{ "id": 4299737, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD J. BARKES, JR., Defendant-Appellant", "name_abbreviation": "People v. Barkes", "decision_date": "2010-04-05", "docket_number": "No. 2\u201408\u20140266", "first_page": "980", "last_page": "992", "citations": [ { "type": "official", "cite": "399 Ill. App. 3d 980" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "353 Ill. App. 3d 244", "category": "reporters:state", "reporter": "Ill. 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App. 3d 110", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5256858 ], "year": 1991, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0110-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "688, 694" }, { "page": "693, 698" }, { "page": "2064, 2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "237 Ill. App. 3d 811", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 4279571 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "942-43" }, { "page": "943" }, { "page": "944" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/385/0919-01" ] }, { "cite": "202 Ill. 2d 59", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442048 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0059-01" ] } ], "analysis": { "cardinality": 1059, "char_count": 32466, "ocr_confidence": 0.78, "pagerank": { "raw": 6.497341544922815e-08, "percentile": 0.3997651986660226 }, "sha256": "974051054a76b0f2eafc4a43dee8c4973e08d22dbc0ea374554e6041a5f27445", "simhash": "1:bb9a118e5133c279", "word_count": 5217 }, "last_updated": "2023-07-14T20:57:29.923092+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD J. BARKES, JR., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BOWMAN\ndelivered the opinion of the court:\nDefendant, Edward J. Barkes, Jr., appeals from an order of the circuit court of Kendall County granting the State\u2019s motion to dismiss his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2008)), which sought relief from his conviction of seven counts of criminal sexual assault (720 ILCS 5/12 \u2014 13(a)(4) (West 2004)) and seven counts of aggravated criminal sexual abuse (720 ILCS 5/12 \u2014 16(d) (West 2004)). For the reasons that follow, we affirm in part, reverse in part, and remand.\nI. BACKGROUND\nOn November 16, 2004, following a jury trial, defendant was convicted of seven counts of criminal sexual assault and seven counts of aggravated criminal sexual abuse. At trial, A.H., the 13-year-old victim, testified that, from February 5 through May 18, 2004, she had sexual intercourse with defendant (who was born on March 15, 1965) approximately two to three times per week. Other testimony established that during much of that time, A.H. lived with defendant and defendant was in a position of trust, authority, or supervision in relation to A.H. The evidence also included multiple letters written by defendant to A.H., affirmatively stating that he had had a sexual relationship with A.H. On February 4, 2005, the court merged the abuse charges into the assault charges and sentenced defendant to seven consecutive eight-year terms of incarceration. Defendant moved for reconsideration of his sentence, arguing that it was excessive. The trial court denied the motion, and defendant timely appealed.\nOn appeal, defendant argued the following: (1) there was insufficient evidence that he was in a position of trust, authority, or supervision over the victim; (2) there was insufficient evidence to convict him of multiple sex offenses; and (3) his sentence was disproportionate to the nature of the offenses. We rejected each argument and affirmed. See People v. Barkes, No. 2 \u2014 05\u20140248 (2006) (unpublished order under Supreme Court Rule 23).\nOn July 18, 2007, defendant filed by mail a pro se postconviction petition alleging 15 instances of violations of his constitutional rights. Among those allegations, defendant alleged that trial counsel was ineffective for refusing to allow him to waive a jury trial and refusing to allow him to testify. He stated that he \u201cdesired to testify in this matter to refute allegations made by [A.H.] *** [and] dispell [sic] the illusion that [A.H.] had no motive to testify.\u201d In addition, defendant alleged that trial counsel was ineffective for failing to advise him that the sentences for criminal sexual assault were statutorily mandated to be served consecutively. He further stated that the trial judge failed to inform him that if he were convicted the sentences would have to be served consecutively and incorrectly informed him that the maximum extended sentence for criminal sexual assault was 20 years, rather than 30 years. He maintained that, because he did not have accurate information about the possible penalties, he was unable to knowingly and intelligently weigh the State\u2019s plea offers, which included an initial offer of 35 years and a subsequent offer of 25 years. Defendant maintained that had he been properly advised, he \u201clikely would have accepted\u201d the State\u2019s second offer and pleaded guilty.