People v. Hobson

• Court: Appellate Court of Illinois
• Decided: November 14, 2008
• Docket: 1-06-2575 Rel
• Status: Published

Opinion

SIXTH DIVISION November 14, 2008

No. 1-06-2575

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. ) ) ) No. 98 CR 9695 v. ) ) RUSSELL HOBSON, ) Honorable ) Dennis J. Porter, Defendant-Appellant. ) Judge Presiding.

JUSTICE JOSEPH GORDON delivered the opinion of the court:

Defendant, Russell Hobson, who was charged and convicted of first degree murder,

appeals from the second-stage dismissal of his successive petition for relief under the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)). He contends that the

circuit court erred in dismissing his petition without an evidentiary hearing, where he made a

substantial showing of ineffective assistance of counsel because (1) counsel failed to adequately

communicate with him and provide him with discovery materials that he requested prior to trial

and (2) counsel precluded him from exercising his right to a jury trial. For the reasons that

follow, we affirm.

I. BACKGROUND

Defendant was charged with two counts of first degree murder for the fatal shooting of

Donald Horton, which occurred on March 6, 1998. Count I charged defendant with committing

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intentional first degree murder (see 720 ILCS 5/9-1(a)(1) (West 1992)), and count II charged him

with unjustifiably killing the victim “knowing that such a shooting created a strong probability of

death or great bodily harm” (see 720 ILCS 5/9-1(a)(2) (West 1992)).

Prior to trial, on October 20, 1998, the trial court informed defendant of the charges

against him and the possible sentences if he were found guilty. The trial court told defendant that

he was entitled to a jury trial and then explained to defendant the difference between a jury and

bench trial. The court asked defendant if he understood and defendant replied in the affirmative.

The trial court then asked defendant how he wanted to be tried, and defendant requested a bench

trial. The following colloquy then took place between the trial court and defendant:

“THE COURT: Did you discuss this matter with your lawyer?

[Defendant]: Yes.

THE COURT: Anybody forced you to give up your right to a jury trial?

[Defendant]: No.

THE COURT: Anybody threatened you to make you give up your right to a jury

trial?

THE COURT: Anybody promise you anything to get you to give up your right to

a jury trial?

THE COURT: All right. If I tell you right now, Mr. Hobson, I don’t know if you

have been told by anybody that I’m leaning one way or the other on your case, but I will

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tell you right now I’m not. I know virtually nothing about the fact of your case. The only

thing I know about the fact of your case is what I just read to you what you are charged

with. That’s literally all I know. I haven’t made up my mind one way or the other, and I

have no opinion at all as to the facts of your case because I know none of them.

Do you understand that?

***

THE COURT: Jury waiver will be accepted.”

At trial, the following pertinent facts were adduced. Vernon Spears testified on behalf of

the State that on March 6, 1998, at about 11:15 or 11:20 p.m., he was on the corner of 55th Street

and Lake Park in Chicago’s Hyde Park neighborhood attempting to hail a taxi. Spears testified

that he observed a Yellow Cab driven by defendant going south towards 55th Street. Spears then

stated that he entered defendant’s cab, sat in the backseat on the driver’s side behind defendant,

closed the door and told defendant where to drive him.

According to Spears, at that point another person, later identified as Donald Horton, the

victim, approached the taxi. Spears testified that Horton stood at the curb, bent down to look

into the cab through the front passenger window and asked defendant if he could take him where

he wanted to go. According to Spears, Horton crouched and put his face partially inside the taxi,

resting his arms on the bottom of the window. Spears testified that defendant then responded

that he already had a fare, but that he would try to come back and pick him Horton. According to

Spears, Horton then asked defendant about sharing a ride, and defendant asked Spears if he was

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“ok with this.” Spears responded that he did not want to share the ride because it was very late at

night.

According to Spears, at that point, defendant told Horton that he could not take him

anywhere and told him to get away from the cab, but Horton refused. Spears testified that he

then saw defendant make a jerking motion and “move to the side a bit.” He stated that Horton

then began an argument with defendant. Spears testified that Horton told defendant: “You got a

gun? I bet you got a gun.” Spears also heard Horton tell defendant that he was not afraid to die,

and then: “Go ahead pop me. Why don’t you pop me? Just pop me.”

Spears testified that he did not see any sort of weapon in Horton’s hands and that

throughout the argument Horton continued to stand perched inside the front passenger side

window with his arms resting on the bottom of the window. Spears also averred that Horton did

not reach into the cab nor make any motions as if reaching into his pocket or waistband. Spears

stated that Horton did not threaten anyone and that he did not appear to be drunk.

According to Spears, after Horton told defendant to “just pop [him],” defendant reached

down, pulled out a gun and pointed the gun “right in front of” Horton’s face and shot him.

Spears said that at that point he tried to get out of the taxi, but defendant turned around to him

and said, “I’ll get you home now.” According to Spears, defendant then sped off in the cab going

west on 55th Street. Spears implored defendant to stop, but defendant continued to drive and

turned a corner. Soon thereafter, the taxi ran into a police vehicle and defendant was arrested.

On cross-examination, Spears acknowledged that he had a cocktail before entering the

cab and that he chose to take a taxi because he was afraid to walk alone at night in that

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neighborhood. Spears also acknowledged that there was a thick partition that went from the top

of the front seat all the way to the roof of the car that divided the backseat from the front seat

where defendant was driving. Spears stated that when Horton asked to share a ride with him, he

was reluctant because he was frightened. Specifically, Spears averred that at that point he did not

know what was going on and feared that he was “being set up for a ripoff.” Spears also testified

on cross-examination that Horton was wearing a jacket and the he could not see what was

underneath it.

Daniel Son Wang next testified that on the night of March 6, 1998, he was in his car

heading south on Lake Park Street when he noticed a Yellow Cab in front of him parked on the

corner of 55th Street. Wang testified that he particularly noticed the taxi because the light in that

intersection was green and the cab was not moving. Wang stated that as he approached the taxi

he observed that there were two people inside the vehicle and one standing outside. According

to Wang, by the time he pulled up right directly behind the cab, the light turned red, and he was

forced to stand behind it waiting for the signal change.

Wang stated that he then observed what appeared to him to be an argument between the

person standing outside the taxicab and the driver. Wang could not hear anything and could not

tell exactly what was going on, but it appeared to him that the person standing outside had either

just come from inside the cab or was trying to get into it. Wang testified that at one point he

observed an arm extend from the taxi and heard a shot. He then saw the person standing outside

the cab fall to the ground. According to Wang, the taxi quickly made a right turn onto 55th

Street going west, but was quickly stopped by a police car that was already on 55th Street. Wang

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testified that he exited his vehicle and ran toward the person on the ground and waited for help.

Wang stated that the victim did not have a weapon on him. He also testified that he never saw

the victim waving his hands around, nor pointing at the driver or reaching into the cab. At trial,

Wang identified the victim from a photograph as Daniel Horton.

On cross-examination, Wang acknowledged that the person standing outside the cab was

screaming and appeared to be very angry.

Officer Roman Csyrgryn testified that on March 6, 1998, at approximately 11:20 p.m., he

was parked in his squad car facing east on 55th Street approximately 100 feet from Lake Park

Street. Officer Csyrgryn testified that he heard a popping noise which he initially thought was a

firecracker. After a few minutes, Officer Csyrgryn observed a man running towards him from

the northwest corner. The man approached the officer and told him that “someone in a cab had

just shot an individual on the street and that the cab was now westbound on 55th Street.” Officer

Csyrgryn testified that he then radioed Officer Balcar, whom he knew to be in the general

vicinity of where the taxi was heading, and told her to be on the lookout for it.

