2014 IL App (2d) 131082 No. 2-13-1082 Opinion filed October 20, 2014 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 09-CF-1875 ) ELVER HERNANDEZ, ) Honorable ) Daniel B. Shanes, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Schostok and Birkett concurred in the judgment and opinion.
OPINION
¶1 Following a stipulated bench trial, defendant was convicted of first-degree murder after
he and his brother, Edwin Hernandez, set fire to a home, killing a 12-year-old boy and seriously
injuring the boy’s family members (including the boy’s mother, who was apparently paralyzed
after she jumped from a second-story window to escape the fire). The crime was gang-related,
and the intended target of the crime was not home.
¶2 During the investigation, defendant, in a videotaped statement, confessed to the crime.
The court denied his motion to suppress the confession. Because the denial of his motion to
suppress could not be appealed if he entered a guilty plea, defendant proceeded with a stipulated 2014 IL App (2d) 131082
bench trial to preserve his appellate rights regarding the confession’s admissibility. 1 After
finding defendant guilty and denying defendant’s posttrial motion (which attacked the
suppression ruling), the court sentenced defendant to 84 years’ imprisonment, followed by 3
years of mandatory supervised release (MSR). Defendant appealed, arguing that the confession
should have been suppressed (and challenging his eligibility for extended-term sentencing and a
public defender fee), and this court affirmed the denial of the motion to suppress. People v.
Hernandez, 2012 IL App (2d) 110817-U, ¶ 14.
¶3 On June 4, 2013, defendant filed a pro se postconviction petition pursuant to section 122-
1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2012)), arguing: (1) that
the application of MSR was unconstitutional; and (2) that he was denied effective assistance of
1 As will become relevant below, we note that a transcript of the confession is contained
in the record as part of the stipulated evidence at defendant’s bench trial. The transcript reflects
defendant confessing to police that, on the night of the murder (which occurred only five days
after defendant was released from a three-month period in the county jail), he and Edwin, under
“order” by other Latin Kings, made a Molotov cocktail at their house. They walked to the
victims’ house, where defendant smashed van windows with a pipe while Edwin “cocktailed the
house”; they saw flames and ran away. Defendant stated, “it wasn’t meant to be like that.”
Defendant knew that the target lived with his family, including his mother, sister, and brother,
whom defendant previously met when he was invited to a party at the home. Defendant’s
account was corroborated by Edwin’s similar confession. We further note that, at the motion-to-
suppress hearing, which took place over several days, defense counsel conducted lengthy cross-
examinations of the investigating officers, provided a detailed closing argument, and represented
that he and defendant strategically chose not to present other evidence or defendant’s testimony.
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trial and appellate counsel. The petition is signed by defendant and notarized. One notarized
affidavit, from Edwin, is attached to the petition. In his affidavit, Edwin attests that, on the night
of the crime, defendant was asleep and did not leave his house. Further, Edwin attests that he
wanted to testify at defendant’s trial, that he told this to defendant and defendant informed his
attorney, but that defendant told him that his attorney did not respond to the information and no
one contacted Edwin about testifying. Finally, in a handwritten note included with his petition,
defendant writes that he was waiting for an affidavit from Nidia Hernandez (his sister), but that,
due to mail delays, he had not yet received it. 2
¶4 On September 19, 2013, in a lengthy written decision, the court denied the postconviction
petition as frivolous and patently without merit. Defendant appeals. Because defendant’s
allegations are directly contradicted by the record and he cannot establish prejudice, we affirm.
¶5 I. ANALYSIS
¶6 The Act establishes a three-stage process for adjudicating postconviction petitions.
People v. Hommerson, 2013 IL App (2d) 110805, ¶ 7. At the first stage (as here), the trial court
considers, without input from the State, whether the petition is “frivolous or is patently without
merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012). A claim is frivolous or patently without merit
where it is “completely contradicted by the record” or where it has no “arguable basis either in
law or in fact.” People v. Hodges, 234 Ill. 2d 1, 16 (2009). Where the petition’s allegations are
2 As defendant’s petition is signed and notarized, as most of his claims allege ineffective
assistance of both trial and appellate counsel, and as he alleges ineffectiveness based on matters
outside of the record, we do not find his claims barred by waiver or forfeiture principles or a
failure to attach his attorneys’ affidavits. See, e.g., People v. Mallory, 371 Ill. App. 3d 477, 480-
81 (2007); see also People v. Hall, 217 Ill. 2d 324, 332 (2005).
