People v. Weger

• Decision Date: 16 April 1987
• Docket Number: No. 4-86-0541,4-86-0541
• Citation: 506 N.E.2d 1072,154 Ill.App.3d 706
• Parties: , 107 Ill.Dec. 181 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert I. WEGER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1072

506 N.E.2d 1072

154 Ill.App.3d 706, 107 Ill.Dec. 181

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert I. WEGER, Defendant-Appellant.

No. 4-86-0541.

Appellate Court of Illinois Fourth District.

April 16, 1987.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, Timothy M. Gabrielsen, Asst. Defender, for defendant-appellant.

Jeffrey K. Davison, State's Atty., Decatur, Kenneth R. Boyle, Director State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Michael Blazicek, Staff Atty., for plaintiff-appellee.

Justice LUND delivered the opinion of the court:

On April 17, 1984, defendant, Robert Weger, was convicted at a bench trial by the circuit court of Macon County of the offense of burglary in violation of section 19-1 of the Criminal Code of 1961 (the Code) (Ill.Rev.Stat.1983, ch. 38, par. 19-1) and armed violence in violation of section 33A-2 of the Code (Ill.Rev.Stat.1983, ch. 38, par. 33A-2). He was sentenced to 7 years in the Illinois Department of Corrections on the armed violence conviction. In March 1986, defendant filed a petition for post-conviction relief alleging he was not proved guilty beyond a reasonable doubt of the offense of armed violence and that he received ineffective assistance of counsel. After a hearing, defendant's petition was denied, and this appeal followed. We affirm in part and reverse in part.

The evidence presented at trial shows that on January 5, 1984, members of the Decatur Police Department responded to an alarm at the Team Electronics Store in the Northgate Mall. The officers ascended to the roof of the electronics store. There they found a codefendant. The defendant was apprehended exiting the store through an air vent. The defendant had in his possession a pair of gloves and a canvas bag containing pry bars, sledge hammers, and a triangle wedge bar. He also had a map and a screwdriver in his pocket. In another pocket was found a straight-blade razor with the tip of the blade broken off. The remaining blade measured approximately two and one-half inches long. The court found the defendant guilty of burglary, possession of burglary tools (Ill.Rev.Stat.1983, ch. 38, par. 19-2), and armed violence for possession of the straight-blade razor. The court vacated the conviction for possession of burglary tools, entered judgment on the others, and sentenced the defendant on the armed violence conviction.

On March 10, 1986, defendant filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act. (Ill.Rev.Stat.1985, ch. 38, pars. 122-1 through 122-7.) Counsel was appointed, and a new petition was filed alleging that defendant did not receive effective assistance of counsel at trial and was not proved guilty beyond a reasonable doubt of the offense of armed violence. A hearing was conducted, and defendant's petition was denied. This appeal followed.

Defendant argues it was error to deny his petition for post-conviction relief. He alleges first that he was denied his sixth amendment right to effective assistance of counsel by his counsel's failure to perfect an appeal in this case since he would have prevailed on the merits of an appeal.

Ineffective assistance of counsel is to be judged by the standard set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, which has been adopted by the Illinois courts. (People v. Albanese (1984), 104 Ill.2d 504, 85 Ill.Dec. 441, 473 N.E.2d 1246, cert. denied (1985), 471 U.S. 1044, 105 S.Ct. 2061, 85 L.Ed.2d 335, rehearing denied (1985), 472 U.S. 1013, 105 S.Ct. 2715, 86 L.Ed.2d 730.) The Strickland standard is a two-prong standard. The first prong is if counsel's representation falls below an objective standard of reasonableness. The second prong is if these shortcomings deprived the defendant a fair trial. For this, the defendant must show there is a reasonable probability that, but for the unprofessional errors, the result would have been different. 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698.

The record clearly establishes that defendant intended to appeal, trial counsel indicated he would perfect his appeal, and no appeal was made. Failure to perfect an appeal when directed to do so falls below an objective standard of reasonableness. (People v. Morguez (1980), 90 Ill.App.3d 471, 45 Ill.Dec. 795, 413 N.E.2d 128; People v. Meacham (1977), 53 Ill.App.3d 762, 10 Ill.Dec. 805, 368 N.E.2d 400.) If defendant was prejudiced by this failure, then he has been denied effective assistance of counsel. Therefore, we need address the allegation of defendant's likelihood of success on appeal.

