plausible defense in Illinois

2026Where, as here, the defendant’s claim relates to his prospects at trial, our supreme court “requires a claim of innocence or a plausible defense to establish prejudice.” People v. Brown, 2017 IL 121681, ¶ 45 (citing People v. Hall, 217 Ill. 2d 324, 335-36 (2005), and People v. Rissley, 206 Ill. 2d 403, 459-62 (2003)). ¶ 31 Turning to the merits, as discussed in further detail below, we find it unnecessary to determine whether remand counsel’s facially valid Rule 604(d) certificate is refuted by the record.

2025Rather, the defendant must show that there was a plausible defense he could have raised at trial (Hall, 217 Ill. 2d at 335-36 ) or that rejecting a plea would have been rational under the circumstances (Brown, 2017 IL 121681, ¶ 40 ; People v. Hughes, 2012 IL 112817, ¶ 65 ). ¶ 40 The defendant argues that at the evidentiary hearing, Thurnau failed to argue either that the defendant had a plausible defense he could have presented or that rejecting the plea agreement would have been rational.

2021But see Brown, 2017 IL 121681, ¶¶ 34-36 . ¶ 74 Although Brown was decided more than three months before defendant’s amended petition was filed, his postconviction counsel argued in the amended petition that, “[i]n order to show prejudice [defendant] must claim actual innocence or a plausible defense.” (Emphasis added.) ¶ 75 While this appears to be a misstatement of law to the court below, it had no effect on our de novo review on appeal.

2021But see Brown, 2017 IL 121681, ¶¶ 34-36 . ¶ 74 Although Brown was decided more than three months before defendant’s amended petition was filed, his postconviction counsel argued in the amended petition that, “[i]n order to show prejudice [defendant] must claim actual innocence or a plausible defense.” (Emphasis added.) ¶ 75 While this appears to be a misstatement of law to the court below, it had no effect on our de novo review on appeal.

2026Citing People v. Hughes, 2012 IL 112817, ¶ 64 , the trial court observed that “[a] bare allegation that the defendant would have -8- pleaded not guilty and insisted on a trial if counsel had not been deficient is not enough to establish prejudice.” It noted defendant’s potential sentencing exposure if he did not accept the deal and further found that defendant neither asserted a claim of actual innocence nor did he articulate a plausible defense.

2025Rather, the defendant must show that there was a plausible defense he could have raised at trial (Hall, 217 Ill. 2d at 335-36 ) or that rejecting a plea would have been rational under the circumstances (Brown, 2017 IL 121681, ¶ 40 ; People v. Hughes, 2012 IL 112817, ¶ 65 ). ¶ 40 The defendant argues that at the evidentiary hearing, Thurnau failed to argue either that the defendant had a plausible defense he could have presented or that rejecting the plea agreement would have been rational.

2022When the ineffective assistance claim relates to a defendant’s prospects at trial, the Illinois Supreme Court has required “a claim of innocence or a plausible defense to establish prejudice.” Id. ¶ 45 (citing People v. Hall, 217 Ill. 2d 324, 335-36 (2005)).

2022When the ineffective assistance claim relates to a defendant’s prospects at trial, the Illinois Supreme Court has required “a claim of innocence or a plausible defense to establish prejudice.” Id. ¶ 45 (citing People v. Hall, 217 Ill. 2d 324, 335-36 , 841 N.E.2d 913, 920 (2005)).

2017Orocio, 645 F.3d at 643 .1 ¶ 25 The supreme court’s recent decision in Valdez did not address the question of whether a defendant must show actual innocence or a plausible defense to establish prejudice.

2015See also United States v. Orocio, 645 F.3d 630, 645 (3d Cir. 2011). ¶ 23 In People v. Guzman, 2014 IL App (3d) 090464, ¶ 34 , we held that the defendant—who pled guilty to aggravated possession of stolen firearms—sufficiently showed that he was prejudiced by his attorney's failure to advise him that his conviction carried a risk of deportation where the defendant claimed: (1) he would not have pled guilty had he known of the immigration consequences; and (2) it would have been rational for him to reject the plea deal and go to trial because (i) his conviction at trial was not certain because e

2026Where, as here, the defendant’s claim relates to his prospects at trial, our supreme court “requires a claim of innocence or a plausible defense to establish prejudice.” People v. Brown, 2017 IL 121681, ¶ 45 (citing People v. Hall, 217 Ill. 2d 324, 335-36 (2005), and People v. Rissley, 206 Ill. 2d 403, 459-62 (2003)). ¶ 31 Turning to the merits, as discussed in further detail below, we find it unnecessary to determine whether remand counsel’s facially valid Rule 604(d) certificate is refuted by the record.

2022Brown, 2017 IL 121681, ¶ 45 (citing Hall, 217 Ill. 2d at 335-36); People v. Rissley, 206 Ill. 2d 403, 459-62 (2003). ¶ 59 Defendant was charged with ACSA for knowingly committing an act of sexual penetration upon the victim by making contact between his penis and her vagina by use of force or threat of force and bruising her neck and shoulders. 720 ILCS 5/11-1.30(a)(2) (West 2010).

2023However, following the decision of the United States Supreme Court in Lee v. United States, __ U.S. ___, 137 S. Ct. 1958 (2017), our supreme court specifically held the previous standard derived from Rissley and Hall requiring a showing of actual innocence or a plausible defense was no longer applicable to cases involving trial counsel’s error in advising a defendant of the consequences of a guilty plea.

