Third District Appellate Court Orders New Post Conviction Evidentiary Hearing

In this case, the defendant plead guilty with the expectation that he would serve his prison time and then be released on Mandatory Supervised Release, or MSR. However, the Defendant was a convicted sex offender and was homeless. As a result, IDOC refused to release him so he spent the entirety of his MSR time in prison.

As a result of learning this, while in prison, the Defendant filed a post conviction petition asking essentially to be able to withdraw his plea. This went on to the second stage, and counsel at the second stage, who was also the attorney who worked out the plea, argued successfully that in addition to the inadequate plea admonition issue, there was an even better issue of ineffective assistance of counsel because counsel had a duty to tell the client of this potential consequence of the plea, analogizing to immigration consequences as laid out in the U.S. Supreme Court case of Padilla v. Kentucky. This argument got the defendant to the third stage.

At the third stage, new counsel came in and did not amend the petition to allege the ineffective assistance argument nor did he present any evidence on the defendant’s behalf. As a result, the petition was denied.

The appellate court decided two issues in the defendant’s favor. The first issue of standing or mootness (since the defendant served all of his time during the pendency of the appeal but before a decision), the appellate court held that so long as the defendant was in custody at the time the PC petition was filed, that’s what controls rather than whether he’s in custody during the appeal.

The appellate court also held that the ineffective assistance issue had merit, so third stage counsel should have amended the petition to add the claim and should have pursued it at the hearing. As a result, the case was remanded for new proceedings.

The case is People v. McDonald

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