text:
    RITACCA LASER CENTER, Plaintiff-Appellant, v. Louis BRYDGES, George Riseborough, Brydges Riseborough, and O'Hare Engineering, Defendants
    (O'Hare Engineering, Defendant-Appellee).
    No. 2-16-0989
    Appellate Court of Illinois, Second District.
    Opinion filed February 13, 2018
    Thomas W. Gooch III and Sabina D. Walczyk, of The Gooch Firm, of Wauconda, for appellant.
    Kent Maynard Jr. and Joel Benton Daniel, of Kent Maynard & Associates LLC, of Chicago, for appellee.
   JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Ritacca Laser Center, appeals the trial court's summary judgment in favor of defendant O'Hare Engineering in this case involving a fire that occurred after defendant installed HVAC systems in plaintiff's office building. Plaintiff argues that the trial court erred by granting summary judgment in favor of defendant and striking affidavits attached to plaintiff's response to defendant's motion for summary judgment. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On October 7, 2013, plaintiff, a medical service provider, filed a two-count third amended complaint (complaint). Count I asserted legal malpractice against plaintiff's lawyers; that claim was dismissed and is not part of this appeal. Count II, pertinent to this appeal, asserted negligence against defendant as follows. In June 2008, plaintiff entered into a contract for Ryan, Inc. (Ryan), to construct improvements to remodel plaintiff's basement into a surgical suite. Ryan hired defendant to design, furnish, and install HVAC systems in plaintiff's office building. In December 2008, a few days after the grand opening of plaintiff's remodeled office building, a fire broke out, and an investigation suggested that defendant installed an air filter "too close" to an electric heating coil. Plaintiff alleged that, due to defendant's negligence, plaintiff was unable to work out of its office building for three years, which resulted in lost business income and property damage. Plaintiff tendered its claim to its insurance carrier, Erie Insurance (Erie), and plaintiff settled with Erie, but the settlement did not cover all of plaintiff's lost business income. Plaintiff attached to its complaint the construction contract between it and Ryan, which, in article 14, contained the following relevant provisions:

"(b) Builders Risk Insurance.
(i) Owner [ (plaintiff) ] shall purchase and maintain, until the date of Substantial Completion, 'all-risk' builder's risk insurance covering the Project risk associated with such deductible [sic ] shall be borne entirely by Owner. * * *
* * *
(c) Waiver of Subrogation. Owner [ (plaintiff) ] and Design-Builder [ (Ryan) ] waive all rights against each other, and against their respective agents, employees and subcontractors, for damages caused by perils covered by the insurance to be maintained pursuant to Paragraph 14(b) hereof, except such rights as they may have to the proceeds of such insurance. If, during the Project construction period, the Owner insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the Owner shall waive all rights against the Design-Builder, and against its respective agents, employees and subcontractors, for damages caused by perils covered by this separate property insurance."

¶ 4 On October 9, 2015, defendant moved for summary judgment, asserting additional facts and arguing the following. When plaintiff tendered its claim to Erie, it acknowledged that its policy covered both property damage and related business-interruption losses caused by the fire. When Erie refused to pay the amount of loss plaintiff claimed, plaintiff sued Erie in August 2009. In the course of litigation, plaintiff and Erie produced widely disparate calculations of plaintiff's business-interruption damages. Plaintiff claimed that its business-interruption losses were $6.3 million whereas Erie's expert opined that plaintiff's business-interruption losses were only $1.5 million. By June 2011, plaintiff and Erie had agreed on the amount of the property losses but not the business-interruption losses. After mediation on the matter, plaintiff agreed to release all of its business-interruption claims against Erie for $3.5 million. The total settlement amount for property damage and business interruption was over $4 million. After the settlement, plaintiff learned that Erie did not intend to bring a subrogation action against defendant, because Erie's legal counsel opined that plaintiff's fire-related property damage and business-interruption losses were caused by a "peril" covered by the Erie policy and, therefore, subrogation was barred by the waiver in the construction contract. Defendant argued that plaintiff's claim could not proceed, because it waived any claims against defendant in the construction contract and plaintiff's lawsuit against defendant was frivolous.

¶ 5 In support of its motion for summary judgment, defendant attached the following documents: (1) plaintiff's complaint against defendant, along with the attached construction contract, and (2) plaintiff's complaint against Erie. In the latter, plaintiff alleged that its policy provided it with, inter alia , "insurance coverage for what is commonly referred to as business interruption * * *. The Policy was in full force and effect at all time material hereto [namely] The Fire Loss * * *." Plaintiff also alleged that "Erie promised to pay income protection loss for the shorter of 1. The time period required to build, repair, or replace such part of the building or business personal property as has been damaged or destroyed as a result of a peril; or 2. Twelve (12) consecutive months from the date of the loss." Also attached to defendant's motion were the following: (1) a letter from an Erie representative indicating that, on the date of the fire, as indicated by the enclosed declarations, plaintiff was covered for "Business Personal Property [and] Income," (2) the settlement agreement between plaintiff and Erie, (3) Erie's counsel's letter stating that "the subrogation waiver cannot be overcome," and (4) Erie's declaration of coverage indicating that plaintiff was covered for personal property damage and income loss.

¶ 6 In opposition to defendant's motion for summary judgment, plaintiff asserted that the waiver of subrogation contained in paragraph 14(c) of the construction contract applied only to "damages caused by perils covered by insurance required under [paragraph] 14(b). * * * Further, [a]rticle 14[b] discussed builder's Risk Insurance, stating that [plaintiff] shall purchase this insurance, [and it clearly applied] only to property damage. * * * In fact, [plaintiff] did not purchase the Builders Risk Insurance but instead purchased a commercial package policy which included income loss, not required under Article 14." The construction contract could "be construed as ambiguous because [it] does not specify that income loss is part of the builders ['] risk. * * * Therefore[,] * * * the Court should construe the terms in the light most favorable to the insured, [plaintiff]."

¶ 7 In support of plaintiff's response to defendant's motion for summary judgment, plaintiff attached the following: (1) the construction contract; (2) Erie's insurance documents; (3) the affidavit of Eric Routman, an attorney, who opined, in pertinent part, that paragraph 14(b) of the construction contract required plaintiff to obtain property insurance, commonly referred to as builders' risk insurance, and that the waiver of subrogation in paragraph 14(c) was "limited to damages caused by perils covered by [insurance] required by [paragraph] 14(b)"; (4) the affidavit of Brian Paquette, plaintiff's insurance broker, who stated that he did not issue a builders' risk policy to plaintiff; and (5) the affidavit of Daniel Ritacca, M.D., plaintiff's principal, who stated that he did not obtain a builders' risk policy but, instead, purchased a commercial package policy that included income-loss insurance, and income loss is not part of a builders' risk policy.

¶ 8 Defendant moved to strike the three affidavits attached to plaintiff's response on the basis that the affidavits were insufficient under Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013).

¶ 9 On January 26, 2016, after a hearing on the matter, the trial court granted defendant's motion to strike plaintiff's affidavits and granted plaintiff leave to file affidavits compliant with Rule 191 no later than seven days prior to the hearing on defendant's motion for summary judgment. Plaintiff failed to file amended affidavits.

¶ 10 On February 9, 2016, after hearing argument on defendant's motion for summary judgment, the trial court granted defendant's motion and granted defendant leave to file a motion seeking to recover fees and costs from plaintiff by March 1, 2016. On March 2, 2016, defendant filed a motion for sanctions against plaintiff pursuant to Illinois Supreme Court Rule 137 (eff. July 1, 2013). On March 4, 2016, plaintiff filed a notice of appeal. However, because plaintiff's notice of appeal was premature due to defendant's pending motion for sanctions, plaintiff withdrew its appeal. On November 3, 2016, after hearing arguments by counsel, the trial court denied defendant's motion for sanctions. On November 22, 2016, plaintiff filed its notice of appeal.