\nDefendant attached to his pro se postconviction petition his affidavit, wherein he averred that he told counsel that he wanted a bench trial but counsel refused, telling defendant that counsel \u201cwas running the show and [defendant] was getting a jury trial.\u201d Defendant also stated that \u201ccounsel refused to allow [him] to testify in [his] own defense at [his] jury trial, despite [his] request to do so.\u201d Defendant stated that \u201c[he] made no in-court fuss or motion concerning [his] trial counsel refusing to permit [his] requests for bench trial and to testify in [his] own defense because [he] thought they were [trial counsel\u2019s] calls to make.\u201d Defendant also averred that he was never told that consecutive sentences were mandatory. In addition to his affidavit, defendant attached the State\u2019s written offer to negotiate, dated July 20, 2004. Under the offer, in exchange for a guilty plea, defendant would serve consecutive terms of 15, 10, and 10 years, and a concurrent 3-year term, for a total of 35 years.\nOn July 26, 2007, the trial court ruled that the petition could not be dismissed as frivolous or patently without merit and appointed counsel to represent defendant.\nOn September 5, 2007, postconviction counsel filed an amended postconviction petition, which incorporated the issues set forth in the pro se petition, added three claims, and attached additional documentation. Claim 18 alleged that \u201c[t]rial counsel told [defendant] that he could not fire [trial counsel] as counsel. [Defendant] tried to hire private counsel, Fred Morelli, but decided not to pursue retaining Mr. Morelli when appointed counsel erroneously informed [defendant] that [defendant] could not get rid of appointed counsel.\u201d Defendant attached to his amended postconviction petition letters from Morelli to defendant dated June 24, 2004, and October 27, 2004. The June 24, 2004, letter advised defendant that Morelli was unable to give defendant any advice on his case unless defendant retained Morelli. The letter concluded: \u201cIf you wish to retain me, please send someone in to hire me.\u201d The October 27, 2004, letter advised defendant that Morelli could not take defendant\u2019s case pro bono.\nOn September 18, 2007, postconviction counsel filed a second amended postconviction petition, which was identical to the amended petition, except that it provided additional supporting documentation.\nOn October 23, 2007, postconviction counsel filed a third amended postconviction petition. The third amended petition incorporated the second amended petition; however, it withdrew allegations related to charges filed against defendant in a separate case.\nOn November 19, 2007, the State moved to dismiss defendant\u2019s second amended postconviction petition. In its motion, the State argued that the petition should be dismissed because (1) all claims could have been, but were not, raised on direct appeal or were raised on direct appeal and were denied; (2) defendant failed to attach sufficient affidavits, records, or other evidence supporting the petition\u2019s allegations or state why they were not attached; (3) the allegations were conclusory; and (4) as to defendant\u2019s claims of ineffective assistance of counsel, defendant had not met the standard set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).\nOn December 10, 2007, defendant responded to the State\u2019s motion. Defendant argued that the issues raised in the petition could not have been raised on appeal because they were based on facts that were off the record or, if the issues could have been raised but were not, any forfeiture was due to ineffective appellate counsel. Defendant further argued that the allegations were supported by the affidavit and other documents.\nOn December 17, 2007, the trial court granted the State\u2019s motion and dismissed defendant\u2019s postconviction petition. The court agreed that defendant\u2019s claims had been forfeited. Further, citing People v. Yates, 223 Ill. App. 3d 110, 116 (1991), the court stated that for defendant to avoid forfeiture of his claims he must show \u201ccognizable cause for his failure to raise the error and actual prejudice flowing from the error.\u201d The court stated:\n\u201cFor this court to deny the People\u2019s motion and find that the second amended petition for post-conviction relief should stand on its own and therefore go to hearing is to completely obliterate the need for affidavits and for supporting documentation to bolster the claims and show actual prejudice and cognizable cause. All we have in this case is [defendant\u2019s] bald accusations that all these things occurred without, as [the State] points out, any supporting affidavits, whether they would come from actual trial counsel or appellate counsel or from other counsel who reviewed the record is neither here nor there. It\u2019s the fact that they\u2019re absent, and I don\u2019t think it\u2019s the intention of our Appellate Court or the Legislature in setting forth the grounds available or the relief available in a post-conviction petition to allow a disgruntled litigant who has otherwise exhausted their appeal methods to simply allege ineffectiveness of counsel without more and bootstrap themselves into a full evidentiary hearing back at the trial court which I think is what is being attempted here.