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contradicted by the record, the petition should be dismissed. People v. Torres, 228 Ill. 2d 382,
394 (2008). A dismissal of a postconviction petition at the first stage is reviewed de novo.
People v. Brown, 236 Ill. 2d 175, 184 (2010).
¶7 A. MSR Allegations
¶8 We start by considering defendant’s postconviction claim that his three-year MSR term is
unconstitutional because the court did not mention MSR, the mittimus does not reflect
imposition of MSR, and the MSR period increases his sentence without due process of law. This
claim is directly rebutted by the record and fails as a matter of law.
¶9 First, at his June 17, 2009, arraignment, the court informed defendant at least twice that
the State was seeking an extended-term sentence of 60 to 100 years “followed by three years of
mandatory supervised release or parole.” (Emphasis added.) Defendant stated that he
understood. Further, at sentencing, the court stated that “upon completing the sentence the court
imposes[, defendant] is subjected to a period of mandatory supervised release of three years.”
(Emphasis added.) Second, the August 15, 2011, mittimus specifically reflects both defendant’s
“sentence” (84 years) and “MSR” (3 years). Third, it is well established that the prison term and
the period of MSR are two parts of the same sentence, not two different sentences, and, thus,
MSR does not constitute the imposition of an additional sentence without due process. See, e.g.,
People v. Lee, 2012 IL App (4th) 110403, ¶ 32. Thus, the court properly dismissed defendant’s
postconviction claim challenging MSR.
¶ 10 B. Ineffective-Assistance-of-Trial-Counsel Allegations
¶ 11 Defendant’s petition next alleges that, for six reasons, trial counsel’s performance was
ineffective: (1) counsel failed to communicate to defendant the State’s plea offer; (2) counsel
made affirmative misrepresentations to defendant that rendered defendant’s jury waiver
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involuntary; (3) counsel failed to raise any affirmative defenses, in particular an alibi defense, on
defendant’s behalf; (4) counsel failed to make opening and closing arguments in support of
defendant’s case; (5) counsel did not allow defendant to testify at trial; and (6) at sentencing,
counsel failed to present mitigating evidence or confront the State’s incorrect aggravating
evidence. Defendant also claims that the aforementioned alleged errors cumulatively deprived
defendant of effective trial assistance.
¶ 12 At the first stage of postconviction proceedings, an ineffective-assistance-of-counsel
claim may not be dismissed if it is arguable that: (1) counsel’s performance fell below an
objective standard of reasonableness (performance prong); and (2) the defendant was prejudiced
(prejudice prong). Hodges, 234 Ill. 2d at 17 (citing Strickland v. Washington, 466 U.S. 668, 687-
88 (1984)). The performance prong requires us to consider whether, applying a strong
presumption that counsel’s representation fell within the wide range of reasonable assistance (see
Strickland, 466 U.S. at 689), there is an arguable basis to find that counsel’s performance was
“objectively unreasonable under prevailing professional norms.” People v. Cathey, 2012 IL
111746, ¶ 23. The prejudice prong requires us to ask whether there is an arguable basis to
conclude that there exists a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. Id. The failure to satisfy either prong will defeat the
ineffective-assistance claim. People v. Williams, 193 Ill. 2d 306, 375 (2000). We now address
and reject each of defendant’s ineffective-assistance claims.
¶ 13 1. Alleged Failure to Communicate Plea
¶ 14 Defendant alleges that defense counsel told him, “off the record,” that the State would
offer no less than 30 years’ imprisonment if defendant would plead guilty and testify against
Edwin. Defendant rejected that offer. However, defendant alleges that counsel did not
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communicate to him the State’s actual offer, which would have allowed him to plead guilty to
first-degree murder with a sentencing range of 20 to 60 years, instead of 60 to 100 years (by
amending the charges to remove the sentencing-enhancement factors). That offer, defendant
notes, did not require him to testify against Edwin, nor did it have a minimum 30-year sentence.
