APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
506 N.E.2d 1033, 154 Ill. App. 3d 412, 107 Ill. Dec. 142 1987.IL.478
Appeal from the Circuit Court of Peoria County; the Hon. Robert E. Manning, Judge, presiding.
JUSTICE BARRY delivered the opinion of the court. SCOTT, P.J., and HEIPLE, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY
The petitioner, Steven Bone, was convicted of murder, felony murder, and two counts of armed robbery. (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a)(2), 9-1(a)(3), 18-2.) On direct appeal, this court vacated the felony murder conviction and remanded the case for resentencing. On resentencing, the trial court imposed concurrent sentences of 40 years for murder and 20 years for armed robbery. This court affirmed the sentences.
The petitioner then filed a pro se petition for post-conviction relief. The trial court ordered that counsel be appointed to represent the petitioner and gave defense counsel 45 days to file an amended petition. Following a hearing on the petition, the court granted the State's motion to dismiss the post-conviction petition. The petitioner appeals the order of dismissal.
On appeal, the petitioner first argues that he was denied effective assistance of counsel when his attorney, in his closing argument, conceded the petitioner's guilt of felony murder and armed robbery. Further, the petitioner contends that his appellate counsel was also ineffective in not raising the issue on direct appeal.
The record shows that the petitioner pleaded not guilty to all of the charges. The State's evidence, presented in part through the testimony of one eyewitness and the stipulated testimony of two other eyewitnesses, showed that the petitioner walked into a gas station, shot and killed an attendant without provocation, then demanded that the other attendant give him the money in the cash registers. The State also presented evidence that the weapon belonged to the petitioner and that the petitioner was in the immediate vicinity of the station before and after the offenses.
After the State rested its case, the petitioner expressly refused to take the witness stand, despite his counsel's advice that he should testify. The petitioner confirmed his decision to the Judge out of the presence of the jury. Having no witnesses, the defense rested its case.
During closing arguments, defense counsel argued at length that the evidence left a reasonable doubt regarding whether the petitioner had shot the attendant intentionally or accidentally. The essence of counsel's argument was that the State had not proved the intent element necessary to convict the petitioner of murder. While making this argument, which defense counsel repeatedly stated was limited to the murder charge, counsel said, "Well, you heard the evidence and I heard the evidence, and I certainly would agree that he did perform the acts that caused the death of [the victim]."
The petitioner's attorney made no arguments or admissions specifically regarding the felony murder and armed robbery charges. The petitioner argues, however, that the quoted statement admitted by implication the petitioner's guilt of felony murder and armed robbery.
Our analysis of this case proceeds from People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513. In Hattery, the defendant was charged with murder and pleaded not guilty. Nonetheless, the defendant's trial counsel admitted during his opening statement that the defendant had done everything the prosecution alleged in its opening statement. The defense counsel went so far as to state that the defense was not asking the jury to find the defendant not guilty and that in fact the jury would find him guilty. During the trial, the defense counsel advanced no theory of defense, presented no evidence, and made no closing argument. Instead, counsel attempted to show through cross-examination that the defendant had murdered three people because he believed a co-defendant would have murdered the defendant's family if he did not do so.
On appeal, the defendant argued that he received ineffective assistance of counsel. The Illinois Supreme Court first noted the traditional test for determining ineffective assistance of counsel claims as set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Under the Strickland test, a defendant must show: (1) that his counsel's performance fell below an objective standard of reasonableness, and (2) that there is a ...