People v. Brown, 2014 IL App (4th) 120887 (October).

In this case, trial counsel gave wrong sentencing information to his client charged with a double murder.

Gist

Defense counsel likely misread the Illinois natural life imprisonment statute. Unfortunately, this meant the client was misinformed that he was not eligible for a life sentence.

What Did the Attorney Do?

Defense counsel was defending a double murder. Apparently, his client had fired 11 shots killing two people. In the trial, the decision was made by Defendant, after consultation with his attorney, that he did not want a second degree murder instruction.

No lesser included instruction. Defendant chose to go with his self defense claim and nothing else. It was all or nothing for him. 

The problem is that trial counsel wrote a letter to Defendant informing him that that – 

“for the court to impose natural life, it would have to find a prior conviction for first degree murder[,] which does not exist as these convictions are simultaneous.” ¶ 10.

But a Life Sentence is Mandatory 

Defense counsel got it wrong.

Illinois Compiled Statutes Code of Corrections section 730 ILCS 5/5-8-1 is partially titled “Natural Life Imprisonment.” That statute reads as follows: 

…the court shall sentence the defendant to a term of natural life imprisonment when the death penalty is not imposed if the defendant, (i) has previously been convicted of first degree murder under any state or federal law. or (ii)  is a person who, at the time of the commission of the murder, had attained the age of 17 or more and is found guilty of murdering an individual under 12 years of age; or, irrespective of the defendant’s age at the time of the commission of the offense, is found guilty of murdering more than one victim… 

730 ILCS 5/5-8-1(a)(1)(c)(ii).

Thus, when a double murder is committed in Illinois a life sentence is the mandatory sentence.

The defense attorney simply did not read through the entire section of the statute!

What Happened?

The jury found defendant guilty of two counts of first degree murder.

Defendant is serving two life sentences for murder with a 30 year term for aggravated battery with a firearm.

Defendant lost his direct appeal. However, on his post conviction petition Defendant produced the letter from trial counsel containing the inaccurate information on the life sentence.

Defendant, of course, alleged that had he known he would face natural life in prison, he would not have agreed with counsel’s advice to forego the tendering of a second-degree-murder instruction.

My Rank Speculation

I find it hard to believe that trial counsel went through the entire case and never learned that this was in fact a life sentence case.

Defense counsel likely did go back an orally tell his client that he was facing a mandatory life sentence. The problem is that, if counsel did have that discussion with Defendant, it was not reflected anywhere in the record.

Analysis

Remember in the first stage of a postconviction proceeding, the allegations of the petition, are liberally construed and taken to be true. Defendant need only state “the gist of a constitutional claim.” People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001).

At the first stage of postconviction proceedings, however, a defendant need establish only it is arguable counsel’s performance fell below an objective standard of reasonableness and he arguably was prejudiced as a result. People v. DuPree, 397 Ill. App. 3d 719, 737, 922 N.E.2d 503, 518 (2010).

The appellate court found that Defendant’s ability to make an informed decision regarding the instruction was impaired. Thus, the reviewing court found counsel’s performance arguably fell below an objective standard of reasonableness. 

The idea that this decision was strategic and a matter of trial strategy is unpersuasive. The appellate court said it failed to see how a “strategy” based on a fundamental misunderstanding of the law can be considered a true strategy. See People v. Pugh, 157 Ill. 2d 1, 19, 623 N.E.2d 255, 263 (1993) (rejecting the State’s strategy argument where defense counsel’s advice was clearly attributable to a misapprehension of the law).

While conflicting testimony was presented as to what transpired, evidence exists to support defendant’s version of events. The presence of that evidence shows defendant’s allegations are not completely rebutted by the record. As such, it is arguable a reasonable probability exists the jury, if presented with a second-degree-murder instruction, would have convicted defendant of second degree murder instead of first degree murder.

Holding

The trial court’s order dismissing defendant’s petition was reversed. Case was remanded for second-stage proceedings, including appointment of counsel if requested by defendant. See 725 ILCS 5/122-2.1(b).

What Should Have Defense Counsel Have Done

Back to my rank speculation. Assuming the lawyer had discovered that he incorrectly advised his client on the sentence. What should he have done differently?

He needed to figure out a way to make a record on the fact that Defendant was informed or arraigned correctly on the mandatory life sentence.

The most straightforward way for him to do this is to simply have filed a motion for arraignment.

The judge and the prosecutor may have wondered why he asking for another arraignment. And at this point, counsel may have to explain that there is a possibility that he has misadvised is client on the sentence in this case.

As embarrassing it may have been, it was vital that a record be made that clearly showed that Defendant was advised correctly on the applicable sentencing provision in his case. Here, that was a mandatory life sentence in a double murder.