Accordingly, defendant alleges that, had he known of the offer, he would have accepted it.
Defendant contends that he learned of the State’s offer only after reading the record of
proceedings.
¶ 15 A defendant has the right to decide whether to plead guilty. People v. Trujillo, 2012 IL
App (1st) 103212, ¶ 9. Further, defense counsel has a duty to communicate to the defendant
formal offers from the prosecution, and a failure to do so may present an arguable claim of
deficient performance. Id. ¶¶ 9-10. In Trujillo, the defendant alleged in his postconviction
petition that his trial counsel never told him that the State had extended a plea offer. The court
held that the defendant’s ineffective-assistance claim had been erroneously dismissed at the first
stage. However, before doing so, it also determined that “the record fails to show that the trial
court admonished the defendant about a guilty plea offer *** and therefore does not positively
rebut the defendant’s allegation that he did not know of the offer.” Id. ¶ 13. Therefore, even
where a defendant alleges that counsel did not properly communicate an offer, if the record
rebuts the allegation that a defendant did not know of the offer, summary dismissal of the
petition may remain proper.
¶ 16 Here, the record positively rebuts defendant’s assertions that he learned of the State’s
offer only when he read the record of proceedings and that, had he known of the offer, he would
have accepted it. Specifically, on June 27, 2011, with defendant present, the State informed the
court that it “did make an offer, taking the enhancement off of one of the murder charges,
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allowing the defendant[] to then plead to a sentencing cap of 60. That offer was extended.”
Then, defense counsel represented to the court that he had spoken with defendant numerous
times regarding the State’s offer and its conditions. In light of the offer, counsel recounted, he
and defendant discussed that defendant could proceed to trial by judge or jury, proceed to a
stipulated bench trial, or accept the plea “taking the enhancer off the murder; that he would be
looking at sentencing within a 20- to 60-year range.” Counsel represented, asking defendant to
correct him if he was wrong, that defendant wished to proceed with a stipulated bench trial.
Defendant stated that counsel was correct. Counsel then reiterated twice more that defendant
still had time to decide whether he wished to accept the State’s offer of a blind plea with the 20-
to 60-year sentencing range. Finally, the court discussed with defendant that the State had made
an offer that would reduce the sentencing range to 20 to 60 years, as opposed to 60 to 100 years.
The court reminded defendant that it was an important decision and that, while he should listen
to advice of counsel, the decision was ultimately his to make. Defendant repeatedly stated that
he understood.
¶ 17 The record, therefore, affirmatively rebuts defendant’s allegations that he did not know
the State’s “true” offer and that, if he had known of the offer, he would have accepted it.
Defendant concedes that the court and counsel informed him of and questioned him about the
State’s offer. However, he asserts, without citation to authority, that we should not find his
allegations rebutted by the record, because the aforementioned discussion in court was
“overridden” by counsel’s comments off the record. We disagree. Simply put, it is not arguable
that defendant was prejudiced by any failure of counsel to communicate off the record the State’s
offer of 20 to 60 years, because any error was clearly remedied by the numerous on-record
explanations of the offer. The court properly dismissed this ineffective-assistance allegation.
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¶ 18 2. Alleged Misrepresentations and Jury Waiver
¶ 19 Next, defendant argues that, off the record, counsel recommended that he proceed with a
bench trial, stating that defendant should waive a jury trial because a bench trial would be easier
to appeal from and that, via a bench trial, it would be possible to appeal the suppression ruling.
Defendant asserts that he relied on counsel’s misrepresentations, that his jury waiver was
therefore not voluntary, and that, absent those statements (as well as comments by the trial court
allegedly affirming the erroneous advice), he would have elected a jury trial. Defendant argues
that there was simply no tactical advantage to proceeding to a stipulated bench trial, as opposed
to a jury or nonstipulated bench trial. Finally, defendant again asserts without authority that any
admonishments the court gave him on the record are overridden by counsel’s affirmative
misrepresentations off the record. We disagree.
