

¶ 25 Defendant filed a petition for leave to appeal, which this court allowed. Ill. S. Ct. R. 315(a) (eff. Mar. 15, 2016).

¶ 26 ANALYSIS

¶ 27 I. Speedy-Trial Issue

¶ 28 Before this court, defendant first argues that there was a statutory speedy-trial violation in this case because compulsory joinder rules required the State to join the first degree murder charge with the initial second degree murder charge. According to defendant, the two charges are substantively different, and therefore any delays on the initial second degree murder offense cannot be charged to him on the subsequent amendments to the information. Defendant acknowledges that he did not raise the speedy-trial claim before the trial court, but he argues that his claim may nonetheless be reviewed under second-prong, plain error review or, in the alternative, on the basis that his trial counsel was ineffective in failing to file a motion raising the speedy-trial claim.

¶ 29 The State responds that defendant forfeited the speedy-trial issue by failing to raise the claim in the trial court in any way, including by filing the required pretrial motion to dismiss. Furthermore, defendant cannot satisfy either the plain error or the ineffective assistance of counsel standards.

¶ 30 To preserve a claim of error for consideration by a reviewing court, a defendant must object to the error at trial and raise the error in a posttrial motion. People v. Sebby , 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756, 89 N.E.3d 675. Forfeiture results from the failure to do either. Id. Additionally applicable to this case, section 114-1 of the Code of Criminal Procedure of 1963 provides that a defendant who fails to file a pretrial motion to dismiss based on statutory speedy-trial grounds is considered to have "waived" those grounds. 725 ILCS 5/114-1 (West 2012).

¶ 31 Defendant argues that this court should consider his claim under the second prong of the plain error doctrine, citing a number of appellate court opinions that have found that a violation of the speedy-trial statute qualifies for second-prong review as an error that challenges the integrity of the judicial process (see, e.g. , People v. Mosley , 2016 IL App (5th) 130223, ¶ 9, 404 Ill.Dec. 723, 56 N.E.3d 1136 ; People v. Smith , 2016 IL App (3d) 140235, ¶ 10, 404 Ill.Dec. 245, 55 N.E.3d 719 ; People v. McKinney , 2011 IL App (1st) 100317, ¶ 29, 357 Ill.Dec. 183, 962 N.E.2d 1084 ; People v. Gay , 376 Ill. App. 3d 796, 799, 316 Ill.Dec. 83, 878 N.E.2d 805 (2007) ). Under the plain error doctrine, a reviewing court may exercise its discretion and excuse a procedural default of not bringing an error to the attention of the trial court in two instances: "when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski , 225 Ill. 2d 551, 565, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007) (citing People v. Herron , 215 Ill. 2d 167, 186-87, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005) ).

¶ 32 The State responds that the appellate court cases relied upon by defendant erroneously found that unpreserved claims of a statutory speedy-trial violation were reviewable under second-prong plain error. The State points out that although a defendant possesses both a constitutional and statutory right to a speedy trial ( U.S. Const., amends. VI, XIV ; Ill. Const. 1970, art. I, § 8 ; 725 ILCS 5/103-5(a) (West 2012)), the constitutional and statutory rights are not coextensive (see, e.g. , People v. Phipps , 238 Ill. 2d 54, 65, 342 Ill.Dec. 893, 933 N.E.2d 1186 (2010) ; People v. Cordell , 223 Ill. 2d 380, 385-86, 307 Ill.Dec. 669, 860 N.E.2d 323 (2006) ). According to the State, the legislature, having created the statutory right, could also take it away for failure to timely raise it, i.e. , deeming it "waived" in the words of the statute. The State urges that it is only a speedy-trial claim that rises to a constitutional dimension that may be subject to second-prong plain error review and defendant does not argue such a constitutional claim here.