Officer Csyrgryn stated that he then made a U-turn with his car and proceeded in the

general direction of where he was told the cab went. Soon thereafter, Officer Csyrgryn observed

a police vehicle in pursuit of a taxi, and he followed them. According to Officer Csyrgryn the

taxi eventually stopped in the 5600 block of Kimbark. At that point, both he and Officer Balcar

exited their respective vehicles and approached the cab. According to Officer Csyrgryn, he then

asked the cab driver, whom he identified as defendant in this case, to exit the vehicle and

performed a pat-down search of him, which revealed no weapons. Officer Csyrgryn, however,

6 No. 1-06-2575

testified that he found a Browning, 9-millimeter, gun inside a black vinyl case underneath the

driver’s seat of the cab.

Officer Ellen Balcar testified next that on the night of March 6, 1998, at approximately

11:20 p.m., she was in a marked squad car on 55th Street near Kimbark. Officer Balcar testified

that she had just stopped a vehicle for a traffic violation, when she received an emergency call

from another traffic unit that there was a cab heading westbound from Lake Park Avenue on 55th

Street and that somebody inside it had shot someone. Soon thereafter, when Officer Balcar

observed a cab coming in her direction, she activated her emergency equipment and followed it.

According to Officer Balcar, when the cab was eventually stopped, she instructed both

the cab driver, whom she identified as defendant in the case, and the fare, whom she identified as

eyewitness Spears, to exit the vehicle. Officer Balcar then asked both men what had happened,

and Spears told her that “he could not believe that he had just witnessed defendant shoot

someone.”

The State also called Officer Thomas Costello, who testified that on March 6, 1998, at

approximately 11:22 p.m. he went to the area of 5458 South Lake Park Avenue in Chicago, in

response to a radio call of a man shot in that area. Officer Costello testified that once there, he

found the victim’s body lying on the ground, partially on the curb, partially in the street, and that

he then secured the area.

Police evidence technician Joseph William Dunigan, Jr., next testified that in the early

morning hours of March 7, 1998, he went to the area of 55th Street and Lake Park Avenue in

Chicago with investigator Lynn Stocker to investigate the scene of a crime. Dunigan testified

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that once there, he photographed the scene, where the body of the victim was lying on the floor.

Dunigan also stated that he searched the body of the victim and that no weapons were recovered

on him or in his immediate vicinity.

Dunigan further testified that he then went to the crime scene near 5620 South Kimbark

where the taxi was located. Dunigan stated that once there he recovered a fired and expended

9-millimeter cartridge case in a metal partition right behind the passenger front seat of the cab.

The parties then stipulated that if called to testify, deputy medical examiner Barry

Lifschults would testify that on March 7, 1998, he performed an autopsy on Donald Horton and

that he found that the victim died as a result of a gunshot wound to the face. That autopsy also

revealed that the victim’s blood alcohol level was .133.1 The parties also stipulated that if called

to testify, forensic scientist and firearms expert Walter J. Kryssak would testify that on March 11,

1998, he received into evidence the 9-millimeter caliber Browning pistol, the magazine, the 11

unfired bullets, and the fired cartridge casing, recovered at the scene of the crime, as well as the

bullet recovered from the body of Donald Horton during the autopsy. The parties further

stipulated that Kryssak would testify that ballistics testing revealed that the gun recovered from

defendant’s car matched the bullet recovered from the victim’s skull as well as the cartridge case

found in defendant’s car.

Defendant’s theory of defense at trial was that he shot Horton in self-defense. Defendant

1 We note that in closing argument, defense counsel indicated, and the State did not

dispute, that in the State of Illinois the permissible blood alcohol level for driving purposes is

below .08.

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testified in his own behalf that on March 6, 1998, he was employed as a cab driver and had been

driving a cab for over four years. On the date in question, defendant had been driving the cab for

about eight hours. Just before midnight, he picked up a passenger (Spears) near Lake Park and

55th Street in Hyde Park.

After Spears entered the vehicle and told defendant where he wanted to go, defendant

closed the partition dividing the front seats from the back passenger seats. Defendant testified

that the partition between him and the back passenger seats was covered with fare rate papers.

According to defendant, he then put the vehicle in gear mode, but did not drive off

because a light on his car panel indicated that one of the doors of the vehicle was ajar. As

defendant waited for Spears to close the door completely, he saw a man, later identified as the

victim Horton, approach the rear passenger door. Defendant stated that at first he assumed that

Horton and Spears were together, so he did not say anything.

Defendant testified that Horton then engaged Spears in a conversation and that he opened

the partition to ask Spears whether he and Horton were together. After Spears told him that they

were not, defendant asked Spears if the two wanted to share a ride, and Spears indicated that he

did not.

According to defendant, at this point, Horton moved from the back passenger door, which

was still ajar, to the front passenger door. Defendant stated that he then rolled down the front

passenger window and explained to Horton that Spears did not want to share a ride, but that

because Spears was not going far, he could return quickly to pick him up and take him wherever

he wanted to go.

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According to defendant, Horton then said, “[n]o, I want to take this cab.” After defendant

told him that he could not, Horton started to put both his forearms on the open window.

Defendant testified that at this point he became scared because he believed he was going to be

robbed. Defendant asked Horton to please leave the car so that he could drop Spears off and

come and pick him up later. After defendant repeated this request, Horton replied, “[w]herever

you going to take him at I will be there to rob you, take the car and bust a cap on your ass.”

Defendant testified that he then repositioned himself in the car so that he could see

Horton better. Horton responded to this movement by saying, “[w]hat you have a gun?”

Defendant testified that at that point he began to fear for his safety, and continued to be more

frightened as Horton kept asking him whether he had a gun and whether he was going to “pop”

him. According to defendant, at that point the man moved his hands from outside the door

toward inside the car through the open window, put his head inside the car and waved his finger

in defendant’s face, telling him three times that he was not afraid to die. Defendant testified that

when he heard the words “rob,” “die” and “pop” he became frightened for his life and, therefore,

pulled a handgun from underneath his seat and shot Horton. Defendant testified that at that point

he was in shock and therefore just turned around and told Spears that he would drive him to his

destination.

On cross-examination, defendant acknowledged that the windows in his cab had a power

switch that was in working order on the day of the shooting. Defendant also testified that he did

not see Horton with a gun.

On redirect examination, defendant explained that even though he did not see Horton

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with the gun, he was convinced that Horton had one and was going to use it. According to

defendant, Horton looked “crazy,” and “obscene” and continued to yell at him that he was “not

afraid to die.” After Horton said this a third time, defendant saw him move his right hand from

inside the car toward his pocket, to what defendant believed was “some type of weapon.”

Defendant testified that he understood Horton’s statement that he was not afraid to die to mean

that “whatever happens to him, he doesn’t care who he takes with him.” Defendant stated that

when he saw Horton move his hand toward his jacket pocket, he pulled out his gun and shot him.

On redirect examination, defendant also testified that he has heard of at least five other

cab drivers who have been robbed, shot and killed in the line of duty. He also testified that he

knew two of those drivers personally.