¶ 20 To the extent that defendant inferred from counsel’s advice that he could appeal the
suppression ruling only via a bench trial (as opposed to a jury trial), that inference was rebutted
by the record. Specifically, on June 27, 2011, at a pretrial proceeding, defendant was present
with counsel, who summarized for the court that he and defendant had numerous conversations
about defendant’s options, which included proceeding to trial in front of a judge or jury,
accepting the State’s plea offer, or, alternatively, submitting to a stipulated bench trial, “where
both sides would agree to the evidence that would be presented,” and “that[,] if he did a
stipulated bench trial, that he would be looking at the ability to appeal the court’s ruling on the
motions [to suppress the confession], which would be basically the only reason to go forward
with a stipulated bench trial.” In context, it is clear that counsel’s reference to proceeding with a
stipulated bench trial, whereby defendant could preserve the ability to appeal the court’s
suppression ruling, was to contrast that procedure not with a jury or nonstipulated bench trial but
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with entering a guilty plea, whereby defendant would forfeit his right to appeal the suppression
ruling. See, e.g., People v. Horton, 143 Ill. 2d 11, 22 (1991) (a guilty plea waives all
nonjurisdictional defenses or defects, and “a stipulated bench trial can avoid the waiver rule
while still allowing the parties to proceed with the benefits and conveniences of a guilty plea
procedure”). Later, on July 1, 2011, the court again explained this concept to defendant, where it
discussed the process for holding a stipulated bench trial and stated:
“THE COURT: Sometimes this procedure is done because it is a way that
a person can preserve the issue for appeal; in other words, we had those motions
to suppress; and if you want to appeal those issues, you can’t plead guilty; you
have to have a trial; and this is a way to have a trial so that you can appeal the
ruling on those motions.
I want you to hear from me that you can still do that.
Do you understand that?
DEFENDANT: Yes.
THE COURT: Is that part of your interest?
DEFENDANT: Yes.” (Emphases added.)
Accordingly, defendant’s allegation that counsel induced him to believe that a bench trial (as
opposed to a jury trial) would allow him to appeal the suppression ruling is rebutted by the
record, which shows that he knew that it was a trial (as opposed to a guilty plea) that would
preserve that appeal.
¶ 21 This leaves defendant’s contention that counsel told him off the record that a bench trial
is easier to appeal from than a jury trial, a misrepresentation without which defendant would
have chosen a jury trial. As we read defendant’s petition, the only specific way that an appeal
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would have been “easier,” according to counsel, was that an appeal from a bench trial, unlike a
jury trial, would have enabled defendant to raise the suppression issue. That is, we see this
allegation as essentially a broader statement of the claim that we addressed above, and thus it
fails for the same reason. The record shows that defendant knew that an appeal on the
suppression issue required only a trial, not necessarily a bench trial.
¶ 22 More generally, the record belies any assertion that defendant did not voluntarily waive
his right to a jury. To establish this point, lengthy recitation of the record is helpful. At the June
27, 2011, pretrial hearing, counsel stated that he had discussed with defendant the possibilities of
proceeding with either a bench or a jury trial, and, further:
“COUNSEL: I have discussed the evidence; I have discussed the evidence
extensively with my client; the pluses and minuses; the advantages and disadvantages of
going to trial. I have given him my opinion as to what the best course of action would be.
And, [defendant]—correct me if I am wrong—but after having spoken [about] all
that, it is your intention, and you want to go forward with doing a stipulated bench trial;
is that correct?
DEFENDANT: Yeah.”
Counsel continued:
“COUNSEL: We can do one of two things on Friday: We can either take the offer
that was made by the State, which is a blind plea of guilty on the 20 to 60 years, which I
understand you don’t want to do; or we can go forward on Friday with a stipulated bench
trial, in which case, as I said before, everybody would agree as to what the evidence
would show at trial; the Judge would make a finding; you would have certain rights, then,
on appeal.
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Both of these options are not open past Friday. If either one of those option[s]
does not take place on Friday, on July 18th we will be going to trial.
DEFENDANT: Yeah.
COUNSEL: You don’t have to make a decision right now; but on Friday, if the
case doesn’t end either by a plea within the 20 to 60 range or stipulated bench trial, on
July 18th we are going to trial.
