People v. Brocksmith

• Decision Date: 20 October 1994
• Docket Number: No. 74833,74833
• Citation: 642 N.E.2d 1230,205 Ill.Dec. 113,162 Ill.2d 224
• Parties: , 205 Ill.Dec. 113 The PEOPLE of the State of Illinois, Appellant, v. Jack BROCKSMITH, Appellee.
• Court: Illinois Supreme Court

Page 1230

642 N.E.2d 1230

162 Ill.2d 224, 205 Ill.Dec. 113

The PEOPLE of the State of Illinois, Appellant, v. Jack BROCKSMITH, Appellee.

No. 74833.

Supreme Court of Illinois.

Oct. 20, 1994.

Roland Burris, Atty. Gen., Springfield, and Michael J. Herr, State's Atty., Aledo (Norbert J. Goetten, John X. Breslin and Gary F. Gnidovec, Office of the State's Attys. Appellate Prosecutor, Ottawa, of counsel), for the People.

Robert Agostinelli, Deputy Defender, and Peter A. Carusona, Asst. Defender, Office of the State Appellate Defender, of Ottawa, for appellee.

Justice MILLER delivered the opinion of the court:

Defendant, Jack Brocksmith, was charged in the circuit court of Mercer County with the offense of theft by deception, a Class 3 felony. Following trial, an instructions conference was held at which time defense counsel successfully tendered an instruction on the included offense of deceptive practices, a misdemeanor. The jury found defendant not guilty of theft by deception, but convicted defendant of deceptive practices.

Defendant was sentenced to 364 days in jail with credit for time served. The trial court further ordered defendant to pay restitution to the victim in the amount of $75,000, and to reimburse the county $3,115 for the services of the public defender.

Defendant filed a timely notice of appeal from the judgment of the trial court. Defendant subsequently filed a petition for post-conviction relief. The direct appeal was stayed in the appellate court pending resolution of the post-conviction petition in the trial court. The request for post-conviction relief was denied. Defendant appealed from that order. The appeals were consolidated for review. The appellate court affirmed the trial court on the direct appeal, but reversed the trial court's ruling on defendant's post-conviction petition. (237 Ill.App.3d 818, 178 Ill.Dec. 536, 604 N.E.2d 1059.) We granted the State's petition for leave to appeal to this court. 134 Ill.2d R. 315.

FACTS

Defendant testified that in 1985, he owned an insurance agency. Defendant wanted to expand his business, but was unable to obtain financing. Defendant testified that during a social visit with Blanch Littrell, he mentioned his desire to expand his business. Defendant alleged that Littrell offered to lend him the money required for the expansion. Defendant received money from Littrell and used it to purchase new computers, meet the agency payroll and pay miscellaneous office bills.

Littrell denied that defendant had asked her for a loan. Littrell testified that defendant proposed that she invest her money through defendant in various insurance companies providing a 15% rate of return. On April 4, 1985, Littrell gave defendant a check for $10,000 to invest in these insurance companies. Littrell entered into similar transactions with defendant on April 25, 1985, May 18, 1985, September 12, 1985, October 22, 1985, and July 17, 1986. Littrell's investment with defendant totaled $75,000. In July 1988, Littrell wrote to defendant asking for the return of $50,000. None of Littrell's investment was ever returned.

Defendant was charged with theft by deception. At trial, defense counsel successfully tendered an instruction on the lesser included offense of deceptive practices. Defendant was found not guilty of theft by deception, but was convicted of deceptive practices. Defendant later learned that at the time of trial, the statute of limitations had run on the offense of deceptive practices.

Defendant filed a petition for post-conviction relief. The petition alleged that defendant's rights to effective assistance of counsel had been violated. The petition further alleged that defendant's right to make decisions regarding lesser included offense instructions had also been violated. The petition was accompanied by an affidavit from defendant's trial counsel. In the affidavit, counsel stated that he thought the felony statute of limitations controlled, and that he had not discussed the statute of limitations on deceptive practices with defendant. The State conceded that the misdemeanor charge for deceptive practices would have been precluded by the statute of limitations had it been raised, and that defense counsel was deficient in his knowledge of the law concerning the statute of limitations.

The trial court denied defendant's petition for post-conviction relief. Defendant appealed from that order. The appellate court reversed the trial court, holding that defense counsel provided ineffective assistance of counsel by tendering an instruction on a time-barred offense without informing defendant that the statute of limitations had run on the offense. The appellate court noted that defendant had been acquitted on the theft charge and could not be retried on that count due to res judicata. The court further found that because the lesser offense of deceptive practices was barred by the statute of limitation, remand for a new trial was inappropriate. Accordingly, the appellate court dismissed the case without remanding to the trial court.