\nSo, for those reasons, the court will grant the People\u2019s motion to dismiss the second amended petition for post-conviction relief.\u201d\nOn December 19, 2007, defendant moved for reconsideration. Defendant argued that the court erred in finding that the issues were forfeited and unsupported, because forfeiture does not apply when there is an allegation of ineffective assistance of appellate counsel. Further, defendant argued that the petition was supported by defendant\u2019s own affidavit and other supporting documents and that case law did not require a defendant to obtain an affidavit from the very counsel alleged to be ineffective. Finally, defendant argued that many of the claims in the petition were based upon matters outside the record and must be taken as true at the second stage of the post-conviction proceedings.\nFollowing argument, the trial court denied defendant\u2019s motion, stating:\n\u201cIt again comes back to the court\u2019s concern with the bald assertion as the State has just pointed out, that there is no affidavit submitted by either counsel and just a suggestion that it would be hard to get one with no proof thereof, and what we\u2019re talking about here is an allegation of ineffectiveness of counsel \u2014 ineffective assistance of counsel and under Strickland it\u2019s very clear that the effectiveness \u2014 that what is required is prove that counsel\u2019s performance was so deficient that the trial lost its character as a confrontation between adversaries, thus resulting in actual breakdown of the adversary process. And what we have here is affidavits from lay people that would suggest strategy issues as opposed to going to the heart of the test under Strickland, and I don\u2019t think that just throwing those out to the court buys an evidentiary hearing, and so I would deny the motion to reconsider and the court\u2019s prior ruling will stand and obviously it can go from there.\u201d\nDefendant timely appealed. Defendant argues that the trial court erred in granting the State\u2019s motion to dismiss his claims that he was denied his constitutional right to effective assistance of trial counsel as a result of (1) counsel\u2019s refusal to allow defendant to waive a jury and proceed to a bench trial; (2) counsel\u2019s refusal to allow defendant to testify in his defense; (3) counsel\u2019s statement to defendant that defendant could not hire counsel of his choice; and (4) counsel\u2019s failure to advise him that the sentences for criminal sexual assault were statutorily mandated to be served consecutively. Although defendant raised other claims in his postconviction petition, he does not challenge the dismissal of those claims.\nII. ANALYSIS\nA. Post-Conviction Hearing Act\nThe Act provides a means by which a defendant may challenge his conviction for \u201csubstantial deprivation of federal or state constitutional rights.\u201d People v. Tenner, 175 Ill. 2d 372, 378 (1997). A postconviction action is a collateral attack on a prior conviction and sentence and \u201cis not a substitute for, or an addendum to, direct appeal.\u201d People v. Kokoraleis, 159 Ill. 2d 325, 328 (1994). Except in cases where the death penalty has been imposed, proceedings under the Act are divided into three distinct stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At the first stage, the trial court has 90 days to examine the petition independently and summarily dismiss it if it is frivolous or patently without merit. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2008); Gaultney, 174 Ill. 2d at 418. The petition need present only the gist of a constitutional claim; if it does, summary dismissal is improper. Gaultney, 174 Ill. 2d at 418. If not summarily dismissed, the petition proceeds to the second stage, at which an indigent defendant is entitled to appointed counsel, the petition may be amended, and the State may answer or move to dismiss the petition. Gaultney, 174 Ill. 2d at 418. At the second stage, the petition may be dismissed \u201cwhen the allegations in the petition, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation.\u201d People v. Hall, 217 Ill. 2d 324, 334 (2005). A postconviction petitioner is not entitled to an evidentiary hearing as a matter of right; rather, to require an evidentiary hearing, the allegations in the petition must be supported by the record or by accompanying affidavits. People v. Coleman, 183 Ill. 2d 366, 381 (1998). Nonspecific and nonfactual assertions that merely amount to conclusions are not sufficient to require a hearing under the Act. Coleman, 183 Ill. 2d at 381. \u201cIn determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits are taken as true.