Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Knox County,
the Hon. U.S. Collins, Judge, presiding.
MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
In the circuit court of Knox County, defendant, Richard E. Hills, pleaded guilty to the offense of possesion of a controlled substance with intent to deliver (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(b)), and was sentenced to two years' probation. A petition to revoke his probation was filed, and after a hearing the circuit court revoked probation and sentenced defendant to the penitentiary for a term of not less than two nor more than six years. The appellate court affirmed (71 Ill. App.3d 461), and we allowed defendant's petition for leave to appeal. The facts are adequately stated in the appellate court opinion and will be repeated here only to the extent necessary to discuss the issues.
We consider first defendant's contention that he was denied the effective assistance of counsel at the revocation hearing. The record shows that on January 5, 1976, defendant was sentenced to two years' probation. On April 13, 1977, a petition to revoke probation was filed, charging that defendant had burglarized a recreation center and had attempted to burglarize a drug store, both in Fulton County. The burglary of the recreation center was alleged to have occurred on March 10, 1977, and although the date of the attempted burglary was not alleged in the petition, the testimony shows that it occurred on March 14, 1977. A public defender was appointed to represent defendant.
On May 19, 1977, at the probation revocation hearing, the public defender moved for a continuance because he had not yet discussed the case with his client. He explained that he had been unable to reach defendant in the interval between his appointment and the hearing. Because a number of the People's witnesses were present, the circuit court denied the motion, and the parties then agreed to hear the testimony of the People's witnesses and continue the case for the defense to a later date.
Over defendant's objection the People adduced testimony of a statement given by defendant in which he admitted the March 10, 1977, burglary. No motion to suppress the statement was filed before the hearing. The reason stated for defendant's objection to the statement was that at the time the statement was given defendant was "laboring under the difficulty of intoxication." The officer taking the statement, Gary Phillips of the Illinois State Police Criminal Investigation Bureau, testified that at the time the statement was given defendant was "very tired" but "sober." Fulton County Deputy Sheriff James Elam, testified that at the time of defendant's arrest, approximately 12 hours before the statement was given, defendant was "less than stable."
At the close of the People's case the revocation hearing was recessed until June 16, 1977. On that date, the only evidence offered in defense was the defendant's testimony. He was questioned about and denied only the allegations of count II of the petition to revoke probation, which involved the attempted burglary. Defendant did not testify as to count I, involving the burglary to which he confessed in his statement to Officer Phillips.
In his closing argument defense counsel said:
"I would ask the court to consider for a moment any reason for Mr. Hills in this case to prevaricate his testimony as to Count II. The court will as the court well knows and as Mr. Kimbell pointed out we presented no evidence as to Count I. I think we are old enough, Your Honor, without contradictory testimony and knowing the nature of the evidence on behalf of the People as to Count I that the conclusion on that matter was foregone without evidence by way of answer. I think Mr. Hills testified truthfully as to Count II though realizing that the chances are quite great based on Count I alone that his probation may be revoked."
The circuit court found defendant guilty of violating probation as to both count I and count II. On July 28, 1977, a sentencing hearing was held and defendant was sentenced to the penitentiary for a term of not less than two nor more than six years. Although the circuit court stated that defendant was "to receive credit for all time spent in custody as a result of this offense," no mention was made whether defendant was to receive credit for the time spent on probation. On August 5, 1977, the circuit court convened another hearing in order to "make the record clear as it should be" and ordered that defendant be denied credit for the time spent on probation.
In support of his contention that he did not receive effective assistance of counsel defendant cites the failure to move for a continuance prior to the hearing on May 19, 1977, on the ground that he had been unable to interview defendant. Defendant argues that counsel had ample time before the hearing to request a continuance and that he was unduly prejudiced by his failure to do so. He asserts that by waiting until the day of the hearing, when the People's witnesses were present, appointed counsel made it difficult for the trial judge to grant a continuance, since to do so would inconvenience the witnesses. Defendant argues that by reason of counsel's failure to investigate, or continue, the case, he was deprived of two clear bases for suppressing defendant's statement: defendant's intoxication and the State's failure to produce all of the material witnesses to the statement. Finally, defendant asserts that his counsel, in closing argument, admitted guilt as to count I and thereby deprived defendant of a defense on that count.
In order to prevail in a claim of incompetence, a defendant represented by court-appointed counsel must establish (1) actual incompetence and (2) substantial prejudice resulting therefrom. (People v. Witherspoon (1973), 55 Ill.2d 18; People v. Goerger (1972), 52 Ill.2d 403.) Proof of prejudice cannot be based on mere conjecture (People v. Thomas (1972), 51 Ill.2d 39; People v. Gonzales (1968), 40 Ill.2d 233) nor can a defendant rely upon speculation as to the outcome of his case had the representation been of higher quality (People v. Thomas (1972), 51 Ill.2d 39; People v. Gonzales (1968), 40 Ill.2d 233).
It is pure speculation to assume that any amount of prehearing investigation would have discovered evidence which could have altered the outcome here. Moreover, there is no indication that further effort could have kept out defendant's statement wherein he confessed to burglary. Testimony indicated that the attempted burglary took place at approximately 2 a.m. on March 14, 1979, and defendant was arrested shortly thereafter. Defendant's statement was made at 2:30 p.m. that same day. Assuming, based on Officer Elam's testimony, that defendant was intoxicated at the time of his arrest, we cannot assume that he was intoxicated when he gave his statement 12 hours later. In addition, the mere fact of intoxication is not enough, in itself, to render a statement involuntary. See People v. Hicks (1966), 35 Ill.2d 390.
With regard to the People's failure to call all the witnesses to defendant's statement, defendant is correct in his statement of the general rule that where the voluntariness of a confession is challenged in a motion to suppress, all material witnesses to the confession should be produced. (See, e.g., In re Lamb (1975), 61 Ill.2d 383; People v. Armstrong (1972), 51 Ill.2d 471.) However, other than the fact that defendant had been drinking 12 hours prior to making his statement there is no evidence which suggests that it was coerced or otherwise ...