¶ 11 II. ANALYSIS

¶ 12 A. Summary Judgment

¶ 13 Plaintiff argues that the trial court erred by granting summary judgment in defendant's favor, because it improperly interpreted the waiver of subrogation contained in the construction agreement.

¶ 14 Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). The trial court may grant summary judgment after considering "the pleadings, depositions, admissions, exhibits, and affidavits on file in the case" and construing that evidence in favor of the nonmoving party. Purtill v. Hess , 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). Summary judgment aids in the expeditious disposition of a lawsuit but should be allowed only "when the right of the moving party is clear and free from doubt." Id. We review de novo a trial court's decision to grant summary judgment. Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill.2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992).

¶ 15 The interpretation of a contract presents a question of law subject to de novo review in accordance with the general rules applicable to contract interpretation. Gallagher v. Lenart , 226 Ill.2d 208, 219, 314 Ill.Dec. 133, 874 N.E.2d 43 (2007). We construe a clear and unambiguous contract as a matter of law. See Storino, Ramello & Durkin v. Rackow , 2015 IL App (1st) 142961, ¶ 18, 398 Ill.Dec. 876, 45 N.E.3d 307. Our primary goal in interpreting a contract is to give effect to the intent of the parties. Thompson v. Gordon , 241 Ill.2d 428, 441, 349 Ill.Dec. 936, 948 N.E.2d 39 (2011). When the words in the contract are clear and unambiguous, they must be given their plain, ordinary, and popular meaning. Id. If the language of the contract is susceptible to more than one reasonable meaning, it is ambiguous and a court can consider extrinsic evidence to determine the parties' intent. However, the parties' disagreement on the meaning of a contract term does not, by itself, render that term ambiguous. Id. at 443, 349 Ill.Dec. 936, 948 N.E.2d 39. Rather, ambiguity arises only when the language has more than one reasonable interpretation. Nicor, Inc. v. Associated Electric & Gas Insurance Services Ltd. , 223 Ill.2d 407, 417, 307 Ill.Dec. 626, 860 N.E.2d 280 (2006).

¶ 16 Plaintiff argues that summary judgment was improper because (1) the construction contract applied to property damage only and not to business-income loss, (2) plaintiff did not purchase "builder's risk insurance" as required by article 14, but instead plaintiff purchased a commercial package policy that covered income loss, which was not required by article 14, and (3) the construction contract is ambiguous in that it does not specify that income loss is part of the builder's risk, and thus it should be interpreted in plaintiff's favor as it is the insured.

¶ 17 Defendant argues that the trial court properly granted summary judgment in its favor because the relevant provisions of the construction contract unambiguously apply to the damages incurred by plaintiff. We agree with defendant.

¶ 18 Paragraph 14(c) provided the following:

"Waiver of Subrogation. Owner [ (plaintiff) ] and Design-Builder [ (Ryan) ] waive all rights against each other, and against their respective agents, employees and subcontractors, for damages caused by perils covered by the insurance to be maintained pursuant to Paragraph 14(b) hereof, except such rights as they may have to the proceeds of such insurance. If, during the Project construction period, the Owner insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the Owner shall waive all rights against Design-Builder, and against its respective agents, employees and subcontractors, for damages caused by perils covered by this separate property insurance ." (Emphases added.)

Paragraph 14(b)(i) provided, in part:

"Owner [ (plaintiff) ] shall purchase and maintain, until the date of Substantial Completion, 'all-risk' builder's risk insurance covering the Project."

¶ 19 Plaintiff's interpretation of the waiver of subrogation renders the second sentence of paragraph 14(c) meaningless. The Erie insurance endorsement and the insurance policy attached to plaintiff's response to defendant's motion for summary judgment indicate that plaintiff was covered by an "Ultrapack Business Policy" that was in effect at the time of the fire and covered property damage and income loss. The name of the policy is irrelevant because under paragraph 14(c) the waiver applied to claims "for damages caused by perils covered by this separate property insurance. " Thus, plaintiff's argument that the waiver did not apply, because it bought a commercial policy, fails. Under either policy, the peril of fire was covered by insurance. The nature and extent of the damages insured are immaterial because it is the peril covered and not the type of damages that sustains the waiver.

¶ 20 We now address plaintiff's concomitant arguments that the construction contract applied to property damage only and not business-income loss and that the contract is ambiguous because it does not specifically list income loss. We reject both arguments.

¶ 21 The waiver expressly covered "damages caused by perils." The dictionary definition of "damage" does not support plaintiff's argument. Damage is defined as "loss due to injury" (Webster's Third New International Dictionary 571 (1993) ) and loss or injury to person or property (Black's Law Dictionary 416 (8th ed. 2004) ). These definitions are broad and implicitly include loss of business income. To the extent that the waiver does not enumerate different types of damages that could result from a peril, "it purports only to be inclusive, not preclusive." Intergovernmental Risk Management v. O'Donnell, Wicklund, Pigozzi & Peterson Architects, Inc. , 295 Ill.App.3d 784, 795-96, 229 Ill.Dec. 750, 692 N.E.2d 739 (1998). Nothing in the language of the waiver indicates that the parties intended an exception for loss of business income. We will not add terms to a contract to change the plain meaning, as expressed by the parties. See Empress Casino Joliet Corp. v. W.E. O'Neil Construction Co. , 2016 IL App (1st) 151166, ¶ 62, 409 Ill.Dec. 748, 68 N.E.3d 856 ; see also Berryman Transfer & Storage Co. v. New Prime, Inc. , 345 Ill.App.3d 859, 863, 280 Ill.Dec. 764, 802 N.E.2d 1285 (2004) ("Illinois recognizes a strong presumption against provisions that easily could have been included in a contract but were not."). Thus, applying the plain and ordinary meaning of the term damages to article 14 of the construction contract, we determine that it clearly and unambiguously included loss of business income. Therefore, the trial court properly granted summary judgment in defendant's favor.

¶ 22 B. Affidavits

¶ 23 Plaintiff argues that the trial court improperly struck the affidavits of Routman, Paquette, and Ritacca. According to plaintiff, the affidavits complied with Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013).

¶ 24 The record on appeal, however, does not include a transcript of the hearing on the motion to strike or a substitute in compliance with Illinois Supreme Court Rule 323 (eff. July 1, 2017). An appellant has the burden of presenting a sufficiently complete record of the proceedings to support a claim of error. In the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with the law. Foutch v. O'Bryant , 99 Ill.2d 389, 391, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984). Without an adequate report of the proceedings showing the basis for the trial court's ruling on the motion to strike, we must presume that its decision was appropriate. Id. at 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958 ; see also Preze v. Borden Chemical, Inc. , 336 Ill.App.3d 52, 56, 270 Ill.Dec. 151, 782 N.E.2d 710 (2002) (absent a complete record on appeal, the appellate court must assume that the trial court's order was correct and had a sufficient factual basis). The trial court's reasoning aside, the affidavits would not have affected our interpretation of article 14 of the construction contract; therefore, they would have had no impact on our determination that the trial court properly granted summary judgment in favor of defendant.

¶ 25 C. Local Rule 2-1.04

¶ 26 Plaintiff argues that the trial court erred by granting summary judgment in defendant's favor when defendant failed to attach to its motion a statement of uncontested material facts pursuant to Nineteenth Judicial Circuit Court Rule 2-1.04, formerly local rule 2.04. 19th Judicial Cir. Ct. R. 2-1.04 (Oct. 24, 2016). Plaintiff also contends that, when defendant finally submitted its statement of material facts, it was not in compliance, because the statements were in the form of a chart rather than short paragraphs and were not numbered. Based on the trial court's inherent power to control its docket, it has discretion whether to impose sanctions for violating local rules. VC&M, Ltd. v. Andrews , 2013 IL 114445, ¶ 26, 372 Ill.Dec. 16, 991 N.E.2d 323.