COUNSEL: And I have explained that to you?
DEFENDANT: Yes.”
¶ 23 The trial court then reviewed the options of a plea agreement, “regular trial; either by a
judge or by a jury,” or a stipulated bench trial, “that’s not a plea of guilty. That’s a trial just
where all the evidence comes in by agreement. It takes five or ten minutes instead of four or five
days. “But that’s where [in contrast to the plea offer], I would sentence you to between 60 and
100 years in prison if I find you guilty of that.” The court informed defendant that he should
carefully consider the decision, that it was his decision to make, and that “if you don’t make a
decision, that means we are having a jury trial. That’s how it works. Do you understand that,
sir?” (Emphasis added.) Defendant answered, “Yes.”
¶ 24 On July 1, 2011, defendant returned to court to waive his right to a jury and to proceed
with a stipulated bench trial. Both counsel and the trial court again engaged in lengthy
conversation with defendant about that choice:
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“COUNSEL: Based on our conversations; which we met at the jail many times; I
talked with family members; do you understand what a stipulated bench trial is?
COUNSEL: Do you understand today what we are doing is[,] instead of going
forward with an actual trial in which the State is going to present witnesses[,] I get the
opportunity to cross examine those witnesses[,] and we get the opportunity to put on
witnesses after that[,] we are [instead] simply stipulating in writing as to what the State’s
witnesses would say were they to be called at trial? Do you understand that?
COUNSEL: We arrived at this decision after months and months of consultation
about your possible options on this; is that correct?
***
COUNSEL: Now, based on that[, i.e., defendant’s decision not to accept the
State’s plea offer], I told you you had a couple of options: We can do what we are doing
today, which is called the stipulated bench trial; we could take it to an actual trial either in
front of [the judge] or in front of a jury of 12 people who would sit and listen to the
evidence on that; do you recall discussing all of those options?
DEFENDANT: Correct.
COUNSEL: Okay. And do you recall discussing with me the advantages and
disadvantages of each of the options?
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COUNSEL: The advantages and disadvantages of going forward like you say you
want to do today with a stipulated bench trial?
DEFENDANT: Right.
COUNSEL: The advantages and disadvantages of going to a trial with live
witnesses either in front of a judge or in front of a jury.
COUNSEL: Based on my professional opinion, you came to your own conclusion
as to what direction you wanted to go in[,] is that correct?
COUNSEL: I gave you my opinion[,] is that correct?
DEFENDANT: Your opinion.
COUNSEL: Okay. Now, what you are doing today is based on your analysis of
what I told you[,] and is your own decision[,] is that right?
COUNSEL: Once again, I won’t beat a dead horse; but I just want to ask you, this
will be the last time: Is this what you want to do today?
Defendant further agreed that he: (1) understood that giving up his right to a trial by jury meant
that no jurors would listen to the evidence; (2) had considered counsel’s advice, but came to his
own conclusion about which option to pursue; (3) did not feel in any way coerced, threatened, or
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pressured to proceed with a stipulated bench trial; and (4) felt that he and counsel had
sufficiently discussed the options and that he understood what he was choosing.
¶ 25 Thereafter, the trial court further admonished defendant about his choice. Specifically,
the court explained:
“THE COURT: You have a right to have this case decided by a jury. A jury is 12
people who are picked from the community. They would come to court[,] listen to the
evidence[,] and before you could be found guilty, they would have to unanimously decide
that the evidence is sufficient to prove you guilty beyond a reasonable doubt.
Do you understand what a jury is?
THE COURT: I was handed this form marked Waiver of Jury Trial; is this your
signature, and are these your initials?
THE COURT: By signing this form and initialing it here, you understand that
there will not be a jury; it will be a judge like I just underlined, me, who will decide
whether or not evidence is sufficient to prove you guilty beyond a reasonable doubt.
THE COURT: Have you spoken to [counsel] about this?
COURT: It is an important decision. It is one you should ask him for his advice.
But in the end, advice is all he can give you; it has to be your decision to make.
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THE COURT: Do you have any more questions for [counsel] about this; or any
questions for me, for that matter?
DEFENDANT: No.
