APPEAL from the Circuit Court of Livingston County; the Hon.
WILLIAM T. CAISLEY, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
After trial by jury in the circuit court of Livingston County, defendant, Patty Morgan, was convicted on May 15, 1980, of the offense of attempted delivery of a controlled substance occurring on or about July 23, 1979. On October 7, 1980, she was sentenced to an extended term of 6 years' imprisonment. She appeals both judgments asserting that (1) she was denied effective assistance of counsel, (2) her sentence violated her right to due process because of failure of the court to advise her of her right to elect to be sentenced either under the law in effect at the time of the offense or that in effect at time of sentencing, and (3) the trial judge's prejudice against her lifestyle requires that a different judge preside at any resentencing hearing.
The State concedes that defendant had a right of election at sentencing which was not explained to her. It disputes that the denial of the right amounted to a deprivation of due process but concedes the existence of a statutory right to the election. (Ill. Rev. Stat. 1979, ch. 1, par. 1103.) As the issue is raised on direct appeal we need not determine the derivation of the right. (See People v. Gonzales (1974), 56 Ill.2d 453, 308 N.E.2d 587; People v. Hollins (1972), 51 Ill.2d 68, 280 N.E.2d 710.) At all times pertinent, the unlawful delivery of the controlled substance charged was a Class 3 felony. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(c).) At the time of the commission of the offense, in July 1980, the sentence for attempt to commit a Class 3 felony could not exceed the sentence for a Class 4 felony which was 1 to 3 years, or 3 to 6 years for an extended term (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4(c)(5), 1005-8-1(7), 1005-8-2(6)). At the time of the sentencing hearing, the sentence for attempt to commit a Class 3 felony was to be that for a Class A misdemeanor, namely, any term of imprisonment for less than 1 year. Ill. Rev. Stat. 1979, ch. 38, pars. 8-4(c)(5), 1005-8-3(a)(1).
Defendant asserts that her appointed counsel was incompetent in not only failing to demand her right of election as to sentence but also in (1) failing to make an opening statement, (2) failing to call any witnesses, (3) failing to impeach a key prosecution witness with evidence obtained in discovery, and (4) waiving transcription of closing argument.
We have defined incompetence of counsel which violates a defendant's right to the effective assistance of counsel by the traditional test of that which is "no representation at all" or that which reduces "the proceedings to a farce or mockery" and have indicated that the incompetence must have "resulted in substantial prejudice to [defendant] such that the cumulative effect could have produced a different result." (People v. Puckett (1979), 70 Ill. App.3d 743, 747, 388 N.E.2d 1293, 1296, 1297.) Most recently the supreme court has defined that "actual incompetence" which results in "substantial prejudice." People v. Hills (1980), 78 Ill.2d 500, 505, 401 N.E.2d 523, 525.
• 1 As defendant was given an extended term sentence of 6 years when her counsel could have demanded a right to be sentenced as a Class A misdemeanor subject to a sentence that could not have exceeded 364 days, we conclude that she was deprived of her right to competent counsel at sentencing. The error substantially prejudiced the defendant. A different result would certainly have been obtained if the error had not been made. The disparity between the sentence imposed and that which might have been imposed reduced the sentencing proceeding to a farce.
• 2 However, as the case must be remanded for resentencing if we affirm the conviction, any prejudice in sentencing can be remedied. We are not advised of any authority touching upon the question of whether deprivation of the right to counsel by incompetence at sentencing taints a defendant's conviction. We conclude that at least under the circumstances here, it should not. The focus of the cases on the question of incompetency of counsel is upon correcting the prejudice suffered by the defendant. Here, the prejudice is corrected by remanding for resentencing. The sentencing hearing is sufficiently divorced from the proceedings to determine guilt that waiver of counsel for prior proceedings does not constitute a waiver for sentencing. (People v. Oatis (1979), 69 Ill. App.3d 736, 387 N.E.2d 1052; People v. Taylor (1975), 31 Ill. App.3d 987, 335 N.E.2d 533.) One would suppose that if counsel properly represented an accused at trial but failed to show up for the sentencing hearing, a reviewing court on direct appeal would reverse the sentence but affirm the conviction unless other error required that the conviction also be reversed. Although the sentencing error was very prejudicial to defendant, the sentencing issue was rather complicated. We cannot assume that counsel erred at trial because he did at sentencing.