¶ 33 We note that the initial step under either prong of the plain error doctrine is to determine whether the claim presented on review actually amounts to a "clear or obvious error" at all. Sebby , 2017 IL 119445, ¶ 49, 417 Ill.Dec. 756, 89 N.E.3d 675 ; People v. McLaurin , 235 Ill. 2d 478, 489, 337 Ill.Dec. 221, 922 N.E.2d 344 (2009). For the reasons that follow, we find that no error occurred. Thus, it is unnecessary in this case to determine whether the appellate court precedent, which finds that a forfeited error involving a statutory speedy-trial violation is reviewable as second-prong plain error, should be overruled.

¶ 34 Here, defendant argues that his speedy-trial right was violated because first degree murder was a "new and additional charge" with respect to which none of the previous delays in the case can be attributed to him.

¶ 35 Section 103-5(a) provides in relevant part as follows:

"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *. Delay shall be considered agreed to by the defendant unless he or she objects to the delay by making a written demand for trial or an oral demand for trial on the record." 725 ILCS 5/103-5(a) (West 2012).

¶ 36 If a delay is attributable to a defendant on the original charge, that delay is not always attributable to the defendant on a subsequently filed charge. Phipps , 238 Ill. 2d at 66, 342 Ill.Dec. 893, 933 N.E.2d 1186. The following rule, called the Williams rule, has developed in such situations:

"Where new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges. Continuances obtained in connection with the trial of the original charges cannot be attributed to defendants with respect to the new and additional charges because these new and additional charges were not before the court when those continuances were obtained." People v. Williams , 94 Ill. App. 3d 241, 248-49, 49 Ill.Dec. 820, 418 N.E.2d 840 (1981).

¶ 37 This case hinges on whether the first degree murder charge was a new and additional charge to the original second degree murder charge. We review de novo the question of whether a subsequently filed charge is considered "new and additional" relative to the Williams rule. Phipps , 238 Ill. 2d at 67, 342 Ill.Dec. 893, 933 N.E.2d 1186.

¶ 38 In Phipps , we observed that the purpose of the rule established in Williams is to prevent trial by ambush:

"[T]he rule, therefore, centers on whether the defendant had adequate notice of the subsequent charges to allow preparation of a defense. The focus is on whether the original charging instrument gave the defendant sufficient notice of the subsequent charges to prepare adequately for trial on those charges. If the original charging instrument gives a defendant adequate notice of the subsequent charges, the ability to prepare for trial on those charges is not hindered in any way. Thus, when the State files the subsequent charge, the defendant will not face 'a Hobson's choice between a trial without adequate preparation and further pretrial detention to prepare for trial.' [ People v. ] Williams , 204 Ill. 2d [191, 207, 273 Ill.Dec. 250, 788 N.E.2d 1126 (2003) ]. Rather, the defendant may proceed to trial on the subsequent charges with adequate preparation instead of being forced to agree to further delay. In those circumstances, the rationale for declining to attribute to the defendant delays in connection with the original charges does not apply." Phipps , 238 Ill. 2d at 67-68, 342 Ill.Dec. 893, 933 N.E.2d 1186.

¶ 39 Phipps found the original indictment and the subsequent charging instrument in that case alleged the same conduct-that the defendant drove a motor vehicle under the influence of alcohol and collided with another vehicle, causing the death of the victim. Id. at 68, 342 Ill.Dec. 893, 933 N.E.2d 1186. The original indictment thus provided the defendant with the material allegations of the subsequent information. The court also found it significant that the two charges to be compared-reckless homicide and aggravated DUI-had essentially the same elements and provided the same penalty. Id. Phipps therefore concluded that the aggravated DUI charge was not "new and additional" for speedy-trial purposes. Thus, any delays attributable to the defendant on the reckless homicide charge were also attributable to him on the subsequent charge of aggravated DUI, and consequently no speedy-trial violation occurred. Id. at 70, 342 Ill.Dec. 893, 933 N.E.2d 1186.