¶ 27 Local rule 2-1.04 governs motions for summary judgment and provides in pertinent part:

"A. In all filings pursuant to 735 ILCS 5/2-1005, the moving party shall serve and file:
* * *
3. a statement of material facts as to which the moving party contends there is no genuine issue and that entitles the moving party to a Judgment as a matter of law[.]
* * *
The statement referred to in Section (A)(3) shall consist of short numbered paragraphs, including within each paragraph specific references to affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph. Failure to submit such a statement constitutes grounds for denial or striking of the Motion." 19th Judicial Cir. Ct. R. 2-1.04(A) (Oct. 24, 2016).

¶ 28 Here, defendant initially violated the local rule by failing to attach a statement of material facts when it filed its motion for summary judgment. However, as directed by the trial court, defendant subsequently submitted its statement of material facts. We cannot say that the trial court abused its discretion by allowing defendant to submit the statement of facts after it filed its motion for summary judgment.

¶ 29 Further, plaintiff has failed to indicate how defendant's alleged failure to comply with the technical aspects of local rule 2-1.04(A) caused plaintiff any prejudice or surprise. Accordingly, we cannot say that the trial court abused its discretion by not denying defendant's motion for summary judgment as a sanction for failing to comply with the local rule. See VC&M , 2013 IL 114445, ¶ 27, 372 Ill.Dec. 16, 991 N.E.2d 323 (holding that the trial court did not abuse its discretion by failing to sanction a party for a violation of a local rule where the opposing party did not claim prejudice).

¶ 30 III. CONCLUSION

¶ 31 For the reasons stated, we affirm the trial court's order.

¶ 32 Affirmed.

Justices Jorgensen and Spence concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis CROFT, Defendant-Appellant.
    No. 1-15-0043
    Appellate Court of Illinois, First District, FIRST DIVISION.
    February 20, 2018
    Michael J. Pelletier, Patricia Mysza, and Manuel S. Serritos, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.
   PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.

¶ 1 Defendant Curtis Croft appeals from the second-stage dismissal of his successive petition for postconviction relief under the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 2014) ). His petition asserted that his discretionary sentence of natural life in prison without parole was imposed without consideration of the factors cited in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The circuit court concluded that defendant's claims were barred by res judicata in light of our opinion in People v. Croft , 2013 IL App (1st) 121473, 379 Ill.Dec. 411, 6 N.E.3d 739, in which we rejected defendant's first Miller challenge to his discretionary life sentence. The circuit court therefore dismissed defendant's successive petition.

¶ 2 On appeal, defendant contends that the law has changed since our previous opinion and that res judicata does not apply. He further argues that he is entitled to a new sentencing hearing at which the sentencing court can consider the "hallmark features" of youth. The State concedes that res judicata does not bar defendant's Miller claim but argues that defendant is not entitled to a new sentencing hearing because the circuit court considered defendant's youth as well as defendant's role in the offense in reaching its discretionary sentence. For the following reasons, we affirm the judgment of the circuit court.

¶ 3 BACKGROUND

¶ 4 At the age of 17, defendant participated in the gang rape, kidnapping, and murder of 16-year-old Kim Boyd. An autopsy revealed that Boyd had been stabbed over 40 times in the head, face, neck, hands, abdomen, back, and buttocks. She had bruises on her face, elbow, and back, along with a broken thigh bone and several fractured ribs. She further sustained injuries consistent with coming into contact with the underside of a car. The cause of death was attributed to the stab wounds.

¶ 5 A thorough recitation of the facts can be found in our opinion affirming defendant's convictions. People v. Croft , 211 Ill. App. 3d 496, 156 Ill.Dec. 31, 570 N.E.2d 507 (1991). We set forth here only those facts necessary to understand our disposition. Defendant waived his right to a jury trial. The testimony at trial showed that a number of people, including defendant and Boyd, were drinking at defendant's home in the early morning of July 13, 1986. There was testimony that Demetrius Henderson struck Boyd and forced her to have sexual intercourse with him. While Henderson was having sex with Boyd, defendant forced Boyd to perform oral sex on him. Henderson and defendant then forced Kevin Campbell and Alonzo Woodard to have sex with Boyd. After the sexual assault, Boyd was blindfolded and placed in the trunk of Henderson's car.

¶ 6 Detective Lawrence Tuider testified that he interviewed defendant and that defendant denied having sex with Boyd. Defendant told Tuider that he acted as the lookout while Boyd was taken to the car, and that he was a passenger when Henderson drove off with Boyd in the trunk. Defendant claimed to have told Henderson that they should feed Boyd and let her go home but Henderson refused. They drove to an alley where they removed Boyd from the trunk and got back in the car. Defendant was a passenger when Henderson ran Boyd over with the car five times. Henderson got out of the car and stabbed Boyd repeatedly, returned to the car, and the two then drove back to defendant's home and went to sleep.

¶ 7 Assistant State's Attorney (ASA) Bernard Murray testified that he interviewed defendant, who stated that Henderson struck Boyd and forced her to have sex with him, and then Woodard had sex with her. Henderson stated that they would either have to kill Boyd or that she would go to the police, but defendant did not agree. Defendant said that Henderson blindfolded Boyd and put her in the trunk of his car. Defendant claimed to have said they should feed Boyd and take her home, but Henderson refused. Defendant got in Henderson's car and the two drove to an alley. Defendant claimed to have stayed in the car while Henderson took Boyd out of the trunk, ran over her with the car four to five times, and then stabbed her repeatedly. Henderson then drove back to defendant's home.

¶ 8 Defendant testified that he did not have sexual intercourse with Boyd but was present in the room while the others did. He testified that at about 4 a.m., he was in the car with Henderson and Boyd. He denied that Boyd was blindfolded or in the trunk of the car. They stopped at defendant's girlfriend's house, and defendant knocked on her door but there was no answer. When he tried to return to the car, Henderson had driven away. Defendant stated that he told police and ASA Murray this sequence of events and denied making any statements inconsistent with his trial testimony.

¶ 9 The circuit court found defendant guilty of murder, aggravated kidnapping, and aggravated criminal sexual assault. The trial judge, Judge Richard E. Neville, sentenced defendant to life in prison for murder, 45 years for aggravated criminal sexual assault, and 10 years for aggravated kidnapping, with the sentences to run concurrently. On direct appeal, defendant did not challenge his convictions but instead argued that the circuit court improperly relied on his codefendants' statements during sentencing. We affirmed defendant's convictions but remanded for resentencing before a different judge. Croft , 211 Ill. App. 3d 496, 156 Ill.Dec. 31, 570 N.E.2d 507. On remand, circuit court Judge James N. Schreier presided over the resentencing hearing held on May 7, 1992. The circuit court heard mitigation testimony from defendant's father, grandfather, grandmother, and girlfriend with whom he had a child, as well as from Reverend Gordon McLean, a minister of 43 years who had actively counseled prisoners who might be released. The circuit court also considered defendant's high school records from Statesville, a letter from a teacher from the university that taught at Statesville, defendant's statement in allocution, and arguments from counsel in aggravation and mitigation. At the end of the hearing, Judge Schreier stated:

" 'The defendant talks about mistake in judgment. This is not a case of passive presence, negative acquiescence, mistaken judgment, none [sic ] participation. It is not a situation of not using good judgment to associate with certain people, in effect then being in the wrong place at the wrong time.
This is a case of the defendant's participation in the series of events which properly resulted in guilty findings as to murder and aggravated kidnapping and aggravated criminal sexual assault.
The evidence in this case seems to me to be about a person who was really cold hearted, almost inhuman in his participation in this brutal, heinous, evil doing. One of the most brutal crimes I have ever seen in all the years I've spent in this building.
About 40 stab wounds, gang rape, driving over this young girl in a car, after having her in the trunk. One can almost not imagine any worst [sic ] facts. Nightmarish is almost too weak a word. It staggers the imagination.
And this defendant cannot simply say, gee, I'm terribly sorry this all happened.
There is [sic ] certain crimes that there are no second chances. There are [sic ] no one free bite. There are no forgivenesses, saying I'm sorry, expressing regret. Even if I were to consider the defendant's words about mistake in judgment to be equivalent, are [sic ] not good enough.
There was a participation in one of the brutal [sic ] crimes that I've heard about. And for that a great penalty must be paid. The victim cannot be brought back and the family's tragedy, which the defendant alluded to in his remarks cannot be allayed. I [sic ] simply saying, well, I'm sorry it happened. I'm sorry, I was there or legally participated.
So, considering the presentence report, considering the arguments and testimony and evidence at this sentencing hearing, considering the factors set forth in the statute, considering the crime and the criminal, the crime being about as heinous a murder as one can imagine, and by a person who because of the nature of the crime, one can only determine to have evil intentions and to be absolutely heartless, merciless and heartless during the killing and torture of this young girl.
All things considered, the sentence of the Court will be a reiteration of Judge Neville's sentence, that is natural life without parole on the murder, 45 years for aggravated criminal sexual assault, and 10 years for aggravated kidnapping, concurrent.' " Croft , 2013 IL App (1st) 121473, ¶ 3, 379 Ill.Dec. 411, 6 N.E.3d 739.

Defendant appealed the circuit court's resentencing order. We reduced defendant's sentence for aggravated criminal sexual assault to 30 years' imprisonment, but otherwise affirmed. Id. ; People v. Croft , No. 1-92-2163, 261 Ill.App.3d 1114, 225 Ill.Dec. 181, 682 N.E.2d 1258 (1994) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 10 Defendant then filed a pro se postconviction petition, asserting ineffective assistance of trial and appellate counsel. The circuit court summarily dismissed his petition. We initially affirmed the circuit court's dismissal, finding that the petition was untimely. People v. Croft , No. 1-99-1606, 319 Ill.App.3d 1111, 274 Ill.Dec. 645, 791 N.E.2d 737 (2001) (unpublished order under Illinois Supreme Court Rule 23 ). Following a supervisory order from our supreme court ( People v. Croft , 205 Ill. 2d 600, 277 Ill.Dec. 682, 796 N.E.2d 1048 (2003) (supervisory order) ), we remanded to the circuit court for further proceedings ( People v. Croft , No. 1-99-1606, 349 Ill.App.3d 1036, 322 Ill.Dec. 364, 890 N.E.2d 1283 (2004) (unpublished order under Illinois Supreme Court Rule 23 ) ). Defendant then filed a pro se amended postconviction petition, asserting that his life sentence was unconstitutional under Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The State moved to dismiss defendant's amended petition. The circuit court appointed counsel to represent defendant, and on March 22, 2012, the circuit court dismissed the amended petition as untimely.

¶ 11 On appeal, defendant argued that his natural life sentence violated Miller , 567 U.S. 460, 132 S.Ct. 2455. We rejected his argument, finding that Miller did not apply to discretionary life sentences for juvenile offenders. Croft , 2013 IL App (1st) 121473, ¶ 8, 379 Ill.Dec. 411, 6 N.E.3d 739. We also observed that:

"At defendant's sentencing hearing, moreover, the trial court expressly considered defendant's presentence investigation report, which included his age, as well as 'the crime and the criminal.' People v. Partin , 156 Ill. App. 3d 365, 373 [109 Ill.Dec. 1, 509 N.E.2d 662] (1987) (trial court is presumed to have considered any evidence of mitigation before it). Ultimately, however, the [trial] court found the murder of which defendant was convicted to be 'brutal' and 'as heinous a murder as one can imagine,' and, on that basis, rejected a term of years in favor of a sentence of natural life imprisonment. This court rejected defendant's claim on direct appeal that his sentence was excessive. Croft , No. 1-92-2163 [261 Ill.App.3d 1114, 225 Ill.Dec. 181, 682 N.E.2d 1258]. Contrary to defendant's claim, there is simply no basis for applying Miller in this case. Defendant not only received a discretionary life sentence, but his youth was also a mitigating factor considered by the court in its sentencing determination. Miller , 567 U.S. at [465, 483, 567 U.S. 460] * * *." Croft , 2013 IL App (1st) 121473, ¶ 14, 379 Ill.Dec. 411, 6 N.E.3d 739.

¶ 12 On October 3, 2012, defendant filed a pro se motion for leave to file a successive postconviction petition. He again challenged his sentence under Miller . The circuit court appointed counsel to represent defendant, and counsel filed a supplemental postconviction petition. On December 12, 2014, the circuit court, on the State's motion, found that defendant's Miller claim was barred by res judicata in light of Croft , 2013 IL App (1st) 121473, 379 Ill.Dec. 411, 6 N.E.3d 739, and dismissed the petition.

¶ 13 Defendant filed a timely notice of appeal. After this matter was fully briefed in this court, the supreme court filed its opinion in People v. Holman , 2017 IL 120655, 418 Ill.Dec. 889, 91 N.E.3d 849. We ordered the parties to file supplemental briefs addressing the effect of Holman on the case before us.

¶ 14 ANALYSIS

¶ 15 Defendant's first argument is that res judicata does not bar his successive postconviction petition because the law has changed since we first rejected his Miller claim. In its supplemental response brief, the State agrees that recent case law "overrides the res judicata bar to [defendant's] eighth amendment claim and that Holman extended the rule of [ Miller ] to discretionary life sentences." We also agree and conclude that defendant's Miller claim is not barred by res judicata due to intervening changes in the law since our previous disposition.

¶ 16 The doctrine of res judicata provides that when a court of competent jurisdiction renders a final judgment on the merits of a claim, the court's judgment is conclusive of the rights of the parties and operates as a bar to future litigation of the same claim. Nowak v. St. Rita High School , 197 Ill. 2d 381, 389, 258 Ill.Dec. 782, 757 N.E.2d 471 (2001). Res judicata may be relaxed, however, when the law has changed from a previous appeal. People v. Sanders , 393 Ill. App. 3d 152, 331 Ill.Dec. 866, 911 N.E.2d 1096 (2009). A brief review of the controlling precedent shows that the law has evolved since we filed our opinion in Croft , 2013 IL App (1st) 121473, 379 Ill.Dec. 411, 6 N.E.3d 739.

¶ 17 In Miller , the Supreme Court expanded on cases involving juvenile offenders that stand for the proposition that the "imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children." Miller , 567 U.S. at 473-74, 132 S.Ct. 2455 (discussing Roper , 543 U.S 551, 125 S.Ct. 1183, and Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ). The Court explained that sentencing schemes imposing mandatory life sentences on juvenile offenders violate the eighth amendment. Miller , 567 U.S. at 479, 132 S.Ct. 2455. Miller holds that before a state may impose a life sentence on a juvenile offender, the sentencing court must "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480, 132 S.Ct. 2455.

¶ 18 Our supreme court subsequently found that Miller declared a new substantive rule and therefore applied retroactively to cases on collateral review. People v. Davis , 2014 IL 115595, ¶ 39, 379 Ill.Dec. 381, 6 N.E.3d 709. Our supreme court's holding in Davis is consistent with the Supreme Court's finding in Montgomery v. Louisiana , 577 U.S. ----, ----, 136 S.Ct. 718, 734-36, 193 L.Ed.2d 599 (2016), that " Miller announced a substantive rule of constitutional law" that applies retroactively.