THE COURT: Do you want to have a jury decide this case or a judge decide this
case?
DEFENDANT: Stipulated bench trial.
THE COURT: Has anyone forced you or threatened you to get you to make this
decision?
THE COURT: Has anyone promised you anything at all in exchange for this?
THE COURT: You are making this decision of your own free will?
THE COURT: All right. The Court finds the defendant has made a knowing and
voluntary waiver of a jury.” (Emphasis added.)
¶ 26 In light of the foregoing on-the-record discussions, we find completely disingenuous
defendant’s assertion that his jury waiver was involuntary. Indeed, the court noted that
defendant “strikes me[,] from what I have seen of him, not only today but throughout the
hearing, as well as in other information[,] to be an intelligent young man who is trying to make
the best of a bad situation perhaps.” Counsel agreed, adding, “in my conversations with
[defendant], I have never had any problems communicating. I have never had any indication that
he hasn’t understood what I have had to say. And we have been able to look at what our options
are in a very analytical manner.” Therefore, as the record reflects that defendant was thoroughly
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admonished on the record about his options and that he knowingly chose a stipulated bench trial,
it is not arguable that his jury waiver was involuntary.
¶ 27 Further, we note that defendant asserts that, had he proceeded with a jury trial or a
nonstipulated bench trial, he would have stood a stronger chance of success on the merits. We
completely disagree. Given defendant’s videotaped confession, he would have had virtually no
chance of success at a trial of any kind. Accordingly, for all of the foregoing reasons, the court
properly dismissed this ineffective-assistance claim.
¶ 28 3. Remaining Claims
¶ 29 We combine our analysis of defendant’s remaining challenges to trial counsel’s
effectiveness, as they all generally fall under the broad category of trial preparation and
performance. Those challenges include defendant’s contentions that counsel failed to: (1)
investigate or present affirmative defenses, particularly an alibi defense; (2) offer opening and
closing statements; (3) properly advise defendant about his right to testify; and (4) investigate
mitigating evidence and challenge the State’s aggravating evidence. Each of these claims fails.
¶ 30 First, defendant argues that counsel never investigated his alibi defense, as supported by
Edwin’s affidavit, that, when the crime occurred, defendant was at home sleeping. On the
record, however, the court asked counsel at the sentencing hearing if he had continued to
investigate the case, including potential witnesses, defenses, “alibi” issues, etc., and counsel
stated that he had spoken with both defendant and his family about possible defenses, and how
they would “play out,” and that he had “very, very carefully analyzed that before going forward
in any way.” Counsel informed the court that he had spoken with defendant’s family members
and possible witnesses about information they could offer and had discussed that information
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with defendant. Accordingly, the record belies defendant’s assertion that counsel did not
investigate defenses.
¶ 31 Further, defendant’s allegation fails under both ineffective-assistance prongs. Where
defendant confessed to the crime and, further, his alleged alibi witness (the source of the only
affidavit attached to his postconviction petition) was his brother and co-defendant, who had also
confessed to the crime, counsel was not arguably objectively unreasonable for not presenting an
alibi defense. “Trial strategy includes an attorney’s choice of one theory of defense over
another,” and, where the alibi defense was inconsistent with defendant’s statements to police,
which were not suppressed, counsel was not arguably objectively unreasonable for instead
pursuing an avenue that merely preserved defendant’s ability to appeal the suppression ruling.
(Internal quotation marks omitted.) People v. Cunningham, 376 Ill. App. 3d 298, 301-02 (2007).
Further, it is not arguable that presentation of an alibi defense would have altered the outcome of
these proceedings. Again, once defendant’s suppression motion was denied, his confession and
other evidence constituted overwhelming evidence of his guilt. An alibi defense would have
been inconsistent with defendant’s videotaped statement. Finally, we note that counsel did,
indeed, present a defense. Specifically, at the stipulated bench trial, the evidence included the
entire record from the suppression hearing, which included counsel’s extensive cross-
examinations and argument. Thus, by including the evidence from the suppression hearing,
counsel preserved defendant’s only credible defense and repeatedly made clear that the purpose
of the stipulated bench trial was to preserve defendant’s suppression issue. See, e.g., People v.