¶ 40 The same conclusion applies in the present case. Here, the original information and the two amendments all alleged that defendant committed first degree murder and all alleged identical conduct by stating that defendant "stabbed Michael Box with a knife, thereby causing the death of Michael Box." Moreover, both crimes have the same elements. First degree murder and second degree murder each require the same mental state: either intent or knowledge. People v. Jeffries , 164 Ill. 2d 104, 122, 207 Ill.Dec. 21, 646 N.E.2d 587 (1995). When the State charges a defendant with second degree murder it must still prove all of the elements that comprise the offense of first degree murder. Because of the identity of elements, second degree murder is not a lesser included offense of first degree murder but rather "a lesser mitigated offense." (Emphasis omitted.) Id. The State must prove the elements of first degree murder beyond a reasonable doubt before the jury can even consider whether a mitigating factor for second degree murder has been shown, such as whether the accused acted under a sudden and intense passion resulting from serious provocation or whether his true belief in self-defense was unreasonable (see 720 ILCS 5/9-2(a)(1), (a)(2) (West 2012)). Thus, it is clear that the original information provided defendant notice of the material allegations in the subsequent amendments under the circumstances of this case.

¶ 41 Furthermore, because the crimes of second degree murder and first degree murder have the same elements, they are subject to the same defenses. Self-defense defeats both charges because it negates one of the elements of the crime-that the killing be unjustified. See People v. Romero , 387 Ill. App. 3d 954, 965, 327 Ill.Dec. 71, 901 N.E.2d 399 (2008) ("lack of self-defense, when self-defense is raised, is an element of first or second degree murder"). Here, defendant indicated early on that he intended to raise self-defense as an affirmative defense to the killing. It was also clear that his strategy would remain the same regardless of whether second degree or first degree murder was charged. After the State amended the information for the first time on December 5, 2013, to charge first degree murder, defense counsel conceded that he was prepared for trial and that the amendment made no difference in terms of his preparation:

"To echo what the State just mentioned * * *, to prove second degree murder, you basically have to prove first degree murder first. So this really changes nothing at all as far as our preparation and being ready for trial. All of the evidence is exactly the same as it was when second degree murder was the pending charge. And just as we answered a few weeks ago that we were ready for trial, we still are ready for trial."

¶ 42 Defendant also claims that amendment to the theory of first degree murder (from knowing to strong probability) on the day of trial and the State's request of a jury instruction on second degree murder at the close of the evidence created a "trial by ambush." We find no merit to these contentions. First, defendant has not pointed to any concrete way in which amending the information to change the subsection of the first degree murder charge inhibited his ability to prepare for trial or rendered him unprepared. The earlier amendment to the information, which occurred more than a month before, was more significant in that it dropped the second degree murder language, yet counsel conceded that that amendment posed no challenge to his trial preparation. The change in the information of subsections of first degree murder charged did not affect defendant's trial strategy of self-defense. In denying defendant's motion for a continuance on the day of trial, the court correctly observed that,

"I haven't heard anything this morning that indicates to me that * * * by filing this amended charge that * * * anything is changed, other than the selection of the subsection. And * * * there's plenty of case law * * * that, even during trial, permits the judge to amend the charges so that [they] fit with the proof entered.
* * *
If I was hearing that all of a sudden * * * there was some new thing that caught you off guard, no, but everybody knew what this was. * * * I've not heard any of you argue that, that there's anything different other than that the State is filing an information that will fit the evidence that you've all had and all been working with."

¶ 43 Defendant also cannot successfully claim that he was ambushed by the second degree murder instruction. Second degree murder instructions are possible in any first degree murder prosecution. When the evidence supports submitting an instruction on self-defense in a first degree murder case, the court may, either sua sponte or at the direction of the State, give a second degree murder instruction, even if the defendant objects. People v. Wilmington , 2013 IL 112938, ¶ 44, 368 Ill.Dec. 211, 983 N.E.2d 1015 (defendant's right to refuse jury instruction on lesser-included offense does not apply to jury instruction on mitigating factor in first degree murder prosecution, and such instruction may be given without his consent). Furthermore, the unreasonable self-defense prong of the second degree murder statute is so closely related to self-defense that "when the evidence supports the giving of a jury instruction on self-defense, an instruction on second degree murder must be given as a mandatory counterpart" at the defendant's request. People v. Washington , 2012 IL 110283, ¶ 56, 357 Ill.Dec. 1, 962 N.E.2d 902.

