People v. Angarola

900 N.E.2d 1281, 387 Ill. App. 3d 732, 326 Ill. Dec. 1034, 2009 Ill. App. LEXIS 2
Appellate Court of Illinois·Decided January 6, 2009·No. 2-07-0396, 2-07-1062 cons.·Published·Cited by 10 cases

Opinion

JUSTICE O’MALLEY

delivered the opinion of the court:

In case No. 2 — 07—0396, defendant, Robert Angarola, appeals from his convictions, after a bench trial, of two counts of forgery and one count of deceptive practices. He argues that (1) his counsel provided ineffective assistance by conceding defendant’s guilt of forgery; (2) his conviction of deceptive practices, and his second conviction of forgery, must be vacated under the one-act, one-crime rule; and (3) his conviction of deceptive practices must be reversed because the statute governing the offense contains an unconstitutional presumption. In case No. 2 — 07—1062, defendant appeals the trial court’s first-stage dismissal of a postconviction petition he filed after his attorney failed to file a notice of appeal in case No. 2 — 07—0396. For the reasons that follow, we affirm defendant’s forgery convictions, but we vacate his conviction of deceptive practices and remand the cause for resentencing based on the proper convictions. We affirm the trial court’s first-stage dismissal of his postconviction petition.

Defendant was charged with two counts of forgery (720 ILCS 5/17 — 3(a)(1), (a)(2) (West 2006)), two counts of theft by deception (720 ILCS 5/16 — 1(a)(2) (West 2006)), and one count of deceptive practices (720 ILCS 5/17 — 1(B) (d) (West 2006)) in connection with an incident in which he was alleged to have used his father’s checking account to purchase a truck. The evidence at defendant’s trial, which included a taped confession from defendant, indicated that defendant purchased a truck from a car dealership with a check from his father’s checkbook, without his father’s permission. (Defendant and his father have the same name.) According to testimony from a police officer who interviewed defendant, defendant told the officer that he wrote the check knowing that there were insufficient funds in his father’s account to cover the truck purchase; however, defendant testified that he meant to tell the officer that he knew at the time of the interview, but not at the time he wrote the check, that the funds were insufficient. In interviews with police, defendant explained that he anticipated receiving a disability settlement that would cover the check. However, after the check was returned for insufficient funds, defendant was forced to return the truck to the dealership.

During closing arguments, defense counsel conceded defendant’s guilt of forgery but argued that defendant was not guilty of theft or of deceptive practices. The trial court found defendant guilty of deceptive practices and of both counts of forgery. However, the trial court found him not guilty of theft, because it found that there was insufficient evidence of his intent to permanently deprive the dealership of the truck. The trial court entered a written order stating that defendant was guilty of deceptive practices and two counts of forgery. However, in its written order after a sentencing hearing, the trial court indicated that defendant was convicted of one count each of theft, forgery, and deceptive practices, and it imposed three concurrent six-year terms of imprisonment.

Defendant filed neither a postjudgment motion nor a notice of appeal within 30 days of the trial court’s sentencing order. See 210 Ill. 2d R. 606(b) (notice of appeal must be filed within 30 days of final order or the ruling on timely postjudgment motion). However, within six months of the expiration of the 30-day window for appeal, defendant filed a motion with this court to file a late notice of appeal. See 210 Ill. 2d R. 606(c) (allowing for late notice of appeal). We granted the motion, and the appeal was docketed as case No. 2 — 07—0396.

On the same day that he filed his motion to file a late notice of appeal, defendant filed a petition for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1 et seq. (West 2006)). In his petition, defendant argued, among other things, that trial counsel was ineffective for failing to file a notice of appeal. The trial court found that the petition failed to state the gist of a constitutional claim and thus dismissed the petition before appointing an attorney to represent defendant in postconviction proceedings. With respect to the allegation that counsel failed to file a notice of appeal, the trial court deemed the issue “moot[,] as petitioner’s appeal has been accepted by the Appellate Court.” Defendant appealed, and we docketed the appeal as case No. 2 — 07—1062. We later consolidated both of defendant’s appeals for decision.

Defendant’s first argument in case No. 2 — 07—0396 is that his counsel provided him ineffective assistance by conceding his guilt of the forgery counts. A defendant’s right to effective assistance of counsel is provided by the sixth and fourteenth amendments to the United States Constitution. U.S. Const., amends. VI, XIV; People v. Conley, 118 Ill. App. 3d 122, 127 (1983). Normally, courts evaluate the question of whether a defendant was denied effective assistance of counsel in accordance with the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To prevail on a claim of ineffective assistance under the Strickland test, a defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) the deficient performance so prejudiced the defense as to deny the defendant a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. “However, the court in Strickland also noted that there are some circumstances so likely to prejudice the accused that such prejudice need not be shown, but instead will be presumed.” People v. Hattery, 109 Ill. 2d 449, 461 (1985), citing Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696, 104 S. Ct. at 2067. Those circumstances include cases in which there is a complete denial of counsel as well as cases in which “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047 (1984). Our supreme court has held that a defense attorney’s concession of his client’s guilt can constitute a failure to subject the prosecution’s case to meaningful adversarial testing and thus amount to a deprivation of the constitutional right to effective assistance of counsel. See Hattery, 109 Ill. 2d at 460-65.

In Hattery, the defendant pleaded not guilty to a murder charge, but, during opening statements, one of his trial attorneys told the jury that “[the defense was] not asking [the jury] to find [the defendant] not guilty” but rather was asking the jury to find him ineligible for the death penalty. Hattery, 109 Ill. 2d at 458-59. During the guilt-innocence phase of the trial, the defense presented evidence that could mitigate the defendant’s sentence, but it presented no evidence to defend against the charge of murder. Hattery, 109 Ill. 2d at 459.

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People v. Angarola, 900 N.E.2d 1281, 387 Ill. App. 3d 732, 326 Ill. Dec. 1034, 2009 Ill. App. LEXIS 2 (Ill. Ct. App. 2009).

900 N.E.2d 1281 (People v. Angarola) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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