Defendant argues that if his appeal of the original trial had been perfected, he would have succeeded with two arguments, being (1) he received ineffective assistance of counsel; and (2) he was not proved guilty beyond a reasonable doubt of the offense of armed violence.

Defendant argues that he received ineffective assistance of counsel at the original bench trial since counsel conceded defendant's guilt to the offenses of burglary and possession of burglary tools. During opening statement, the trial counsel stated:

"This won't be lengthy, but I do think its proper to indicate to the court that even though we are not entering a plea of guilty at this time, we believe the evidence will indicate that my client is guilty of the offense of burglary, and as far as the evidence goes, there will be evidence that he had burglary tools. I don't think there will [be] a conviction for the possession of burglary tools since that's essentially an included offense of the offense of burglary, but it is our position in this case that he's not guilty of the offense of armed violence * * *."

Again, at closing argument he said:

"We think that there is evidence sufficient to find him guilty of burglary, but we have never contested that at any time. There is evidence sufficient to find him guilty of possession of burglary tools."

Defendant urges that this situation is controlled by the recent decision of our supreme court in People v. Hattery (1985), 109 Ill.2d 449, 94 Ill.Dec. 514, 488 N.E.2d 513, cert. denied (1986), 478 U.S. 1013, 106 S.Ct. 3314, 92 L.Ed.2d 727. In that case, defendant was charged with murder. At opening statement, counsel admitted the defendant's guilt, and no theory of defense was offered during the guilt-innocence trial. The whole approach of defense counsel was to avoid the death penalty. The supreme court ruled that this conduct rose to ineffective assistance of counsel.

Our supreme court relied in part on a recent United States Supreme Court case which ruled that at a bare minimum, the sixth amendment requires defense counsel to act as a true advocate for the accused. (United States v. Cronic (1984), 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657. Our court stated:

"Where 'counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.' (466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668.) The court in Cronic explained:

'[T]he adversarial process protected by the Sixth Amendment requires that the accused have "counsel acting in the role of an advocate." [Citation.] The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted-even if defense counsel may have made demonstrable errors-the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.' (466 U.S. 648, 656-57, 104 S.Ct. 2039, 2045-46, 80 L.Ed.2d 657, 666.)" People v. Hattery (1985), 109 Ill.2d 449, 461-62, 94 Ill.Dec. 514, 518, 488 N.E.2d 513, 517.

Defendant invites us, based on Hattery, to create a blanket ruling that anytime defense counsel makes an admission of his client's guilt, even if on only one offense of a multioffense case, it becomes ineffective assistance of counsel. We must decline the invitation.

We do not read Hattery as such an all encompassing rule. The court in ruling in Hattery stated: "After considering the actions of the defense counsel in the present case we are convinced that the prosecution's case was not subjected to the 'meaningful adversarial testing' required by the sixth amendment." (Emphasis added.) People v. Hattery (1985), 109 Ill.2d 449, 464, 94 Ill.Dec. 514, 519, 488 N.E.2d 513, 518.

Each allegation of ineffective assistance of counsel must turn upon its own peculiar facts. This is one reason behind the Strickland analysis. It gives a standard with which to judge each case.

The facts in the present case are sufficiently different from the Hattery case so that Hattery is not controlling. In Hattery, counsel conceded his client's guilt on the only offense charged. In this case, counsel conceded guilt on the charges of burglary and possession of burglary tools for which there was overwhelming evidence. However, counsel vigorously contested the offense of armed violence.

In Hattery, the court noted the necessity of defense counsel subjecting the prosecution's case to a "meaningful adversarial testing." The court stated:

"The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted-even if defense counsel may have made demonstrable errors-the kind of testing envisioned by the Sixth Amendment has occurred." People v. Hattery (1985), 109 Ill.2d 449, 462, 94 Ill.Dec. 514, 518, 488 N.E.2d 513, 517, quoting United States v. Cronic...