¶ 44 Finally, defendant argues that the first degree murder charge should be considered "new and additional" because first degree murder carries a greater penalty than second degree murder. We find, however, that the difference in penalties under the circumstances of this case does not alone suffice to render the first degree murder charge "new and additional." Both first degree murder and second degree murder provide the possibility of lengthy prison sentences. Indeed, defendant was sentenced to 18 years' imprisonment in this case. It is unclear from defendant's argument how the difference in possible penalties in this case would have changed defendant's trial strategy or hampered his ability to prepare a defense.

¶ 45 Accordingly, we conclude that the first degree murder charge was not a new and additional charge. It therefore relates back to the original second degree murder charge, and any delays attributable to defendant on the initial charge are also attributable to him on the subsequent charge. We thus overrule the contrary decision of the appellate court in Izquierdo-Flores , 367 Ill. App. 3d at 383-86, 305 Ill.Dec. 246, 854 N.E.2d 1156.

¶ 46 Defendant does not argue that absent a finding that the first degree murder charge was new and additional, a speedy-trial violation occurred in this case. Thus, we find that no error occurred and defendant cannot satisfy the first step in the plain error analysis.

¶ 47 We next address defendant's claim that his trial counsel was ineffective in failing to raise the speedy-trial issue in the trial court. To establish a claim of ineffective assistance of counsel, defendant must show that his counsel's performance was deficient and that it resulted in prejudice. Phipps , 238 Ill. 2d at 65, 342 Ill.Dec. 893, 933 N.E.2d 1186 ; Cordell , 223 Ill. 2d at 385, 307 Ill.Dec. 669, 860 N.E.2d 323. Counsel's failure to assert a speedy-trial violation cannot establish either prong of an ineffective assistance claim if no speedy-trial violation occurred. Phipps , 238 Ill. 2d at 65, 342 Ill.Dec. 893, 933 N.E.2d 1186 ; Cordell , 223 Ill. 2d at 385, 307 Ill.Dec. 669, 860 N.E.2d 323.

¶ 48 We have already held that no speedy-trial violation occurred in this case. Thus, trial counsel's failure to raise a speedy-trial claim was neither deficient nor prejudicial under the circumstances. See Phipps , 238 Ill. 2d at 70, 342 Ill.Dec. 893, 933 N.E.2d 1186. Accordingly, defendant cannot establish a claim of ineffective assistance of counsel.

¶ 49 II. Failure to Make an Offer of Proof as to Causation

¶ 50 Next, defendant argues that the trial court erred in precluding him from arguing to the jury that Box's reluctance to accept medical treatment was the cause of his death. Before the appellate court, defendant had argued that the trial court had erred in barring him from presenting both testimony and argument concerning Box's resistance to medical treatment.

¶ 51 It is well settled that the key to preserving for review an error in the exclusion of evidence is an adequate offer of proof in the trial court and a defendant's failure to make such an offer results in forfeiture of the issue. People v. Way , 2017 IL 120023, ¶ 33, 417 Ill.Dec. 707, 89 N.E.3d 355 ; People v. Patterson , 2014 IL 115102, ¶ 123, 388 Ill.Dec. 834, 25 N.E.3d 526 ; People v. Andrews , 146 Ill. 2d 413, 420-21, 167 Ill.Dec. 996, 588 N.E.2d 1126 (1992) ; see also People v. Pelo , 404 Ill. App. 3d 839, 875, 347 Ill.Dec. 260, 942 N.E.2d 463 (2010) (failure on the part of defendant to make a proper offer of proof forfeits review of his challenge to the trial court's granting of a motion in limine , as well as review of defendant's argument that he was not given an opportunity to make his case).