¶ 19 In People v. Reyes , 2016 IL 119271, ¶ 9, 407 Ill.Dec. 452, 63 N.E.3d 884, our supreme court observed that, "A mandatory term-of-years sentence that cannot be served in one lifetime has the same practical effect on a juvenile defendant's life as would an actual mandatory sentence of life without parole-in either situation, the juvenile will die in prison." The court concluded that "a legislatively mandated sentence of 97 years, with the earliest opportunity for release after 89 years" imposed on a 16-year-old offender amounted to an unconstitutional de facto life sentence under Miller . Id. ¶ 10. Finally, in Holman , our supreme court held that " Miller applies to discretionary sentences of life without parole for juvenile defendants." 2017 IL 120655, ¶ 40, 418 Ill.Dec. 889, 91 N.E.3d 849.

¶ 20 As the foregoing cases make clear, a juvenile offender may raise a Miller claim to either a life sentence or a term-of-years sentence that amounts to a de facto life sentence, whether the circuit court imposed the sentence pursuant to a mandatory sentencing scheme or a discretionary sentencing scheme. The portion of our prior opinion in which we held that Miller did not apply to discretionary life sentences is no longer correct. As noted above, a change in law is an exception to the application of res judicata . We agree with the parties that, due to intervening changes in the law, our opinion in Croft , 2013 IL App (1st) 121473, 379 Ill.Dec. 411, 6 N.E.3d 739, does not bar defendant's successive postconviction petition asserting a Miller claim, and we conclude, therefore, that our prior decision cannot stand as a procedural barrier to defendant asserting his Miller claim to the circuit court's imposition of a discretionary life sentence.

¶ 21 Furthermore, in our previous opinion, we concluded that the circuit court did consider defendant's youth as a mitigating factor at sentencing. But in Holman , our supreme court expressly adopted a framework for evaluating whether a sentencing court's imposition of a life sentence on a juvenile offender complied with Miller :

"Under Miller and Montgomery , a juvenile defendant may be sentenced to life imprisonment without parole, but only if the trial court determines that the defendant's conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation. The court may make that decision only after considering the defendant's youth and its attendant characteristics. Those characteristics include, but are not limited to, the following factors: (1) the juvenile defendant's chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant's family and home environment; (3) the juvenile defendant's degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant's incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant's prospects for rehabilitation." Holman , 2017 IL 120655, ¶ 46, 418 Ill.Dec. 889, 91 N.E.3d 849 (citing Miller , 567 U.S. at 477-78, 132 S.Ct. 2455 ).

Our prior opinion did not have the benefit of our supreme court's guidance with respect to evaluating a sentencing hearing for compliance with Miller . Therefore, we further conclude that our prior examination of the merits of defendant's Miller claim should not be given preclusive effect and that his claim should be considered under the framework our supreme court adopted in Holman .

¶ 22 Defendant argues that the sentencing court failed to consider his chronological age; any evidence of immaturity, impetuosity, or failure to appreciate risks and consequences; or his degree of involvement in the crimes. He further contends that the record contains no evidence regarding whether defendant was incompetent or unable to assist in his own defense and that the sentencing court never made any finding of incorrigibility. He argues that he is entitled to a new sentencing hearing that will comport with Miller . We disagree and find that defendant's sentencing hearing complied with Miller .

¶ 23 The inquiry into whether a sentencing court complied with Miller is backwards-looking. Id. ¶ 47.

"In revisiting a juvenile defendant's life without parole sentence, the only evidence that matters is evidence of the defendant's youth and its attendant characteristics at the time of sentencing. Whether such evidence exists depends upon the state of the record in each case. A court revisiting a discretionary sentence of life without parole must look at the cold record to determine if the trial court considered such evidence at the defendant's original sentencing hearing." Id.

Furthermore, according to Holman , a key feature of the juvenile's sentencing hearing is that the defendant had the "opportunity to present evidence to show that his criminal conduct was the product of immaturity and not incorrigibility." Id. ¶ 49 (citing Montgomery , 577 U.S. at ----, 136 S.Ct. at 736 ).

¶ 24 Here, we have examined the cold record of the circuit court's resentencing hearing following remand, which includes the common law record and report of proceedings, and find that the circuit court considered evidence of the defendant's youth and its attendant characteristics at the time of sentencing and that the defendant had the "opportunity to present evidence to show that his criminal conduct was the product of immaturity and not incorrigibility." With respect to the first factor identified in Holman , defendant's age at the time of the offense and any evidence of immaturity, impetuosity and a failure to appreciate risks and consequences, when imposing defendant's sentence, the circuit court explicitly stated that it had considered the presentence investigation report (PSI), the arguments and testimony and evidence at the resentencing hearing, the statutory sentencing factors, and "the crime and the criminal." The circuit court knew that defendant was 17 at the time of the offense, as both the State and defendant noted defendant's chronological age at the resentencing hearing. Neither the PSI nor the testimony of defendant's father, grandmother, grandfather, the mother of one of his children, or Reverend McLean depicted defendant as immature, impetuous, or unable to appreciate risks and consequences. Defendant was in his senior year of high school when he was arrested and charged with the offenses at issue. He had previously been employed as a valet parking attendant, an auto alarm installer, and a stockman at a market. Defendant had never seen a psychiatrist or psychologist and, other than suffering from asthma, was physically healthy. He drank a few cans of beer on weekends and denied ever having used drugs. He had a minimal, nonviolent criminal history.

¶ 25 As to the second factor identified in Holman , defendant's family and home environment, the PSI noted that defendant was raised by his mother and father with a "normal childhood with average grades in school." At the resentencing hearing, defendant's grandmother, grandfather, father, and the mother of one of his two children testified on defendant's behalf. His grandparents testified that they helped raise defendant while his parents were working, he did "fine" in high school, he had no trouble with the police, and he never showed any violent tendencies. His father was employed at the University of Chicago and was a mechanical engineer. His father agreed that defendant was doing well in school, had little trouble with the police, did not have violent tendencies, had no disciplinary problems while incarcerated, and that defendant was involved in his children's lives. Reverend McLean testified that for over 43 years he worked with thousands of young people, and that he was involved with defendant from his arrest until his trial. Reverend McLean described defendant as articulate, sincere, and helpful with other students. Defendant's teachers told Reverend McLean that he had a good attitude, did good work, and talked about joining the Air Force. Reverend McLean opined that defendant was "intelligent and has ability, an attitude of real regret," and believed he could be rehabilitated.

¶ 26 With respect to the third Holman factor, the sentencing court was familiar with the facts of the case, stating that it had read our opinion affirming defendant's convictions. At the resentencing hearing, defendant's counsel highlighted that defendant's guilt for Boyd's murder was based on an accountability theory and that Henderson was more culpable for Boyd's death. Defense counsel stated that Henderson "was older, larger, stronger and was armed." Counsel emphasized that defendant tried to dissuade Henderson from killing Boyd and urged the sentencing judge to give defendant "some light at the end of the tunnel, some hope for the future, some hope of some day being released."

¶ 27 Defendant does not, however, identify any evidence presented at trial or at resentencing that might suggest he was coerced or pressured by anyone to participate in any of the offenses or that he participated out of fear. At trial, the State introduced evidence that defendant was present for and voluntarily participated in the sexual assault. There was also testimony from Detective Tuider that defendant stated that he acted as the lookout while Henderson put Boyd in the trunk of his car. Both Tuider and ASA Murray testified that defendant admitted to being a passenger in Henderson's car while they drove to the alley with Boyd in the trunk. According to the trial testimony, defendant gave conflicting statements as to whether he helped Henderson remove Boyd from the trunk and place her in the alley. There was consistent testimony that defendant remained in the car while Henderson repeatedly drove over Boyd and then repeatedly stabbed her to death. The evidence at trial and at resentencing showed that defendant was an active participant in the sexual assault and kidnapping, and the circuit court was well aware that defendant's murder conviction was based on an accountability theory and, therefore, was unquestionably aware of defendant's level of participation in Boyd's death.