Detective Nick Crescenzo also testified on behalf of defendant. Detective Crescenzo

testified that he was assigned to investigate the murder of Donald Horton. According to the

detective, as part of that investigation, he separately interviewed Spears and Wang, the two

eyewitnesses to the incident. Detective Crescenzo testified that when interviewed, Spears told

him that the victim leaned in the open passenger window and started arguing with the cab driver.

Detective Crescenzo further testified that Wang told him that he observed the victim talking

through the open passenger window and that it seemed to him that he was “arguing [and] very

animated.”

On cross-examination, Detective Crescenzo acknowledged that Spears only told him that

the victim’s head and shoulder stuck into the cab. He also testified that Wang never told him

that the victim was flailing his arms.

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After hearing closing arguments by both counsel, the circuit court found defendant not

guilty of intentional first degree murder pursuant to section 5/9-1(a)(1) of the Criminal Code of

1961 (Code) (720 ILCS 5/9-1(a)(1) (West 1992)) under count I of his indictment, but guilty of

first degree murder pursuant to section 5/9-1(a)(2) of the Code (720 ILCS 5/9-1(a)(1) (West

1992)) under count II. The court chose to believe Spears testimony over that of defendant and

therefore found that there was no mitigating evidence to reduce this to second degree murder or

to murder committed in self-defense. As the court stated:

“As to Count 2, the obvious question I think is, is this a second degree murder, or

self-defense, as has been raised.

For second degree murder the serious provocation requires there be one of four

types: Substantial physical injury or assault, mutual quarrel or combat, illegal arrest or

adultery with the offender’s spouse.

Obviously none of those apply in this situation, in my view.

Going then to the second form of second degree murder, that at the time of the

killing the defendant believes the circumstances to be such that if they existed it would

justify or exonerate the killing, under one of the defenses listed in the criminal code.

The only places that [defendant’s] testimony differs from Mr. Spears are on the

things that would go to the making him either not guilty or having mitigated the offense

somehow.

That is the belief that he was in imminent danger. According to Mr. Spears, who

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*** had as good an opportunity to observe as a human being could possibly have.

Defendant, you committed the offense of murder and first degree.

And that is what I think you did.

I find it hard to believe that almost every conceivable fact that would tend to

mitigate this to a second degree murder or make it a not guilty, Mr. Spears, Mr. Spears

missed everyone of them.

So I think it happened like Spears said ***.”

The circuit court subsequently sentenced defendant to 21 years’ imprisonment.

Defendant appealed his conviction and sentence. The State Appellate Defender assigned to

represent defendant on appeal filed a motion to withdraw as counsel pursuant to Anders v.

California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). On March 31, 2000, the

appellate court entered an order granting defense counsel’s request and affirming defendant’s

conviction and sentence. People v. Hobson, No. 1-99-0221 (2000) (unpublished order pursuant

to Supreme Court Rule 23).

On March 6, 2001, defendant filed a pro se postconviction petition alleging several

instances of ineffective assistance of trial counsel, including that counsel failed to allow

defendant to view matters of discovery that he had specifically requested to see and that counsel

precluded defendant from exercising his right to a jury trial when he advised defendant to elect a

bench trial because he knew the judge and therefore knew that at a bench trial the judge would

find that defendant acted in self-defense.

On March 30, 2001, the circuit court dismissed defendant’s petition as untimely filed.

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On appeal, we found that in light of the recent decision in People v. Boclair, 202 Ill. 2d 89, 789

N.E.2d 734 (2002), it was improper for the circuit court to summarily dismiss defendant’s

petition at the first stage of postconviction proceedings solely on the basis of timeliness, where

timeliness was not raised by the State on a motion to dismiss. See People v. Hobson, No. 1-01-

1874 (2003) (unpublished order pursuant to Supreme Court Rule 23). Accordingly, we reversed

and remanded the matter for further proceedings, including appointment of counsel. See People

v. Hobson, No. 1-01-1874 (2003) (unpublished order pursuant to Supreme Court Rule 23).

On remand, appointed counsel filed a supplemental postconviction petition expanding on

defendant’s claim that his trial counsel was ineffective for failing to share certain discovery

documents that defendant had requested to see, specifically police reports which contained the

identity and statements of the State’s witnesses. The State filed a motion to dismiss the

supplemental postconviction petition arguing that the petition was barred by the statute of

limitations for postconviction petitions and that defendant’s ineffective assistance of counsel

contentions were insufficient to warrant an evidentiary hearing. On July 18, 2006, the circuit

court dismissed the petition on the merits, but found that under People v. Rissley, 206 Ill. 2d 403,

420-21, 795 N.E.2d 174, 183-84 (2003), even though defendant’s petition was untimely filed,

defendant was not culpably negligent for that delay. Defendant now appeals.

II. ANALYSIS

We begin first by noting the familiar principles regarding postconviction proceedings.

The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)) provides a

means by which a defendant may challenge his conviction for “substantial deprivation of federal

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or state constitutional rights.” People v. Tenner, 175 Ill. 2d 372, 378, 677 N.E.2d 859, 861

(1997). A postconviction action is a collateral attack on a prior conviction and sentence, and “is

not a substitute for, or an addendum to, direct appeal.” People v. Kokoraleis, 159 Ill. 2d 325,

328, 637 N.E.2d 1015, 1017 (1994).

In a noncapital case, the Act creates a three-stage procedure of postconviction relief.

People v. Makiel, 358 Ill. App. 3d 102, 104, 830 N.E.2d 731, 736 (2005). At the second stage of

postconviction proceedings, such as here, the circuit court must determine whether the petition

and any accompanying documentation make a substantial showing of a violation of constitutional

rights. People v. Edwards, 197 Ill. 2d 239, 246, 757 N.E.2d 442, 446-47 (2001). 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 in

the case or by accompanying affidavits. People v. Coleman, 183 Ill. 2d 366, 381, 701 N.E.2d

1063, 1072 (1998). Nonspecific and nonfactual assertions which merely amount to conclusions

are not sufficient to require a hearing under the Act. Coleman, 183 Ill. 2d at 381, 701 N.E.2d at

1072-73. “In determining whether to grant an evidentiary hearing, all well-pleaded facts in the

petition and in any accompanying affidavits are taken as true.” People v. Towns, 182 Ill. 2d 491,

501, 696 N.E.2d 1128, 1134 (1998). We review the second-stage dismissal of a post-conviction

petition de novo. Coleman, 183 Ill. 2d at 388-89, 701 N.E.2d at 1075-76.

1. Timeliness

Before addressing defendant’s appellate contentions, we must first resolve the important

threshold matter raised by the State, namely, whether the circuit court erred in failing to dismiss

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defendant’s petition on timeliness grounds pursuant to section 122-1 of the Act (725 ILCS 5/122-

1 (West 2000)). With respect to this contention, defendant acknowledges, as he did in the circuit

court below, that his petition was untimely filed, but asserts that the delay can be excused

because it was not due to his culpable negligence.2 For the reasons that follow, we agree.