• 3 We cannot determine from the record here that defendant's other claims of incompetence of counsel are valid. The decision as to whether to make an opening statement or to put on defense evidence is usually a question of trial strategy. (People v. Martin (1970), 44 Ill.2d 489, 256 N.E.2d 337; People v. Seaman (1977), 53 Ill. App.3d 755, 368 N.E.2d 1124.) We are aware of a practice in some courts> whereby attorneys waive having closing arguments recorded so that a transcript can be made if desired. Appointed counsel should not do so in criminal cases. It is often difficult or impossible to reconstruct the argument to present a question on review as to whether error occurred. This is particularly true when the propriety of argument depends upon the content of opposing argument. Here, dispute arose as to the propriety of the prosecutor's reference to the State's testimony being unrebutted. Fortunately, no serious problems arose because of the lack of a record of the argument. However, defense counsel has no certain way of determining whether plain error occurred in those arguments. We do not agree that this is the type of case where the lack of a transcript of closing argument requires reversal. (See People v. Apalatequi (1978), 82 Cal.App.3d 970, 147 Cal.Rptr. 473.) Likewise we do not hold counsel's failure to require the recording of the closing argument to have been incompetence of counsel.
The major issue concerning counsel's conduct of the trial involves his alleged failure to make use of certain information revealed by discovery.
The heart of the State's case was the testimony of Debra Webber, secretary to Dennis Klosterhoff, internal investigator of the Pontiac State Prison. She testified that during his vacation it was her duty to open incoming mail for inmates in order to check it for security purposes. Webber stated that on or about July 23, 1979, she opened a letter addressed to inmate Deloris Lovings and found a photograph with a note which in part stated, "check out the picture. It's not what you wanted but it's the best picture I could find." Behind the backing of the photograph Webber found a white powder substance which she later delivered to law enforcement forensic scientist Susan Johns. (Susan Johns testified that the photograph contained less than one gram of a controlled substance, namely, methylenedioxyamphetamine.) Webber stated that when she opened the envelope she found the letters "MDA" on the back of the picture with a star on top. The letter was also signed with a star rather than a signature. Webber stated that she had seen a star like it before on defendant's letters and jeans and that when at the Dwight Correctional Facility defendant had been given the nickname of "Star Baby." Webber added that defendant and Lovings were friends whom she saw together frequently.
After comparing samplers of defendant's handwriting with the letter and the envelope, a handwriting expert testified that in his opinion defendant had written the letter but may not have addressed the envelope.
Webber testified that before taking the powder substance to Susan Johns, she kept the exhibits in Klosterhoff's desk for several days until Chuck Gross of the State Police came to the office. She then took the exhibits from the desk and gave them to Gross who performed some field tests on the substance. She then put the items back in the drawer. She testified that Klosterhoff was still on vacation at this time. Gross testified at trial in establishing a chain of possession of the substance claimed to be MDA and confirmed that he had been into the office and received the letter from Webber.
• 4 Discovery documents filed by the State had included a written report by Gross wherein he stated that he had come to the prison at Klosterhoff's request and indicated that he had conversations with Klosterhoff while there. Defendant maintains that the failure of defense counsel to use this report for impeachment purposes was incompetence of counsel. It could not have been used directly to impeach Webber as it was not her statement. It might have been used to impeach Gross in that it made no mention of his talking to Webber or receiving the exhibits from her although that was the principal reason he went to the prison. The main value of the document, however, would appear to have been that it might have led to evidence that Klosterhoff was not on vacation when Webber said that he was. However, we cannot say from the record that defense counsel did not check out the discrepancy and determine that there was a valid explanation for it. Only in a proceeding where an evidentiary hearing might be held could it be determined whether reasonable counsel would have made use of this item or whether there was any substantial prejudice to defendant that it was not done. Upon the basis of the record before us on this direct appeal, we cannot determine incompetence of counsel to have resulted from the failure to use this information.
As defendant's conviction was not shown to have been effected by any incompetence of counsel, ...