¶ 28 As to the fourth factor, defendant's level of competence and ability to deal with police officers or prosecutors and his capacity to assist his attorneys, neither the State nor defendant introduced any evidence tending to show that defendant was incompetent, unable to deal with the police or prosecutors, or incapable of assisting his attorneys. By all accounts, defendant was physically healthy, a good student, and he had no known mental health issues.

¶ 29 Finally, with respect to the fifth Holman factor, defendant's prospects for rehabilitation, in addition to the testimony from his family members, the resentencing court heard testimony from Reverend McLean regarding defendant's prospects for rehabilitation. Reverend McLean was the director of the Juvenile Justice Ministry for Metro-Chicago Youth for Christ and worked with the youth section of the Cook County jail. He met defendant in the summer of 1986 and had written a book that featured defendant's story. He worked with defendant twice a week while defendant was awaiting trial. He spoke with defendant's teachers in Statesville about defendant's conduct and history while incarcerated and, based on his conversations with defendant and his experience working with young people, Reverend McLean believed that defendant "could make something worthwhile and good of his life." Reverend McLean stated that defendant had expressed sincere remorse for participating in the events culminating in Boyd's death. The resentencing court also heard defendant's statement in allocution in which he expressed his sorrow and condolences to Boyd's family for their loss. Defendant acknowledged that he exercised "very poor judgment" in the people he associated with. He stated that he was not the man that the original sentencing judge believed him to be, and that he was "a different man than I was [six] years ago." He concluded his statement by saying, "I'm sorry."

¶ 30 The circuit court stated that it considered the statutory factors in aggravation and mitigation and neither the defendant nor the State asserted any argument with respect to any of those factors.

¶ 31 Defendant contends that the circuit court never found that he was incorrigible. He argues that the circuit court acknowledged that he was not incorrigible, based on the following statement at resentencing:

"And the defendant's light at the end of the tunnel will have to, in my judgment[,] rely on some future governor taking a look at his actions and deeds, which speak louder than words in the penal system, after a period of years and then determine whether or not the defendant is deserving of executive clemency, of mercy. That will be the light at the end of the tunnel, as far as I'm concerned. And it is not unrealistic for the defendant."

Judge Schreier's comments, however, must be considered in context. Defense counsel argued that the sentencing court should give defendant "some light at the end of the tunnel, some hope for the future, some hope of some day being released." In explaining his sentence, Judge Schreier stated:

"So, considering the presentence report, considering the arguments and testimony and evidence at this sentencing hearing, considering the factors set forth in the statute, considering the crime and the criminal, the crime being about as heinous a murder as one can imagine, and by a person who because of the nature of the crime, one can only determine to have evil intentions and to be absolutely heartless, merciless and heartless during the killing and torture of this young girl."

The circuit court's statement is a clear indication that the resentencing judge believed defendant to be incorrigible. The circuit court's statement that "executive clemency, of mercy" was "not unrealistic" is not the same as the circuit court concluding that defendant was capable of being rehabilitated. Rather, considering the statement in context, we consider Judge Schreier's statement to be his conclusion that, based on his consideration of the crime and the criminal, the penalty he imposed was warranted for an offender he found to be "really cold hearted, almost inhuman in his participation in his brutal, heinous, evil doing." Furthermore, the circuit court concluded that defendant's expression of remorse was not credible and that his potential for rehabilitation was not presently evident. At best, the circuit court's comments express uncertainty as to whether defendant could ever be deserving of executive clemency at some remote and unknown time in the future.

¶ 32 We find that the circuit court considered the type of evidence that Miller requires for a juvenile sentencing hearing. Holman instructs that we review the cold record of the sentencing hearing to determine whether the trial court considered a nonexhaustive list of factors in order to comply with Miller , and directs that a defendant facing a sentence of life imprisonment without parole is entitled to a sentencing hearing at which he had the opportunity to present evidence that his crimes were the product of his youth and its attendant characteristics. Here, we find that the Holman factors were sufficiently addressed, the defendant presented mitigating evidence that addressed these factors, and the resentencing court considered them. Based on the record before us, we cannot say that defendant's sentencing hearing was constitutionally defective.

¶ 33 We acknowledge that a different sentencing court could have reached a different sentence based on the evidence presented at defendant's resentencing hearing. But nothing in Miller or Holman suggests that we are free to substitute our judgment for that of the sentencing court. Our role is to evaluate the sentencing hearing to ensure that a juvenile defendant had the opportunity to present evidence related to the hallmarks of youth and that the circuit court considered the defendant's youth and its attendant characteristics. We find that defendant's resentencing hearing complied with Miller , Holman , and a contemporary understanding of the eighth amendment.

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 36 Affirmed.

Justices Harris and Simon concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Blair A. JOHNSON, Defendant-Appellant.
    Appeal No. 3-15-0679
    Appellate Court of Illinois, Third District.
    Opinion filed February 27, 2018
    Michael J. Pelletier, Peter A. Carusona, and Mark D. Fisher, of State Appellate Defender's Office, of Ottawa, for appellant.
    Jerry Brady, State's Attorney, of Peoria (Patrick Delfino, Lawrence M. Bauer, and Thomas D. Arado, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Blair A. Johnson, appeals the trial court's denial of his motion to withdraw his guilty plea following his conviction for home invasion. Specifically, defendant argues that his plea was not knowing, voluntary, and intelligent because plea counsel allegedly failed to advise him that agreeing to a sentencing cap would bar him from appealing his sentence. We affirm.

¶ 2 FACTS

¶ 3 Defendant was charged with home invasion ( 720 ILCS 5/19-6(a)(3) (West 2012) ) in that he knowingly entered the residence of Ronald and Mari Halliday with reason to know that one or more persons were present while armed with a handgun and threatened the imminent use of force upon Ronald. Defendant was also charged with two counts of armed robbery (id. § 18-2(a)(2) ) (one for each victim), two counts of aggravated unlawful restraint (id. § 10-3.1(a) ) (one for each victim), and residential burglary (id. § 19-3(a) ).

¶ 4 Defendant pled guilty to home invasion in exchange for the State's agreement to a sentencing cap of 40 years' imprisonment and the dismissal of the remaining charges. The court stated: "And People are agreeing to a cap of 40. It would normally be 45, is that correct?" The prosecutor replied: "That is correct." The court admonished defendant regarding his rights.

¶ 5 The court asked defendant if he was satisfied with his attorney's representation. Defendant replied, "Not really, but I'll have to deal with it." The court asked defendant what he meant, and defendant said, "I just don't feel like I was represented right." The court took a 20-minute break for defendant to discuss the matter with his attorney. After the recess, plea counsel stated that defendant did not want him to withdraw. Defendant said that was correct. Plea counsel said that defendant was not upset with his representation. Rather, defendant was upset with the State's plea offer and believed plea counsel should have negotiated him a better deal. Plea counsel explained that the State had only offered the 40-year sentencing cap and would not budge. The court asked defendant again if he was satisfied with his attorney's representation, and defendant said yes. Defendant stated he wished to proceed with the partially negotiated plea.

¶ 6 The court read the home invasion charge from the indictment and asked defendant if he understood the charge he was pleading guilty to. Defendant said yes. The following exchange occurred:

"THE COURT: Now, this is a special Class X felony in that it is a class-we call Class X plus 15. That means the minimum mandatory prison sentence is 21 years. And normally a Class X plus 15 would be 21 to 45 but because of your partially negotiated plea agreement calls for a cap of 40 years in the Department of Corrections, your sentence will be an exact term between 21 and 40 years, and when you are released it will be followed immediately by mandatory supervised release of three years. Do you understand that, sir?
THE DEFENDANT: Yes."

The court continued admonishing defendant as to the trial rights he was relinquishing by pleading guilty.