Under section 122-1 of the Act, a postconviction proceeding may not be commenced

outside the time limitation period stated in the Act unless defendant alleges sufficient facts to

show that the delay in filing his initial petition was not due to his culpable negligence. 725 ILCS

5/122-1(c) (West 2000); People v. Rissley, 206 Ill. 2d 403, 420-21, 795 N.E.2d 174, 183-84

2 In this respect, we note that there is some disagreement between the parties, albeit not

crucial to the discussion of culpable negligence, as to how late the petition was filed. Both

parties agree that defendant’s conviction was affirmed on appeal on March 31, 2000, that he had

21 days, until April 21, 2000, to petition the Illinois Supreme Court, and thereafter six months,

until October 21, 2000, to file a petition for postconviction relief. The parties, however, disagree

as to when the petition was actually filed. Defendant asserts, as he did below, that the petition

was filed on January 12, 2001, the date on which he signed and notarized the petition, and that

therefore his petition is only three months late. The State, on the other hand, contends that the

clerk of the circuit court stamped the petition on March 6, 2001, and that therefore defendant’s

petition was five months late. Because on appeal defendant concedes that his petition was

untimely filed (albeit three months later, and not five months later as the State would contend),

the dispute regarding the exact number of months tardiness is not crucial to our determination of

culpable negligence.

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(2003). Section 122-1(c) of the Act provides in pertinent part:

“*** no proceedings under this Article shall be commenced more than 6 months after the

conclusion of proceedings in the United States Supreme Court, unless the petitioner

alleges facts showing that the delay was not due to his or her culpable negligence. If a

petition for certiorari is not filed, no proceedings under this Article shall be commenced

more than 6 months from the date for filing a certiorari petition, unless the petitioner

alleges facts showing that the delay was not due to his or her culpable negligence. If a

defendant does not file a direct appeal, the post-conviction petition shall be filed no later

than 3 years from the date of conviction, unless the petitioner alleges facts showing that

the delay was not due to his or her culpable negligence.” 725 ILCS 5/122-1(c) (West

2000).

Our supreme court has defined culpable negligence as “contemplat[ing] something

greater than ordinary negligence and is akin to recklessness.” People v. Boclair, 202 Ill. 2d 89,

106, 108, 789 N.E.2d 734, 744 (2002) (“Culpable negligence has been defined as ‘[n]egligent

conduct that, while not intentional, involves a disregard of the consequences likely to result from

one’s actions.’ Black’s Law Dictionary 1056 (7th ed. 1999). Culpable negligence has also been

defined as ‘something more than negligence’ involving ‘an indifference to, or disregard of,

consequences.’ 65 C.J.S. Negligence §19 (2000)”). Our supreme court has made clear that it is

imperative to construe “culpable negligence” broadly so as to ensure that defendants will not be

unfairly deprived of the opportunity to have their constitutional claims adjudicated. Rissley, 206

Ill. 2d at 421, 795 N.E.2d at 183-84. As the supreme court in Rissley stated:

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“We continue to adhere to the definition enunciated in Boclair. This definition more than

adequately ensures that the portion of the statute permitting a petitioner to file an

untimely petition so long as he ‘alleges facts showing that the delay was not due to his

culpable negligence’ [citation] does not stand as empty rhetoric. Rather, the definition

gives heft to the exception contained in section 122-1, an exception which this court has

historically viewed as the ‘ special “safety valve” ’ in the Act. People v. Bates, 124 Ill.

2d 81, 88 [,529 N.E.2d 230] (1988); see also People v. Wright, 189 Ill. 2d 1, 8 [,723

N.E.2d 230] (1999). Finally, this definition comports with our long-held view that the

Act in general must be ‘liberally construed to afford a convicted person an opportunity to

present questions of deprivation of constitutional rights.’ People v. Correa, 108 Ill. 2d

541, 546 [, 485 N.E.2d 307] (1985). See also People v. Kitchen, 189 Ill. 2d 424, 435 [,

727 N.E.2d 189] (1999), citing People v. Pier, 51 Ill. 2d 96, 98 (1972) (acknowledging

that ‘the Act should not be so strictly construed that a fair hearing be denied and the

purpose of the Act, i.e., the vindication of constitutional rights, be defeated’).” Rissley,

206 Ill 2d at 420-21, 795 N.E.2d at 183-84.

As the law stands today, a defendant asserting that he was not culpably negligent for the

tardiness of his petition must support his assertion with allegations of specific fact showing why

his tardiness should be excused. People v. Walker, 331 Ill. App. 3d 335, 339-40, 772 N.E.2d

758, 762-63 (2002) (noting that the relevant inquiry becomes whether, after accepting all well-

pleaded factual allegations of defendant’s petition regarding culpable negligence as true, those

assertions are sufficient as a matter of law to demonstrate an absence of culpable negligence on

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defendant’s part); see also People v. Van Hee, 305 Ill. App. 3d 333, 336, 712 N.E.2d 363, 366

(1999) (“[t]o show the absence of culpable negligence, a petitioner must allege facts justifying

the delay”); People v. McClain, 292 Ill. App. 3d 185, 188, 684 N.E.2d 1062, 1064 (1997) (to

warrant an evidentiary hearing on the issue of whether the delay in filing postconviction relief

was occasioned by culpable negligence, the defendant “must make a ‘substantial showing’ by

alleging facts demonstrating that to be the case”), overruled in part and on different grounds by

People v. Woods, 193 Ill. 2d 483, 739 N.E.2d 493 (2000)

In the present case, defendant asserts that the reason for his delay in filing the initial

postconviction petition was his reliance on the incorrect advice from his appellate counsel. The

State contends that defendant has not sufficiently alleged facts to show that the delay was not due

to his culpable negligence. For the reasons that follow, we disagree.

We first note that this case is factually very similar to our supreme court decision in

Rissley, 206 Ill. 2d at 420-21, 795 N.E.2d at 183-84. In Rissley, the defendant filed a pro se

postconviction petition six days after the statutory period expired. Rissley, 206 Ill. 2d at 417-18,

795 N.E.2d at 181-82. The defendant’s amended petition alleged in part that the attorney who

represented him on his direct appeal told him that he had three years from the date of sentencing

to file a postconviction petition. Rissley, 206 Ill. 2d at 417-18, 795 N.E.2d at 181-82. In an

attached affidavit, the defendant’s direct appeal counsel confirmed that he gave the defendant

this advice.3 Rissley, 206 Ill. 2d at 418, 795 N.E.2d at 181-82. The supreme court found that

3 In Rissley, it appears that in advising his client, the attorney may have relied on a prior

19 No. 1-06-2575

defendant had no reason to question the advice he received form his direct appeal counsel and

that based on this advice he would have reasonably believed that he had timely filed his petition.

Rissley, 206 Ill. 2d at 421, 795 N.E.2d at 183-84. Applying the “culpable negligence” standard

articulated in Boclair, the supreme court found that defendant’s conduct could not fairly be

viewed as blameable and did not evidence an indifference to the likely consequences. Rissley,

206 Ill. 2d at 421, 795 N.E.2d at 183-84. Accordingly, the supreme court held that defendant had

established that the delay in filing his petition was not due to his culpable negligence. Rissley,

206 Ill. 2d at 421, 795 N.E.2d at 183-84.

In the present case, just as in Rissley, defendant alleged that the reason for his delay in

filing his petition was that he was misadvised by his appellate counsel that he had three years

from the date of his conviction to file his postconviction petition, that he filed his petition within

that incorrect deadline and that therefore he had no reason to think that his petition was untimely

filed. See Rissley, 206 Ill. 2d at 421, 795 N.E.2d at 183-84. The record below reveals that in his

initial sworn and verified pro se postconviction petition, defendant asserted that his petition was

tardily filed because of the “ineffectiveness [of counsel at] both the appellate and trial court

levels” because “the defendant was either told incorrectly that he had (3) three years to file a

petition for Post-Conviction [relief], and (or) misinterpreted the statute, in his layman effort to

version of section 122-1(c), effective until July 1, 1995, under which the defendant would indeed

have had three years from sentencing to file his petition. See Rissley, 206 Ill. 2d at 414-15, 795

N.E.2d at 180-81.