2017Defendant has not shown actual innocence or a plausible defense to the remaining charges, and nothing in the record indicates a reasonable probability that defendant would not have pleaded guilty but for counsel’s allegedly erroneous advice. ¶ 42 In his petition for rehearing, defendant contends this court, in the foregoing discussion, “treated the fact that [defendant] may not have been better off going to trial as conclusive of the prejudice analysis.” In support, defendant cites the recent United States Supreme Court decision in Lee, 582 U.S. ___ , 137 S. Ct. 1958 . ¶ 43 In Lee, the defenda

2023When a claim “involves a defendant’s prospects for acquittal, the defendant must show that he would have been ‘better off going to trial’ because he would have been acquitted or had a viable defense. [Citation.] Thus, in this type of case, this court has required a claim of innocence or a plausible defense to establish prejudice.” People v. Hatter, 2021 IL 125981, ¶ 26 (quoting Brown, 2017 IL 121681, ¶¶ 34, 45 ).

2022As a result, courts have required a defendant to present “a claim of innocence or a plausible defense to establish prejudice.” Hatter, 2021 IL 125981, ¶ 26 . ¶ 23 In his argument, Mr. Reyna concedes voluntary intoxication has not been recognized as an affirmative defense by Illinois courts since 2002.

2017In People v. Guzman, 2014 IL App (3d) 090464, ¶¶ 34-35 , aff’d on other grounds, 2015 IL 118749 , a similar result was reached, but the Third District also noted that the defendant there alleged he had a plausible defense.

2016In People v. Guzman, 2014 IL App (3d) 090464, ¶¶ 34-35 , aff’d on other grounds, 2015 IL 118749 , a similar result was reached but the Third District also noted that the defendant there alleged he had a plausible defense.

2023A defendant “must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010). ¶ 18 Defendant’s argument is premised on an alleged violation of section 108-6 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/108-6 (West 2020)).

2020To obtain relief, a defendant “ ‘must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.’ ” People v. Hughes, 2012 IL 112817, ¶ 65 (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). ¶ 27 In this case, the defendant cannot establish arguable prejudice because he has not alleged a plausible defense that likely would have been successful at trial.

2019See id. ¶ 18 Where, as here, the allegedly deficient representation involved not defense strategy or the chance of an acquittal but instead the consequences of a guilty plea, the defendant need not articulate a claim of innocence or a plausible defense.

2019See id. ¶ 18 Where, as here, the allegedly deficient representation involved not defense strategy or the chance of an acquittal but instead the consequences of a guilty plea, the defendant need not articulate a claim of innocence or a plausible defense.

2017People v. Delvillar, 235 Ill. 2d 507, 520 , 922 N.E. 2d 330, 338 (2009).

2017People v. Delvillar, 235 Ill. 2d 507, 520 , 922 N.E. 2d 330, 338 (2009).

2003Thus, defendant “ ‘does not maintain ... that he is innocent of the charges in the indictment, or that a plausible defense to those charges exist[s].’ ” Czere v. Butler, 833 F.2d 59, 64 (5th Cir. 1987), quoting United States v. Sutton, 794 F.2d 1415, 1422 (9th Cir. 1986).

2003Thus, defendant “ ‘does not maintain ... that he is innocent of the charges in the indictment, or that a plausible defense to those charges exist[s].’ ” Czere v. Butler , 833 F.2d 59, 64 (5th Cir. 1987), quoting United States v. Sutton , 794 F.2d 1415, 1422 (9th Cir. 1986).

2003Thus, defendant “ ‘does not maintain ... that he is innocent of the charges in the indictment, or that a plausible defense to those charges exist[s].’ ” Czere v. Butler, 833 F.2d 59, 64 (5th Cir. 1987), quoting United States v. Sutton, 794 F.2d 1415, 1422 (9th Cir. 1986).

2003Thus, defendant “ ‘does not maintain ... that he is innocent of the charges in the indictment, or that a plausible defense to those charges exist[s].’ ” Czere v. Butler , 833 F.2d 59, 64 (5th Cir. 1987), quoting United States v. Sutton , 794 F.2d 1415, 1422 (9th Cir. 1986).

2025Defendant is required to “assert either a claim of actual innocence or articulate a plausible defense that could have been raised at trial.” Id.; see also People v. Thomas, 2017 IL App (4th) 150815, ¶ 21 (“defendant’s lackadaisical assertion [that he might have accepted a plea agreement] is clearly insufficient to undermine the confidence in the outcome of the trial”) ¶ 12 Here, defendant has not even made the bare assertion he would have pled not guilty.

2024See 8 U.S.C. § 1227 (a)(2)(B)(i) (2024) (any alien who at any time after admission has been convicted of a violation of a state law relating to a controlled substance, other than a single offense of possessing 30 grams or less of marijuana for personal use, is deportable). ¶ 28 Section 2-1401 of the Code provides a comprehensive, statutory procedure that allows a trial court to vacate a final judgment after more than 30 days have passed. 735 ILCS 5/2-1401; People v. Vincent, 226 Ill. 2d 1, 7 (2007).

2024However, a defendant still “must raise more than a bare allegation that, absent counsel’s errors, he would have spurned the guilty plea and proceeded to a trial.” People v. Tucek, 2019 IL App (2d) 160788, ¶ 18 , 125 N.E.3d 402 .

2024However, a defendant still “must raise more than a bare allegation that, absent counsel’s errors, he would have spurned the guilty plea and proceeded to a trial.” People v. Tucek, 2019 IL App (2d) 160788, ¶ 18 , 125 N.E.3d 402 .