\u201d People v. Towns, 182 Ill. 2d 491, 503 (1998). A petition that is not dismissed at the first or second stage advances to the third stage, at which an evidentiary hearing is held. Gaultney, 174 Ill. 2d at 418. Dismissal of a petition at the second stage, as occurred here, is reviewed de novo. People v. Whitfield, 217 Ill. 2d 177, 182 (2005).\nB. Propriety of Dismissal Based on Forfeiture\nWe first consider the State\u2019s argument that defendant\u2019s post-conviction claims of ineffective assistance of counsel have been forfeited. \u201cIn an initial postconviction proceeding, the common law doctrines of res judicata and waiver operate to bar the raising of claims that were or could have been adjudicated on direct appeal.\u201d People v. Blair, 215 Ill. 2d 427, 443 (2005). The State maintains that, because defendant could have advanced his arguments on direct appeal but failed to do so, defendant\u2019s claims are forfeited. We disagree. Although issues a defendant could have raised on direct appeal but did not are considered waived or, as more recently described, forfeited (Blair, 215 Ill. 2d at 443-44), where a defendant relies on matters outside the record, forfeiture does not apply. People v. Munson, 206 Ill. 2d 104, 118 (2002). Here, defendant\u2019s postconviction allegations of ineffectiveness of counsel are based on information outside the record, specifically, things his counsel told him or failed to tell him. Therefore, defendant could not have raised these allegations on direct appeal, and thus he has not forfeited them.\nC. Propriety of Dismissal Based on Absence of Affidavits\nDefendant argues that the court erred in dismissing his allegations of ineffective assistance of counsel for defendant\u2019s failure to support these allegations with an affidavit from counsel. According to defendant, \u201creviewing courts do not place upon defendants the burden of producing an affidavit from the very counsel whom they are alleging was ineffective.\u201d\nA postconviction petition must be verified by affidavit. 725 ILCS 5/122 \u2014 1(b) (West 2008). The allegations in the petition must also be supported by affidavits, records, or other evidence. 725 ILCS 5/122 \u2014 2 (West 2008). If this documentation is not attached, the petition must explain why it is unavailable. 725 ILCS 5/122 \u2014 2 (West 2008). As this court has observed, \u201c[a] postconviction petition that is not supported by affidavits or other supporting documents is generally dismissed without an evidentiary hearing unless the petitioner\u2019s allegations stand uncontradicted and are clearly supported by the record.\u201d People v. Waldrop, 353 Ill. App. 3d 244, 249 (2004).\nThe State argues that the court properly dismissed the petition for failure to attach sufficient affidavits and relies principally on People v. Collins, 202 Ill. 2d 59 (2002). In Collins, the defendant filed a pro se postconviction petition, challenging his conviction of possession of a controlled substance with intent to deliver. He alleged in his petition that his trial counsel failed to help him file an appeal and seek reduction of his sentence. The defendant attached to his petition a sworn verification, but he did not attach any other supporting documentation. The trial court dismissed the petition as frivolous and patently without merit, and the defendant appealed. On appeal, the supreme court affirmed, finding that the defendant\u2019s sworn verification stating that his petition was true and correct to the best of his recollection did not satisfy the requirement of section 122 \u2014 2 of the Act. The supreme court held that the defendant\u2019s failure to comply with section 122 \u2014 2 justified the summary dismissal of the defendant\u2019s petition. Collins, 202 Ill. 2d at 66.\nHowever, under People v. Hall, 217 Ill. 2d 324 (2005), defendant\u2019s petition was not subject to dismissal pursuant to Collins. In Hall, the defendant filed a postconviction petition alleging that his trial counsel was ineffective for telling him that he did not have a valid defense to the charge of aggravated kidnaping. Hall, 217 Ill. 2d at 334. The defendant attached to his petition his affidavit, wherein he described two conversations that he had had with his trial counsel concerning his lack of a valid defense. Although the trial court docketed the petition for further consideration, it subsequently granted the State\u2019s motion to dismiss under Collins. On appeal, the supreme court held that the defendant\u2019s petition was not subject to dismissal pursuant to Collins. The court noted that Collins involved a first-stage dismissal whereas the present case had advanced to the second stage. The court stated that Collins does not apply \u201cbeyond the first stage of the proceedings.