20 No. 1-06-2575

understand such complexities ” In his supplemental postconviction petition, defendant’s

appointed counsel clarified this assertion, contending that defendant was not culpably negligent

for tardily filing his petition, because he was “misadvised by his appellate lawyer as to the

correct date for filing the petition.” The supplemental petition specifically alleged that

defendant’s lawyer informed defendant that he had three years from the date of his sentencing

(December 4, 1998) to file a postconviction petition, and that this would have given defendant

until December 4, 2001, to file it. Because defendant’s petition was filed before this date,4 he

contended that he was not culpably negligent for the delay.

The State nevertheless contends that Rissley is inapplicable to the case at bar, because

unlike in Rissley here defendant did not attach an affidavit by his attorney corroborating his

allegations. Moreover, the State contends that although in his supplemental petition defendant

states that his own affidavit supports his contentions regarding timeliness, the affidavit he

attaches does not reference timeliness at all, but merely goes to the merits of his petition, namely,

ineffectiveness of counsel on other grounds. The State finally contends that instead of relying on

Rissley, we should rely on our supreme court’s decisions in People v. Lander, 215 Ill. 2d 577,

586-87, 831 N.E.2d 596, 601-02 (2005). For the reasons that follow, we disagree with the State

and find those cases inapposite.

4 We note that both the State’s and defendant’s asserted filing dates (January 12, 2001, as

asserted by defendant, or March 6, 2001, as asserted by the State) fall well within the deadline

allegedly given to defendant by his appellate counsel.

21 No. 1-06-2575

We first note that the determining factor in Rissley was not the presence of the

corroborating affidavit of appellate counsel, but rather the reasonableness of defendant’s reliance

on the advice of his counsel with respect to the filing date. See Rissley, 206 Ill. 2d at 421-22,

795 N.E.2d at 184.

In addition, contrary to the State’s assertion, we find that even though defendant’s

affidavit did not speak to the timeliness of his petition, defendant alleged enough facts in his

verified pro se petition and his supplemental petition to substantially show that he was not

culpably negligent for the tardy filing of his petition. People v. Smith, 268 Ill. App. 3d 574, 581,

645 N.E.2d 313, 318 (1994) (absence of affidavits is not necessarily fatal to postconviction relief

if allegations stand uncontradicted and are clearly supported by the record); People v. McGinnis,

51 Ill. App. 3d 273, 275, 366 N.E.2d 969, 972 (1977) (noting that the absence of affidavits is not

necessarily fatal to a petition for postconviction relief if the petitioner’s allegations stand

uncontradicted or are clearly supported by the record); People v. Robinson, 5 Ill. App. 3d 1065,

284 N.E.2d 505 (1972) (abstract of op.) (absence of affidavits and other supporting documents

can be excused where the violation of constitutional rights is raised by petitioner’s sworn

statements and is borne out by the record); see also Towns, 182 Ill. 2d at 501, 696 N.E.2d at

1134 (“In determining whether to grant an evidentiary hearing, all well-pleaded facts in the

petition and in any accompanying affidavits are taken as true” (emphasis added)); People v. Enis,

194 Ill. 2d 361, 376, 743 N.E.2d 1, 10 (2000) (same); see also Walker, 331 Ill. App. 3d at 340,

772 N.E.2d at 762-63 (noting that the relevant inquiry in determining culpable negligence is

whether, after “accept[ing] all well-pleaded factual allegations of defendant’s petitions as true[,]

22 No. 1-06-2575

*** those assertions are sufficient as a mater of law to demonstrate an absence of culpable

negligence on defendant’s part” (emphasis added)). As noted above, defendant’s sworn and

verified pro se postconviction petition specifically alleged that the reason for his late filing was

that he was told by his attorney that he had three years to file his petition. In addition,

defendant’s supplemental petition specifically alleged that defendant’s appellate lawyer

“misadvised defendant” that he had three years from the date of his conviction to file a

postconviction petition. The petition also alleged that this gave defendant until December 4,

2001, to file his petition and that he in fact did so. These allegations are nowhere contradicted by

the record; rather, the record supports the assertion that if defendant’s attorney had informed

defendant that he had three years to file his petition, as defendant alleged in his sworn and

verified pro se petition, that deadline would have been December 4, 2001, as defendant was

sentenced on December 4, 1998.

In addition, we find Lander cited to by the State inapposite. In Lander, defendant alleged

that he received erroneous advice as to the filing deadline for his petition from a law clerk

employed by the prison and several “jailhouse lawyers.” Lander, 215 Ill. 2d at 587, 831 N.E.2d

at 602. This advice was subsequently confirmed by Dwayne Purble, who was identified as a

“librarian or paralegal” at Taylorville prison. Lander, 215 Ill. 2d at 587, 831 N.E.2d at 602. The

supreme court in Lander found that defendant had not substantially shown that he was not

culpably negligent for the delay in filing his petition because he did not allege why he should

have reasonably relied on the advice of these individuals, who were not trained in postconviction

matters. Lander, 215 Ill. 2d at 587-88, 831 N.E.2d at 602. In fact, according to the supreme

23 No. 1-06-2575

court in Lander, defendant’s own conduct in seeking advice from different individuals regarding

the deadline for the petition indicated that he “questioned the advice he received [on this same

matter] from jailhouse lawyers and a law clerk” and therefore indicated that his reliance on their

advice was not reasonable. Lander, 215 Ill. 2d at 588, 831 N.E.2d at 602. In coming to this

conclusion, the supreme court in Lander distinguished Rissley by stating:

“In Rissley, the defendant was no culpably negligent in the late filing because he

reasonably relied on the advice of his attorney on direct appeal, a person who had obvious

expertise in legal matters and, in particular, criminal appeals. [Citation.] In contrast,

defendant did not allege sufficient facts to show his reliance on the advice of jailhouse

lawyers, a prison law clerk, and a law librarian or paralegal was reasonable. While

defendant argues his reliance on the advice of the law clerk and law librarian was

reasonable because they were employed in the prison library system, he did not allege in

his pleadings that these individuals were hired to assist inmates with postconviction

matters. Further, defendant did not allege the jailhouse lawyers, law clerk or librarian

had any particular training in postconviction matters providing them with specialized

knowledge of the filing deadline for a postconviction petition. We cannot find

defendant’s reliance on the advice of these individuals was reasonable ***.” Lander, 215

Ill. 2d at 587-88, 831 N.E.2d at 602.

In the present case, unlike in Lander, defendant alleged that he relied on the advice of his

appellate counsel, who, as the court in Rissley clearly indicated, is an individual that defendant

could reasonably believe would give him the proper advice on postconviction matters. As such,

24 No. 1-06-2575

defendant substantially showed that the delay in filing his petition was not caused by his culpable

negligence.

Having concluded that the circuit court did not err in finding that defendant’s petition was

not untimely filed due to defendant’s culpable negligence, we now turn to the merits of

defendant’s petition.

2. Ineffective Assistance of Counsel for Failure to Communicate

Substantively, defendant first contends on appeal that the circuit court erred in dismissing

his supplemental postconviction petition because he made a substantial showing of ineffective

assistance of counsel, where his counsel failed to adequately communicate with him, by among

other things, failing to provide him with police reports that contained the names and statements

of the two eyewitnesses, which he had requested. For the reasons that follow, we disagree.