¶ 7 The State read the factual basis for the plea. The State stated that Ronald and Mari Halliday told a police officer that they were sleeping in their home on the night of the incident. After 2 a.m., the Hallidays were awoken by two unknown black males wearing ski masks. Both men were armed with handguns and held flashlights. The two men told the Hallidays to roll over or they would be killed. The men tied up Ronald's hands and feet. Approximately one hour later, the men tied up Mari. Ronald and Mari could hear other people downstairs. The incident lasted over two hours. At least one of the men stayed inside the bedroom with the Hallidays the entire time. The men laughed about the Hallidays living in a gated community. They held the barrels of their handguns to the Hallidays' heads. The men told the Hallidays that if they reported the incident to the police, they would come back and kill them. The Hallidays heard at least four other individuals in their home throughout the incident. After the men left, the Hallidays fled to a neighbor's house and called the police. The Hallidays determined that the men had taken several items of property from their residence, including jewelry and televisions.

¶ 8 The State said that Perry Rosetto told the police that he and several other individuals, including defendant, were involved in the Halliday home invasion. Rosetto reported that he and defendant were involved in tying up the Hallidays. The State said that it would call Ahmed Malik as a witness. Malik had purchased items from defendant and Rosetto that the Hallidays later identified as property stolen from their home.

¶ 9 The court found the factual basis sufficient and accepted defendant's guilty plea.

¶ 10 Defendant hired new counsel to represent him during sentencing.

¶ 11 A presentence investigation report (PSI) was prepared. The PSI showed that defendant was 21 years old. Defendant had a prior misdemeanor conviction for theft of motor fuel and two ordinance convictions for fireworks and disorderly conduct. Defendant was previously employed at a bowling alley for approximately four years. After that, he worked as "a maintenance/van driver" at a hotel for approximately one year. Defendant reported abusing marijuana and prescription drugs. Defendant began consuming alcohol when he was 16 years old. The PSI included a victim impact statement from Mari requesting that the court give defendant the maximum sentence. A supplemental PSI contained letters from defendant's friends and family.

¶ 12 A sentencing hearing was held. As evidence in aggravation, the State offered a certified copy of the testimony of Mari and Ronald. The court noted that it had presided over the trial of defendant's codefendant and heard the Hallidays' testimony. The transcript was entered into evidence. The State argued that defendant should be sentenced to the "higher end of 40 years" based on the terror he inflicted on the Hallidays. Defense counsel argued that defendant should receive a minimum sentence in light of his employment history, his lack of a criminal record, his family's support, and his cooperation with law enforcement. Defendant gave a statement in allocution in which he apologized to the Hallidays for the emotional stress he caused them. Defendant said he was grateful that no one was physically hurt during the incident.

¶ 13 The court sentenced defendant to 40 years' imprisonment. The court stated that it had considered the PSI, the arguments of the parties, defendant's statement in allocution, the statutory factors in aggravation and mitigation, and defendant's history and character. The court discussed defendant's employment history. The court stated: "The crime [defendant] committed is not the worst crime in the world, but it's close." The court reasoned:

"[H]ere are the things I find particularly aggravating: You just couldn't stop. At least you stole and ransacked their home and took six televisions, yanked them right off the wall, two laptops, handbags, all handbags, jewelry, watches, rings, heirlooms, two cars, an SUV and a BMW; and apparently these were so upscale and apart from you and your cohorts, that you had to come back in and ask them how to start the car."

The court stated: "The Hallidays were terrorized and you, sir, were the terrorist. They were terrorized with guns to their heads and made them feel as though you would decide if they would live or die."

¶ 14 Defendant filed a motion to reconsider his sentence, arguing that the 40-year sentence was excessive in light of various mitigating factors and the fact that defendant's codefendant received a sentence of only 12 years' imprisonment for "essentially committing the exact same crime."

¶ 15 Five days later, defendant filed a motion to withdraw his guilty plea arguing that plea counsel failed to advise him as to the effect of the sentencing cap on defendant's ability to appeal his sentence. The motion argued:

"That the plea itself had a cap of only five (5) years under the maximum 45 year sentence given the Defendant's circumstances it is almost per se ineffective assistance of counsel in the sense that it was a marginal benefit gained for a significant waiver of his ability to appeal the length of his sentence from the sentencing hearing."

¶ 16 A hearing was held on defendant's motion. The State argued that defendant could not challenge his sentence with a motion to reconsider because defendant's 40-year sentence was within the agreed-upon sentencing cap. The court denied defendant's motion to reconsider his sentence.

¶ 17 The hearing proceeded to defendant's motion to withdraw his guilty plea. Defendant testified on his own behalf. Defendant said that plea counsel never advised him that agreeing to a sentencing cap would affect his ability to appeal his sentence. Defense counsel asked defendant if his plea counsel had discussed his options of pleading guilty or going to trial prior to defendant's guilty plea. Defendant replied: "No. He just said that if I didn't take [the plea] today that we had to go to trial, and that I would receive 90 years or something." On cross-examination, the following exchange occurred between defendant and the prosecutor:

"Q. Okay. So when the Court asked you [at the plea hearing], 'Have [you] discussed this partial plea agreement fully with your attorney ***,' you answered, 'Yes' so that answer was yes?
A. Yeah, just to [plea counsel] telling me that it was the 21 to 40.
Q. Okay. So did you have some misunderstanding of discussing the agreement fully?
A. I didn't know that if I was to go to trial that the most I could receive was 45.
Q. Okay. Now you indicated-well, how do you know that's necessarily true? You were potentially subject to a consecutive sentence on these charges.
A. Because they said that considering I'm only charged with one incident, that it would only be the one incident I could get charged with at the most was 45."

¶ 18 The court denied defendant's motion to withdraw his guilty plea. The court noted that it had read the transcript of defendant's plea proceedings, which had been held in front of another judge. The court remarked that the plea "was as by the book as it could be." The court reasoned: "And although there may be regrets, I don't see that there's anything that would support the motion for withdrawing the plea."

¶ 19 ANALYSIS

¶ 20 Defendant argues that the trial court erred in denying his motion to withdraw his guilty plea because his plea was not knowing, intelligent, or voluntary. Specifically, defendant contends:

"Where defendant gave uncontradicted testimony at the hearing on his motion to withdraw his guilty plea that he was never told his agreement to a sentencing cap barred him from subsequently challenging his sentence on appeal, his plea was not entered knowingly, intelligently or voluntarily, and this Court should therefore reverse the order denying his motion to withdraw guilty plea."

¶ 21 Initially, we reject defendant's contention that his argument on appeal was not a claim of ineffective assistance of counsel such that he was required to establish the factors set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defendant argues:

"The instant defendant does not make a Strickland claim on appeal. Rather, he argues his guilty plea should be withdrawn because it was entered based on a misapprehension of the law, specifically, that he did not understand his agreement to a sentencing cap precluded him from challenging his sentence as excessive on appeal."

However, the only evidence defendant presented in support of his claim was his own testimony that his plea counsel failed to explain the significance of the sentencing cap as it related to his ability to appeal his sentence. Defendant also relies heavily on the holding in People v. Edmonson , 408 Ill. App. 3d 880, 349 Ill.Dec. 501, 946 N.E.2d 997 (2011), a case involving a claim of ineffective assistance of counsel, in support of his argument.

¶ 22 Defendant does not argue that the court had a duty to advise him as to the effect of the sentencing cap on his ability to appeal his sentence. In fact, defendant acknowledges that Illinois Supreme Court Rule 402(a) (eff. July 1, 2012) does not require courts to admonish a defendant pleading guilty as to the ramifications of a sentencing cap. Defendant contrasts Rule 402(a) with Federal Rule of Criminal Procedure 11(b)(1)(N), which requires federal courts to admonish defendants pleading guilty about "the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence." Fed. R. Crim. P. 11(b)(1)(N). Defendant then argues:

"Presumably, the presumption in Illinois is that trial counsel will advise his client about the impact of an agreement to a sentencing cap. Counsel's failure to provide his client with such information, then, is just as bad as counsel's mis-advising his client that he can challenge his sentence regardless of the sentencing cap."