\u201d Hall, 217 Ill. 2d at 332. Thus, we hold that the trial court improperly dismissed on this basis defendant\u2019s allegations of ineffective assistance of counsel.\nD. Substantive Merits\nHaving determined that defendant\u2019s postconviction allegations of ineffective assistance of counsel have not been forfeited and were sufficiently supported, we now determine whether these allegations, taken as true and liberally construed, make a substantial showing of a constitutional violation entitling defendant to an evidentiary hearing.\nUnder the two-prong test set forth in Strickland, a defendant claiming ineffective assistance of counsel must show that his counsel\u2019s performance \u201cfell below an objective standard of reasonableness\u201d and that the deficient performance was prejudicial in that \u201cthere is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d Strickland, 466 U.S. at 688, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068.\n1. Alleged Ineffectiveness of Counsel for Refusing to Allow Defendant to Waive a Jury Trial\nWe first address defendant\u2019s allegation that his trial counsel was ineffective for refusing to allow defendant to waive a jury trial.\n\u201cUnder the Illinois Constitution, an accused has the right to waive trial by jury. [Citation.] It is the defendant\u2019s prerogative to decide whether or not to exercise this right of waiver [citation], and failure to accept defendant\u2019s waiver of a jury trial is generally considered reversible error. [Citation.] Therefore, the prerogative to choose a bench trial over a jury trial belongs to the defendant and not to his counsel.\u201d People v. McCarter, 385 Ill. App. 3d 919, 942-43 (2008).\nWhere the defendant\u2019s ineffectiveness claim is based on counsel\u2019s refusal to allow the defendant to waive a jury trial, prejudice under Strickland \u201cis presumed if there is a reasonable probability that the defendant would have waived a jury trial in the absence of the alleged error.\u201d McCarter, 385 Ill. App. 3d at 943. \u201c[T]he fact that the outcome of the case might have been the same if d\u00e9fendant had received a bench trial is not relevant to the question of prejudice under Strickland.\u201d McCarter, 385 Ill. App. 3d at 944. Here, defendant alleged that he told counsel that he wanted a bench trial but counsel refused, telling defendant that counsel \u201cwas running the show and [defendant] was getting a jury trial.\u201d Accordingly, taking the allegations in defendant\u2019s postconviction petition and his supporting affidavit as true, we find that defendant is entitled to an evidentiary hearing on this issue.\n2. Alleged Ineffectiveness of Counsel for Refusing to Allow Defendant to Testify\nWe next address defendant\u2019s allegation that counsel was ineffective for refusing to allow defendant to testify in his defense when he specifically asked during trial to testify.\n\u201cThe decision whether to testify on one\u2019s own behalf belongs to the defendant [citation], although this decision should be made with the advice of counsel [citation]. Advice not to testify is a matter of trial strategy and does not constitute ineffective assistance of counsel unless evidence suggests that counsel refused to allow the defendant to testify.\u201d People v. Youngblood, 389 Ill. App. 3d 209, 217 (2009).\nA defendant making a postconviction claim that trial counsel was ineffective for refusing to allow the defendant to testify must allege that he \u201cmade a \u2018contemporaneous assertion *** of his right to testify.\u2019 \u201d Youngblood, 389 Ill. App. 3d at 217, quoting People v. Brown, 54 Ill. 2d 21, 24 (1973). Further, a defendant must \u201cshow prejudice from the denial of his right to testify in order to make out a claim of ineffective assistance of counsel.\u201d Youngblood, 389 Ill. App. 3d at 218.\nIn Youngblood, the defendant petitioned for postconviction relief from his conviction of aggravated battery and mob action. Evidence at trial established, among other things, that the defendant bit a police officer while being arrested. In his postconviction petition, the defendant alleged that his counsel was ineffective for refusing to allow him to testify at trial. The trial court summarily dismissed his petition. This court affirmed. First, we found that because the defendant\u2019s petition contained no allegation that he made a contemporaneous assertion of his right to testify, his petition did not state the gist of a claim that his right to testify was violated by counsel. We further found that the defendant failed to satisfy the prejudice prong of Strickland. Specifically, we found:\n\u201cDefendant did not indicate that, if he had been called to testify, he would have stated that he had no altercation with the officer, that the officer\u2019s finger was injured before the altercation began, or that he did not bite the officer. Rather, defendant, who, as we noted on direct appeal, admitted that he resisted the arrest, pleaded only that he would have testified about where his altercation with the officer took place. Specifically, defendant indicated that \u2018he would have testified to the whereabouts surrounding his arrest.