To prevail on a claim of ineffective assistance of counsel, defendant must show that (1)

his attorney's performance fell below an objective standard of reasonableness and (2) that the

deficient performance so prejudiced the defense as to deny the defendant a fair trial. Strickland

v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984);

People v. Bloomingburg, 346 Ill. App. 3d 308, 316-17, 804 N.E.2d 638, 645 (2004). Failure to

make the requisite showing of either deficient performance or sufficient prejudice defeats an

ineffectiveness claim. People v. Palmer, 162 Ill. 2d 465, 475, 643 N.E.2d 797, 801 (1994).

As to the first prong, defendant must overcome a strong presumption that, under the

circumstances, the challenged action or inaction of counsel was a valid trial strategy.

25 No. 1-06-2575

Bloomingburg, 346 Ill. App. 3d at 317; 5 W. LaFave, Criminal Procedure §11.10(c) at 715 (2d

ed. 1999)). In determining the adequacy of defendant’s legal assistance, a reviewing court will

not consider isolated instances of alleged deficiencies, but rather the totality of circumstances.

People v. Long, 208 Ill. App. 3d 627, 640, 567 N.E.2d 514, 523 (1990).

Under the second prong of Strickland, defendant must show that counsel’s deficient

performance so prejudiced the defense as to deny him a fair trial. Strickland, 466 U.S. at 687, 80

L. Ed. 2d at 693, 104 S. Ct. at 2064. To show prejudice, defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings

would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068;

Bloomingburg, 346 Ill. App. 3d at 317, 804 N.E.2d at 645. A reasonable probability is one

sufficient to undermine confidence in the outcome of the proceedings. Strickland, 466 U.S. at

694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

For the reasons that follow, we find that even if defendant were able to show that

counsel’s performance fell below the objective standard of reasonableness, he cannot establish

the requisite prejudice, which would entitle him to an evidentiary hearing on this issue.

With respect to the first prong of Strickland, defendant here specifically contends that

counsel was ineffective because he did not meet with him regularly before trial, never informed

defendant of the State’s evidence against him, and refused to give defendant police reports which

contained the names and statements of the State’s witnesses against him. In support of this

contention, defendant cites to People v. Smith, 268 Ill. App. 3d 574, 577-80, 645 N.E.2d 313,

316-18 (1994), for the proposition that counsel’s failure to provide defendant with police reports

26 No. 1-06-2575

constitutes ineffective assistance of counsel.

The State contends that we should not follow Smith, but rather the decision of the Fourth

District in People v. Davison, 292 Ill. App. 3d 981, 988-89, 686 N.E.2d 1231, 1235-37 (1997),

which rejected Smith, and held that a “[t]rial counsel’s decision whether to provide his client

with discovery materials constitutes a matter of trial strategy and judgment that ultimately lies

within counsel’s discretion.” Davison, 292 Ill. App. 3d at 988-89, 686 N.E.2d at 1235-37.

We first observe that Smith and Davison appear to be divergent in their treatment of the

first prong of Strickland, and the question of whether counsel’s decision to provide his client

with discovery materials is a matter of trial strategy.

In Smith, in his pro se postconviction petition defendant contended that his attorney

concealed from him reports prepared by two police officers investigating the case. Smith, 268

Ill. App. 3d at 577, 645 N.E.2d at 316. These reports allegedly contained the victim’s description

of the offender and could have borne upon defendant’s identity, which was an issue at trial.

Smith, 268 Ill. App. 3d at 577-78, 645 N.E.2d at 316. In a motion to dismiss defendant’s

petition, the State contended that trial counsel was not required to hand over all documents to

defendant, because this aspect of counsel’s representation is a tactical decision which is beyond

the scope of review. Smith, 268 Ill. App. 3d at 578, 645 N.E.2d at 317. The circuit court

dismissed defendant’s petition. Smith, 268 Ill. App. 3d at 578, 645 N.E.2d at 317.

The First District of the Appellate Court disagreed and held that defendant had raised a

valid claim of ineffective assistance of counsel based on counsel’s failure to communicate with

27 No. 1-06-2575

defendant. Smith, 268 Ill. App. 3d at 578-79, 645 N.E.2d at 317. In doing so, we first held that:

“The sixth amendment requires that defense counsel keep defendant informed of

developments in the case and consult with him on all major decisions to be made. United

States ex rel. Partee v. Lane (7th Cir. 1991), 926 F.2d 694, 701; cf. 134 Ill. 2d R. 1.4(a)

(‘A lawyer shall keep a client reasonably informed about the status of a matter and

promptly comply with reasonable requests for information’).” Smith, 268 Ill. App. 3d at

579, 645 N.E.2d at 317.

The Smith court next found that counsel’s concealment of the police reports was “not a tactical

decision within the attorney’s discretion,” particularly because in that case counsel had been

aware that his client was anxious to view the police reports. Smith, 268 Ill. App. 3d at 579, 645

N.E.2d at 317-18.

On the other hand, in Davison, the Fourth District held that contrary to the holding in

Smith, the decision of whether to provide defendant with discovery materials lies within

counsel’s discretion. Davison, 292 Ill. App. 3d at 988-89, 686 N.E.2d at 1235-37. In Davison,

defendant contended in his postconviction petition that his attorney was ineffective, among other

things, because he refused to allow him to read the discovery materials that the State provided to

defense counsel. Davison, 292 Ill. App. 3d at 984, 686 N.E.2d at 1233. Relying on Smith, the

defendant in Davison contended that the sixth amendment required defense counsel to allow him

to read those materials. Davison, 292 Ill. App. 3d at 988, 686 N.E.2d at 1235. The Davison

court rejected this view, declined to follow Smith, and instead held that a “[t]rial counsel’s

decision whether to provide his client with discovery materials constitutes a matter of trial

28 No. 1-06-2575

strategy and judgment that ultimately lies within counsel’s discretion.” Davison, 292 Ill. App. 3d

at 988-89, 686 N.E.2d at 1236. In coming to this conclusion, the Davison court reasoned that in

a criminal case there are only five decisions, which entirely belong to defendant and which he

may make even if they are contrary to the advice of his counsel: “(1) whether to plead guilty; (2)

whether to waive a jury trial; (3) whether to testify in his own behalf; (4) whether to submit an

instruction on a lesser charge at the conclusion of the evidence; and (5) whether to appeal.”

Davison, 292 Ill. App. 3d at 988, 686 N.E.2d at 1235. According to Davison, “[e]ssentially, all

other trial decisions remain in the province of defense counsel, with the proviso that counsel

should consult with the defendant to the extent–within counsel’s discretion–such consultation

would be helpful.” Davison, 292 Ill. App. 3d at 988, 686 N.E.2d at 1236.

We need not here decide between Davison and Smith as to whether an attorney has an

unqualified duty to provide his client with discovery materials upon a client’s request, because in

either event, counsel’s failure to provide his client with any such materials would have to be

examined under the prejudice prong of Strickland, and in the present case, defendant cannot

establish that prong.