¶ 23 Thus, defendant essentially argues that his plea counsel should have advised him as to the consequences of his sentencing cap on his appeal rights but failed to do so. Under these circumstances, we find that defendant's argument on appeal is a claim of ineffective assistance of counsel in substance if not form, and we will treat it as such.

¶ 24 "A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, 'with sufficient awareness of the relevant circumstances and likely consequences.' " Bradshaw v. Stumpf , 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (quoting Brady v. United States , 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ). "A defendant does not have an automatic right to withdraw a plea of guilty. [Citation.] Rather, defendant must show a 'manifest injustice' under the facts involved." People v. Baez , 241 Ill. 2d 44, 110, 349 Ill.Dec. 165, 946 N.E.2d 359 (2011) (quoting People v. Delvillar , 235 Ill. 2d 507, 520, 337 Ill.Dec. 207, 922 N.E.2d 330 (2009) ). "Withdrawal is appropriate where the plea was entered through a misapprehension of the facts or of the law or where there is doubt as to the guilt of the accused and justice would be better served through a trial." People v. Hughes , 2012 IL 112817, ¶ 32, 368 Ill.Dec. 26, 983 N.E.2d 439.

¶ 25 "A defendant might enter a guilty plea because of counsel's erroneous advice or omissions, but this fact alone does not destroy the voluntary nature of the plea." Edmonson , 408 Ill. App. 3d at 884, 349 Ill.Dec. 501, 946 N.E.2d 997. Rather, "[w]hether the defendant's plea was voluntary depends on whether the defendant had effective assistance of counsel." Id. ; see also People v. Pugh , 157 Ill. 2d 1, 14, 191 Ill.Dec. 10, 623 N.E.2d 255 (1993). To establish a claim of ineffective assistance of counsel, defendant must show "(1) counsel's performance was objectively unreasonable; and (2) the defendant suffered prejudice as a result." Edmonson , 408 Ill. App. 3d at 884, 349 Ill.Dec. 501, 946 N.E.2d 997 ; Strickland , 466 U.S. at 687-88, 104 S.Ct. 2052.

¶ 26 "To 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.' " People v. Valdez , 2016 IL 119860, ¶ 29, 409 Ill.Dec. 21, 67 N.E.3d 233 (quoting Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ). Where, as here, a claim of ineffective assistance of plea counsel involves "a claim that [the defendant] 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." ' " People v. Brown , 2017 IL 121681, ¶ 48, ---Ill.Dec. ----, --- N.E.3d ---- (quoting Valdez , 2016 IL 119860, ¶ 29, 409 Ill.Dec. 21, 67 N.E.3d 233, quoting Padilla v. Kentucky , 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ). A defendant may not "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." Id. ¶ 47 ; Lee v. United States , 582 U.S. ----, ----, 137 S.Ct. 1958, 1967, 198 L.Ed.2d 476 (2017) ("Courts 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. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.").

¶ 27 Here, we find that defendant has failed to establish prejudice. That is, defendant failed to show that rejecting the plea would have been rational under the circumstances if counsel had advised him that he would be unable to appeal his sentence. If defendant had gone to trial on all six charges and been found guilty of both home invasion and armed robbery, he would have received multiple convictions. The convictions would not have merged under the one-act, one-crime doctrine because the offenses were carved from different physical acts and neither offense was a lesser included offense of the other. See People v. Coats , 2018 IL 121926, ¶ 12, --- Ill.Dec. ----, ---N.E.3d ----. Specifically, the home invasion charge was based on the act of unlawful entry into the Halliday residence, and the armed robbery charge was based on the act of taking property from the person or presence of Ronald and/or Mari. Arguably, both offenses contained the common act of threatening the use of force. However, " ' "[a] person can be guilty of two offenses when a common act is part of both offenses" ' " ( id. ¶ 15 (quoting People v. Rodriguez , 169 Ill. 2d 183, 188, 214 Ill.Dec. 451, 661 N.E.2d 305 (1996), quoting People v. Lobdell , 121 Ill. App. 3d 248, 252, 76 Ill.Dec. 623, 459 N.E.2d 260 (1983) ) ) " 'or part of one offense and the only act of the other offense' " ( id. ¶ 15 (quoting Lobdell , 121 Ill. App. 3d at 252, 76 Ill.Dec. 623, 459 N.E.2d 260 ) ). Neither armed robbery nor home invasion is a lesser-included offense of the other, as armed robbery contains an element that home invasion does not (namely, taking property from the person or presence of another), and home invasion has an element that armed robbery does not (namely, unlawful entry). 720 ILCS 5/18-2(a)(2), 19-6(a)(3) (West 2012).

¶ 28 Because defendant would have been subject to separate convictions on home invasion and armed robbery, defendant would have potentially been subject to permissive consecutive sentencing on the two offenses if the court found that it was necessary for protection of the public. 730 ILCS 5/5-8-4(c)(1) (West 2012). Taking the applicable firearm enhancements into consideration, defendant faced maximum sentences of 45 years' imprisonment for each offense. See 720 ILCS 5/18-2(a)(2), (b), 19-6(a)(3), (c) (West 2012); 730 ILCS 5/5-4.5-25 (West 2012). Thus, defendant would have been subject to a possible maximum aggregate sentence of 90 years' imprisonment on the two offenses. Although defendant had little to no criminal history, it is highly unlikely that he would have received a lower-range sentence considering the severity of the offenses. By accepting the plea agreement, defendant received only one conviction and a sentencing cap of 40 years' imprisonment, as opposed to a possible second conviction and potential 90-year sentence. Under these circumstances, defendant has failed to show that rejecting the plea would have been rational under the circumstances.

¶ 29 Because defendant could have received a maximum sentence of 90 years' imprisonment had he gone to trial, this case is distinguishable from the scenario posited by the Court in Lee , 582 U.S. at ----, 137 S.Ct. at 1966-67, where "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."

¶ 30 We also find it significant that defendant failed to present any evidence that the ability to appeal his sentence played an important role in his decision to accept the plea agreement. In Lee , determining that the defendant had established that he was prejudiced by his plea counsel's erroneous advice that he would not be deported as a result of his plea agreement, the Lee Court found it significant that the defendant had demonstrated through his testimony and the testimony of his plea counsel that deportation was the determinative issue in the defendant's decision to accept the plea deal. Id. at ----, 137 S.Ct. at 1967-68. Similarly, in Edmonson , a case heavily relied upon by defendant, the defendant and his plea counsel testified that plea counsel erroneously advised defendant that he would be able to appeal a sentence entered under a plea agreement with a sentencing cap. Edmonson , 408 Ill. App. 3d at 883, 349 Ill.Dec. 501, 946 N.E.2d 997. In determining that the Edmonson defendant had established a claim of ineffective assistance of counsel, the court found it significant that "[t]estimony from [plea counsel] and defendant clearly showed that defendant relied on the misinformation when he entered his plea and that it played a key role in his decision." Id. at 886, 349 Ill.Dec. 501, 946 N.E.2d 997.

¶ 31 In the instant case, on the other hand, defendant testified only that his plea counsel failed to advise him that agreeing to the sentencing cap would preclude him from appealing his sentence. Defendant presented no evidence-not even his own testimony-that a belief that he would be able to appeal his sentence played a key role in his decision to accept the plea agreement.

¶ 32 CONCLUSION

¶ 33 For the foregoing reasons, the judgment of the trial court is affirmed.

¶ 34 Affirmed.

Presiding Justice Carter and Justice Holdridge concurred in the judgment and opinion.