Horton, 143 Ill. 2d 11, 22 (1991). The ineffective-assistance claim was properly dismissed.
¶ 32 Second, defendant’s challenges to counsel’s alleged failure to present opening and
closing arguments at the stipulated bench trial similarly fail because those decisions fall squarely
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within the strategic purview of the attorney and cannot arguably be considered, particularly at a
bench trial where the evidence is stipulated, to be objectively unreasonable. See People v.
Conley, 118 Ill. App. 3d 122, 127-28 (1983) (waiver of opening and closing statements has been
“recognized repeatedly as a matter of trial strategy *** particularly in a bench trial”). Moreover,
counsel did present a closing argument, stating:
“The only final thing I would say is that every step that has been taken in this
case, the decisions that have been made have been made by my client with many reasons
in mind. And I think a lot of them are obvious. And that all the decisions were made
with my professional counsel, my professional opinion regarding various methods to go,
and things that could be done with the trial, and that’s why we are pursuing in this
particular way. It has been very, very carefully thought out and discussed; and there is a
reason why we are doing what we are doing today.”
The trial court, in dismissing this claim, aptly summarized counsel’s closing argument as a
strategic method of “remind[ing] the trial court that defendant was utilizing the stipulated bench
trial procedure to preserve the rulings on the motions to suppress for appellate review. In doing
so, defense counsel diplomatically conveyed defendant’s position that the statements should not
be considered reliable or credible at trial.” As defendant’s claim fails under both ineffective-
assistance prongs, the court properly dismissed it.
¶ 33 Third, defendant’s claim that counsel improperly advised him not to testify at trial fails
because it is belied by the record and defendant cannot establish deficiency or prejudice.
Generally speaking, unless counsel refused to allow defendant to testify, advice not to testify
constitutes trial strategy and does not support an ineffective-assistance claim. See People v.
Coleman, 2011 IL App (1st) 091005, ¶ 29. Here, defendant’s petition alleges that he:
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“notified counsel that he wanted to testify to his alibi defense. Trial counsel directed
[defendant] not to testify because the State would trick him while he was on the stand and
because his appeal would go better because the appellate court would only have the
witnesses[’] word and not [defendant’s]. Thus, [defendant], thinking trial counsel knew
best, decided not to take the stand.
[Defendant] was going to testify to his alibi until trial counsel directed him not to
due to his reasons which were baseless in law.” (Emphasis added.)
Therefore, defendant’s allegations reflect that counsel did not prohibit defendant from testifying
but, rather, counsel gave strategic advice, defendant listened to that advice, and defendant chose
not to testify. Given that the evidence included defendant’s videotaped confession, counsel’s
advice that defendant not present the State an opportunity for cross-examination and possible
impeachment was well within the range of reasonable professional assistance. Further, the
record reflects that both counsel and the trial court thoroughly addressed defendant’s right to
testify, admonishing defendant of his right to testify and confirming that defendant’s decision not
to testify was his own, and that the court ultimately found that defendant’s waiver of his right to
testify was knowing, intelligent, and voluntary. Again, defendant claims without authority that
his attorney’s private conversations with him trumped the on-record conversations. As
discussed, however, defendant cannot establish either that it is arguable that counsel’s
performance was deficient or that it is arguable that, but for counsel’s advice, the result of the
proceeding would have been different. Accordingly, the court properly dismissed the
ineffective-assistance claim.
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¶ 34 Fourth, defendant argues that counsel was ineffective for failing to present mitigating
evidence and failing to challenge the State’s aggravating evidence at sentencing. In sum,
defendant contends that counsel’s broad discretion to call witnesses and present evidence does
not extend to a failure to investigate or prepare any evidence at all. While this concept might be
true, that is not what happened here.
¶ 35 Here, counsel presented mitigating evidence in the form of letters from defendant’s father
and a family friend. Defendant argues that counsel should have presented witnesses instead and
that his decision not to do so, based simply on language barriers, qualifies as ineffective
assistance. This oversimplifies counsel’s decision. Specifically, before the sentencing hearing,
counsel informed the court that he intended to present testimony in mitigation and that, while
some mitigating evidence would come in by letter, he did not want to present repetitive evidence.