As noted above, under the second prong of Strickland, defendant must show that

counsel’s deficient performance so prejudiced the defense as to deny him a fair trial. See

Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To show prejudice,

defendant must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been different. See Strickland, 466 U.S. at 693,

80 L. Ed. at 674, 104 S. Ct. at 2064.

29 No. 1-06-2575

In the present case, with respect to the prejudice prong of Strickland, defendant contends

that had counsel provided him with the police reports containing the statements of eyewitnesses

“negating [his] defense of self defense,” and had counsel discussed those statements with him, he

would have certainly pled guilty and asked counsel to negotiate a guilty plea.

In support of these contentions, among other things, defendant attached to his

postconviction petition his own affidavit stating:

“1. My trial attorney, Mr. Richard Dickerson, met with me only once in jail before my

trial.

2. He did not discuss the value and strength of the evidence against me.

3. I asked him to show me discovery material including the police reports. At no time

did he show me the police reports. Had I seen the police reports, and the statements

of witnesses Daniel Wang and Vernon Spears negating my defense of self defense, I

would have asked my lawyer to negotiate a plea for me. I would have pled guilty

without a trial. My lawyer never discussed the statements of the State witnesses with

me before the trial.”

After reviewing the record, we find that these allegations contained in defendant’s

postconviction petition are insufficient to establish that absent counsel’s failures, the outcome of

defendant’s proceedings would have been different. See Strickland, 466 U.S. at 687, 80 L. Ed.

2d at 693, 104 S. Ct. at 2064. Defendant neither alleges nor can he establish any prejudice.

30 No. 1-06-2575

While defendant claims that had he known the content of the police reports, he would have asked

his attorney to negotiate a guilty plea, he does not, nor can he, establish that such a plea would

have resulted in a shorter sentence. First, defendant does not, nor can he, allege that the State

would have consented to a negotiated plea on a lesser charge (namely, second degree murder),

which could have resulted in a lesser sentence. This is especially true in light of the fact that the

State was in possession of the statements of the two eyewitnesses who later testified at

defendant’s trial that the victim did not have a weapon and that defendant shot the unarmed

victim through the cab window after a mere verbal altercation.

Moreover, defendant does not allege, nor could he, that if he had pled guilty to the

charged offense of first degree murder, instead of proceeding with a bench trial, he would have

received a lesser sentence. The record reveals that the trial court sentenced defendant to 21

years’ imprisonment, which was within the statutory range for the charged offense, and only one

year above the statutory minimum (730 ILCS 5/5-8-1(a)(1)(a) (West 1998) (the sentencing range

for first degree murder in Illinois is 20 to 60 years’ imprisonment)). In addition, the record

reveals that defendant had a prior 1985 conviction for attempted armed robbery. As such, there

is no reasonable probability that had defendant pleaded guilty to first degree murder, he would

have received a lesser sentence.

With respect to the second prong of Strickland, we acknowledge that the court in Smith

allowed defendant to proceed to the third stage of postconviction proceedings and held that it

was unnecessary for defendant to allege exactly how the outcome of his proceedings would have

been different had his trial counsel not concealed the police reports for him. Smith, 268 Ill. App.

31 No. 1-06-2575

3d at 579, 645 N.E.2d at 318 (noting that “[u]ntil the [police] reports [that defense counsel

concealed from his client] are examined, it is unknown whether there was a reasonable

probability that, but for the concealment, the result of the trial would have been different”).

However, unlike in Smith, where there was strong indication that all or any of the significant

evidence contained in the concealed police reports, including the victim’s initial, and potentially

inconsistent and impeaching, description of the assailant, was not disclosed at trial (see Smith,

268 Ill. App. 3d at 579, 645 N.E.2d at 318), in the present case, the statements of the two

eyewitnesses contained in the police reports were presented to the trier of fact through the

witnesses’ testimony at trial. Therefore, while in Smith, it was necessary to make an “inquiry

into matters outside of the *** record” in order to resolve the issue of whether counsel was

ineffective in failing to give those reports to his client (see Smith, 268 Ill. App. 3d at 578, 645

N.E.2d at 318), in the present case, all the evidence necessary for the resolution of this issue was

presented to the trial court below and is contained in the common-law record. As noted above,

in the present case, the trial court heard the testimony of the two eyewitnesses stating that

defendant had no weapon and that defendant shot the victim only after a verbal argument. More

importantly, because the State was in possession of these incriminating statements prior to trial,

there is no reasonable probability that it would have agreed to negotiate a lesser charge for

defendant. Therefore, unlike in Smith, in the present case, no new matter of any significance

could be learned, and nothing new or different can be gained by granting defendant a third stage

evidentiary hearing.

3. Ineffective Assistance of Counsel for Coercing Defendant to Waive a Jury Trial

32 No. 1-06-2575

We further disagree with defendant’s contention that the circuit court erred in dismissing

his postconviction petition because he made a substantial showing of ineffective assistance of

counsel where counsel coerced him into waiving his right to a jury trial by telling him that if he

chose the bench trial, the trial judge would not convict him of murder. In support of this

contention, defendant attached to his supplemental postconviction petition, an affidavit in which

he stated the following:

“When I told him [defense counsel] that I shot the deceased in self defense, he told me to

waive a jury and take a bench trial. He told me that the judge Porter [sic] would find me

not guilty if I took a bench trial, that he knew the judge and the judge was alright.”

Defendant further attached his father’s affidavit, which inter alia, stated that defense counsel

“talked [his] son out of having a jury trial” by telling him that a “bench trial would be better

because he knew the judge and that he was alright,” and that “since this was a simple case of

self-defense, he [defendant] had no cause to worry.”

When, as here, “a defendant's challenge to a jury waiver is predicated on a claim of

ineffective assistance of counsel, the court must determine: (1) whether counsel's performance

fell below an objective standard of reasonableness; and (2) ‘ whether there exists a reasonable

likelihood that the defendant would not have waived his jury right in the absence of the alleged

error.’ ” People v. Batrez, 334 Ill. App. 3d 772, 782, 778 N.E.2d 1182, 1191 (2002), quoting

People v. Maxwell, 148 Ill. 2d 116, 592 N.E.2d 960 (1992). As already noted above, “failure to

make the requisite showing of either deficient performance or sufficient prejudice defeats an

ineffectiveness claim.” Palmer, 162 Ill. 2d at 475-76, 643 N.E.2d at 801.

33 No. 1-06-2575

In the present case, defendant fails to prevail on the first strong of Strickland by

overcoming the strong presumption that counsel’s performance was objectively unreasonable.

Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; Bloomingburg, 346 Ill.

App. 3d at 316-17, 804 N.E.2d at 645. In that respect, we note that we have long held that an

attorney's recommendation to a defendant in a criminal case to choose a jury trial rather than a

bench trial, constitutes a matter of trial strategy and tactics and does not constitute ineffective

assistance of counsel. See People v. Powell, 281 Ill. App. 3d 68, 74, 666 N.E.2d 365, 369-70

(1996) (attorney's recommendation to defendant to have a jury trial in a criminal case, rather than

a bench trial, constituted a matter of strategy or tactics and could not support a claim of

ineffective assistance of counsel); see also People v. Pacheco, 281 Ill. App. 3d 179, 188-89, 666

N.E.2d 370, 376-77 (1996) (counsel's advice to waive jury trial and proceed with stipulated

bench trial was a strategic decision made in the face of strong evidence of defendant's guilt and

did not constitute ineffective assistance); People v. Elliott, 299 Ill. App. 3d 766, 776, 702 N.E.2d

643, 650 (1998).

