Buyer’s Remorse with Plea Agreement Results in Frivolous Claim of Inadequacy of Defense Counsel

Insurance Criminal’s Have No Shame

People who commit the crime of insurance fraud are prime examples of moral turpitude. They cannot be trusted and will do everything they can to annoy prosecutors, insurance defense lawyers and the courts of the state to reduce a sentence on conviction.

In The People Of The State Of Illinois v. Kenneth Steward, No. 1-17-0487, 2020 IL App (1st) 170487-U, Appellate Court Of Illinois First District Sixth Division (MARCH 20, 2020) Kenneth Steward appealed from the summary dismissal of his pro se petition for relief. On appeal, the defendant contended that the circuit court erred by dismissing the petition when it presented an arguable claim of ineffective assistance of counsel. Specifically, the defendant contends that his trial counsel’s erroneous advice that certain sentences would run concurrent to each other rendered his guilty pleas unknowing and involuntary.

BACKGROUND

Following his arrest, the defendant was charged with theft, aggravated insurance fraud, computer fraud, and money laundering. The cases, which arose out of an alleged mortgage fraud scheme, were consolidated for disposition.

The bench trial of the defendant and the codefendant Lavitta Steward Greaves, the defendant’s sister, was repeatedly continued due to the defendant’s criminal proceedings in a federal case in which he was ultimately sentenced to 17½ years’ imprisonment. In 2011 defendant entered negotiated pleas of guilty to two counts of theft.

The trial court admonished the defendant, in relevant part, regarding the applicable sentencing ranges and the term of mandatory supervised release he must serve upon release from prison. The court found a factual basis for the defendant’s pleas, accepted the pleas, and sentenced the defendant to two concurrent seven-year sentences. The court noted that the sentences were to “run concurrent to each other but consecutive to Federal Case 10 CR 601.”

Eventually defendant filed a pro se postconviction petition alleging that he only pled guilty because his trial counsel told him prior to sentencing that his state sentences would be concurrent to the sentence imposed in the federal case.

In his “affidavit,” the defendant stated that during plea negotiations, “it was understood” that the state “sentence” would run concurrent to the sentence imposed in the federal case and that the applicable sentencing range was between four and five years.

The circuit court summarily dismissed the petition as frivolous and patently without merit in a written order finding, in relevant part, that the defendant’s claim was positively rebutted by the record.

ANALYSIS

On appeal, the defendant contended that the circuit court erred when it dismissed his petition because it set forth the gist of a claim that counsel’s erroneous advice that his seven-year sentences were to run concurrent to the sentence in the federal case denied him the effective assistance of counsel and rendered his guilty pleas unknowing and involuntary. Although the defendant admits that he “stood silent” and did not object when the trial court imposed sentence and reiterated that the seven-year sentences would be served consecutive to the sentence in the federal case, he states that he relied on trial counsel’s statements that the sentences would be concurrent rather than the advice provided by the Court at sentencing to which he agreed on the record.

Ineffective assistance of counsel claims are judged under the two prong standard that requires, to support a claim of ineffective assistance of counsel, the defendant must demonstrate that counsel’s representation was deficient, and as a result, he suffered prejudice. Within the context of a guilty plea, an attorney’s conduct falls below an objective standard of reasonableness when he or she fails to ensure that the defendant’s plea was entered voluntarily and intelligently.

The record establishes that the trial court told the defendant twice that the two seven-year sentences would be served consecutive to the sentence in the federal case. The trial court  inquired whether the defendant had been promised anything “[o]ther than the promise that your sentence would be seven years *** on each one of these cases to run concurrent to each other but consecutive to your federal sentence and the State dismissing the charges on that gun case.” The defendant stated, “No. No, your Honor.”

The record made clear that the trial court reviewed the plea agreement and the sentences to be imposed with the defendant and the defendant confirmed that he understood and that no other promises were made to him. Based on this record, the defendant’s assertion that his pleas were unknowing and involuntary because counsel told him that all three sentences were concurrent has no arguable basis in fact.

Moreover, the record shows that the defendant failed to present an arguable claim that he was prejudiced. To obtain relief on a claim that he relied on trial counsel’s erroneous advice about a consequence of his plea, a defendant must convince the court that a decision to reject the plea offer would have been rational under the circumstances in his case.

Here, the defendant did not assert in his pro se post-conviction petition that he would have rejected the plea agreement and continued with trial but for counsel’s “erroneous advice” regarding his sentences. The circuit court’s summary dismissal of defendant’s post-conviction petition as frivolous and patently without merit was proper.

ZALMA OPINION

A seventeen year federal prison sentence that would then be followed by an additional seven years of state court sentence for aggravated insurance fraud, theft, wire fraud and federal and state crimes was appropriate and accepted by the defendant. Acting as a jail house lawyer he wasted the time of the trial and appellate court with a frivolous motion that was totally and irremediably refuted by the record in the trial court deserved additional punishment but since he must serve 24 years it seems the appellate court found the punishment to be adequate.


© 2020 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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