At sentencing, however, counsel tendered as evidence in mitigation the letters and noted,
although several of defendant’s family members were present in court, “I believe that what has
been expressed to you in those letters are the expressions of the rest of the family. I can
represent that as an officer of the court.” Counsel noted that language barriers would make it
very difficult for the witnesses to communicate. The court offered the assistance of an
interpreter, but counsel explained that “it’s very emotionally charged for everybody. I spoke
with the family members. They are here for support. I think their presence here communicates
as well as they could verbally. I don’t think you’re going to find a situation where a family
member would have anything but wonderful things to say about their family.” While this was
not evidence, counsel provided lengthy argument to support mitigation in sentencing. We
further note that defendant does not attach any affidavits to his petition to demonstrate what
mitigating witnesses might have said that would not have been merely cumulative of the
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sentiments expressed by the letters presented to the court. Therefore, contrary to defendant’s
assertion, the record reflects that counsel did not fail to investigate or present mitigating
evidence. His strategy to present the letters as representative of the position and sentiment of all
of defendant’s witnesses was not arguably objectively unreasonable, and the record does not
reflect that, had the witnesses testified, their testimony would not have been merely cumulative
or would arguably have resulted in a different sentence.
¶ 36 As to counsel’s failure to object to the State’s “incorrect” aggravating evidence,
defendant apparently means the State’s mention of the information in the presentencing report
that defendant committed a “beat-down” of a rival gang member while incarcerated and that he
“has been sent to the administrative segregation unit four separate times for various activities”
(including as punishment for the “beat-down”). When announcing its sentence, the court
mentioned the incident, noting that defendant participated “in a fight in jail because a gang put a
hit on somebody.” Defendant contends, however, that he immediately informed counsel that the
“beat-down” evidence was erroneous because he was cleared of that charge after a hearing by a
jail committee. Nevertheless, counsel did not object to the incorrect information.
¶ 37 Counsel’s decision not to object during the State’s sentencing argument constitutes a
strategic decision. See People v. Probst, 344 Ill. App. 3d 378, 387 (2003) (a failure to object is a
matter of trial strategy). However, even if we were to consider the decision arguably objectively
unreasonable, defendant still cannot establish that it is arguable that, if counsel had objected that
one of defendant’s four trips to segregation was ultimately deemed unwarranted, the court would
have imposed a different sentence. The court properly dismissed defendant’s ineffective-
assistance claim.
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¶ 38 Finally, defendant asserts that counsel’s errors cumulatively deprived him of effective
representation. This claim fails because defendant has not identified any error and, where there
is no individual error, there cannot be cumulative error. See People v. Garmon, 394 Ill. App. 3d
977, 991 (2009).
¶ 39 C. Ineffective Assistance of Appellate Counsel
¶ 40 Defendant also alleges in his petition that he received ineffective assistance from
appellate counsel, who did not raise any of the aforementioned issues on direct appeal. This
claim fails. As mentioned, appellate counsel raised issues concerning the suppression of
defendant’s confession, the applicability of extended-term sentencing, and the imposition of a
public defender fee without inquiry into defendant’s ability to pay. This court affirmed in part
(denial of motion to suppress and extended-term sentencing), reversed in part (public defender
fee), and remanded (for inquiry into defendant’s ability to pay the fee). Thus, appellate counsel’s
efforts on defendant’s behalf were partially successful. Further, “[a]ppellate counsel is not
obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to
refrain from raising issues which, in his or her judgment, are without merit, unless counsel’s
appraisal of the merits is patently wrong. Accordingly, unless the underlying issues are
meritorious, [the] defendant has suffered no prejudice from counsel’s failure to raise them on
appeal.” (Internal quotation marks omitted.) People v. Coleman, 2011 IL App (1st) 091005,
¶ 42. Here, defendant’s petition fails to raise any meritorious issues and, therefore, appellate
counsel was not arguably ineffective for failing to raise the same. The petition was properly
dismissed as frivolous and patently without merit.
¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, the judgment of the circuit court of Lake County is affirmed.
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¶ 43 Affirmed.
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