In light of the particular facts of this case, we cannot dismiss as unreasonable, counsel’s

strategic decision to advise his client to opt for a bench trial with a trial judge whom defense

counsel knew as sympathetic, rather than a trial with an unpredictable jury, whom defense

counsel knew nothing about. Taking, as we must, defendant’s allegations as true (see Towns,

182 Ill. 2d at 501) (“[i]n determining whether to grant an evidentiary hearing, all well-pleaded

facts in the petition and in any accompanying affidavits are taken as true”)), we find that defense

counsel’s advise to defendant to waive his right to a jury because “he knew the judge and [the

34 No. 1-06-2575

judge] was alright” and would find him not guilty, constituted a prediction based upon counsel’s

evaluation of the mitigating circumstances of the case which counsel intended to assert on behalf

of defendant and his knowledge by reputation and/or by experience of the trial judge’s previous

record. See People v. Whitherspoon, 164 Ill. App. 3d 362, 365 (1987) (holding that defense

counsel’s “honest assessment of a case cannot be the basis for holding the defendant’s guilty plea

was involuntary”); see also People v. Edwards, 49 Ill. 2d 522, 525 (1971).

Defendant nevertheless cites to People v. Algee, 228 Ill. App. 3d 401 (1992), for the

proposition that counsel must be found ineffective when he “coerces” defendant into pleading

guilty. For the reasons that follow, we disagree, and find that case inapposite.

There, defendant entered a plea of guilty to the charge of first degree murder based on

accountability principles. Algee, 228 Ill. App. 3d at 402. After entering his guilty plea,

defendant retained new counsel and filed a motion to withdraw his guilty plea. Algee, 228 Ill.

App. 3d at 402. The trial court denied that motion and defendant appealed. Algee, 228 Ill. App.

3d at 402.

On appeal, defendant raised five points in support of his position that the trial court’s

denial of his motion to withdraw his guilty plea should be reversed, including that his trial

counsel was ineffective. Algee, 228 Ill. App. 3d at 403. Among a laundry list of counsel’s

insufficiencies, defendant contended that counsel was ineffective because he “coerced” him into

pleading guilty by “relating misinformation and/or threats designed to encourage defendant to

plead guilty.” Algee, 228 Ill. App. 3d at 404.

35 No. 1-06-2575

At a hearing on the motion to withdraw defendant’s guilty plea, defendant specifically

contended that on the morning of his trial, counsel told him that the judge was going to sentence

him to 120 years on his drug charge if he did not accept the plea offered by the State. Algee, 228

Ill. App. 3d at 404. “Others who were present at the conversation between defendant and

counsel prior to trial testified, or if allowed to testify, would have stated [that] defense counsel

did inform defendant [that] he was going to get the maximum sentence on his drug charges if he

did not plead guilty.” Algee, 228 Ill. App. 3d at 404. While defense counsel denied having

made such a statement, he admitted, among other things, that he believed that the judge would

“unload” on defendant if given the opportunity. Algee, 228 Ill. App. 3d at 404.

After reviewing the evidence presented at the motion to withdraw defendant’s guilty plea,

the appellate court found that defense counsel’s overall conduct was ineffective. Algee, 228 Ill.

App. 3d at 404. However, in doing so, the appellate court first noted that a suggestion by counsel

that defendant would receive an enhanced sentence if he did not plead guilty would not by itself

constitute ineffective assistance of counsel. Algee, 228 Ill. App. 3d at 404-06. The court,

nevertheless, then went on to conclude that under the facts of that case, “defense counsel’s

conduct as a whole went far beyond the ‘suggestion’ stage.” Algee, 228 Ill. App. 3d at 404-06.

Unlike in Algee, where the evidence presented at the evidentiary hearing on defendant’s

motion to withdraw his guilty plea established that defense counsel’s warning that if defendant

did not plead guilty he would be sentenced to 120 years in prison were tantamount to “threats,”

and therefore went beyond the “suggestion” state, in the present case, defense counsel’s conduct

reassuringly predicted that defendant’s interest would better be served by taking a bench trial

36 No. 1-06-2575

rather than a jury trial. Counsel’s statement here, however, did not warn defendant as it did in

Algee that his refusal to take a bench trial would result in any catastrophic consequences. At

best, it merely indicated to defendant that his chances of acquittal were better with a bench than a

jury trial. Even under Algee, that kind of suggestion would not rise to the level of coercion so as

to vitiate counsel’s effectiveness. See Algee, 228 Ill. App. 3d at 404-06 (holding that “it is true

that defense counsel’s ‘suggestion’ of the imposition of a larger sentence if defendant were not to

plead guilty does not by itself invalidate a guilty plea”); see also Edwards, 49 Ill. 2d at 525

(holding that defendant was not coerced into pleading guilty by his counsel’s advice that he

would receive a shorter sentence if he pleaded guilty); Whitherspoon, 164 Ill. App. 3d at 365

(holding that defense counsel’s “honest assessment of a case cannot be the basis for holding the

defendant’s guilty plea was involuntary”).

Moreover, defendant here cannot contend that his counsel’s advice went beyond the

suggestion state in light of the record which reveals that at the pretrial hearing defendant himself

indicated that no one had “forced him,” “threatened him” or “promised him anything in return”

for his waiver of a jury trial. Moreover, defendant cannot contend that his counsel’s advice went

beyond a prediction that the judge would rule in his favor, where at the same pretrial hearing

defendant indicated that he understood when the judge informed him that “if you have been told

by anybody that I’m leaning one way or the other on your case, *** I will tell you right now that

I’m not.” As such, for the reasons already discussed above, we find defendant’s contentions

without merit.

III. CONCLUSION

37 No. 1-06-2575

For the aforementioned reasons, we affirm the judgment of the circuit court.

Affirmed.

O’MALLEY, P.J., and McBRIDE, J., concur.

38 No. 1-06-2575 __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be Attached to Each Case) _________________________________________________________________________________________________________________________ Please use the following

form PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee,

v.

RUSSELL HOBSON,

Petitioner-Appellant.

______________________________________________________________________________________________________________ No. 1-06-2575 Docket No. Appellate Court of Illinois COURT First District, SIXTH Division

Opinion Filed November 14, 2008 (Give month, day and year) ______________________________________________________________________________________________________________ JUSTICE JOSEPH GORDON DELIVERED THE OPINION OF THE COURT:

JUSTICES PRESIDIN G JU STIC E O’M ALLE Y and JU STIC E M cBRID E concur.

Lower Court and Trial Judge(s) in form indicated in margin: APP EAL from the Circuit Court of Cook Appeal from the Circuit Court of Co ok C ounty; County; the Hon___

Judge Presiding. The Hon. Dennis J. Porter Judge presiding.. __________________________________________________________________________________________________________________________

Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word FOR APPELLANTS NONE if not represented.

39 No. 1-06-2575 John Doe, of Chicago

For APPELLEES, : FOR APPELLANT:_Michael J. Pelletier, Deputy Defender, Stephanie A. Fisher, Assistant Appellate Defender, Office of the State Appellate Defender, 203 N. LaSalle Street, 24th Floor, Chicago, IL 60601

Smith and Smith of Chicago, APPELLEE: Richard A. Devine, State’s Attorney, Cook County, James E. Fitzgerald, Peter Fisher, and Kathleen Warnick, Assistant State’s Attorneys, Of Counsel, Richard J. Daley Center, Room 309, Chicago, IL 60602 _____________________________________________________________________________________________________________

Add attorneys for third- party appellants and/or appellees.