DISCUSSION

It is not contested here that defense counsel, rather than defendant, made the ultimate decision to tender an instruction on the lesser included offense of deceptive practices. Defendant claims that he should have been given the ultimate right to decide whether to tender the instruction. The State claims that the decision whether to tender an instruction on a lesser included offense is a matter of trial strategy which is properly within the province of counsel.

In People v. Ramey (1992), 152 Ill.2d 41, 178 Ill.Dec. 19, 604 N.E.2d 275, this court discussed those decisions that are ultimately for a defendant to make and those that are for trial counsel to make. In deciding the issue presented in that case, this court in Ramey held that the defendant has the right to decide whether to appeal. (Ramey, 152 Ill.2d at 54, 178 Ill.Dec. 19, 604 N.E.2d 275.) The court in Ramey also adopted the ABA Standards for Criminal Justice with regard to three other decisions belonging to the defendant: what plea to enter; whether to waive a jury trial; and whether to testify in his own behalf. (Ramey 152 Ill.2d at 54, 178 Ill.Dec. 19, 604 N.E.2d 275, citing 1 ABA Standards for Criminal Justice § 4--5.2 (2d ed. Supp.1986).) The court in Ramey went on to say that "[b]eyond these four decisions, however, trial counsel has the right to make the ultimate decision with respect to matters of tactics and strategy after consulting with his client." Ramey, 152 Ill.2d at 54, 178 Ill.Dec. 19, 604 N.E.2d 275.

The State claims that the list in Ramey of the four decisions that belong to a defendant is exclusive. Defendant, on the other hand, claims that because the decision whether to tender a lesser included offense instruction is analogous to the decision of what plea to enter, that decision should also belong to the defendant. In support of his position, defendant cites to the comments to section 4--5.2 of the ABA Standards for Criminal Justice:

"It is also important in a jury trial for the defense lawyer to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury. Indeed, because this decision is so important as well as so similar to the defendant's decision about the charges to which to plead, the defendant should be the one to decide whether to seek submission to the jury of lesser included offenses." (1 ABA Standards for Criminal Justice § 4--5.2, Commentary, at 4-68 (2d ed. Supp.1986).)

The comments to standard 4--5.2 show that the drafters believed the decision to tender a lesser included offense instruction was analogous to the decision of which plea to enter, and should receive the same treatment. The State asserts that the court in Ramey adopted only the language of standard 4--5.2 itself, not the comments to that section.

The State argues that Ramey gives defense counsel the ultimate responsibility for making decisions involving matters of trial tactics and strategy. (Ramey, 152 Ill.2d at 54, 178 Ill.Dec. 19, 604 N.E.2d 275.) The State further points out that the decision whether to tender a lesser included offense instruction involves matters of trial strategy. (People v. Barnard (1984), 104 Ill.2d 218, 232, 83 Ill.Dec. 585, 470 N.E.2d 1005; People v. Kubat (1983), 94 Ill.2d 437, 485-86, 69 Ill.Dec. 30, 447 N.E.2d 247; People v. Clark (1991), 207 Ill.App.3d 439, 450, 152 Ill.Dec. 455, 565 N.E.2d 1373; People v. Palmer (1989), 188 Ill.App.3d 414, 428, 137 Ill.Dec. 90, 545 N.E.2d 743.) The State reasons, therefore, that the decision to tender an instruction on a lesser included offense belongs to defense counsel rather than defendant. We disagree.

Not all decisions involving matters of trial strategy belong to defense counsel rather than defendant. The four decisions accorded to the defendant in Ramey involve matters of trial strategy, yet according to Ramey and the ABA Standards, those decisions are to be made by defendant.

As the comments to the ABA Standards suggest, we believe that the decision to tender a lesser included offense is analogous to the decision of what plea to enter, and that the two decisions should be treated the same. Because it is defendant's decision whether to initially plead guilty to a lesser charge, it should also be defendant's decision to submit an instruction on a lesser charge at the conclusion of the evidence. In both instances the decisions directly relate to the potential loss of liberty on an initially uncharged offense. This position has been adopted by several other States (see, e.g., People v. Frierson (1985), 39 Cal.3d 803, 817 n. 5, 218 Cal.Rptr. 73, 81 n. 5, 705 P.2d 396, 404 n. 5; State v. Boeglin (1987), 105 N.M. 247, 249, 731 P.2d 943, 945; In re Trombly (1993), 160 Vt. 215, 217-18, 627 A.2d 855, 856; State v. Ambuehl (1987), 145 Wis.2d 343, 357, 425 N.W.2d 649, 654; but see People v. Thompson (1976), 69 Mich.App. 465,...