\u2019 The location of the arrest has no bearing on whether defendant injured the officer or not, which, in contrast to the location of the arrest, was a fact at issue in defendant\u2019s trial.\u201d Youngblood, 389 Ill. App. 3d at 218-19.\nThus, we held that because the defendant failed to assert his right to testify and did not allege prejudice, the petition was properly dismissed. Youngblood, 389 Ill. App. 3d at 219.\nHere, defendant did allege that he told counsel that he wanted to testify. However, defendant failed to satisfy the prejudice prong of Strickland. Defendant alleged that he \u201cdesired to testify in this matter to refute allegations made by [A.H.] *** [and] dispell [sic] the illusion that [A.H.] had no motive to testify.\u201d Without specifying which allegations he would have refuted, this assertion is conclusory and may be disregarded. Coleman, 183 Ill. 2d at 381. Indeed, defendant did not indicate that had he been called to testify he would have stated that he did not have sexual intercourse with A.H. or that he was not in a position of trust, authority, or supervision over her, the central issues in the case. Accordingly, because defendant did not establish prejudice, we find that the trial court properly dismissed this allegation.\n3. Alleged Ineffectiveness of Counsel for Denying Defendant Counsel of Choice\nWe next address defendant\u2019s allegation that counsel was ineffective for denying him his right to counsel of choice. The sixth amendment to the United States Constitution provides: \u201cIn all criminal prosecutions, the accused shall enjoy the right *** to have the Assistance of Counsel for his defence.\u201d U.S. Const., amend. VI. The right to retained counsel of one\u2019s choice \u201chas been regarded as the root meaning of the constitutional guarantee\u201d in the sixth amendment. United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48, 165 L. Ed. 2d 409, 419, 126 S. Ct. 2557, 2563 (2006), citing Wheat v. United States, 486 U.S. 153, 159, 100 L. Ed. 2d 140, 148-49, 108 S. Ct. 1692, 1697 (1988). Nevertheless, there are some limitations on the right to counsel of choice. A criminal defendant has no right to select an attorney he cannot afford or one who is not a member of the bar, has a conflict of interest, or declines to represent him. People v. Howard, 376 Ill. App. 3d 322, 335 (2007), citing Wheat, 486 U.S. at 159, 100 L. Ed. 2d at 149, 108 S. Ct. at 1697. The court does not abuse its discretion in denying a defendant\u2019s motion for new counsel if the motion does not \u201ccontain a representation that substitute counsel had been secured, much less an averment that such substitute counsel was ready and willing to enter an appearance in the case.\u201d People v. Segoviano, 189 Ill. 2d 228, 245 (2000). Consideration of a defendant\u2019s lack of resources is proper \u201cbecause his ability to hire private counsel would be essential in order for him to change counsel.\u201d People v. Montgomery, 373 Ill. App. 3d 1104, 1112 (2007).\nWe find that defendant\u2019s allegations, taken as true, do not establish any prejudice as a result of counsel\u2019s alleged statement concerning private counsel. Defendant alleged that as a result of counsel\u2019s alleged statement, defendant decided \u201cnot to pursue retaining Morelli.\u201d Defendant did not allege that he had retained Morelli or that he had the funds to retain Morelli. In fact, the letters from Morelli establish the contrary. In Morelli\u2019s October 27, 2004, letter, he advised defendant that Morelli could not take defendant\u2019s case pro bono. Absent an allegation that Morelli was ready and willing to enter an appearance in defendant\u2019s case or at least that defendant had the funds to hire private counsel, defendant failed to establish that he was prejudiced as a result of counsel\u2019s alleged statement. Accordingly, we find that the trial court properly dismissed this allegation.\n4. Alleged Ineffectiveness of Counsel for Failing to Advise Defendant Concerning Mandatory Consecutive Sentences\nLast, defendant argues that he is entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing to advise him that the sentences for criminal sexual assault were statutorily mandated to be served consecutively. He argues that, because he did not have accurate information about the potential penalties upon conviction, he was unable to knowingly and intelligently weigh the State\u2019s plea offers.