¶ 52 Here, it is clear that the trial court did not categorically prohibit defendant from cross-examining the State's witnesses on the issue of causation. Nor did the trial court absolutely bar defendant from arguing to the jury that the victim's refusal of medical treatment was an intervening cause. Instead, the trial court clearly ruled that before defendant could ask specific questions on cross-examination or make an argument to the jury, he must first make a proffer to show that there was a factual basis for the questioning or argument. All that was required of the defense by the trial court was that it first explain, outside of the presence of the jury, what testimony it expected to elicit in view of the fact that the medical examiner would be testifying that the cause of death was the stab wound delivered by defendant's hand. Defendant could have called Dr. Day in for questioning at the hearing on the motion in limine in an effort to confirm defense counsel's speculation that if Box had undergone further treatment, he would have recovered. The defense refused to do this. And its argument is now forfeited.

¶ 53 The same rule of forfeiture applies to defendant's contention that the trial court improperly barred any argument he might have wanted to make to the jury on causation. Again, defendant never sought to present an offer of proof or even a proffer as to any testimony or documentary evidence that might support defendant's theory of causation. Defendant now argues that even without any evidence from defense witnesses (and presumably even without defendant availing himself of the repeated invitations to make an offer of proof or even a proffer), Dr. Day's testimony presented ample evidence to support a causation defense. But defendant does not explain how this is so. Dr. Day never testified that the victim would have recovered had he sought further treatment after receiving stitches the night of the stabbing. Nor did he testify as to any likelihood of recovery with further treatment. On the other hand, the forensic pathologist testified that the stab wound inflicted by defendant was the cause of death. It is well settled that if the State shows the existence of a sufficient cause of death through the act of the accused, the death is presumed to have resulted from such act. People v. Domagala , 2013 IL 113688, ¶ 39, 370 Ill.Dec. 1, 987 N.E.2d 767 ; People v. Meyers , 392 Ill. 355, 359, 64 N.E.2d 531 (1945) ; see also People v. Mars , 2012 IL App (2d) 110695, ¶ 16, 368 Ill.Dec. 763, 985 N.E.2d 570. To relieve a defendant from criminal liability, an intervening cause or a supervening act must be "completely unrelated" and "disconnected" from any act of the defendant. (Internal quotation marks omitted.) Domagala , 2013 IL 113688, ¶ 39, 370 Ill.Dec. 1, 987 N.E.2d 767.

¶ 54 Once Dr. Day's testimony was given at trial, if the defense felt that "ample evidence to support a causation defense" had been presented, as defendant now claims, it could have approached the judge upon the close of the evidence and requested permission to argue to the jury that the State had failed to prove causation based on the "ample evidence" that had been unknown at the time the judge made his ruling on the motion in limine in December 2013. Instead of taking that tack, the defense did just the opposite-it conceded to the jury that the State had met its burden on the element of causation. Under these circumstances, defendant has forfeited his claim.

¶ 55 Defendant does not allege that his counsel was ineffective in his closing argument in conceding causation. Moreover, defendant, having conceded to the jury that the State had proven causation beyond a reasonable doubt, cannot now claim on appeal that he was precluded from arguing a lack of causation, especially where the trial court had made it clear that its ruling in granting the motion in limine was conditional and based on a lack of evidence to show anything other than that the stab wound caused the death of the victim. See McMath v. Katholi , 191 Ill. 2d 251, 255, 246 Ill.Dec. 321, 730 N.E.2d 1 (2000) (a party forfeits his right to complain of an error where to do so is inconsistent with the position taken previously by the party).

¶ 56 CONCLUSION

¶ 57 For the foregoing reasons, we affirm the judgment of the appellate court affirming defendant's conviction for the second degree murder of Michael Box.

¶ 58 Affirmed.

Chief Justice Karmeier and Justices Freeman, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.

      The appellate court affirmed the guilty verdict and the 18-year prison sentence but made minor modifications to certain fees and costs associated with the sentence that are not at issue in the appeal now before us.

      Specifically, the second degree murder charge alleged "the defendant committed the offense of second degree murder in violation of section 9-2(a)(1) * * * in that while committing first degree murder in violation of section 9-1(a)(1)" and, while acting under a sudden and intense passion resulting from serious provocation, stabbed the victim with a knife, thereby causing the death of the victim. (Emphasis added.)