Appeal from the Circuit Court of La Salle County; the Hon.
Alexander T. Bower, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 2, 1986.
On October 19, 1970, the defendant, Henry Hillenbrand, was convicted on two counts of the offense of murder based on his negotiated plea of guilty. Under the terms of the plea bargain the State agreed not to seek the death penalty. Prior to sentencing the defendant escaped from the La Salle County jail. On May 2, 1983, the defendant was recaptured in Missouri and subsequently returned to custody in La Salle County. Thereafter he filed a motion to withdraw his guilty plea alleging his attorney rendered ineffective assistance of counsel by failing to investigate sufficiently the possibility of a voluntary-intoxication defense and by failing to advise the defendant of that potential defense. The motion was denied and the trial court sentenced the defendant to imprisonment for a term of 80 to 240 years on one count to be served consecutively to a sentence of 50 to 150 years on the other count. A notice of appeal was filed but, without the defendant's having filed the required motion to withdraw his guilty plea after sentencing, the cause was remanded to the trial court. On remand a motion to withdraw the guilty plea and to vacate the judgment of conviction was filed. From the denial, defendant appeals.
• 1 The basic statement of policy governing withdrawal of guilty pleas is that if the plea is entered on a misapprehension "of the facts or of the law" or in consequence of misrepresentation by the State's Attorney "or someone else in authority," where there is doubt of the guilt of the accused, or where justice would be "better served by submitting the case to a jury," the court should permit the withdrawal of a plea of guilty. (People v. Nichols (1981), 96 Ill. App.3d 354, 420 N.E.2d 1166.) The decision, however, rests within the sound discretion of the trial court, to be granted not as a right but rather as necessary to correct manifest injustice; the defendant bears the burden of proof. People v. Nichols (1981), 96 Ill. App.3d 354, 420 N.E.2d 1166.
• 2 The defendant principally argues a denial of effective assistance of counsel due to counsel's failure to pursue a voluntary-intoxication defense. The proper standards to be applied in cases involving specific allegations of ineffective assistance of counsel were announced in Strickland v. Washington (1984), 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052, and adopted by our Supreme Court in People v. Albanese (1984), 104 Ill.2d 504, 473 N.E.2d 1246. In Strickland the court held, to establish a denial of effective assistance of counsel, the defendant must satisfy a two-prong test, to wit: (1) that counsel's representation fell below an objective standard of reasonableness and (2) that his counsel's substandard representation so prejudiced the defense as to deny the defendant a fair trial. (466 U.S. 668, 80 L.Ed.2d 677, 104 S.Ct. 2052.)
At trial, the defendant agreed with the factual basis stated by the State's Attorney that he had parked his car some distance from George Evans' house and proceeded there by foot with a .22-caliber rifle, arriving about 7 a.m. He found Evans in bed with Patricia Pence, the defendant's former girlfriend and mother of his two-year-old daughter, and shot and killed Evans with one shot to the head. The defendant then took Pence by car to his own residence. The defendant struck Pence with a rifle on the head with such force that the stock of the rifle broke off. Pence attempted to escape by running but the defendant shot her also. There were neighbors who saw the chase. Both victims died from gunshots.
The defendant was admonished at length concerning his guilty pleas. His attorney, Edward Rashid, acknowledged having seen the State's Attorney's file, which had been opened for his examination.
At the hearing on the defendant's motion to withdraw his guilty pleas, Raymond Boyles, Jr., the defendant's friend, testified that around midnight before the murders, he took the defendant home after the defendant had passed out or fallen asleep in a tavern. The last time he saw the defendant prior to the murders was about 1 a.m.
The defendant's sister, Gloria Hillenbrand, testified the defendant arrived at her parents' house around 7:45 a.m. on the morning of the murders and she believed he was drunk. She also testified the defendant came to the house alone, rang the doorbell, entered the house quickly, and walked around. When the defendant's father telephoned the police, the defendant ran out the back door.
The defendant's father, Russell Hillenbrand, testified when the defendant arrived at his house after the murders he told his father he thought he had killed somebody. Although the defendant's father believed the defendant was drunk, he did not communicate that opinion to any of the police officers. He also testified the defendant arrived alone in a station wagon and ran into the woods from the back door when the police arrived about one-half hour later.
The defendant testified at the hearing that he remembered being at a tavern the day before the murders, but the first thing he remembered on the day of the murders was his father speaking with him. However, he also testified he had a vague idea of what had happened before he went to his father's home, and he stated that after he left his father's he went to the nearest house and called the Streator Hospital to ask about Pence's condition. He also testified that he did not know where George Evans lived.
Craig Armstrong, the attorney who had represented Patricia Pence's mother in a guardianship proceeding concerning the defendant and Pence's surviving two-year-old daughter and who had also filed a dramshop action, also testified at the hearing. Armstrong stated he had talked with defendant's attorney and was given the names of the witnesses who may have seen defendant prior to the murders. Rashid also revealed to Armstrong the written statement prepared by the defendant concerning his activities on the night of the murders and the lab report of Doctor Salama concerning an analysis of the defendant's liver enzymes.
After hearing the evidence, the trial court denied defendant's motion to withdraw his guilty pleas. The cause proceeded to a sentencing hearing at which the State presented 19 witnesses in aggravation and the defense presented 22 in mitigation.
Betty Bennet, a friend of Pence's, testified about the defendant's relationship with Pence and how he would hit her, threaten her, and force himself on her. Bennet stated the defendant entered the restaurant where she and Pence worked as waitresses at around 3 a.m. on the morning of the murders and asked her about Pence's whereabouts. Bennet noticed nothing unusual about the defendant's speech other than that he was angry and she believed he was sober. Duane LaVell, another ...