\nAlthough a defendant has no constitutional right to plea bargain, if the State chooses to bargain, the defendant has the right to the effective assistance of counsel in negotiations with the State. People v. Curry, 178 Ill. 2d 509, 517 (1997). Moreover, the right to the effective assistance of counsel extends to the defendant\u2019s decision to reject a plea offer, even if the defendant subsequently receives a fair trial. Curry, 178 Ill. 2d at 517. Whether to accept or reject a plea offer is a decision only the defendant can make. People v. Blommaert, 237 Ill. App. 3d 811, 816 (1992). In order for this decision to be knowing and voluntary, defense counsel must fully inform himself of the facts and the law relevant to the State\u2019s offer and candidly advise his client as to the direct consequences of accepting or rejecting the offer. Blommaert, 237 Ill. App. 3d at 817. Part of this obligation is satisfied when defense counsel accurately informs his client of the maximum and minimum sentences that can be imposed for the offenses charged by the State. Blommaert, 237 Ill. App. 3d at 817.\n\u201cA criminal defendant has the constitutional right to be reasonably informed with respect to the direct consequences of accepting or rejecting a plea offer.\u201d (Emphasis omitted.) Curry, 178 Ill. 2d at 528. In Curry, counsel advised the defendant of the State\u2019s plea offer but failed to inform the defendant that he would be subject to mandatory consecutive sentences if convicted of more than one of the charges he faced. This failure was based on counsel\u2019s admitted \u201cerroneous\u201d understanding of sentencing law at the time of the plea hearing. Our supreme court ruled that, in advising a defendant of the State\u2019s plea offer, \u201ca criminal defense attorney has the obligation to inform his or her client about the maximum and minimum sentences that can be imposed for the offenses with which the defendant is charged.\u201d Curry, 178 Ill. 2d at 528. The court found that counsel did not fulfill that obligation and that his performance was deficient under Strickland. Curry, 178 Ill. 2d at 529. The court further found that in order to demonstrate prejudice under Strickland, the \u201cdefendant must demonstrate that there is a reasonable probability that, absent his attorney\u2019s deficient advice, he would have accepted the plea offer.\u201d Curry, 178 Ill. 2d at 531. The court found that the defendant met that standard, noting that the defendant did not have a strong case, the disparity between the 12-year mandatory minimum sentence that the defendant faced and the 4V2-year plea offer, and defense counsel\u2019s affidavit stating that the defendant rejected the plea offer because of counsel\u2019s erroneous advice. Curry, 178 Ill. 2d at 533.\nWe note that Curry was before the court on direct appeal, after a hearing in the trial court. Here, under the Act, \u201call well-pleaded facts in the petition and in any accompanying affidavits are taken as true.\u201d People v. Towns, 182 Ill. 2d 491, 503 (1998). Defendant stated in his petition that counsel failed to inform him that he faced mandatory consecutive sentences if convicted, and he also filed an affidavit stating that he was never told that consecutive sentences were mandatory. He also maintained that, had he been so informed, he likely would have accepted the State\u2019s offer of 25 years. We find that the allegations in the petition, supported by defendant\u2019s affidavit, are sufficient to warrant an evidentiary hearing on this issue.\nIII. CONCLUSION\nBased on the foregoing, we affirm the dismissal of (1) defendant\u2019s allegation that his trial counsel was ineffective for telling him that he could not hire counsel of his choice; and (2) defendant\u2019s allegation that his trial counsel was ineffective for refusing to allow defendant to testify at trial. We reverse the dismissal of (1) defendant\u2019s allegation that his trial counsel was ineffective for refusing to allow defendant to waive a jury trial; and (2) defendant\u2019s allegation that his trial counsel was ineffective for failing to advise defendant concerning mandatory consecutive sentences. We remand for further proceedings.\nAffirmed in part and reversed in part; cause remanded.\nZENOFF, EJ., and McLAREN, J., concur.\nAlthough the State indicated in its motion that it was moving to dismiss defendant\u2019s second amended petition, the State noted at the hearing on the motion that defendant had filed a third amended petition and that the State\u2019s arguments would address \u201cany and all post-conviction petitions filed, whether they be second or third amended.\u201d", "type": "majority", "author": "JUSTICE BOWMAN" } ], "attorneys": [ "Thomas A. Lilien and Kim M. DeWitt, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Eric C. Weis, State\u2019s Attorney, of Yorkville (Lawrence M. Bauer and Barry W Jacobs, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD J. BARKES, JR., Defendant-Appellant.\nSecond District\nNo. 2\u201408\u20140266\nOpinion filed April 5, 2010.\nThomas A. Lilien and Kim M. DeWitt, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nEric C. Weis, State\u2019s Attorney, of Yorkville (Lawrence M. Bauer and Barry W Jacobs, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0980-01", "first_page_order": 996, "last_page_order": 1008 }